Exhibit 10.9


 


PERFORMANCE
AWARD AGREEMENT


 


BROADWIND
ENERGY, INC.


2007 EQUITY
INCENTIVE PLAN


 


THIS AGREEMENT, is entered into and effective as of this
              
day of
                                ,
20        , by and between Broadwind
Energy, Inc., a Delaware corporation (the “Company”), and
                                        
(“Participant”).


 


RECITALS


 


A.                                   The Participant on the date hereof is a key
employee, officer or director of, or consultant or advisor to, the Company or
one of its Affiliates; and


 


B.                                     The Company wishes to grant a performance
share award to Participant pursuant to the Company’s 2007 Equity Incentive Plan
(the “Plan”) to entitle the Participant to shares of the Company’s Common Stock
upon the achievement of certain specified performance criteria; and


 


C.                                     The Administrator has authorized the grant of
such performance share award to Participant.


 


AGREEMENTS


 


In consideration of the premises and of the mutual covenants herein
contained, the parties hereto agree as follows:


 


ARTICLE I.  GRANT OF PERFORMANCE AWARDS


 


A.                                   Grant of Performance Share Award.  The
Company hereby grants to Participant on the date set forth above (the “Date of
Grant”) the right to receive up to
                        
(                  )
Performance Shares payable in shares of Common Stock on the terms and
conditions set forth herein (the “Performance Share Award”).


 


B.                                     Grant of Performance Unit Award.  The
Company hereby grants to Participant on the Date of Grant the right to receive
up to
                        
(                  )
Performance Units having a value of $                          
per Unit (the “Per Unit Value”) payable in cash or the terms and conditions set
forth herein (the “Performance Unit Award” and, together with the Performance Share
Award, the “Performance Award”).


 


ARTICLE II.  PERFORMANCE PERIOD


 


The Performance Period shall be the period beginning
                                        ,
20        , and ending
                                  ,
20      .


 


ARTICLE
III.  PERFORMANCE OBJECTIVES AND
VESTING OF

PERFORMANCE AWARD


 


A.                                   General.  Except as otherwise provided
herein, the Performance Shares or Performance Units subject to this Performance
Award shall vest only upon the achievement of all or a portion of certain
Performance Objectives, defined below, which must be achieved within the
Performance Period.


 

















 


The
Performance Objectives and the extent to which achievement of all or a portion
of the Performance Objectives will result in the vesting of the Performance
Shares or Performance Units are as follows:


 




	
  Performance
  Objective(s)

  	
   

  	
  Achievement

  	
   

  	
  Percentage
  or Number of

  Shares or Units Vested

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  






 


Notwithstanding
the foregoing schedule, the Administrator may delay the vesting of all or any
portion of the Performance Awards pursuant to Article X.J. herein;
provided, however, that such delay shall not extend the Performance Period
during which the above Performance Objectives must be achieved.  Subject to such other terms and conditions
set forth in this Agreement, the Participant shall not be entitled to the
issuance of any portion of the Performance Shares or Performance Units subject
to this Performance Award until the Administrator determines the number of
Performance Shares or Performance Units, if any, which have vested.


 


B.                                     Termination of
Employment Prior to Vesting.  If, prior to the vesting of any Performance
Shares or Performance Units, Participant ceases to be [a key
employee or officer] [a consultant or advisor] [a director] of the
Company or any Affiliate for any reason, the Participant shall forfeit all
unvested Performance Shares or Performance Units, and this Performance Award
shall terminate; provided, however, that if the Administrator delays the
vesting and issuance of any Performance Shares or Performance Units pursuant to
Article X.J., the Participant shall not forfeit any such Performance
Shares or Performance Units that otherwise would have vested prior to the
termination of Participant’s relationship had such vesting not been so delayed,
and, upon the issuance of such delayed vested Performance Shares or Performance
Units, this Performance Award shall terminate.


 


C.                                     Termination of
Employment After Vesting But Prior to Issuance.  If
Participant ceases to be [a key employee or
officer] [a consultant or advisor] [a director] of the Company or
any Affiliate for any reason after Performance Shares or Performance Units have
vested but prior to the date such Shares are issued or cash is distributed (as
described in Article III hereof), then Participant (or Participant’s
estate in the event of his death) shall be entitled to receive such vested
Performance Shares or Performance Units as if such termination of employment
had not occurred.  Upon the issuance of
the vested Performance Shares or Performance Units, this Performance Award
shall terminate.


 


ARTICLE IV.  FORM,
TIME OF ISSUANCE


 


The Administrator shall, within
          
(    ) days after the end of the Performance Period or at
such earlier times as described in Article III above, determine the number
of Performance Shares and Performance Units that have vested pursuant to Article III
above and shall calculate the amount of cash, if any, payable to Participant by
multiplying the Per Unit Value by such number of vested Performance Units.  Unless the Administrator delays the vesting
and issuance of such Performance Shares or Performance Units pursuant to Article X.J.,
such Performance Shares or cash shall be issued in the calendar year in which the date such Performance Shares or
Performance Units become vested; provided, however, that the Participant shall
receive cash equal to the Fair Market Value of any fractional shares.


 


ARTICLE
V.  NONTRANSFERABILITY


 


This Performance Award shall not be transferable, in whole or in part,
by Participant, other than by will or by the laws of descent and distribution,
prior to the date the risks of forfeiture described in this


 


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Agreement
have lapsed.  If Participant shall
attempt any transfer of this Performance Award prior to such date, such
transfer shall be void and this Performance Award shall terminate.


 


ARTICLE VI. WITHHOLDING TAXES


 


To permit the Company to comply with all applicable federal and state
income tax laws or regulations, the Company may take such action as it deems
appropriate to ensure that, if necessary, all applicable federal and state
payroll, income or other taxes are withheld from any amounts payable by the
Company to Participant.  If the Company
is unable to withhold such federal and state taxes, for whatever reason,
Participant hereby agrees to pay to the Company an amount equal to the amount
the Company would otherwise be required to withhold under federal or state
law.  Subject to such rules as the Administrator may adopt, the Administrator
may, in its sole discretion, permit Participant to satisfy such withholding tax
obligations, in whole or in part (i) by delivering shares of common stock,
or (ii) by electing to have the Company withhold shares of Common Stock
otherwise issuable to Participant as a result of the grant of Performance
Shares, in either case having a Fair Market Value, as of the date the
amount of tax to be withheld is determined under applicable tax law, equal to the minimum amount required to be
withheld for tax purposes based on the minimum statutory withholding rates for
federal and state tax purposes, including payroll taxes, that are applicable to
the supplemental income resulting from such exercise.  Participant’s request to deliver shares or to
have shares withheld for purposes of such withholding tax obligations shall be
made on or before the date that triggers such obligations or, if later, the
date that the amount of tax to be withheld is determined under applicable tax
law.  Participant’s request shall be
approved by the Administrator and otherwise comply with such rules as the
Administrator may adopt to assure compliance with Rule 16b-3 or any
successor provision, as then in effect, of the General Rules and
Regulations under the Securities and Exchange Act of 1934, if applicable.


 


ARTICLE VII.  CAPITAL ADJUSTMENTS


 


Except as otherwise specifically provided in any employment, change of
control, severance or similar agreement executed by Participant and the
Company, pursuant and subject to Section 14 of the Plan, certain changes
in the number or character of the Common Stock of the Company (through sale,
merger, consolidation, exchange, reorganization, divestiture (including a
spin-off), liquidation, recapitalization, stock split, stock dividend or
otherwise) may result in an adjustment, reduction or enlargement, as
appropriate, in the number of shares subject to this Performance Award.  Any additional shares that are credited
pursuant to such adjustment shall be subject to the same restrictions as are
applicable to the shares with respect to which the adjustment relates.


 


ARTICLE  VIII.  BINDING
EFFECT


 


This Agreement shall be binding upon the heirs, executors,
administrators and successors of the parties hereto.


 


ARTICLE IX.  2007 EQUITY INCENTIVE PLAN


 


The Performance Award represented by this Agreement has been granted
under, and is subject to the terms of, the Plan.  The terms of the Plan are hereby incorporated
by reference herein in their entirety and Participant, by execution hereof,
acknowledges having received a copy of the Plan.  Capitalized terms not defined herein shall
have the meaning set forth in the Plan. 
The provisions of this Agreement shall be interpreted as to be consistent
with the Plan and any ambiguities herein shall be interpreted by reference to 


 


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the
Plan.  In the event that any provision
hereof is inconsistent with the terms of the Plan, the latter shall prevail.


 


ARTICLE X.  MISCELLANEOUS


 


A.                                   Employment or Other
Relationship; Rights as a Stockholder.  Nothing in this Agreement
shall be construed to (a) limit in any way the right of the Company or any
Affiliate to terminate the status of Participant as an employee of the Company
at any time, or (b) be evidence of any agreement or understanding, express
or implied, that the Company or any Affiliate will employ Participant in any
particular position, at any particular rate of compensation or for any
particular period of time.  Participant
shall have no rights as a stockholder with respect to shares issued under this
Agreement until such shares have been issued to Participant.  No adjustment shall be made for dividends
(ordinary or extraordinary, whether in cash, securities or other property),
distributions or other rights for which the record date is prior to the date
such shares are issued, except as provided in Section 14 of the Plan.


 


B.                                     Securities Law
Compliance.  Participant shall not transfer or otherwise
dispose of the shares of Stock received pursuant to this Agreement until such
time as counsel to the Company shall have determined that such transfer or
other disposition will not violate any state or federal securities laws.  Participant may be required by the Company,
as a condition of the effectiveness of this Performance Award, to agree in
writing that all Stock subject to this Agreement shall be held, until such time
that such Stock is registered and freely tradable under applicable state and
federal securities laws, for Participant’s own account without a view to any
further distribution thereof, that the certificates for such shares shall bear
an appropriate legend to that effect and that such shares will be not
transferred or disposed of except in compliance with applicable state and
federal securities laws.


 


C.                                     Lockup Period Limitation. 
Participant agrees that in the event the Company advises Participant
that it plans an underwritten public offering of its Common Stock in compliance
with the Securities Act of 1933, as amended, and that the underwriter(s) seek
to impose restrictions under which certain stockholders may not sell or
contract to sell or grant any option to buy or otherwise dispose of part or all
of their stock purchase rights of the underlying Common Stock, Participant
hereby agrees that for a period not to exceed 180 days from the prospectus,
Participant will not sell or contract to sell or grant an option to buy or
otherwise dispose of this Performance Award or any of the underlying shares of
Common Stock without the prior written consent of the of the underwriter(s) or
its representative(s).


 


D.                                    Blue Sky Limitation. 
Notwithstanding anything in this Agreement to the contrary, in the event
the Company makes any public offering of its securities and determines, in its
sole discretion, that it is necessary to reduce the number of issued but
unexercised stock purchase rights so as to comply with any state securities or
Blue Sky law limitations with respect thereto, the Administrator of the Company
shall accelerate the vesting of this restricted stock award, provided that the Company
gives Participant 15 days’ prior written notice of such acceleration.  Notice shall be deemed given when delivered
personally or when deposited in the United States mail, first class postage
prepaid and addressed to Participant at the address of Participant on file with
the Company.


 


E.                                      Accounting Compliance. 
Participant agrees that, if a “transaction” (as defined in Section 14
of the Plan) occurs, and Participant is an “affiliate” of the Company or any
Affiliate (as defined in applicable legal and accounting principles) at the
time of such transaction, Participant will comply with all requirements of Rule 145
of the Securities Act of 1933, as amended, and the requirements of such other
legal or accounting principles, and will execute any documents necessary to
ensure such compliance.


 


F.                                      Stock Legend.  The
Administrator may require that the certificates for any shares of Common Stock
issued to Participant (or, in the case of death, Participant’s successors)  under this Agreement


 


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shall
bear an appropriate legend to reflect the restrictions of this Article;
provided, however, that failure to so endorse any of such certificates shall
not render invalid or inapplicable this Article X.


 


G.                                     Shares Reserved.  The
Company shall at all times during the term of this Performance Award reserve
and keep available such number of shares as will be sufficient to satisfy the
requirements of this Agreement.


 


H.                                    Arbitration.  Any dispute arising out of or
relating to this Agreement or the alleged breach of it, or the making of this
Agreement, including claims of fraud and inducement, shall be discussed between
the disputing parties in a good faith effort to arrive at a mutual settlement
of any such controversy.  If, notwithstanding,
such dispute cannot be resolved, such dispute shall be settled by binding
arbitration.  Judgment upon the award
rendered by the arbitrator may be entered in any court having jurisdiction
thereof.  The arbitrator shall be a
retired state or federal judge or an attorney who has practiced securities or
business litigation for at least ten (10) years.  If the parties cannot agree on an arbitrator
within twenty (20) days, any party may request that a judge of the Circuit
Court of Cook County, Illinois select an arbitrator.  Arbitration will be conducted pursuant to the
provisions of this Agreement and the commercial arbitration rules of the
American Arbitration Association, unless such rules are inconsistent with
the provisions of this Agreement.  Limited
civil discovery shall be permitted for the production of documents and taking
of depositions.  Unresolved discovery
disputes may be brought to the attention of the arbitrator who may dispose of
such disputes.  The arbitrator shall have
the authority to award any remedy or relief that a court of this state could
order or grant; provided, however, that punitive or exemplary damages shall not
be awarded.  The arbitrator may award to
the prevailing party, if any, as determined by the arbitrator, all of its costs
and fees, including the arbitrator’s fee, administrative fees, travel expenses,
out-of-pocket expenses and reasonable attorney’s fees.  Unless otherwise agreed by the parties, the
place of any arbitration proceedings shall be Chicago, Illinois.


 


I.                                         Right to Amend.  The
Company hereby reserves the right to amend this Agreement without Participant’s
consent to the extent necessary or desirable to comply with the requirements of
Code Section 409A and the regulations, notices and other guidance of
general application issued thereunder.


 


J.                                        Delay in Payment
for Specified Employee.  Notwithstanding anything herein to the
contrary, if any payments to be made to Participant hereunder are subject to
the requirements of Code Section 409A and the Company determines that
Participant is a “specified employee” as defined in Code Section 409A as
of the date of the termination, such payments shall not be paid or commence
earlier than the date that is six months after the termination.  Any payment not made during the six month
period shall be paid on the first day of the seventh month following
termination.


 


ARTICLE XI.  GOVERNING LAW


 


This Agreement and all rights and obligations hereunder shall be
construed in accordance with the Plan and governed by the laws of the State of
Delaware.


 


[Signature page follows]


 


 


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IN WITNESS WHEREOF, the
parties hereto have executed this Agreement effective the day and year first
above written.


 


	
   

  	
  BROADWIND ENERGY, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  
	
   

  	
  Its:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  PARTICIPANT

  
	
  By
  execution hereof, the  Participant
  acknowledges having  
 received a copy of the Plan. 

  	
   

  



 


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