Exhibit 10.9
PERFORMANCE AWARD
AGREEMENT
BROADWIND ENERGY,
INC.
2007 EQUITY INCENTIVE
PLAN
THIS AGREEMENT, is entered into and
effective as of this
day of
,
20 , by and between
Broadwind Energy, Inc., a Delaware corporation (the
“Company”), and
(“Participant”).
RECITALS
A.
The Participant on the date hereof
is a key employee, officer or director of, or consultant or advisor
to, the Company or one of its Affiliates; and
B.
The Company wishes to grant a
performance share award to Participant pursuant to the
Company’s 2007 Equity Incentive Plan (the “Plan”)
to entitle the Participant to shares of the Company’s Common
Stock upon the achievement of certain specified performance
criteria; and
C.
The Administrator has authorized the
grant of such performance share award to Participant.
AGREEMENTS
In consideration of the premises and
of the mutual covenants herein contained, the parties hereto agree
as follows:
ARTICLE I. GRANT OF
PERFORMANCE AWARDS
A.
Grant of Performance Share
Award . The Company
hereby grants to Participant on the date set forth above (the
“Date of Grant”) the right to receive up to
( )
Performance Shares payable in shares of Common Stock on the terms
and conditions set forth herein (the “Performance Share
Award”).
B.
Grant of Performance Unit
Award . The Company
hereby grants to Participant on the Date of Grant the right to
receive up to
( )
Performance Units having a value of
$
per Unit (the “Per Unit Value”) payable in cash or the
terms and conditions set forth herein (the “Performance Unit
Award” and, together with the Performance Share Award, the
“Performance Award”).
ARTICLE II. PERFORMANCE
PERIOD
The Performance Period shall be the
period beginning
,
20 , and ending
,
20 .
ARTICLE III. PERFORMANCE
OBJECTIVES AND VESTING OF
PERFORMANCE AWARD
A.
General . Except as otherwise provided herein, the
Performance Shares or Performance Units subject to this Performance
Award shall vest only upon the achievement of all or a portion of
certain Performance Objectives, defined below, which must be
achieved within the Performance Period.
The Performance Objectives and the extent to
which achievement of all or a portion of the Performance Objectives
will result in the vesting of the Performance Shares or Performance
Units are as follows:
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Performance Objective(s)
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Achievement
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Percentage or Number of
Shares or Units Vested
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Notwithstanding the foregoing schedule, the
Administrator may delay the vesting of all or any portion of the
Performance Awards pursuant to Article X.J. herein; provided,
however, that such delay shall not extend the Performance Period
during which the above Performance Objectives must be
achieved. Subject to such other terms and conditions set
forth in this Agreement, the Participant shall not be entitled to
the issuance of any portion of the Performance Shares or
Performance Units subject to this Performance Award until the
Administrator determines the number of Performance Shares or
Performance Units, if any, which have vested.
B.
Termination of Employment Prior
to Vesting . If,
prior to the vesting of any Performance Shares or Performance
Units, Participant ceases to be [a key employee or officer] [a
consultant or advisor] [a director] of the Company or any
Affiliate for any reason, the Participant shall forfeit all
unvested Performance Shares or Performance Units, and this
Performance Award shall terminate; provided, however, that if the
Administrator delays the vesting and issuance of any Performance
Shares or Performance Units pursuant to Article X.J., the
Participant shall not forfeit any such Performance Shares or
Performance Units that otherwise would have vested prior to the
termination of Participant’s relationship had such vesting
not been so delayed, and, upon the issuance of such delayed vested
Performance Shares or Performance Units, this Performance Award
shall terminate.
C.
Termination of Employment After
Vesting But Prior to Issuance . If Participant ceases to be [a key
employee or officer] [a consultant or advisor] [a director] of
the Company or any Affiliate for any reason after Performance
Shares or Performance Units have vested but prior to the date such
Shares are issued or cash is distributed (as described in
Article III hereof), then Participant (or Participant’s
estate in the event of his death) shall be entitled to receive such
vested Performance Shares or Performance Units as if such
termination of employment had not occurred. Upon the issuance
of the vested Performance Shares or Performance Units, this
Performance Award shall terminate.
ARTICLE IV. FORM, TIME
OF ISSUANCE
The Administrator shall, within
( ) days after the end of the Performance
Period or at such earlier times as described in Article III
above, determine the number of Performance Shares and Performance
Units that have vested pursuant to Article III above and shall
calculate the amount of cash, if any, payable to Participant by
multiplying the Per Unit Value by such number of vested Performance
Units. Unless the Administrator delays the vesting and
issuance of such Performance Shares or Performance Units pursuant
to Article X.J., such Performance Shares or cash shall be
issued in the calendar year in which the date such Performance
Shares or Performance Units become vested; provided, however, that
the Participant shall receive cash equal to the Fair Market Value
of any fractional shares.
ARTICLE V.
NONTRANSFERABILITY
This Performance Award shall not be
transferable, in whole or in part, by Participant, other than by
will or by the laws of descent and distribution, prior to the date
the risks of forfeiture described in this
2
Agreement have lapsed. If Participant
shall attempt any transfer of this Performance Award prior to such
date, such transfer shall be void and this Performance Award shall
terminate.
ARTICLE VI. WITHHOLDING
TAXES
To permit the Company to comply with
all applicable federal and state income tax laws or regulations,
the Company may take such action as it deems appropriate to ensure
that, if necessary, all applicable federal and state payroll,
income or other taxes are withheld from any amounts payable by the
Company to Participant. If the Company is unable to withhold
such federal and state taxes, for whatever reason, Participant
hereby agrees to pay to the Company an amount equal to the amount
the Company would otherwise be required to withhold under federal
or state law. Subject to such rules as the Administrator
may adopt, the Administrator may, in its sole discretion, permit
Participant to satisfy such withholding tax obligations, in whole
or in part (i) by delivering shares of common stock, or
(ii) by electing to have the Company withhold shares of Common
Stock otherwise issuable to Participant as a result of the grant of
Performanc
