exv10w20



 





EXHIBIT 10.20




FORM OF PERFORMANCE SHARE AWARD AGREEMENT

WHITE ELECTRONIC DESIGNS CORPORATION

1994 FLEXIBLE STOCK PLAN

(Form of Performance Based Award)




     White Electronic Designs Corporation, a Delaware Corporation (“Company”), hereby grants to
[                    ] (“Grantee”), a Participant in the White Electronic Designs Corporation 1994 Flexible
Stock Plan (“Plan”), as amended, a Performance Share Award (“Award”) representing shares of the
Company’s Common Stock (“Stock”). The grant is made effective as of the [___] day of [                    ]
(“Grant Date”).



     A. The Board of Directors of the Company (“Board”) has adopted the Plan as an incentive to
retain key employees, officers and consultants of, or certain individuals who otherwise have an
affiliation with, the Company and to enhance the ability of the Company to attract such individuals
whose services are considered unusually valuable by providing an opportunity for them to have a
proprietary interest in the success of the Company.



     B. The Board has approved the granting of Performance Shares to the Grantee pursuant to
Article XVI of the Plan to provide an incentive to the Grantee to focus on the long-term growth of
the Company.



     C. To the extent not specifically defined in this Performance Share Award Agreement
(“Agreement”), all capitalized terms used in this Agreement shall have the meaning set forth in the
Plan.



     In consideration of the mutual covenants and conditions hereinafter set forth and for other
good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the
Company and the Grantee agree as follows:



     1. Grant of Performance Shares. Grantee is hereby granted a Performance Share Award
for [                    ] Performance Shares, representing the right to receive the same number of shares of
the Company’s Stock, subject to the terms and conditions in this Agreement. This Award is granted
pursuant to the Plan and its terms are incorporated by reference.



     2. Vesting of Performance Shares. The Performance Shares will vest in accordance
with, and only upon the attainment of, prior to January 1, 20___, the following performance
criteria:



 









 





	 	 	 
	Number of Performance	 	 
	Shares Vested	 	Performance Criteria
	[___%]

	 	Company achieves an annual EBITDA
___% greater than 100% of the FY20___
target, which EBITDA shall be ___,
(the “Performance Target”) in either
FY20___ or FY20___.
	[___%]

	 	Company achieves an annual EBITDA
equal to or greater than ___% of the
Performance Target (which EBITDA
shall be ___) but less than 100% of
the Performance Target, in either
FY20___ or FY20___.






     Notwithstanding the above, in the event that no Performance Shares are awarded in FY20___, the
Grantee shall the same opportunity to receive the Performance Shares in FY20___; provided, however,
if the Company achieves ___% of the Performance Target in
FY20___ and ___% of such Performance Share
were awarded, then 100% of the Performance Target must be met in
FY20___ to vest the remaining ___%
of the Performance Share able to be awarded under this Agreement.



     When the Grantee believes that any of the performance criteria listed above have been
achieved, the Grantee shall notify the Chairman of the [                    ] Committee in writing of such
achievement (“Notice of Achievement”). The [                    ] Committee will promptly review any such
Notice of Achievement and either accept it or provide an explanation for non-acceptance in writing.
The Grantee understands that such review by the [                    ] Committee may include an analysis of
any and all parameters of the qualifying performance and that the [                    ] Committee’s final
determination not to accept a Notice of Achievement for the relevant measurement period shall be
made in good faith and shall be final and binding on the Grantee. If a Notice of Achievement is
accepted by the [                    ] Committee as described above, then the relevant number of Performance
Shares associated with such Notice of Achievement shall become fully vested on the date the
[                    ] Committee has made such final determination.



     Notwithstanding the above, the Performance Shares will automatically vest 100% upon the
occurrence of a Change of Control as defined in the Plan.



     3. Termination of Employment. If the Grantee terminates employment with the Company
for any reason, any Performance Shares that are not vested under the schedule in 2 above will be
canceled and forfeited as of the date of termination of employment. For purposes of this
Agreement, the phrase “Termination of Employment” means the termination of the Grantee’s employment
with the Company and all affiliates due to death, retirement or other



2









 






reasons. The Grantee’s employment relationship is treated as continuing while the Grantee is
on military leave, sick leave, or other bona fide leave of absence (if the period of such leave
does not exceed six months, or if longer, so long as the Grantee’s right to reemployment with the
Company or an affiliate is provided either by statute or contract). If the Grantee’s period of
leave exceeds six months and the Grantee’s right to reemployment is not provided either by statute
or by contract, the employment relationship is deemed to terminate on the first day immediately
following the expiration of such six-month period. Whether a termination of employment has
occurred will be determined based on all of the facts and circumstances and in accordance with
regulations issued under Code Section 409A.



     4. Time and Form of Payment. Subject to the provisions of the Agreement and the Plan,
as the number of Performance Shares vest under 2 above, the Company will deliver to the Grantee the
same number of whole shares of Stock. It is the Company’s intention that the payments made
pursuant to this Agreement shall qualify for the “short-term deferral” exception from Code Section
409A as set forth in Treasury Regulations Section 1.409A-1(b)(4).



     5. Nontransferability. The Performance Shares granted by this Agreement shall not be
transferable by the Grantee or any other person claiming through the Grantee, either voluntarily or
involuntarily, except by will or the laws of descent and distribution or as otherwise provided by
the Plan’s Committee.



     6. Adjustments. In the event of a stock dividend or in the event the Stock shall be
changed into or exchanged for a different number or class of shares of stock of the Company or of
another corporation, whether through reorganization, recapitalization, stock split-up, combination
of shares, merger or consolidation, there shall be substituted for each such remaining share of
Stock then subject to this Agreement the number and class of shares of stock into which each
outstanding share of Stock shall be so exchanged, all as set forth in Section 3.3 of the Plan.



     7. Delivery of Shares. No shares of Stock shall be delivered under this Agreement
until (i) the Performance Shares vest in accordance with the schedule set forth in 2 above; (ii)
approval of any governmental authority required in connection with the Agreement, or the issuance
of shares hereunder, has been received by the Company; (iii) if required by the Committee, the
Grantee has delivered to the Company documentation (in form and content acceptable to the Company
in its sole and absolute discretion) to assist the Company in concluding that the issuance to the
Grantee of any share of Stock under this Agreement would not violate the Securities Act of 1933 or
any other applicable federal or state securities laws or regulations; and (iv) the Grantee has
complied with 13 below of this Agreement in order for the proper provision for required tax
withholdings to be made.



     8. Securities Act. The Company shall not be required to deliver any shares of Stock
pursuant to the vesting of Performance Shares if, in the opinion of counsel for the Company, such
issuance would violate the Securities Act of 1933 or any other applicable federal or state
securities laws or regulations.



     9. Voting and Other Stockholder Related Rights. The Grantee will have no voting
rights or any other rights as a stockholder of the Company (e.g., no rights to cash dividends) with



3









 






respect to nonvested Performance Shares until the Performance Shares become vested and the
Company issues shares of Stock to the Grantee.



     10. Copy of Plan. By the execution of this Agreement, the Grantee acknowledges
receipt of a copy of the Plan.



     11. Administration. This Agreement shall at all times be subject to the terms and
conditions of the Plan and the Plan shall in all respects be administered by the Committee in
accordance with the terms of and as provided in the Plan. The Committee shall have the sole and
complete discretion with respect to all matters reserved to it by the Plan and decisions of the
majority of the Committee with respect thereto and to this Agreement shall be final and binding
upon the Grantee and the Company. In the event of any conflict between the terms and conditions of
this Agreement and the Plan, the provisions of the Plan shall control.



     12. Continuation of Employment. This Agreement shall not be construed to confer upon
the Grantee any right to continue employment with the Company and shall not limit the right of the
Company, in its sole and absolute discretion, to terminate Grantee’s employment at any time.



     13. Tax Withholding. Unless otherwise provided by the Committee prior to the vesting
of shares as set forth in the next sentence, the Grantee shall satisfy any federal, state, local or
foreign employment or income taxes due upon the vesting of the Performance Shares (or otherwise) by
having the Company withhold from those shares of Stock that the Grantee would otherwise be entitled
to receive, a number of shares having a Fair Market Value equal to the minimum statutory amount
necessary to satisfy the Company’s applicable federal, state, local and foreign income and
employment tax withholding obligation. In lieu of, and subject to, the above, the Committee may
also permit the Grantee to satisfy any federal, state, local, or foreign employment or income taxes
due upon the vesting of Performance Shares (or otherwise) by (i) personal check or other cash
equivalent acceptable to the Company, (ii) permitting the Grantee to execute a same day sale of
Stock pursuant to procedures approved by the Company, or (iii) such other method as approved by the
Committee, all in accordance with applicable Company policies and procedures and applicable law.



     14. Governing Law. This Agreement shall be interpreted and administered under the
laws of the State of Indiana.



     15. Amendments. This Agreement may be amended only by a written agreement executed by
the Company and the Grantee.



4









 





     IN WITNESS WHEREOF, the Company has caused this Agreement to be signed by its duly authorized
representative and the Grantee has signed this Agreement as of the date first written above.



	 	 	 	 	 
	 	WHITE ELECTRONIC DESIGNS CORPORATION

 	 
	 	By:  	 	 
	 	 	 	 
	 	 	 	 
	 
	 	 	 
	 	By:  	
 	 
	 	 	 	 
	 	 	 	 
	 




5