Exhibit 10.2
[FORM OF NON-OFFICER PERFORMANCE
SHARE AGREEMENT]
POLYCOM, INC.
PERFORMANCE SHARE
AGREEMENT
[NAME]
Employee ID Number: [ Number ]
NOTICE OF
GRANT
Polycom, Inc. (the
“Company”) hereby grants you, [Name] (the
“Employee”), an award of Performance Shares under the
Company’s 2004 Equity Incentive Plan (the
“Plan”). The date of this Performance Share Agreement
(the “Agreement”) is [DATE] (the “Grant
Date”). Subject to the provisions of Appendix A
(attached), Appendix B (attached) and of the Plan, the principal
features of this award are as follows:
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Target Number
of Performance
Shares:
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[
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Performance
Period:
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[INSERT
PERFORMANCE PERIOD]
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Performance
Matrix:
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The number of
Performance Shares in which you may vest in accordance with the
Vesting Schedule will depend upon achievement of [INSERT
DESCRIPTION OF PERFORMANCE GOALS] and will be determined in
accordance with the Performance Matrix, attached hereto as Appendix
B.
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Vesting Schedule:
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[INSERT
DESCRIPTION OF VESTING SCHEDULE]*
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IMPORTANT
:
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*
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Except as
otherwise provided in Appendix A, Employee will not vest in the
Performance Shares unless he or she is employed by the Company or
one of its Subsidiaries through the applicable vesting
date.
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Your signature below indicates your
agreement and understanding that this award is subject to all of
the terms and conditions contained in Appendix A, Appendix B
and the Plan. For example, important additional information on
vesting and forfeiture of the Performance Shares is contained in
paragraphs 3 through 5 and paragraph 7 of
Appendix A. PLEASE BE SURE TO READ ALL OF APPENDIX A, WHICH
CONTAINS THE SPECIFIC TERMS AND CONDITIONS OF THIS
AGREEMENT.
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POLYCOM,
INC.
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EMPLOYEE
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[NAME]
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[NAME]
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[TITLE]
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Date:
, 200
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Date:
, 200
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APPENDIX A
TERMS AND CONDITIONS OF
PERFORMANCE SHARES
1. Grant . The Company hereby
grants to the Employee under the Plan an award of the Target Number
of Performance Shares set forth on the Notice of Grant, subject to
all of the terms and conditions in this Agreement and the Plan. The
number of Performance Shares in which the Employee may vest shall
depend upon achievement of [INSERT DESCRIPTION OF PERFORMANCE
GOALS] for the Performance Period and shall be determined in
accordance with the Performance Matrix, attached hereto as Appendix
B. In accordance with the Performance Matrix, the number of the
Performance Shares in which the Employee may vest will range
[INSERT APPLICABLE RANGE]. The number of such Shares shall be
determined by the Committee following the end of the Performance
Period and the review and approval of the Company’s earnings
results by the Company’s Audit Committee, in accordance with
the following rules. [INSERT APPLICABLE RULES]. When Shares are
paid to the Employee in payment for the Performance Shares, par
value will be deemed paid by the Employee for each Performance
Share by past services rendered by the Employee, and will be
subject to the appropriate tax withholdings. Unless otherwise
defined herein, capitalized terms used herein shall have the
meanings ascribed to them in the Plan.
(a) As used herein, [INSERT
APPLICABLE DEFINITIONS].
2. Company’s Obligation to
Pay . Each Performance Share has a value equal to the Fair
Market Value of a Share on the date that the Performance Share is
granted. Unless and until the Performance Shares have vested in the
manner set forth in paragraphs 3 through 5, the Employee will
have no right to payment of such Performance Shares. Prior to
actual payment of any vested Performance Shares, such Performance
Shares will represent an unsecured obligation. Payment of any
vested Performance Shares shall be made in whole Shares
only.
3. Vesting Schedule/Period of
Restriction . Except as provided in paragraphs 4 and 5, and
subject to paragraph 7, the Performance Shares awarded by this
Agreement shall vest in accordance with the vesting provisions set
forth on the first page of this Agreement. Performance Shares shall
not vest in the Employee in accordance with any of the provisions
of this Agreement unless the Employee shall have been continuously
employed by the Company or by one of its Subsidiaries from the
Grant Date until the date the Performance Shares are otherwise
scheduled to vest.
4. Modifications to Vesting
Schedule .
(a) Vesting upon Leave of
Absence. In the event that the Employee takes an authorized
leave of absence (“LOA”), the Performance Shares
awarded by this Agreement that are scheduled to vest shall be
modified as follows:
(i) if the duration of the
Employee’s LOA is sixty (60) days or less, the vesting
schedule set forth on the first page of this Agreement shall not be
affected by the Employee’s LOA.
(ii) if the duration of the
Employee’s LOA is greater than sixty (60) days, the
scheduled vesting of any Performance Shares awarded by this
Agreement that are not then vested shall be deferred for a period
of time equal to the duration of the Employee’s
LOA.
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(b) Death or Disability of
Employee . In the event that the Employee incurs a Termination
of Service due to his or her death or Disability, the Performance
Shares subject to this Performance Share award shall vest on the
date of the Employee’s death or Disability as follows:
[INSERT DESCRIPTION OF VESTING CONDITIONS].
In the event that any applicable law
limits the Company’s ability to accelerate the vesting of
this award of Performance Shares, this paragraph 4(b) shall be
limited to the extent required to comply with applicable
law.
(c) Retirement of Employee .
In the event that the Employee incurs a Termination of Service due
to his or her Retirement, the Performance Shares subject to this
Performance Share award shall vest on the date of the
Employee’s Retirement as follows: [INSERT DESCRIPTION OF
VESTING CONDITIONS].
In the event that any applicable law
limits the Company’s ability to accelerate the vesting of
this award of Performance Shares, this paragraph 4(c) shall be
limited to the extent required to comply with applicable
law.
For purposes of this Agreement,
“Retirement” means Termination of Service after
attaining either (a) age sixty-five (65), or (b) age
fifty-five (55) plus a number of Years of Service so that the
sum of the Employee’s age and Years of Service is at least
sixty-five (65). For this purpose, the Employee’s
“Years of Service” equals the number of full months
from the Employee’s latest hire date with the Company (or any
Subsidiary) to the date of Termination of Service, divided by
12.
(d) Change in
Control.
(i) In the event of a Change in
Control, this award shall be subject to the definitive agreement
governing such Change in Control. Such agreement, without the
Employee’s consent and notwithstanding any provision to the
contrary in this Agreement or the Plan, must provide for one of the
following: (a) the assumption of this award by the surviving
corporation or its parent; (b) the substitution by the
surviving corporation or its parent of an award with substantially
the same terms as this award; or (c) the cancellation of this
award after payment to the Employee in Shares of an amount equal to
the Performance Shares subject to this award at the time of the
Change in Control. In the event the definitive agreement does not
provide for one of the foregoing alternatives with respect to the
treatment of this award, this award shall have the treatment
specified in clause (c) of the preceding sentence. The
Committee may, in its sole discretion, accelerate the vesting of
this award in connection with any of the foregoing alternatives.
For purposes of this Agreement, “Change in Control”
means the occurrence of any of the following events: (a) any
“person” (as such term is used in Sections 13(d) and
14(d) of the 1934 Act) becomes the “beneficial owner”
(as defined in Rule 13d-3 of the 1934 Act), directly or indirectly,
of securities of the Company representing fifty percent
(50%) or more of the total voting power represented by the
Company’s then outstanding voting securities; (b) the
consummation of the sale or disposition by the Company of all or
substantially all of the Company’s assets; (c) a change
in the composition of the Board occurring within a two-year period,
as a result of which fewer than a majority of the directors are
Incumbent Directors; or (d) the consummation of a merger or
consolidation of the Company with any other corporation, other than
a merger or consolidation which would result in the voting
securities of
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the Company outstanding immediately prior
thereto continuing to represent (either by remaining outstanding or
by being converted into voting securities of the surviving entity
or its parent) at least fifty percent (50%) of the total
voting power represented by the voting securities of the Company or
such surviving entity or its parent outstanding immediately after
such merger or consolidation. “Incumbent Directors”
means directors who either (A) are Directors as of the
effective date of the Plan, or (B) are elected, or nominated
for election, to the Board with the affirmative votes of at least a
majority of the Directors at the time of such election or
nomination (but will not include an individual whose election or
nomination is in connection with an actual or threatened proxy
contest relating to the election of directors to the
Company).
(ii) Notwithstanding anything herein
to the contrary, in the event the Employee incurs a Termination of
Service within twelve (12) months following a Change in
Control on account of a termination by the Company (or any
Subsidiary) for any reason other than Misconduct or on account of a
termination by the Employee for Good Reason, then this award
immediately will vest in one hundred percent (100%) of the
Performance Shares subject to this Performance Share
award.
For purposes of this Agreement,
“Good Reason” means, without the Employee’s
written consent, (a) a relocation of the Employee’s
principal place of employment by more than fifty (50) miles
from the location immediately prior to the Change in Control,
(b) a reduction in the Employee’s base salary by more
than 10% or a material reduction in the Employee’s kind or
level of benefits (not including base salary, incentive
compensation or equity compensation) that, in either instance, is
not applied to all similarly situated employees, or (c) a
change in the Employee’s duties that is materially
inconsistent with the Employee’s education, professional
training and experience at the Company.
For purposes of this Agreement,
“Misconduct” means (a) the commission of any act
of fraud, embezzlement or dishonesty by the Employee, (b) the
Employee’s conviction of, or plea of nolo contendre to, a
felony, (c) any unauthorized use or disclosure by the Employee
of confidential information or trade secrets of the Company or of
any Subsidiary, or (d) any other intentional misconduct by the
Employee adversely affecting the business or affairs of the Company
or of any Subsidiary in a material manner. The preceding definition
shall not be deemed to be inclusive of all the acts or omissions
that the Company (or any Subsidiary) may consider as grounds for
the dismissal or discharge of the Employee or any other individual
in the service of the Company (or any Subsidiary).
(iii) In the event of a Change in
Control during the Performance Period, the Performance Period shall
be deemed to end immediately prior to the Change in Control. The
number of Performance Shares in which the Employee shall be
entitled to vest in accordance with the terms of this Agreement and
the Vesting Schedule set forth on the Notice of Grant shall be
determined by the Committee (as in existence prior to the Change in
Control) and shall be the sum of (A) and (B) below. For
this purpose, the Target Number of Performance Shares shall be
allocated on a pro rata basis between (i) the Company’s
fiscal quarter(s) within the Performance Period that were completed
prior to the Change in Control (the “Completed Period”)
and (ii) the remaining fiscal
quarter(s) within the Performance Period (the “Remaining
Period”).
