NCI BUILDING SYSTEMS, INC. 2003 LONG-TERM STOCK INCENTIVE PLAN PERFORMANCE SHARE AWARD AGREEMENT
NCI BUILDING SYSTEMS, INC. 2003 LONG-TERM STOCK INCENTIVE PLAN
PERFORMANCE SHARE AWARD AGREEMENT
2012 AWARD
NCI Building Systems, Inc., a Delaware corporation (the “Company”), hereby grants to Grantee, effective as of July 30, 2012 (the “Grant Date”), pursuant to the provisions of the NCI Building Systems, Inc. 2003 Long-Term Stock Incentive Plan, as in effect on the Grant Date (the “Plan”), a special award (this “Performance Share Award” or “Award”) equal to the target number (the “Target” or “Target Number”) of performance share units (“PSUs”) set forth in the letter dated July 30, 2012 advising Grantee of this Award (the “Award Letter”), upon and subject to the terms and conditions set forth in this Performance Share Agreement, including Exhibit A hereto (“Exhibit A”) (this “Agreement”) and in the Plan. Unless otherwise defined in this Agreement, capitalized terms used in this Agreement shall have the meanings assigned to them in the Plan and in the Award Letter. Grantee acknowledges receipt of a copy of the Plan in effect as of the date hereof, the terms and conditions of which are incorporated herein by reference.
1. Effect of the Plan. The PSUs granted to Grantee are subject to all of the provisions of the Plan and of this Agreement, together with all rules and determinations from time to time issued by the Committee and by the Board pursuant to the Plan. The Company hereby reserves the right to amend, modify, restate, supplement or terminate the Plan without the consent of Grantee. This Award shall be subject, without further action by the Company or Grantee, to any amendment, modification, restatement or supplement to the Plan that is beneficial to, or increases the rights of, Grantee. This Award shall not be subject to any amendment, modification, restatement or supplement to the Plan that reduces or adversely affects the rights and benefits available to Grantee hereunder.
2. Grant; Effect on Annual Awards Through 2014.
(a) This Performance Share Award shall be granted effective as of the Grant Date. Each PSU which becomes earned and vested in accordance with the terms of this Agreement will entitle Grantee to receive from the Company one share of its common stock, $0.01 par value per share (the “Common Stock”), together with any dividend equivalents.
(b) ▇▇▇▇▇▇▇ agrees that this Award shall be subject to all of the terms and conditions set forth in this Agreement and the Plan, including, but not limited to, the provisions relating to the earning, vesting and forfeiture of PSUs set forth in Section 4 of this Agreement and Exhibit A, and the satisfaction of the Required Withholding as set forth in Section 9(a) of this Agreement.
(c) ▇▇▇▇▇▇▇ also acknowledges and agrees that due to the special nature of this Award, unless the Board of Directors of the Company or a committee thereof decides otherwise, by accepting this Award, Grantee will not receive annual awards of restricted stock, stock options or other equity compensation prior to January 1, 2015 (i.e., Grantee will not receive awards which may otherwise be made in December 2012, 2013 and 2014 pursuant to the Company’s current practice with respect to the timing of annual equity awards).
3. Vesting Schedule; Service Requirements. Except as provided otherwise in Section 4 of this Agreement (and Section 4 of Exhibit A), the PSUs shall be earned and vest only if Grantee’s continuing employment or consulting relationship with the Company or any Subsidiary (“Continuous Service”) is not terminated during the period commencing with the Grant Date and ending with the applicable date that any earned PSUs vest (as applicable, a “Vesting Date”). The determination of the number of PSUs, if any, which become earned and the date upon which any such earned PSUs vest and become payable shall be determined in accordance with Exhibit A.
4. Conditions of Forfeiture.
(a) Upon any termination of ▇▇▇▇▇▇▇’s Continuous Service (the “Termination Date”):
(i) by the Company for Cause (as hereinafter defined) or by ▇▇▇▇▇▇▇’s voluntary resignation without Good Reason (as hereinafter defined) before the PSUs become vested, all PSUs as of the Termination Date, whether earned or unearned, shall, without further action of any kind by the Company or Grantee, be forfeited; or
(ii) due to death or Disability, or by the Company without Cause or by ▇▇▇▇▇▇▇’s voluntary resignation with Good Reason (each a “Qualifying Termination”) before the PSUs become vested, the number of the PSUs that may or shall become earned and vested, or may or shall be forfeited, shall be determined in accordance with Section 4 of Exhibit A.
(b) The number of PSUs, if any, that shall become earned and vested upon a Change in Control shall be determined as set forth in Exhibit A, provided, however, that, for the avoidance of doubt, clause (i) of the definition of “Change in Control” set forth in the Plan shall not be deemed to include an acquisition by a person which is inadvertent and/or otherwise not entered into for the purpose of, and does not have the effect of, changing or influencing the control of the Company.
(c) For purposes of this Agreement, “Cause” shall have the meaning ascribed to such term in Grantee’s current employment agreement with the Company or any of its Subsidiaries (the “Employment Agreement”) or, if no such Employment Agreement exists or if “Cause” is not defined in the Employment Agreement, “Cause” means:
(i) Grantee’s failure or inability for any reason to devote substantially all of his business time and effort to the performance of his duties and responsibilities to the Company and its Subsidiaries (vacation time and absence due to sickness or disability being excepted herefrom) and such failure or inability continues for a period of thirty (30) days after written notice by the Company of the existence of such failure or inability; provided, however, that only one such notice by the Company need be sent and, if such failure re-occurs thereafter, no further notice and opportunity to cure such failure shall be required;
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(ii) indictment for, or conviction of, or plea of nolo contendere to, a felony, other than a felony involving the operation of a motor vehicle which does not result in serious bodily harm to any person;
(iii) breach or failure by ▇▇▇▇▇▇▇ to perform any of his material covenants contained in the Employment Agreement that is not cured within thirty (30) days after written notice by the Company of the breach or failure to perform; provided, however, that only one such notice by the Company need be sent and, if such failure re-occurs thereafter, no further notice and opportunity to cure such failure shall be required;
(iv) disregard or failure to use commercially reasonable efforts to carry out the reasonable and lawful instructions of any employee to whom Grantee reports or the Board of Directors of the Company, or a material violation of policies established by the Company, with respect to the operation of its business and affairs that continues for a period of thirty (30) days after written notice by the Company of the existence of such violation, disregard or failure; provided, however, that only one such notice by the Company need be sent and, if such violation, disregard or failure re-occurs thereafter, no further notice and opportunity to cure such violation, disregard or failure shall be required;
(v) an act committed by Grantee which (A) brings the Company or any of its Subsidiaries into public disgrace, or (B) ▇▇▇▇▇ the business operations of the Company or any of its Subsidiaries; provided, however, that the Board of Directors of the Company must first provide to Grantee written notice clearly and fully describing the particular acts or omissions which the Board reasonably believes in good faith constitutes Cause under this subsection and an opportunity, within thirty (30) days following his receipt of such notice, to meet in person with the Board of Directors to explain or defend the alleged acts or omissions relied upon by the Board of Directors and, to the extent practicable, to cure such acts or omissions;
(vi) habitual insobriety or illegal use of controlled substances by Grantee; or
(vii) breach or failure by Grantee to comply in any material respect with the Company’s Corporate Governance Guidelines, Code of Business Conduct and Ethics or Employee Policy Manual (as the same may be amended, restated, extended, supplemented or otherwise modified in writing from time to time in the sole discretion of the Board of Directors of the Company) that is not cured within thirty (30) days after written notice by the Company of the breach or failure to perform; provided, however, that only one such notice by the Company need be sent and, if such breach or failure reoccurs thereafter, no further notice and opportunity to cure such breach or failure shall be required.
(d) For purposes of this Agreement, “Good Reason” shall have the meaning ascribed to such term in the Employment Agreement or, if no such Employment Agreement exists or if “Good Reason” is not defined in the Employment Agreement, “Good Reason” means any of the following events that occurs without ▇▇▇▇▇▇▇’s prior written consent:
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(i) any reduction in the amount of Grantee’s then-current base salary in excess of ten percent (10%) in any twelve month period;
(ii) (A) a material reduction in Grantee’s title; or (B) a material, adverse reduction in the duties or responsibilities of Grantee relative to ▇▇▇▇▇▇▇’s then-current duties and responsibilities or, if applicable Grantee’s duties and responsibilities as described in the Employment Agreement;
(iii) the breach or failure by the Company or Employer to perform any of its material covenants contained in the Employment Agreement, if any; or
(iv) any relocation of ▇▇▇▇▇▇▇’s principal place of employment outside the Houston, Texas metropolitan area (or, as to a Grantee whose principal place of employment is outside of the Houston Texas, metropolitan area, any relocation of such Grantee’s principal place of employment by more than 50 miles).
In order for a termination by Grantee to constitute a termination for Good Reason, Grantee must notify the Company of the circumstances claimed to constitute Good Reason in writing not later than the thirtieth (30th) day after such circumstances have arisen or occurred and must provide the Company with at least thirty (30) days within which to cure such circumstances before terminating employment, and, failing a cure, Grantee must terminate his employment within thirty (30) days following the expiration of such cure period.
5. Non-Transferability of PSUs; Restriction on Transferability of Common Stock Issued under this Award.
(a) Grantee may not directly or indirectly sell, transfer, pledge, exchange, hypothecate, or otherwise encumber or dispose of any of the PSUs, or any right or interest therein, by operation of law or otherwise (including through hedging transactions). Any transfer of the PSUs in violation of this Section 5 shall be void and of no force or effect.
(b) Except as may otherwise be permitted by the Board of Directors of the Company or a committee thereof, Grantee may not directly or indirectly sell, transfer, pledge, exchange, hypothecate, or otherwise encumber or dispose of any of the shares of Common Stock issued to Grantee with respect to earned and vested PSUs (“PSU Award Shares”), or any right or interest therein, by operation of law or otherwise (including through hedging transactions), until the earliest of (1) January 1, 2017, (2) the date of Grantee’s Qualifying Termination or retirement after reaching Normal Retirement Age, or (3) the date of a Change in Control; provided, however, such restriction on transfer shall lapse earlier as to the number of such PSU Award Shares on a January 1 (the “Calculation Date”) that equals (A) the number of such Shares, multiplied by (B) the Investor Transfer Percentage (as hereinafter defined). The “Investor Transfer Percentage” shall equal:
(i) the difference between (x) the aggregate number of shares of Series B Cumulative Convertible Participating Preferred Stock, including for this purpose any such preferred shares converted to Common Stock (the “Preferred Shares”), beneficially owned by ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & ▇▇▇▇ Fund VIII, L.P. and CD&R Friends & Family Fund VIII, L.P. (the “Investor Funds”) as of the Grant Date, as adjusted to reflect the reverse stock split, (the “Grant Date Investor Shares”), minus (y) the aggregate number of Preferred Shares beneficially owned by the Investor Funds or any of their affiliates on the Calculation Date; divided by
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(ii) the Grant Date Investor Shares.
Any transfer in violation of this Section 5 shall be void and of no force or effect, and shall result in the immediate forfeiture of the PSU Award Shares subject to such attempted transfer. Notwithstanding the foregoing transfer restrictions, PSU Award Shares may be transferred as necessary to effect the withholding referred to in Section 9(a) of the Agreement.
6. Rights as a Stockholder; Dividend Equivalents. Until such time as PSU Award Shares are issued in payment for earned and vested PSUs, Grantee shall not have the rights of a stockholder with respect to the PSUs, including the right to vote or to receive any dividends, cash or stock (other than stock dividends accounted for as a stock split), paid or delivered thereon, from and after the date hereof; provided, however, that in the event that the Company pays any cash dividend, the PSUs will accumulate cash dividend equivalents. The dividend equivalents shall equal the dividends paid with respect to the Common Stock during the period (and to the extent) the PSUs remain outstanding and unpaid. The dividend equivalents shall accumulate, without interest, and be paid in cash at the time the PSU Award Shares are paid with respect to any earned and vested PSUs, or shall be forfeited at the time the PSUs are forfeited. For purposes of determining the amount of dividend equivalents accumulated and to be paid with respect to any earned and vested PSUs, the PSU Award Shares which are payable shall be considered to have been outstanding from the Grant Date. In the event of forfeiture of PSUs, Grantee shall have no further rights with respect to such PSUs.
7. Capital Adjustments and Corporate Events. If, from time to time during the term of this Agreement, there is any capital adjustment affecting the outstanding Common Stock as a class without the Company’s receipt of consideration (including stock dividends accounted for as a stock split or other non-cash dividends), the PSUs and/or PSU Award Shares payable thereunder shall be adjusted in accordance with the provisions of Section 12 of the Plan. Any and all new, substituted or additional securities to which Grantee may be entitled by reason of ▇▇▇▇▇▇▇’s ownership of the PSUs or PSU Award Shares hereunder because of a capital adjustment shall be immediately subject to the provisions of this Agreement.
8. Refusal to Transfer. The Company shall not be required (i) to transfer on its books any PSU Award Shares that have been sold or otherwise transferred in violation of any of the provisions of this Agreement or the Plan, or (ii) to treat as owner of such PSU Award Shares, or accord the right to vote or pay or deliver dividends or other distributions to, any purchaser or other transferee to whom or which Grantee shall have attempted to transfer such PSU Award Shares.
9. Tax Matters. The Company’s obligation to deliver PSU Award Shares and dividend equivalents to Grantee upon the vesting of earned PSUs shall be subject to the satisfaction of all applicable federal, state and local income and employment tax withholding requirements (the “Required Withholding”). Unless Grantee has made arrangements with the Company for Grantee to deliver to the Company cash, a check or other available funds for the full amount of the Required Withholding by 5:00 P.M. Central Standard Time on the date that the earned PSUs become vested, or by such date Grantee has not made such other provision for the satisfaction of the Required Withholding in form satisfactory to the Committee or Board, in its sole discretion, the Company shall first withhold any cash payable for dividend equivalents and then PSU Award Shares payable. The amount of the Required Withholding and the number of PSU Award Shares to be withheld by the Company, if applicable, to satisfy Grantee’s Required Withholding, as well as the amount reflected on tax reports filed by the Company, shall be based on the value of the shares determined by using the last sales price of the Common Stock (as reported by the New York Stock Exchange) on the date prior to the applicable Vesting Date. The obligations of the Company under this Agreement shall be conditioned on such satisfaction of the Required Withholding.
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10. Covenants of Grantee.
(a) For the period beginning on the Grant Date through the fifth anniversary of the Grant Date, Grantee shall not, directly or indirectly and whether on his own behalf or on behalf of any other person, partnership, association, corporation or other entity, engage in or be an owner, director, officer, employee, agent, consultant or other representative of or for, or lend money or equipment to or otherwise support, any business that manufactures, engineers, markets, sells or provides, within a 250-mile radius of any then existing manufacturing facility of the Company and its subsidiaries and affiliates, metal building systems or components (including, without limitation, primary and secondary framing systems, roofing systems, end or side wall panels, doors, windows or other metal components of a building structure), coated or painted steel or metal coils, coil coating or painting services, or any other products or services that are the same as or similar to those manufactured, engineered, marketed, sold or provided by the Company or its subsidiaries and affiliates during the Continuous Service of Grantee. Ownership by Grantee of equity securities of the Company, or of equity securities in other publicly owned companies constituting less than 1% of the voting securities in such companies, shall be deemed not to be a breach of this covenant.
(b) For the period beginning on the Grant Date through the fifth anniversary of the Grant Date, Grantee shall not, directly or indirectly and whether on his own behalf or on behalf of any other person, partnership, association, corporation or other entity, either (i) hire, seek to hire or solicit the employment or service of any employee, agent or consultant of the Company or its subsidiaries and affiliates, (ii) in any manner attempt to influence or induce any employee, agent or consultant of the Company or its Subsidiaries and affiliates to leave the employment or service of the Company or its Subsidiaries and affiliates; (iii) use or disclose to any person, partnership, association, corporation or other entity any information concerning the names and addresses of any employees, agents or consultants of the Company or its Subsidiaries and affiliates unless required by due process of law; or (iv) call upon, solicit, divert or attempt to call upon, solicit or divert the business of any customer, vendor or acquisition prospect of the Company or any of its Subsidiaries or affiliates with whom Grantee dealt, directly or indirectly, during his engagement with the Company or its Subsidiaries or affiliates.
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(c) Prior to the vesting of any earned PSUs, for purposes of the covenants made in this Section 10, the Company promises to provide Grantee (as is necessary for Grantee’s position) with various trade secrets and proprietary and confidential information consisting of, but not limited to, processes, computer programs, compilations of information, records, sales procedures, customer requirements, pricing techniques, customer lists, methods of doing business and other confidential information (collectively referred to as the “Trade Secrets”), which are owned by the Company and regularly used in the operation of its business, but in connection with which the Company takes precautions to prevent dissemination to persons other than certain directors, officers and employees. ▇▇▇▇▇▇▇ acknowledges and agrees that the Trade Secrets (a) are secret and not known in the industry or to the public; (b) are entrusted to him after being informed of their confidential and secret status by the Company and because of the fiduciary position occupied by him with the Company; (c) have been developed by the Company for, and on behalf of, the Company through substantial expenditures of time, effort and money and are used in its business; (d) give the Company an advantage over competitors who do not know or use the Trade Secrets; (e) are of such value and nature as to make it reasonable and necessary to protect and preserve the confidentiality and secrecy of the Trade Secrets; and (f) the Trade Secrets are valuable, special and unique assets of the Company, the disclosure of which could cause substantial injury and loss of profits and goodwill to the Company. Grantee shall not use in any way or disclose any of the Trade Secrets, directly or indirectly, during his Continuous Service with the Company, or at any time thereafter, except as required in the course of his Continuous Service with the Company. All files, records, documents, information, data and similar items relating to the business of the Company, whether prepared by Grantee or otherwise coming into his possession, shall remain the exclusive property of the Company and shall not be removed from the premises of the Company under any circumstances without the prior written consent of the Board of Directors of the Company (except in the ordinary course of business during ▇▇▇▇▇▇▇’s Continuous Service with the Company), and in any event shall be promptly delivered to the Company upon termination of ▇▇▇▇▇▇▇’s Continuous Service for any reason. ▇▇▇▇▇▇▇ agrees that, upon his receipt of any subpoena, process or other request to produce or divulge, directly or indirectly, any Trade Secrets to any entity, agency, tribunal or person, he shall timely notify and promptly hand deliver a copy of the subpoena, process or other request to the Chairman of the Board and Chief Executive Officer of the Company. For this purpose, ▇▇▇▇▇▇▇ irrevocably nominates and appoints the Company (including any attorney retained by the Company), as his true and lawful attorney-in-fact, to act in his name, place and ▇▇▇▇▇ to perform any act that he might perform to defend and protect against any disclosure of any Trade Secrets.
(d) For the period beginning on the Grant Date through the fifth anniversary of the Grant Date, Grantee shall not for any reason whatsoever (whether or not related to this Agreement or the PSUs) institute any legal proceedings against the Company, any of its subsidiaries, or any of its officers, directors, agents or representatives.
(e) i) The parties hereto intend all provisions of subsections (a), (b), (c) and (d) of this Section 10 to be enforced to the fullest extent permitted by law. Accordingly, should a court of competent jurisdiction determine that the scope of any provision of subsections (a), (b), (c) or (d) of this Section 10 is too broad to be enforced as written, the parties intend that the court may reform the provision to such narrower scope as it determines to be reasonable and enforceable, and, in the event the court reforms Section 10(a) hereof, the Company may elect to either accept enforcement of the provision as so modified or require the return of cash or shares as set forth in Section 10(e)(ii). In addition, however, ▇▇▇▇▇▇▇ agrees that the non-competition agreements, non-employment agreements, non-disclosure and no litigation agreements set forth above each constitute separate agreements independently supported by good and adequate consideration and shall survive this Agreement. The existence of any claim or cause of action of Grantee against the Company, except for a breach of this Agreement by the Company or its subsidiaries, shall not constitute a defense to the enforcement by the Company of the covenants and agreements of Grantee contained in the non-competition, non-employment, non-disclosure and no litigation agreements.
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(ii) If in connection with the challenge by Grantee of any provision of Section 10(a), any court of competent jurisdiction determines that the non-competition agreement in Section 10(a) hereof is void or unenforceable or modifies Section 10(a) and the Company declines to accept the modification, Grantee agrees to return to the Company an amount equal to 80% of the total value awarded Grantee under this Award, whether in the form of (A) Common Stock owned by Grantee, (B) cash or other immediately available funds in an amount equal to the then fair market value of the applicable number of shares of Common Stock received by Grantee under this Agreement determined by using the last sales price of the Common Stock (as reported by the New York Stock Exchange) on the date such determination is made, or (C) any combination of (A) and (B).
(f) Grantee hereby agrees that a breach of any of the provisions of this Section 10 would cause irreparable injury to the Company and its Subsidiaries and affiliates, for which they would have no adequate remedy at law. If Grantee breaches or threatens to breach any of the covenants set forth in this Section 10, then without regard for any provision to the contrary, including Section 13 hereof, the Company shall have the right to immediately seek injunctive relief from a court having jurisdiction for any actual or threatened breach of this Section 10 without necessity of complying with any requirement as to the posting of a bond or other security (it being understood that Grantee hereby waives any such requirement). Any such injunctive relief shall be in addition to any other remedies to which the Company may be entitled at law, in equity or otherwise. ▇▇▇▇▇▇▇ hereby agrees that upon receipt of notice of the Company’s intent to seek injunctive relief, Grantee will not sell, transfer, pledge, exchange, hypothecate, or otherwise encumber or dispose of any of the PSU Award Shares received under this Agreement, or any right or interest therein, pending the final resolution of such injunctive relief proceeding. In addition, Grantee shall, within ten (10) business days after it is ultimately determined that he has committed such a breach hereof, whether in an injunctive proceeding brought under this Section 10(f) or pursuant to the dispute resolution provisions of Section 13 hereof, either (i) redeliver to the Company PSU Award Shares received under this Agreement, if still owned by Grantee, or (ii) reimburse the Company an amount equal to the then fair market value of the PSU Award Shares received under this Agreement determined by using the last sales price of the Common Stock (as reported by the New York Stock Exchange) on the date such determination is made; which amount shall be paid to the Company in cash or other immediately available funds.
(g) By acceptance of this Agreement, ▇▇▇▇▇▇▇ agrees to cooperate with, provide information to, and to participate in such exams and activities as requested by, the Company, if the Company, in its sole discretion, elects to obtain insurance or make other financial arrangements to fund or otherwise assure or assist in the performance and satisfaction of the Company’s obligations and liabilities under this Agreement.
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11. Entire Agreement; Governing Law. The Plan and this Agreement constitute the entire agreement of the Company and Grantee (collectively, the “Parties”) with respect to the subject matter hereof and supersede in their entirety all prior undertakings and agreements of the Parties with respect to the subject matter hereof. If there is any inconsistency between the provisions of this Agreement and of the Plan, the provisions of the Plan shall govern. Nothing in the Plan and this Agreement (except as expressly provided therein or herein) is intended to confer any rights or remedies on any person other than the Parties. The Plan and this Agreement are to be construed in accordance with and governed by the internal laws of the State of Texas, without giving effect to any choice-of-law rule that would cause the application of the laws of any jurisdiction other than the internal laws of the State of Texas to the rights and duties of the Parties. Should any provision of the Plan or this Agreement relating to the PSUs or the PSU Award Shares (excluding for this purpose the provisions of Section 10(a), which is addressed in Section 10(e)) be determined by a court of law to be illegal or unenforceable, such provision shall be enforced to the fullest extent allowed by law and the other provisions shall nevertheless remain effective and shall remain enforceable.
12. Interpretive Matters. Whenever required by the context, pronouns and any variation thereof shall be deemed to refer to the masculine, feminine, or neuter, and the singular shall include the plural, and vice versa. The term “include” or “including” does not denote or imply any limitation. The captions and headings used in this Agreement are inserted for convenience and shall not be deemed a part of the Award or this Agreement for construction or interpretation.
13. Dispute Resolution. Except as provided in Section 10 hereof, the provisions of this Section 13 shall be the exclusive means of resolving disputes of the Parties (including any other persons claiming any rights or having any obligations through the Company or Grantee) arising out of or relating to the Plan and this Agreement. The Parties shall attempt in good faith to resolve any disputes arising out of or relating to the Plan and this Agreement by negotiation between individuals who have authority to settle the controversy. Either Party may commence negotiations by delivering to the other Party a written statement of the Party’s position and the name and title of the individual who will represent the Party. Within thirty (30) days of the written notification, the Parties shall meet at a mutually acceptable time and place, and thereafter as often as they reasonably deem necessary, to resolve the dispute. If the dispute has not been resolved by negotiation within ninety (90) days of the written notification of the dispute, either Party may file suit and each Party agrees that any suit, action, or proceeding arising out of or relating to the Plan or this Agreement shall be brought in the United States District Court for the Southern District of Texas (or should such court lack jurisdiction to hear such action, suit or proceeding, in a Texas state court in ▇▇▇▇▇▇ County, Texas) and that the Parties shall submit to the jurisdiction of such court. The Parties irrevocably waive, to the fullest extent permitted by law, any objection a Party may have to the laying of venue for any such suit, action or proceeding brought in such court. THE PARTIES ALSO EXPRESSLY WAIVE ANY RIGHT THEY HAVE OR MAY HAVE TO A JURY TRIAL OF ANY SUCH SUIT, ACTION OR PROCEEDING. If any one or more provisions of this Section 13 shall for any reason be held invalid or unenforceable, it is the specific intent of the Parties that such provisions shall be modified to the minimum extent necessary to make it or its application valid and enforceable.
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14. Nature of Payments. Any and all grants or deliveries to Grantee hereunder shall constitute special incentive payments to Grantee and shall not be taken into account in computing the amount of salary or compensation of Grantee for the purpose of determining any retirement, death or other benefits under (a) any retirement, bonus, life insurance or other employee benefit plan of the Company, or (b) any agreement between the Company and Grantee, except as such plan or agreement shall otherwise expressly provide.
15. Payment of Par Value. Notwithstanding any other provision in this Agreement, the Company’s obligation to deliver PSU Award Shares to Grantee upon the vesting of earned PSUs shall be subject to the payment in full of the requisite par value per share of the shares to be issued prior to such issuance (collectively, the “Par Value”). If the Company has not received from Grantee cash, a check or other available funds for the full amount of the Par Value by 5:00 P.M. Central Standard Time upon or within five (5) days after the Vesting Date, Grantee hereby authorizes the Company to withhold the amount of the Par Value from the base salary payable to Grantee from the Company.
16. Amendment; Waiver. This Agreement may be amended or modified only by means of a written document or documents signed by the Company and Grantee. Any provision for the benefit of the Company contained in this Agreement may be waived, either generally or in any particular instance, by the Board or by the Committee. A waiver on one occasion shall not be deemed to be a waiver of the same or any other breach on a future occasion.
17. Notice. Any notice or other communication required or permitted hereunder shall be given in writing and shall be deemed given, effective, and received upon prepaid delivery in person or by courier or upon the earlier of delivery or the third business day after deposit in the United States mail if sent by certified mail, with postage and fees prepaid, addressed to the other Party at the Company’s principal executive office or the address of Grantee in the records and books of the Company, or to such other address as such Party may designate in writing from time to time by notice to the other Party in accordance with this Section 17.
BY ACCEPTING THIS AGREEMENT, ▇▇▇▇▇▇▇ ACKNOWLEDGES AND AGREES THAT THE PERFORMANCE SHARE UNITS SUBJECT TO THIS AWARD SHALL BE EARNED, VEST AND AMOUNTS WILL BE PAYABLE IF AT ALL, ONLY DURING THE PERIOD OF GRANTEE’S CONTINUOUS SERVICE OR AS OTHERWISE PROVIDED IN THIS AGREEMENT (NOT THROUGH THE ACT OF BEING GRANTED THE AWARD). ▇▇▇▇▇▇▇ FURTHER ACKNOWLEDGES AND AGREES THAT NOTHING IN THIS AGREEMENT OR THE PLAN SHALL CONFER UPON GRANTEE ANY RIGHT WITH RESPECT TO FUTURE AWARDS OR CONTINUATION OF GRANTEE’S CONTINUOUS SERVICE. ▇▇▇▇▇▇▇ acknowledges receipt of a copy of the Plan, represents that he or she is familiar with the terms and provisions thereof, and ▇▇▇▇▇▇ accepts the Award subject to all of the terms and provisions hereof and thereof. Grantee has reviewed this Agreement and the Plan in their entirety, has had an opportunity to obtain the advice of counsel prior to executing this Agreement, and fully understands all provisions of this Agreement and the Plan. ▇▇▇▇▇▇▇ hereby agrees that all disputes arising out of or relating to this Agreement and the Plan shall be resolved in accordance with Section 13 of this Agreement. ▇▇▇▇▇▇▇ further agrees to notify the Company upon any change in the address for notice indicated in this Agreement.
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Exhibit A to Performance Share Award Agreement
TSR-Based Performance Objective
.
1. TSR-Based Performance Objective:
(a) Performance Objectives and Performance Goal: The Performance Objective applicable to this Award is Total Shareholder Return or TSR (as defined below).
(b) Certification of Achievement Relative to Performance Objective: Following the end of the Performance Period, the Company’s Compensation Committee will certify the extent to which the Performance Objective has been achieved. Performance at or above the threshold level of the Performance Objective will result in a percentage of the Target Number of PSUs becoming earned as set forth below. Earned PSUs will vest as set forth below. PSUs will be forfeited in full if the Company’s performance for the Performance Period does not meet or exceed the threshold level of the Performance Objective. To the extent the earned PSUs are less than the Target Number of PSUs, such excess PSUs shall be forfeited and cancelled. The certification of the level of the Performance Objective achieved and the corresponding number of PSUs earned shall occur no later than fifteen days after the end of the Performance Period.
(c) Vesting Date for Earned PSUs: Subject to Section 5 below, 100% of the earned PSUs will vest on July 15, 2015, provided that Grantee is then serving as an employee of the Company or any Subsidiary .
(d) Payment of Shares for Earned and Vested: The Company will issue shares of Common Stock (“PSU Award Shares”) and pay dividend equivalents to Grantee with respect to vested earned PSUs, in each case as provided in the Agreement, not later than 15 days following the date such earned PSUs become vested.
2. Additional Definitions.
(a) “Performance Period” means the three-year period commencing July 1, 2012 and ending June 30, 2015.
(b) “Total Shareholder Return” or “TSR” means the change in the value of a share of the Common Stock at the beginning of the Performance Period as compared to the value of a share of the Common Stock at the end of the Performance Period, plus the value of dividends and distributions made or declared during the Performance Period (assuming such dividends or distributions were reinvested in Common Stock), expressed as a percentage return (to four decimal places). For purposes of computing TSR, the value of a share of Common Stock at the beginning of the Performance Period shall be deemed to be $10.00, and, except as provided in the event of a Change in Control, the value of a share of Common Stock (and the value of dividends deemed reinvested in Common Stock) at the end of the Performance Period shall be determined based on the average closing price of a share of Common Stock over the 20 trading days ending on the last trading day of the Performance Period, in each case, adjusted for changes in capital structure during the Performance Period.
3. Calculation. For purposes of the Award and this Exhibit A, the number of PSUs earned will be calculated as follows:
FIRST: Determine the TSR for the Performance Period.
SECOND: Plot the TSR into the appropriate band in the left-hand column of the table below and determine the number of PSUs earned as a percent of Target, which is the figure in the right-hand column of the table below corresponding to that TSR. Use linear interpolation between points in the table below to determine corresponding PSUs Earned if the Company’s TSR is not exactly one of the TSR percentages listed in the left-hand column. For example, if the Company’s TSR is 110.25%, then 120.5% of the Target Number of PSUs would be earned. The maximum number of PSUs which may be earned is 300% of Target.
| TSR % | % target PSUs earned |
| 0% or below | 0% |
| Above 0% up to 100% | 1% for each 1% of TSR |
| 100% and above up to 200% | 100% plus 2% for each 1% of TSR above 100% |
| 200% and above | 300% (maximum) |
4. Effect of Certain Events. The following provisions will apply in the event of the termination of employment or the occurrence of a Change in Control prior to the end of the Performance Period or completion of the vesting period.
(a) Termination of Employment Prior to a Change in Control.
(i) Termination for Any Reason Other Than Due to a Qualifying Termination: In the event ▇▇▇▇▇▇▇’s employment with the Company terminates for any reason other than a Qualifying Termination, this Award shall terminate, all outstanding unvested PSUs, whether earned or unearned, will be forfeited and cancelled and no additional amounts shall become payable under this Award as of the date of such employment termination.
(ii) Termination Due to Qualifying Termination: In the event ▇▇▇▇▇▇▇’s employment with the Company terminates due to Grantee’s Qualifying Termination, all outstanding unvested PSUs shall be forfeited and cancelled, or shall become earned and vested, as provided below.
First: If the Qualifying Termination occurs prior to the end of the Performance Period (including circumstances where the Performance Period ends due to a Change in Control), a prorated number of PSUs shall become earned and vested at the end of the Performance Period as follows. Such prorated number of PSUs shall be equal to the product of (a) the number of PSUs earned (as certified by the Committee following the end of the Performance Period, and determined as if Grantee remained continuously employed through the end of the Performance Period), multiplied by (b) a proration fraction, the numerator of which is the number of days elapsed in the Performance Period through the date of termination and the denominator of which is 1,095. PSU Award Shares and dividend equivalents underlying such vested PSUs shall be distributed following the Performance Period at such time as distributions are made with respect to other earned PSUs to other grantees.
| A-2 |
Second: If the Qualifying Termination occurs after the end of the Performance Period, then any earned (as certified by the Committee), but unvested, PSUs shall become vested in full as of the date of termination. PSU Award Shares and dividend equivalents underlying such vested PSUs shall be distributed at such time as distributions are made with respect to other earned PSUs to other grantees.
(b) Effect of Change in Control. In the event of a Change in Control prior to the Grantee’s termination of employment for any reason, the number of PSUs earned shall be calculated and certified by the Committee, as provided below, such earned PSUs shall become vested, and PSU Award Shares and dividend equivalents underlying the earned PSUs shall be payable on or within five days after the date of the Change in Control.
First: If the Performance Period has not been completed, there shall be determined the number of PSUs that would be earned if the Performance Period was the period which began on July 1, 2012 and ended on the date of the Change in Control. The Company TSR at the end of the Performance Period for purposes of this calculation shall be determined using the per share value of the Common Stock as of the date of the Change in Control instead of a 20 trading day average ending on the last day of the Performance Period.
Second: If the Performance Period has been completed, then the earned PSUs shall be equal to the number certified by the Committee.
| A-3 |