Exhibit 10.4
FY 10
Discretionary Management
Bonus Plan
FY10 Discretionary Management Bonus Plan
This document contains the terms and conditions of the FY10 Discretionary Management Bonus Plan (DMBP) which is being offered to you as a member of SMART’s team. You are eligible to participate in this plan subject to your agreeing to its terms.
As with all elements of your compensation, this document and the terms and conditions contained in it are confidential. This document may not be reproduced nor distributed outside of SMART unless the prior written consent of the President or CEO is obtained.
Definitions. Words that appear in bold text in this plan have the following meanings:
“active employment”means that you are actively delivering employment services to SMART and are not on aleave of absence;
“bonus period” means April 1, 2009 through March 31, 2010
“company performance” has the meaning given to in Section 2.2;
“company performance bonus” has the meaning given to in Section 2.1(i)
“eligibility conditions” means those conditions specified in Section 1.1;
“employment income”means your annual gross income on account of yourregular earnings;
“fiscal year”means April 1, 2009 to March 31, 2010 or such other annual fiscal period as may be established by SMART from time to time;
“full-time” for the purposes of this plan, means active employment services performed by you at the rate of at least forty (40) hours per week, inclusive of vacation days, but exclusive of time on account of aleave of absence;
“functional performance” has the meaning given to it in Section 2.3;
“good standing” means that you have not been subject to performance or disciplinary measures within thebonus period sufficient to cause you to be put on written notice that your continued employment with SMART is at risk;
“leave of absence” means:
(i) | the temporary cessation ofactive employment greater than ten (10) days with the intent to return to work, and includes, but is not limited to, unpaid vacation days and educational, travel, maternity and parental leaves; or |
(ii) | a leave on account of a short-term or long-term disability approved by SMART’s insurance carrier. |
“maximum bonus percentage” has the meaning given to it in Section 2.1
“personal performance” has the meaning given to it in Section 2.4;
“personal performance bonus”has the meaning given to it in Section 2.1(ii);
“plan” means this Discretionary Management Bonus Plan, as same may be amended from time to time;
“record date” has the meaning given to it in Section 5.2;
“regular earnings” means compensation for services rendered at your regular rate of pay and excludes benefits that might be included in your income as reflected on your T4 form, prior bonuses or other incentive pay of any kind;
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“SMART” means SMART Technologies ULC.;
1.0 | Eligibility |
1.1 | Eligibility Conditions. |
(i) | If you |
a. | receive a copy of this plan and agree to its terms by returning a signed copy to your member of executive management; |
b. | do not otherwise earn anyemployment income from SMART on account of sales commissions or sales bonuses; and |
c. | are employed with SMART as at April 1, 2009 or become so employed with SMART after April 1, 2009 but prior to January 1, 2010; |
you are eligible to participate in this plan and, subject to the remaining provisions of this plan, are eligible to receive thecompany performance bonus,functional performance bonus and thepersonal performance bonus.
(ii) | If you |
a. | receive a copy of this plan and agree to its terms by returning a signed copy to your member of executive management; |
b. | do not otherwise earn anyemployment income from SMART on account of sales commissions or sales bonuses; and |
c. | become employed with SMART on or after January 1, 2010; |
you are eligible to participate in this plan and, subject to the remaining provisions of this plan, are eligible to receive thecompany performance bonus.
2.0 | Bonus Calculations |
2.1 | Bonus. Provided you are otherwise eligible under this plan and provided that company performanceis achieved, you may earn a bonus (“maximum bonus percentage”) of youremployment income, where: |
(i) | a percentage of such bonus will be payable on the achievement ofcompany performance (“company performance bonus”); and |
(ii) | subject to (i) above a percentage of such bonus will be payable on the achievement of functional performance (“function performance bonus”); and |
(iii) | subject to (i) above a percentage of such bonus will be payable on a discretionary basis that is dependent on yourpersonal performance (“personal performance bonus”). |
The maximum bonus percentage and percentage of bonus payable based on company, functional and personal performance is detailed in Schedule A of this plan.
2.2 | Company Performance. Within ninety (90) days of the end of thefiscal year, executive management of SMART will determine whether company performance (“company performance”) has been achieved having regard to the financial performance of SMART on a consolidated basis and in accordance with generally accepted accounting principles (GAAP). There is a threshold over which the company must perform before bonuses become payable and a sliding scale above that threshold to a maximum payout of 100%. |
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Generally, the performance threshold and actual company performance will be measured by reference to the four KPIs:
(i) | Revenue |
(ii) | Margin |
(iii) | EBITDA |
(iv) | Market share |
The company performance will define the maximum possible payout of functional and personal performance described in 2.3 and 2.4 below.
2.3 | Functional Performance. If the company performance threshold has been achieved, an executive committee of SMART will review the performance of the functional area in which you work (“functional performance”) having regard to but not limited to the following factors: |
(i) | contribution to achieving the goals and objectives of the functional area |
(ii) | contribution to building the capability of the functional area |
(iii) | role in increasing the capacity and improvement of functional processes |
(iv) | adherence to budget |
The maximum achievable score for functional performance will be no higher than 100% times the overall company performance score. Should your personal performance score be less than or equal to 30% the maximum score for functional performance will be the same score applied to your functional performance weighting as defined in Schedule A.
2.4 | Personal Performance. If thecompany performance threshold has been achieved, an executive committee of SMART will review your performance(“personal performance”) having regard, but not limited, to the following factors: |
(i) | contribution to the top-level company strategy and contribution to the execution of same; |
(ii) | contribution to the make-or-break issues as identified by executive management prior to the commencement of, or as amended during, thefiscal year; |
(iii) | attention to the values, operating principles, policies, processes and administrative practices of SMART; and |
(iv) | delivery against agreed objectives as laid out in your annual work plan and as otherwise communicated with you from time to time. |
The maximum achievable score for personal performance will be no higher than 100% of the overall company performance score.
3.0 | Adjustments |
3.1. | Departure from and Re-commencement of Employment with SMART. If you voluntarily terminate your employment from SMART and then recommence it during thebonus period, you will only become eligible under this plan upon satisfying all of the eligibility conditions anew. |
3.2 | Leave of Absence. If you take aleave of absence during thebonus period, yourcompany performance bonus and yourpersonal performance bonus, if any, will be reduced by virtue of: |
(i) | your reducedemployment income during yourleave of absence; and |
(ii) | a pro-rata adjustment to yourmaximum bonus percentage. |
3.3 | Good Standing. If you are suspended from this plan during thebonus period by virtue of not being ingood standing, you will not be entitled to anypersonal performance bonus and yourcompany performance bonus will be reduced by virtue of: |
(i) | youremployment income being deemed to be reduced (for purposes of this plan) for the time that you were not ingood standing; and |
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(ii) | yourmaximum bonus percentage being adjusted downward (including to nil) in the sole discretion of the administrators of this plan. |
4.0 | Termination of Employment |
4.1 | Termination of Employment. If your employment with SMART ends: |
(i) | as a result of your termination with cause or your voluntary resignation from SMART, you will entirely forfeit your eligibility for anycompany performance bonus, functional performance bonus orpersonal performance bonus under this plan; or |
(ii) | as a result of a termination by SMART without cause, you will remain eligible to receive acompany performance bonus, if any, provided that your last day ofactive employment with SMART plus the applicable statutory notice period extends past the end date of thebonus period. In such circumstances, you will receive thecompany performance bonus in accordance with Section 5. |
4.2 | Acknowledgement. Eligibility for, or possible payments of, thecompany performance bonus and/or thepersonal performance bonus are not integral parts of your ongoing compensation. In electing to participate in thisplan, you agree that eligibility and possible payments under thisplan,together with payments under any prior plans that you have been a participant in while employed with SMART will not be factored into any severance compensation that may be owing to you in the future should your employment with SMART be terminated without just cause unless inclusion is specifically provided for in your employment agreement. Specifically, any possible payment under thisplan or prior payments will not be taken into account in a severance calculation, regardless of whether you or SMART have a defined severance formula in an employment agreement or offer letter, or whether your circumstances are governed by the common law, unless inclusion is specifically provided for in your employment agreement. |
5 | Administration |
5.1 | Must be in Active Employment and in Good Standing on Record Date. Subject to Section 4.1(ii), |
(i) | you must be inactive employment and ingood standing on therecord date in order to receive yourcompany performance bonus andpersonal performance bonus; and |
(ii) | if on therecord date, you are not ingood standing or inactive employment, you will have your payment, if any, for thebonus period held for up to six (6) months, at which time your status will be reviewed by the administrators of thisplan. Your payment will then be made (or not) having regard to the circumstances of your case, including (but not limited to) your performance, your intent to return to SMART if on aleave of absence and applicable income tax legislation. |
5.2 | Administration. This plan and any payments under this plan will be administered by the CEO together with the Vice President, People Services of SMART. |
5.3 | Record Date. Executive management of SMART will, within thirty (30) days of making the determination that company performance has been achieved, |
(i) | make a determination of yourpersonal performance; and |
(ii) | set a record date (“record date”). |
5.4 | Payment Date. Yourcompany performance bonus, if any, shall be payable within fourteen (14) days of therecord date and yourpersonal performance bonus, if any, shall be payable within sixty (60) days of therecord date. |
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5.5 | Payment Mechanism. Any payments made under this plan will be made via electronic transfer or cheque with required withholding being made. |
5.6 | Withholdings. All applicable withholdings will be made at the time of the payment except for any income tax withholdings that are directed by you not to be withheld pursuant to a completed Canada Customs and Revenue Form T1213, as such form may be amended from time to time. |
5.7 | Fiscal Year Change. If SMART’sfiscal year changes, then your employment income will be pro-rated to be reflective of the new bonus period. |
6.0 | Discretion |
6.1 | Discretionary Decisions. Thisplan has been drafted to provide for most situations and contingencies. There may be certain events or circumstances that are unique or that were not contemplated at the time of drafting thisplan. Accordingly, executive management reserves the right to exercise its discretion in choosing to make (or not) reward payments in any particular case, having regard, in each instance to the general spirit and intent of thisplan,the individual employee and legislative requirements, if any. |
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