SunOpta Inc.: Exhibit 10.12- Filed by newsfilecorp.com






 

2017 PERFORMANCE SHARE UNIT 
AWARD AGREEMENT



This 2017 Performance Share Unit
Award Agreement (the “Agreement”) is entered into as of ______________,
2017 between SunOpta Inc., a Canadian corporation (the “Company”), and
_______________(the “Recipient”). 

On _____________, 2017 (the
“Award Date”) the Company’s Board of Directors or the Compensation
Committee of the Board of Directors (the “Board”) authorized the grant of
performance share units to Recipient pursuant to the terms of this Agreement.
Recipient desires to accept the award subject to the terms and conditions of
this Agreement. This award is granted under and subject to the terms of the
Company’s Amended 2013 Stock Incentive Plan. 

NOW, THEREFORE, the parties agree
as follows: 

1.      Award.
The Company grants to Recipient ________performance share units (“PSUs”)
with respect to the Company’s common shares (“Common Shares”). Subject to
the terms and conditions of this Agreement, the Company shall issue to Recipient
the number of Common Shares of the Company corresponding to the number of PSUs
determined under this Agreement based on (a) the performance of the Company as
described in Section 2 and (b) Recipient’s continued employment during the
entire Performance Period (as defined below) pursuant to Section 3.

2.      Performance
Conditions. The vesting of the PSUs, if vesting occurs at all, is dependent
on the Common Shares achieving a closing trading price of at least US$11.00,
US$14.00 and US$18.00 in each case for 20 consecutive trading days (the
“Stock Price Hurdles”) during the three-year period commencing on the
Award Date (the “Performance Period”) as provided herein; provided,
however, that a Stock Price Hurdle shall also be met if the Company’s Common
Shares cease trading as a result of a Change of Control (as defined in the Plan)
transaction in which holders of the Company’s Common Shares receive per-share
consideration equal to or greater than such Stock Price Hurdle. 

On the last day of the Performance Period, one-third of the
PSUs shall vest on the achievement of each of the three Stock Price Hurdles, as
follows, subject to Recipient’s employment during the entire Performance Period:



	Stock Price Hurdle 
	Portion of PSUs 
That
      Will Vest 
	US$11.00 	One-third = Incremental/Total 
	US$14.00 
	One-third = Incremental;
      
Two-thirds = Total 
	US$18.00 
	One-third = Incremental; 
100% =
      Total 



If none of the Stock Price Hurdles are met, none of the PSUs
will vest. If only the US$11.00 Stock Price Hurdle is met, only one-third of the
PSUs will vest. If the US$11.00 and US$14.00 Stock Price Hurdles are met, only
two-thirds of the PSUs will vest. If all three Stock Price Hurdles are met, all
of the PSUs will vest. 




All vested PSUs shall be settled by the Company as soon as
reasonably practicable following the completion of the Performance Period,
subject to continued employment during the entire Performance Period pursuant to
Section 3, and all unvested PSUs shall be forfeited and cancelled. 

3.      Employment
Condition. 

3.1      Payout.
In order to receive a payout of shares under this Agreement, Recipient must be
employed by the Company continuous from the Award Date until the end of the
Performance Period, except as provided in Sections 3.2 or 3.3 below. For
purposes of this Agreement, Recipient is considered to be employed by the
Company if Recipient is employed by the Company or any parent or subsidiary of
the Company (an “Employer”). 

3.2      Total
Disability. If Recipient’s employment with the Company is terminated at any
time prior to the end of the Performance Period because of Total Disability (as
defined in the Plan), any unvested PSUs as to which the applicable Stock Price
Hurdle vesting requirements have been satisfied as of the employment termination
date shall immediately vest as of the employment termination date and any such
PSUs that vest in accordance with this Section 3.2 shall be settled in
accordance with the terms of this Agreement. Recipient shall not be entitled to
receive any shares with respect to any PSUs as to which the applicable Stock
Price Hurdle vesting requirements have not been satisfied as of the employment
termination date. 

3.3      Death.
If Recipient’s employment with the Company is terminated at any time prior to
the end of the Performance Period because of death, any unvested PSUs as to
which the applicable Stock Price Hurdle vesting requirements have been satisfied
as of the date of death shall immediately vest as of the date of death and any
such PSUs that vest in accordance with this Section 3.3, shall be settled in
accordance with the terms of this Agreement. Recipient and Recipient’s
beneficiaries shall not be entitled to receive any shares with respect to any
PSUs as to which the applicable Stock Price Hurdle vesting requirements have not
been satisfied as of the date of death. 

3.4      Change
in Control. If a Change in Control (as defined in the Plan) occurs and
Recipient’s employment with the Company is terminated by the Company (or its
successor) without Cause or by Recipient with Good Reason at any time within 12
months following the Change in Control and prior to the end of the Performance
Period, any unvested PSUs as to which the applicable Stock Price Hurdle vesting
requirements have been satisfied as of the date of Change in Control shall
immediately vest as of the date of employment termination and any such PSUs that
vest in accordance with this Section 3.4 shall be settled in accordance with the
terms of this Agreement, provided that Recipient executes and delivers a release
of claims in accordance with this Section 3.4. Recipient shall not be entitled
to receive any shares with respect to any PSUs as to which the applicable Stock
Price Hurdle vesting requirements have not been satisfied as of the Change in
Control. For purposes of this Agreement: 

“Cause” means the occurrence of
any of the following: 

(i)      the
commission of an act that constitutes a felony under the laws of the United
States or any individual State or under the laws of a foreign country; or 

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(ii)      the
commission of an act of fraud, embezzlement, sexual harassment, dishonesty,
theft, or an intentional act that results in a material loss, damage or injury
to the Company; or 

(iii)      the
commission of an act of moral turpitude which is materially injurious to the
Company; or

(iv)      the
failure of Recipient to participate in the reasonable and lawful business
activities of the Company in a manner consistent with his or her job duties,
provided such failure continues for more than ten days after written notice to
Recipient specifying such failure in reasonable detail. 

“Good Reason” means the
occurrence of any of the following: 

(i)     
a material diminution in Recipient’s authority, duties or responsibilities after
the Change in Control compared to immediately prior to the Change in Control;
provided that Good Reason shall not exist (A) solely as a result of a change in
reporting relationship or (B) if Recipient continues to have the same or a
greater general level of responsibility for the Company operations after the
Change in Control as Recipient had prior to the Change in Control even if the
Company operations are a subsidiary or division of the surviving company; or


(ii)      Recipient
is required to be based more than eighty (80) miles from where Recipient’s
office is located immediately prior to the Change in Control; or 

(iii)      a
material reduction in Recipient’s base salary, or the Company or the surviving
company fails to provide substantially equivalent target incentive opportunities
under short term and long term incentive plans after the Change in Control that
unless offset by an increase in base salary would result in a material reduction
of the Recipient's total compensation package, as compared to immediately prior
to the Change in Control;

provided, however, that such termination shall not be for “Good
Reason” unless Recipient provides notice to the Company of the existence of the
condition described above within 30 days of the initial existence of the
condition and the Company does not remedy such condition on or before the 30th
day following such notice (or the following business day if such 30th day is not
a business day). Accelerated vesting of the PSUs in accordance with this Section
3.4 is conditioned on Recipient executing and delivering to the Company a
release of claims in a form supplied by the Company (the “Release”) within 21
days following the date the Company delivers the form of Release to Recipient
and the Release becoming effective by virtue of Recipient not revoking the
Release during any period Recipient is allowed by law to revoke. 

3.5      Other
Terminations. If Recipient’s employment by the Company is terminated at any
time prior to the end of the Performance Period and none of Sections 3.2, 3.3 or
3.4 applies to such termination, Recipient shall not be entitled to receive any
shares under this Agreement. 

4.      Payment.
As soon as practicable following the end of the Performance Period, the Board
shall determine the number, if any, of Common Shares, issuable pursuant to this
Agreement. Subject to applicable tax withholding, such shares shall be issued to
Recipient as soon as practicable following the end of the Performance
Period. No fractional shares shall be issued and the number of shares
deliverable shall be rounded down to the nearest whole share, and any remaining
fractional shares shall be paid in cash. Notwithstanding anything hereinabove to
the contrary, if any of Section 3.2, 3.3 or 3.4 requires an earlier award
payout, a similar process shall be followed in accordance with the timing
identified therein. 

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5.      Tax
Withholding.

5.1      If
Recipient is a U.S. or Canadian taxpayer, Recipient acknowledges that on the
date that shares underlying the PSUs are issued to Recipient, the fair market
value of the Common Shares will be treated as ordinary compensation income for
federal and state and provincial income tax purposes and employment tax purposes
(FICA in the U.S. and EI and CPP in Canada), and that the Company will be
required to withhold taxes on these income amounts pursuant to Section 5.2
below. The Company will inform employees in other countries of the tax treatment
of the PSUs and withholding requirements.


5.2      Prior to any relevant taxable or tax
withholding event, as applicable, Recipient agrees to make adequate arrangements
satisfactory to the Company and/or the Employer to satisfy all federal, state
and other tax withholding obligations. In this regard, Recipient authorizes the
Company and/or the Employer, or their respective agents, at their discretion, to
satisfy applicable withholding obligations by one or a combination of the
following: 

(a)
withholding from Recipient’s or other cash compensation paid by the Company
and/or the Employer; or 

(b)      withholding
from proceeds of the sale of Common Shares acquired upon vesting/settlement of
the PSUs either through a voluntary sale or through a mandatory sale arranged by
the Company on Recipient’s behalf pursuant to this authorization; or 

(c)      withholding
in Common Shares to be issued upon vesting/settlement of the PSUs. 

5.3      If
the withholding obligation is satisfied by withholding in Common Shares, for tax
purposes, Recipient is deemed to have been issued the full number of Common
Shares subject to the vested PSUs, notwithstanding that a number of the Common
Shares are held back solely for the purpose of paying the withholding. 

5.4      Recipient
agrees to pay to the Company or the Employer any amount the Company or the
Employer may be required to withhold or account for as a result of this award
that cannot be satisfied by the means previously described. The Company may
refuse to issue or deliver the shares or the proceeds of the sale of shares if
Recipient fails to comply with these obligations. 

6.      Stock
Splits, Stock Dividend; Mergers, Etc.

6.1     
If the outstanding common shares of the Company are hereafter increased or
decreased or changed into or exchanged for a different number or kind of shares
or other securities of the Company by reason of any stock split, combination of
shares, dividend payable in shares, recapitalization or reclassification, appropriate
adjustment shall be made by the Company in the number and kind of shares subject to the PSUs,
so that Recipient’s proportionate interest before and after the occurrence of
the event is maintained. Notwithstanding the foregoing, the Company shall have
no obligation to effect any adjustment that would or might result in the
issuance of fractional shares, and any fractional shares resulting from any
adjustment may be disregarded or provided for in any manner determined by the
Company. Any such adjustments made by the Company shall be conclusive. 

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6.2      Mergers,
  Reorganizations, Etc. If, while any unvested PSUs are outstanding,
  there shall occur a merger, consolidation, amalgamation or plan of exchange, in
  each case involving the Company pursuant to which outstanding Common Shares are
  converted into cash or other stock, securities or property (each, a
  “Transaction”), (i) all outstanding PSUs as to which the applicable Stock
  Price Hurdle vesting requirement set forth in Section 2 has not been satisfied
  as of the closing of the Transaction shall be forfeited and cancelled and (ii)
  the Board of Directors, may, in its sole discretion, provide that the remaining
PSUs shall be treated in accordance with any of the following alternatives: 

(a)      The
remaining PSUs shall be converted into restricted stock units to acquire stock
of the surviving or acquiring corporation in the Transaction upon completion of
the Performance Period and shall be subject to continued employment of Recipient
by the Company or any acquiring or surviving company through such vesting date,
with the amount and type of shares subject thereto to be conclusively determined
by the Board of Directors, taking into account the relative values of the
companies involved in the Transaction and the exchange rate, if any, used in
determining shares of the surviving corporation to be held by holders of common
shares of the Company following the Transaction, and disregarding fractional
shares; 

(b)      The
remaining PSUs shall be cancelled effective immediately prior to the
consummation of the Transaction, and, in full consideration of the cancellation,
pay to Recipient upon the completion of the Performance Period, with payment
subject to continued employment of Recipient by the Company or any acquiring or
surviving company through such date), an amount in cash, for each remaining PSU,
equal to the value, as determined by the Board of Directors, of the common
shares subject to the unvested PSUs, taking into account the relative values of
the companies involved in the Transaction and the exchange rate, if any, used in
determining shares of the surviving corporation to be held by holders of common
shares of the Company following the Transaction or other consideration paid in
the Transaction to holders of common shares of the Company; or 

(c)      The
remaining PSUs shall become vested in full and all unissued shares subject to
the PSUs shall be issued immediately prior to the consummation of the
Transaction. 

7.      Section
409A. The award granted pursuant to this Agreement is intended to be
compliant with Section 409A of the Internal Revenue Code (“Section 409A”)
and shall be interpreted consistent with such intent. The Company may amend this
Agreement, adopt policies or procedures or take other actions, including with
retroactive effect, that the Company determines are necessary or appropriate to
exempt the award from the application of Section 409A or to comply with the
requirements of Section 409A. Notwithstanding the foregoing, the Company makes
no representation or warranty to Recipient with regard to the application of
Section 409A to any amounts payable pursuant to this Agreement and shall in no
event be obligated to mitigate or indemnify for any taxes otherwise
imposed on Recipient as a result of application of Section 409A. 

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8.      No
Right to Employment. Nothing contained in this Agreement shall confer upon
Recipient any right to be employed by the Company or to interfere in any way
with the right of the Company to terminate Recipient’s employment at any time
for any reason, with or without cause. 

9.      Clawback.
This award and any stock issued pursuant to this award are subject to recovery
under the Company’s clawback policy or any law, government regulation or stock
exchange listing requirement and will be subject to such deductions and clawback
made pursuant to such policy, law, government regulation, or stock exchange
listing requirement, all as determined by the Board of Directors or the
Compensation Committee. The Company’s current clawback policy is subject to
revision by the Board or Compensation Committee at any time and from time to
time. 

10.      Miscellaneous.


10.1      Entire
Agreement. This Agreement and the Plan constitute the entire agreement of
the parties with regard to the subjects hereof. In the event of a conflict
between the terms of this Agreement or the Plan with any employment agreement
Recipient may have with the Company, the terms of this Agreement and the Plan
will control. 

10.2      Notices.
Any notice required or permitted under this Agreement shall be in writing and
shall be deemed sufficient when delivered personally to the party to whom it is
addressed or when deposited into the United States or Canadian mail as
registered or certified mail, return receipt requested, postage prepaid,
addressed to the Company, Attention: General Counsel, at its principal executive
offices or to Recipient at the address of Recipient in the Company’s records, or
at such other address as such party may designate by ten (10) days’ advance
written notice to the other party. 

10.3      Assignment;
Rights and Benefits. Recipient shall not assign this Agreement or any rights
hereunder to any other party or parties without the prior written consent of the
Company. The rights and benefits of this Agreement shall inure to the benefit of
and be enforceable by the Company’s successors and assigns and, subject to the
foregoing restriction on assignment, be binding upon Recipient’s heirs,
executors, administrators, successors and assigns. 

10.4      Further
Action. The parties agree to execute such further instruments and to take
such further action as may reasonably be necessary to carry out the intent of
this Agreement. 

10.5      Applicable
Law. The terms and conditions of this Agreement will be interpreted under
the laws of Ontario, exclusive of choice of law rules. In the event either party
institutes litigation hereunder, the prevailing party shall be entitled to
reasonable attorneys’ fees to be set by the trial court and, upon any appeal,
the appellate court.

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10.6      Counterparts.
This Agreement may be executed in two or more counterparts, each of which shall
be deemed an original. 


 

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