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Exhibit
10.30
PERFORMANCE-BASED
RESTRICTED STOCK UNITS
AWARD AGREEMENT
This Award Agreement (the
“Agreement”) is entered into as of
, 2007 by and between Electro Scientific Industries, Inc., an
Oregon corporation (the “Company”), and
(“Recipient”), for the grant of restricted stock units
with respect to the Company’s Common Stock (“Common
Stock”).
On July
, 2007, the Compensation Committee of the Company’s Board of
Directors made a restricted stock units award to Recipient pursuant
to the Company’s 2004 Stock Incentive Plan (the
“Plan”). The award is intended to qualify as
performance-based compensation under Section 162(m) of the
Internal Revenue Code of 1986. Recipient desires to accept the
award subject to the terms and conditions of this
Agreement.
IN CONSIDERATION of the
mutual covenants and agreements set forth in this Agreement, the
parties agree to the following.
1. Grant and Terms of
Restricted Stock Units . The Company grants to Recipient under
the Plan
restricted stock units, subject to the restrictions, terms and
conditions set forth in this Agreement.
(a) Rights under
Restricted Stock Units. A restricted stock unit (a
“RSU”) represents the unsecured right to require the
Company to deliver to Recipient one share of Common Stock for each
RSU. The number of shares of Common Stock deliverable with respect
to each RSU is subject to adjustment as determined by the Board of
Directors of the Company as to the number and kind of shares of
stock deliverable upon any merger, reorganization, consolidation,
recapitalization, stock dividend, spin-off or other change in the
corporate structure affecting the Common Stock
generally.
(b) Vesting. The RSUs
issued under this Agreement shall initially be 100% unvested and
subject to forfeiture as set forth below.
(i) Except as set forth in
Section 1(d), if Recipient ceases to be employed by the
Company for any reason or for no reason prior to the end of the
Performance Period (as defined below), the unvested RSUs shall be
forfeited to the Company.
(ii) To the extent that the
number of RSUs first specified above are reduced in accordance with
Section 1(b)(iii) upon achievement to any extent of the
Performance Goal (as defined below) and except as provided in
Section 1(d), the reduction shall be forfeited to the Company.
The extent to which the Performance Goal is achieved, if at all,
shall be determined no later than the date that the Company’s
fiscal year 2010 audit is completed (the “Determination
Date”). Nothing contained in this Agreement shall confer upon
Recipient any right to be employed by the Company or to continue to
provide services to the Company or to interfere in any way with the
right of the Company to terminate Recipient’s services at any
time for any reason, with or without cause.
(iii) The “Performance
Goal” shall be based on (A) the average earnings/(loss)
per share of the Company for the eleven quarter and two month
period comprised of (1) April 1, 2007 through
June 2, 2007 (determined by multiplying the reported earnings
for the fourth quarter of fiscal 2007 by .692), (2) the ten
month period ending March 29, 2008, (3) fiscal 2009 and
(4) fiscal 2010 (the “Performance Period”) as
compared to the average earnings/(loss) per share of the Company
for the twelve-quarter period comprised of fiscal 2005, 2006 and
2007 relative to (B) the average earnings/(loss) per share for
each member of the peer group companies set forth on Exhibit
A for the twelve-quarter period comprised of the three most
recent fiscal years for which annual earnings information is
available prior to the Determination Date (the “Comparable
Period”) as compared to the average earnings/(loss) per share
for such company for the twelve-quarter period comprised of the
three fiscal years preceding the Comparable Period. All information
with respect to members of the peer group will be based upon
publicly available information. The number of RSUs shall be
increased or reduced as follows:
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Company
Percentile Rank vs. Peer Group
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Portion of RSUs subject to this Agreement Vesting |
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³ 90 th
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200% |
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75 th
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150% |
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50 th
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100% |
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25 th
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50% |
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< 25 th
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0% |
RSUs will vest
proportionately between 50% and 200% for Company rankings between
the 25 th and
90 th percentiles. The Compensation Committee of the Board of
Directors may, in its discretion, permit the vesting of any or all
of the RSUs subject to this Agreement for a Company ranking below
the 25 th percentile. The number of RSUs determined pursuant to this
Section 1(b)(iii) shall vest on the last day of the
Performance Period, subject to Section 1(b)(i).
(c) Delivery Date.
Except as set forth in Section 1(d)(iv), the delivery date for
a RSU subject to this Agreement shall be as soon as practicable
after the Determination Date, but in no event later than
December 31 of the calendar year in which the Performance
Period ends.
(d) Proration upon
Termination for Certain Reasons Prior to End of Performance Period;
Treatment on Change in Control .
(i) Proration on Death or
Total Disability . If Recipient ceases to be an employee of the
Company by reason of Recipient’s death or physical disability
prior to the end of the Performance Period, the RSUs shall not be
forfeited under Section (b)(i) and the following shall
apply:
(1) The number of RSUs
Recipient would otherwise be entitled to receive pursuant to
Section 1(b)(iii) if Recipient were employed through the end
of the Performance Period (the “Base Payout”) shall be
reduced to a number determined by multiplying the Base Payout by a
percentage calculated by dividing the number of months elapsed from
the beginning of the Performance Period to the date of termination
of employment (rounded down to the whole month) by 24 (the
“Pro Rata Percentage”). RSUs that exceed the reduced
number shall be forfeited to the Company.
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(2) The Board of Directors or
the Compensation Committee of the Board of Directors, in its
discretion, may increase the number of RSUs the Recipient would
otherwise be entitled to receive under this Section 1(d)(i);
the Recipient shall have no right to any increase.
(3) The amount of RSUs
determined under (1) and (2) shall be delivered as soon
as practicable after the Determination Date, but in no event later
than December 31 of the calendar year in which the Performance
Period ends.
(4) The term “total
disability” means a medically determinable mental or physical
impairment that is expected to result in death or has lasted or is
expected to last for a continuous period of 12 months or more and
that, in the opinion of the Company and two independent physicians,
causes the Recipient to be unable to perform his or her duties as
an employee, director, officer or consultant of the Company and
unable to engage in any substantial gainful activity. Total
disability shall be deemed to have occurred on the first day after
the two independent physicians have furnished their written opinion
of total disability to the Company and the Company has reached an
opinion of total disability.
(ii) Proration on Normal
Retirement. If Recipient terminates his employment with the
Company following normal retirement under the Company’s
retirement policy in place at such time but prior to the end of the
Performance Period, the RSUs shall not be forfeited under Section
(b)(i) and the following shall apply:
(1) The Base Payout shall be
reduced to a number determined by multiplying the Base Payout by
the Pro Rata Percentage. RSUs that exceed the reduced number shall
be forfeited to the Company.
(2) The Board of Directors or
the Compensation Committee of the Board of Directors, in its
discretion, may increase the number of RSUs the Recipient would
otherwise be entitled to receive under this Section 1(d)(ii);
the Recipient shall have no right to any increase.
(3) The amount of RSUs
determined under (1) and (2) shall be delivered as soon
as practicable after the Determination Date but in no event later
than December 31 of the calendar year in which the Performance
Period ends.
(iii) Proration on
Termination Other Than for Cause. If the Company terminates
Recipient’s employment with the Company other than for cause
prior to the end of the Performance Period, the RSUs shall not be
forfeited under Section (b)(i) and the following shall
apply:
(1) The Base Payment shall be
reduced to a number determined by multiplying the Base Payment by
the Pro Rata Percentage. RSUs that exceed reduced number shall be
forfeited to the Company.
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(2) The Board of Directors or
the Compensation Committee of the Board of Directors, in its
discretion, may increase the number of RSUs the Recipient would
otherwise be entitled to receive under this Section 1(d)(iii);
the Recipient shall have no right to any increase.
(3) The amounts of RSUs
determined under (1) and (2) shall be delivered as soon
as practicable after the Determination Date, but in no event later
than December 31 of the calendar year in which the Performance
Period ends.
(4) The term
“cause” shall mean (i) the willful and continued
failure by Recipient to perform substantially Recipient’s
reasonably assigned duties with the Company, other than a failure
resulting from Recipient’s incapacity due to physical or
mental illness, after a written demand for performance has been
delivered to Recipient by the Company which specifically identifies
the manner in which the Company believes that Recipient has not
substantially performed Recipient’s duties, (ii) the
conviction of guilty or entering of a nolo contendere plea to a
felony which is materially and demonstrably injurious to the
Company, or (iii) the commission of an act by Recipient, or
the failure of Recipient to act, which constitutes gross negligence
or gross misconduct. For purposes of this Section 1(d)(iii),
no act, or failure to act, on Recipient’s part shall be
considered “willful” unless done, or omitted to be
done, by Recipient in knowing bad faith. Any act, or failure to act
based upon authority given pursuant to a resolution duly adopted by
the Board of Directors or based upon the advice of counsel for the
Company shall be conclusively presumed to be done, or omitted to be
done, by Recipient in good faith.
(iv) Treatment following
Change in Control.
(1) If as a result of a
Change in Control, the Company’s Common Stock ceases to be
listed for trading on a national securities exchange (an
“Exchange”), any RSUs subject to this award that are
unvested on the date of the Change in Control shall continue to
vest according to the terms and conditions of this award; provided
that such award is replaced with an award for voting securities of
the resulting corporation or the acquiring corporation, as the case
may be (including without limitation, the voting securities of any
corporation which as a result of the Change in Control owns the
Company or all or substantially all of the Company’s assets
either directly or through one or more subsidiaries) (the
“Surviving Company”) which are traded on an Exchange (a
“Replacement Award”), which Replacement Award shall
consist of RSUs with a value (determined using the Surviving
Company’s stock price as of the date of the Change in
Control) equal to the value of the
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replaced award of RSUs
(determined using the Company’s stock price and assuming
attainment of target performance or actual performance achieved, if
greater, as of the date of the Change in Control);
provided,
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