EXHIBIT 10.26
NOTICE OF AWARD
TO:
FROM: Human Resources and Ethics Committee of the Board of Directors
("Committee")
SUBJECT: ESCO Technologies Inc. 2001 Stock Incentive Plan ("Plan")
1. Award. The Committee has awarded to you ______ Performance Shares under the
terms of the Plan ("Award"). The Award is subject to all of the terms of the
Plan, a copy of which has been delivered to you.
2. Terms. The following are the terms of the Award:
(a) Notwithstanding (b), below, if, during the Period of the Award, the
Average Value Per Share of Company Stock reaches the amount set forth in column
(A), the percentage of the Award earned will equal the amount set forth under
column (B) subject to the limitations set forth in (c) and provided you comply
with the terms of the remainder of this Notice of Award.
<Table>
<Caption>
A B
If the Average Value The Cumulative
Per Share of Company Percent of Award
Stock reaches: Earned shall be:
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</Table>
(b) If you are still employed on ________________________, you will
earn 100% of the Award provided you comply with the requirements of paragraph 3.
(c) The following additional terms will apply to the Award:
(i) No portion of this Award may be earned prior to
_________________. Not more than _________________ of the total Award may be
earned by the end of the Fiscal Year ending __________________ [and not more
than _______________ of the total Award may be earned by the end of the Fiscal
Year ending _________________]. If a greater portion of the Award would have
been earned in the applicable period but for the foregoing limitations, the
portion in excess of the limitations must be re-earned in a subsequent Fiscal
Year.
(ii) Once a portion of the Award is earned under subparagraph
(a), you must remain employed with the Company or a subsidiary of the Company
until the March 31st following the end of the Fiscal Year in which that portion
of the Award is earned. If you terminate employment prior to such time, you will
forfeit that portion of the Award. Provided, however, that if you terminate
employment on account of death, or total and permanent disability the foregoing
employment requirement shall not apply.
(iii) If there is a Change of Control (as defined in the Plan)
and you are employed by the Company on the date of the Change of Control, the
employment requirement of subparagraph (ii) shall cease to apply to the portion
of the Award which is earned and the number of shares representing that portion
of the Award which is earned as of the date of the Change of Control shall be
distributed to you. In addition, the portion of the Award which is unearned
shall be determined and distributed to you at the end of the Fiscal Year in
which the Change of Control occurred provided you are still employed on such
date, in lieu of all other provisions of this Award. If you are not employed by
the Company as of the end of the foregoing Fiscal Year, no such distribution
will be made; provided, however, that if you are involuntarily terminated for
reasons other than Cause or if you terminate for Good Reason the remaining
unearned shares shall be distributed in full upon such termination of
employment.
(a) Notwithstanding the foregoing provisions of this
subparagraph (iii), in the event a certified public accounting firm designated
by the Committee (the "Accounting Firm") determines that any payment (whether
paid or payable pursuant to the terms of this Award or otherwise and each such
payment hereinafter defined as a "Payment" and all Payments in the aggregate
hereinafter defined as the "Aggregate Payment"), would subject you to tax under
Section 4999 of the Internal Revenue Code of 1986 ("Code") then such Accounting
Firm shall determine whether some amount of payments would meet the definition
of a "Reduced Amount". If the Accounting Firm determines that there is a Reduced
Amount, payments shall be reduced so that the Aggregate Payments shall equal
such Reduced Amount. For purposes of this subparagraph, the "Reduced Amount"
shall be the largest Aggregate Payment which (a) is less than the sum of all
Payments and (b) results in aggregate Net After Tax Receipts which are equal to
or greater than the Net After Tax Receipts which would result if Payments were
made without regard to this subsection (e). "Net After Tax Receipt" means the
Present Value (defined under Section 280G(d)(4) of the Code) of a Payment net of
all taxes imposed on you under Section 1 and 4999 of the Code by applying the
highest marginal rate under Section 1 of the Code.
(b) As a result of the uncertainty in the application
of Section 4999 of the Code at the time of the initial determination of the
Accounting Firm hereunder, it is possible that Payments will be made by the
Company which should not have been made (the "Overpayments") or that additional
Payments which the Company has not made could have been made (the
"Underpayments"), in each case consistent with the calculations of the
Accounting Firm. In the event that the Accounting Firm, based either upon (A)
the assertion of a deficiency by the Internal Revenue Service against the
Company or you which the Accounting Firm believes has a high probability of
success or (B) controlling precedent or other substantial authority, determines
that an Overpayment has been made, any such Overpayment shall be treated for all
purposes as a loan to you which you shall repay to the Company together with
interest at the applicable Federal rate provided for in Section 7872(f)(2)(A) of
the Code; provided, however,
that no amount shall be payable by you to the Company if and to the extent such
payment would not reduce the amount which is subject to taxation under Section 1
and Section 4999 of the Code or if the period of limitations for assessment of
tax has expired. In the event that the Accounting Firm, based upon controlling
precedent or other substantial authority, determines that an Underpayment has
occurred, any such Underpayment shall be promptly paid by the Company to you
together with interest at the applicable Federal rate provided for in Section
7872(f)(2)(A) of the Code.
3. You must own directly or beneficially Company Stock in the amount of ___ % of
the number of shares covered by the Award (hereinafter referred to as "Minimum
Required Shares") and provide proof of ownership satisfactory to the Committee
of that number of shares as of _________. You must also notify the Company at
any time during the Period of the Award on or after _____________ if you sell or
otherwise transfer such shares and your total share ownership is less than the
Minimum Required Shares. If, at any time during the Period of the Award on or
after _____________, you own zero shares, ___% of the Award not yet earned will
be forfeited. If, at any time during the Period of the Award on or after
___________________, you own some shares but less than the Minimum Required
Shares, you will forfeit a pro rata portion of the Award not yet earned based
upon the ratio of the number of shares you own to the Minimum Required Shares.
4. Definitions. For purposes of the Award, the following terms shall have the
following meanings:
(a) "Average Value Per Share" shall mean the average for any
consecutive 30 day trading period in which Company Stock is traded of the daily
closing prices of Company Stock on the New York Stock Exchange.
(b) "Cause" shall mean:
(i) The willful and continued failure to substantially perform
your duties with the Company or one of its subsidiaries (other than any such
failure resulting from incapacity due to physical or mental illness), after a
written demand for such performance is delivered to you by the
__________________________ of the Company which specifically identifies the
manner in which such Board believes that you have not substantially performed
your duties; or
(ii) The willful engaging in (A) illegal conduct (other than
minor traffic offenses), or (B) conduct which is in breach of your fiduciary
duty to the Company or one of its subsidiaries and which is demonstrably
injurious to the Company or one of its subsidiaries, any of their reputations,
or any of their business prospects. For purposes of this subparagraph (ii) and
subparagraph (i) above, no act or failure to act on your part shall be
considered "willful" unless it is done, or omitted to be done, by you in bad
faith or without reasonable belief that your action or omission was in the best
interests of the Company or one of its subsidiaries. Any act, or failure to act,
based upon authority given pursuant to a resolution duly adopted by the Board of
Directors of the Company or based upon the advice of counsel for the Company
shall be conclusively presumed to be done, or omitted to be done, by you in good
faith and in the best interests of the Company or one of its subsidiaries;
The cessation of your employment shall not be deemed to be for "Cause" unless
and until there shall have been delivered to you a copy of a resolution duly
adopted by the affirmative vote of not less than three-fourths of the entire
membership of such Board of Directors of the Company (but excluding you if you
are a member of such Board) at a meeting of such Board called and held for such
purpose (after reasonable notice is provided to you and you are given an
opportunity, together with counsel, to be heard before such Board), finding
that, in the good-faith opinion of such Board, you are guilty of the conduct
described in subparagraph (i) or (ii) above, and specifying the particulars
thereof in detail.
(c) "Company Stock" shall mean common stock of the Company.
(d)"Fiscal Year" shall mean the fiscal year of the Company which, as of
the date hereof, is the twelve month period commencing October 1 and ending
September 30.
(e) "Good Reason" shall mean:
(i) Requiring you to be based at any office or location more
than 50 miles from your office or location as of the date of the Change of
Control;
(ii) The assignment to you of any duties inconsistent in any
respect with your position (including status, offices, titles and reporting
requirements), authority, duties or responsibilities as of the date of the
Change of Control or any action by the Company or any of its subsidiaries which
results in a diminution in such position, authority, duties or responsibilities,
excluding for this purpose an action taken by the Company or one of its
subsidiaries, to which you object in writing by notice to the Company within 10
business days after you receive actual notice of such action, which is remedied
by the Company or one of its subsidiaries promptly but in any event no later
than 5 business days after you provided such notice, or
(iii) The reduction in your total compensation and benefits
below the level in effect as of the date of the Change of Control.
(f) "Period of the Award" means the period commencing ________________
and ending on ________________________.
5. Parallel Incentive. The Committee may, but is not obligated to, authorize a
payment of a portion of the Award based upon its discretionary evaluation of the
Company's financial performance during the Period of the Award even if the
foregoing objectives are not fully met. Examples of performance measures the
Committee may consider include, but are not limited to, cash flow, earnings,
sales and margins.
6. Medium of Payment. The Committee shall direct that any distribution shall be
made in accordance with the terms of the Plan.
7. Amendment. The Award may be amended by written consent between the Committee
and you.
Executed this _____ day of __________________
ESCO TECHNOLOGIES INC. AGREED TO AND ACCEPTED:
By:
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Vice President Participant
ATTEST:
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Secretary