BRIGGS & STRATTON CORPORATION AND SUBSIDIARIES 

2010 ANNUAL REPORT ON FORM 10-K 

 

EXHIBIT 10.9 

 

BRIGGS & STRATTON CORPORATION 

INCENTIVE COMPENSATION PLAN 

PERFORMANCE SHARE AWARD AGREMENT 

**BRIGGS & STRATTON CORPORATION**

**INCENTIVE COMPENSATION PLAN**

**PERFORMANCE SHARE AWARD AGREEMENT**

 

Participant:
  [*Insert name*]
Performance Share Award at Target:
           Performance Shares
Performance Period:
  Plan Year          through Plan Year         
Performance Measures:
  Relative Total Shareholder Return (“TSR”)
 

BRIGGS & STRATTON CORPORATION (the “Company”), a Wisconsin corporation, hereby awards to theabove-named employee (the “Participant”) under The Briggs & Stratton Corporation Incentive Compensation Plan (the “Plan”) the number of performance shares at target set forth above, all in accordance with and subject tothe attached Performance Share Terms and Conditions. 

If there is any inconsistency between this Agreement andthe Plan, the Plan shall supersede the conflicting terms and conditions of this Agreement. All capitalized terms shall have the meanings ascribed to them in the Plan, unless specifically set forth otherwise herein. 

IN WITNESS WHEREOF, this Performance Share Award Agreement has been duly executed as of August            . 

 
  BRIGGS & STRATTON CORPORATION  By  
 
  Todd J. Teske  President and CEO  PARTICIPANTDate                      
 
  «Name»
 

2 

**Briggs & Stratton Corporation**

**Performance Share Terms and Conditions**

**Section 1.  Performance Period**

The Performance Period commences on the first day of the three-year performance period stated on the first page of theaward and ends on the last day of such period. 

**Section 2.  Value of Performance Shares**

Each Performance Share has a value for purposes of this Agreement equal to one share of Stock of the Company.

**Section 3.  Performance Shares and Achievement of Performance Measures**

(a)  The number of Performance Shares to be earned under this Agreement shall be based upon the achievement ofpre-established TSR percentile ranking performance as approved by the Compensation Committee of the Company’s Board of Directors (the “Committee”) for the Performance Period, based on the following table: 

 

**Total ShareholderReturn**
 
**%ile**

**Ranking**
  
**% of Target**

**Earned**
 
380th
  200% 
75th
  175% 
70th
  150% 
60th
  125% 
50th
  100% 
40th
  50% 
<40th
  0% 
(b)  Interpolation shall be used to determine the Company’s percentile ranking in the event the rankingdoes not fall directly on one of the ranks listed in the above chart, by rounding to the nearest 0.1% for the Percentile Ranking and the nearest 1% for the Percent of Target Earned. 

(c)  TSR shall be determined as follows: 

 

TSR
  =    Change in Stock Price        Beginning FMV  
(i)  “Beginning FMV” means the averageclosing price of the Company Stock for the 20 trading days preceding the start of the Performance Period; 

(ii)  “Ending FMV” means the averageclosing price for the 20 trading days prior to the last trading day of the Performance Period; 

(iii)  “Change in Stock Price” means the difference between the Beginning FMV andthe Ending FMV plus Dividends Paid; and 

(iv)  “Dividends Paid” meansthe total of all dividends paid on one (1) share of Stock during the applicable calendar quarter(s) during the Performance Period, provided that dividends shall be treated as though they are reinvested at the end of each calendar quarter basedon the stock price at the end of each calendar quarter. 

(d)  Following the TSR determination, theCompany’s TSR percentile ranking against the Peer Group shall be determined. Once the ranking is determined, the Performance Shares relative to the target award shall be determined based on the table in section 3(a) above. 

(e)  “Peer Group” means the companies listed below. If two companies in the Peer Group merge or oneis acquired, the new company will be included in the Peer Group. If a company merges with a company not in the Peer Group, the company will be removed and its TSR will not be included as part of the Peer Group. If a company declares bankruptcy, isdelisted or its stock otherwise ceases to be publicly traded during the Performance Period, its TSR will be included as part of the Peer Group up until the point it ceases trading, at which point no further changes in that company’s TSR forthat Performance Period shall be considered. If the same peer company emerges from bankruptcy during the Performance Period, the company will not be reinstated into the Peer Group for that Performance Period but, if it is deemed appropriate by theCommittee, will be included as part of the Peer Group for the next Performance Period. 

 
  
**Company**
  **Company**
ACTUANT CORP -CL A
  MUELLER INDUSTRIES
BALDOR ELECTRIC CO
  MUELLER WATER PRODUCTS INC
BLACK & DECKER CORP
  NORDSON CORP
CLARCOR INC
  PALL CORP
CRANE CO
  PENTAIR INC
DONALDSON CO INC
  POLARIS INDUSTRIES, INC.
DOVER CORP
  SNAP-ON INC
ENPRO INDUSTRIES INC
  SPX CORP
FLOWSERVE CORP
  STANLEY BLACK & DECKER INC
GARDNER DENVER INC
  TIMKEN CO
GENERAC HOLDINGS INC
  TORO CO
IDEX CORP
  VALMONT INDUSTRIES INC
KENNAMETAL INC
  WATTS WATER TECHNOLOGIES INC
LINCOLN ELECTRIC HLDGS INC
  WHIRLPOOL CORP
MAKITA CORP -ADR
  

(f)  No Participant may receive awards under the Plan coveringmore than 160,000 shares of Restricted and/or Deferred Stock or more than $3 million in any fiscal year. In the event that the maximum number of Performance Shares that may be issued under this Agreement, when combined with any other awards to theParticipant for a fiscal year, would cause the Participant to exceed either limit, the maximum number of Performance Shares that may be issued to the Participant shall be reduced so that both limits are met. The number of Performance Shares subjectto such reduction shall be paid to the Participant in the following fiscal year if the Participant continues in employment for 12 months, provided that any payment in the following fiscal year shall also be subject to the foregoing limits and, ifeither limit would be exceeded, the same process shall be repeated until the shares can be issued without exceeding the limits of the Participant’s employment is terminated. 

**Section 4.  Covenant of Non-Disclosure, Non-Solicitation and Non-Competition**

4.1  Non-Competition During Employment.  The Participant agrees during his/her employment withthe Company he/she shall not, directly or indirectly, either individually or as an employee, agent, partner, shareholder, consultant or in any other capacity, participate in, engage in or have a financial or other interest in any business which isin competition with the Company or any successor or assignee of the Company. The ownership of less than 1% of the outstanding securities of a publicly-traded company or 20% of a private company’s securities or profits, even though thatcorporation may be a competitor of the Company, shall not be deemed financial participation in a competitor. 

4.2  Non-Competition After Employment.  The Participant agrees that, upon voluntary orinvoluntary termination of employment with the Company and for a period of two (2) years thereafter, he/she will not, directly or indirectly, individually or as an employee, agent, partner, shareholder, consultant, or in any other capacity,canvass, contact, solicit or accept any of the Company’s customers with whom the Participant had contact during the two (2) year period preceding his/her termination for the purpose of providing services, products or business that are incompetition with the services, products or business which the Company provides to such customers. It is understood and agreed that the fluid customer list limitation contemplated by the parties closely approximates the area of the Company’svulnerability to unfair competition by Participant and does not deprive Participant of legitimate competitive opportunities to which he/she is entitled. 

4.3  Impairment of Company’s Relationships.  The Participant further agrees that duringthe term of his/her employment and for a period of two (2) years thereafter, he/she will not interfere with or attempt to impair the relationship between the Company and any of its employees nor will the Participant attempt, directly orindirectly, to solicit, entice, or otherwise induce any other employee to terminate his/her association with the Company. The term “solicit, entice or induce” includes, but is not limited to, the following: (a) initiatingcommunications with an employee of the Company relating to possible employment; (b) offering bonuses or additional compensation to encourage employees of the Company to terminate their employment and accept employment with a competitor,supplier or customer of the Company; (c) referring employees of the Company to personnel or agents employed or engaged by competitors, 

suppliers or customers of the Company; or (d) referring personnel or agents employed or engaged by competitors, suppliers or customers of the Company to employees of the Company. 

4.4.  Non-Disclosure of Information. 

(a)    Confidential Information.**    **As used in this Agreement,“Confidential Information” shall mean any and all information whether generated by the Company or by a third party at the Company’s request, disclosed by the Company to Participant during the period of the Participant’s employwith the Company, including, without limitation, trade secrets, design documents, copyright material, inventions, technology, processes, marketing data, business strategies, financial information and records, product information (including, withoutlimitation, any product designs, specifications, capabilities, drawings, diagrams, blueprints, models and similar items), customer and prospective customer lists, supplier and vendor lists, product pricing formulas, software and similar information,in any form (whether oral, electronic, written, graphic or other printed form or obtained from access to or observation of the Company’s facilities or operations). Confidential Information does not include information or data which is:

(1)    at the time of disclosure, or thereafter becomes, available to the general publicby publication or otherwise through (i) no fault or negligence of the Participant or (ii) no breach of this Agreement by Participant; 

(2)  in the possession of the Participant prior to disclosure thereof by the Company as evidenced by writtenrecords of the Participant prepared prior to the date of disclosure of such information to the Participant; 

(3)  independently developed by the Participant without the benefit of any of the Confidential Information asevidenced by the written records of the Participant prepared to the date of disclosure of such information to the Participant; or 

(4)    disclosed to Participant by a third party having no obligation of confidentiality to theCompany with respect to the information so disclosed. 

(b)  TradeSecrets.**  **The parties also acknowledge that certain of the Company’s Confidential Information is a trade secret (“Trade Secret”) as that term is defined in Sec. 134.90(1)(c) of the Wisconsin Uniform Trade SecretsAct, i.e. information, including a formula, pattern, compilation, program, device, method, technique or process, that (i) derives independent economic value, actual or potential, from not being generally known to, and not being readilyascertainable by proper means by other persons who can obtain economic value from its disclosure, and (ii) is the subject of efforts that are reasonable under the circumstance to maintain its secrecy. 

(c)    Disclosure of Confidential Information.**    **Except asrequired in the performance of his or her duties of employment, and for a period of two (2) years following the termination of his or her employment with the Company, Participant shall not disclose to a third party or use any of theCompany’s Confidential Information and shall not remove any of the 

Company’s Confidential Information in any form or media from the Company’s offices, unless he or she first obtains the written consent of the Company. 

(d)  Disclosure of Trade Secrets.**  **Participant shall never disclose to a third partyor use any of the Company’s Trade Secrets and shall not remove any of the Company’s Trade Secrets in any form or media from the Company’s offices, unless he or she first obtains the written consent of the Company. The partiesacknowledge that this obligation has no termination date. 

4.5  Waiver of UnintendedEffects.**  **It is not the purpose of the Agreement to preclude Participant from engaging in employment that is not competitive with the Company, does not pose a competitive threat to the Company, and does not interfere with theCompany’s protectable business interests. If during the term of this Agreement Participant wishes to engage in a business that may involve a violation of the literal terms of this Agreement but Participant believes it will not pose acompetitive threat to the Company, Participant agrees to submit to the Company in writing a request to engage in this business. Any such request must specifically refer to this Agreement. The Company agrees that it will respond to the request withreasonable promptness and that it will not unreasonably withhold permission to engage in the business specified in the request, regardless of the terms of this Agreement, if the business sought to be engaged in is not competitive with that of theCompany and does not pose a competitive threat to the Company. Any such permission granted by the Company must be in writing, shall extend only to the business specifically identified in Participant’s written request, and shall not otherwiseconstitute a wavier of the Company’s rights under this Agreement. 

4.6.  Common Law of Tortsand Trade Secrets.  The parties agree that nothing in this Agreement shall be construed to limit or negate the common law of torts or trade secrets where it provides the Company with broader protection than that provided herein.

**Section 5.  Termination Provisions**

(a)  Except as provided below, the Participant shall be eligible for payment of awarded Performance Shares asdetermined in section 3 only if the Participant’s employment with the Company continues through the end of the Performance Period. 

(b)  If the Participant’s employment with the Company terminates prior to the end of the PerformancePeriod by reason of the occurrence of such Participant’s Disability or death, a pro-rated payment will be provided. In the event of Disability, the pro-rated payment will be computed as of the end of the Performance Period. The proration shallbe based on the number of full months that the Participant was employed during the Performance Period prior to the Disability. In the event of death, TSR and the corresponding percentile ranking will be computed as of the end of the Company’sfiscal quarter subsequent to the date of death. The proration shall be based on the number of full months that the Participant was employed during the Performance Period prior to death. The number of earned shares, if any, shall be delivered to theestate of the Participant as soon as practicable after the computations described above. 

(c)  If the Participant’s employment with the Companyterminates prior to the end of the Performance Period by reason of Normal Retirement or Early Retirement, or if the Participant’s employment with the Company terminates without cause, the Committee, in its sole discretion and taking intoconsideration the performance of the Participant and the performance of the Company during the Performance Period, may authorize payment to the Participant (or his legal representative) at the end of the Performance Period of all or any portion ofthe Performance Share award which would have been paid to the Participant for such Performance Period. 

(d)  If the Committee determines that (i) the Participant has breached any of the obligations stated insection 4 of the Agreement during the Performance Period or (ii) the Performance Shares were awarded with respect to (A) a Plan Year for which there has been a material restatement of the Company’s annual report to the SEC due tonegligence or misconduct by one or more persons or (B) any subsequent Plan Year having awards materially affected by the restatement, the Company shall be entitled to declare all or any portion of any Performance Shares awarded under thisAgreement to be forfeited. 

**Section 6.  Dividends**

The Participant shall have no right to any dividends which may be paid with respect to shares of Company Stock until anysuch shares are paid to the Participant following the completion of the Performance Period. However, any dividends declared during the Performance Period shall be credited to the Performance Shares and shall be reinvested as additional PerformanceShares subject to this Agreement on the date the dividends are paid. 

**Section 7.  Form andTiming of Payment of Performance Shares**

(a)  The Performance Shares as finally calculatedherein shall be paid to the Participant no later than two and one-half months after the end of the Performance Period, subject to the following: 

(i)  The Participant shall have no right with respect to any award until such award shall bepaid to such Participant. 

(ii)  The number of Performance Shares paid to theParticipant shall be rounded up or down to the nearest 10 shares. 

(b)  Performance Shares awarded,if any, will only be paid out in shares of Company Stock. 

**Section 8.  Nontransferability**

Performance Shares may not be sold, transferred, pledged, assigned, or otherwise alienated or hypothecated, other than bywill or by the laws of descent and distribution. Further, except as otherwise provided in this Agreement, the Participant’s rights under the Plan shall be exercisable during the Participant’s lifetime only by the Participant or theParticipant’s legal representative. 

**Section 9.  Administration**

This Agreement and the rights of the Participant hereunder are subject to all the terms and conditions of the Plan asamended from time to time, as well as such rules and regulations as the Committee may adopt for administration of the Plan. It is expressly understood that the Committee is authorized to administer, construe, and make all determinations necessary orappropriate to the administration of the Plan and this Agreement, all of which shall be binding upon the Participant. Any inconsistency between the Agreement and the Plan shall be resolved in favor of the Plan. 

**Section 10.  Miscellaneous**

(a)  This Agreement shall not give the Participant any right to be retained in the employ of the Company. Theright and power of the Company to dismiss or discharge the Participant is specifically reserved. The Participant or any person claiming under or through the Participant shall not have any right or interest in the Plan or any award thereunder, unlessand until all terms, conditions, and provisions of the Plan that affect the Participant have been complied with as specified herein. 

(b)  This Agreement shall be subject to all applicable laws, rules, and regulations, and to such approvals byany governmental agencies or national securities exchanges as may be required. To the extent not preempted by federal law, this Agreement shall be governed by, and construed in accordance with, the laws of the State of Wisconsin. 

(c)  The Company shall have the power and right to deduct or withhold, or require the Participant to remit tothe Company, the minimum statutory amount to satisfy federal, state, and local taxes, domestic or foreign, required by law or regulation to be withheld with respect to any taxable event arising under this Agreement. With respect to withholdingsrequired upon payment of Company Stock in satisfaction of all of the Performance Shares awarded, the Company will withhold Company Stock having an aggregate Fair Market Value on the date the tax is to be determined equal to the minimum statutorytotal tax that could be imposed on the transaction. 

(d)  In the event of a Change in Control, thePerformance Period will be deemed to have ended. TSR will be computed as of the last trading day preceding the date of the Change in Control, and awards will be paid on a pro rata basis. Such deemed earned Performance Shares shall be paid out assoon as practicable.