Participant | |
Grant Date | |
Number of Performance Shares | Target: Maximum: ........................................................................ |
Performance Period | As set forth on Schedule I, [the three (3)-year period beginning on _________ and ending on _______] [or alternative performance period] (the “Performance Period”). |
Performance Goals and Vesting Conditions | Except as otherwise provided in this Summary of Award or the Award Agreement, the Performance Shares will vest based on the performance level achieved with respect to the performance goals set forth on Schedule I and the Participant remaining in continuous Service from the Grant Date through the date on which the Board determines that the performance goals have been met (the “Vesting Date”). The Board, in its sole discretion, has the authority to determine whether the performance goals set forth on Schedule I have been achieved and to make any other determinations as to whether the conditions of this Summary of Award and the Award Agreement have been met. |
Termination of Service and Forfeiture | Except as otherwise provided in this Summary of Award, the Award Agreement or the Plan, if the Participant’s Service terminates for any reason, the Participant will forfeit all unvested Performance Shares as of the Termination Date. |
Vesting Upon Involuntary Termination of Service in Connection with a Change in Control | If the Participant incurs an Involuntary Termination within the Change in Control Protection Period, then the maximum number of Performance Shares set forth in this Summary of Award, to the extent they remain outstanding, shall vest in full as of the Termination Date, or if the Termination Date is prior to the consummation of a Change in Control, then the maximum number of Performance Shares set forth in this Summary of Award, to the extent they remain outstanding, shall vest in full upon the date of the consummation of the Change in Control. |
Termination of Service and/or Forfeiture (for Canadian Employees only) | This Summary of Award and the Agreement, and the terms of the Plan incorporated by reference herein, shall be construed such that (i) all references to termination of Service, for any reason, shall be deemed to include the minimum notice of termination period (if any) as required by applicable labor or employment standards legislation, as amended from time to time, and shall exclude any additional notice of termination period to which the Participant may be entitled to under contract or at common law; and (ii) any termination date shall be deemed to be the date immediately following the end of the minimum notice of termination period (if any) required by the applicable minimum employment or labor standards legislation, as amended from time to time, and shall exclude any additional notice of termination period to which the Participant may be entitled under contract or at common law. |
Delivery of Shares | The Participant will receive a payment with respect to the Performance Shares earned and vested pursuant to this Summary of Award and the Award Agreement, if any, within sixty (60) days following the Vesting Date (or other applicable vesting event) (the “Payment Date”); provided, however, that such payment will be made not later than March 15 of the fiscal year following the end of the Performance Period. Payment will be made with respect to the Performance Shares on the Payment Date in shares of Common Stock, with each Performance Share earned and vested equivalent to one share of Common Stock. Any Performance Shares not earned and vested will be forfeited. In no event will any fractional shares be issued. Except as otherwise provided in this Summary of Award or the Award Agreement, the Participant must be providing Services on the Vesting Date in order to earn and become vested in the Performance Shares, unless the Board determines otherwise. The obligation of the Company to release to the Participant vested shares of Common Stock shall be subject to all applicable laws, rules, and regulations and such approvals by governmental agencies as may be deemed appropriate by the Board, including such actions as Company counsel shall deem necessary or appropriate, to comply with relevant securities laws and regulations. |
Grant of Performance Shares | Subject to the terms and conditions set forth in this Award Agreement, the Summary of Award and in the Plan, the Company hereby grants the Participant the Performance Shares set forth in the Summary of Award. The Performance Shares constitute a Performance Award under the Plan. |
Non- Transferability | Until vested and shares of Common Stock are delivered pursuant to the Summary of Award and this Award Agreement, the Performance Shares (a) are subject to forfeiture, (b) may not be sold, transferred, assigned, pledged, or otherwise encumbered or disposed of, whether by operation of law or otherwise, and (c) may not be made subject to execution, attachment, or similar process. Any attempt to sell, transfer, assign, pledge or otherwise encumber or dispose of the Performance Shares contrary to the provisions hereof, and the levy of any execution, attachment or similar process upon the Performance Shares, shall be null, void and without effect. |
Changes in Control and Reorganization Events | The provisions of the Plan applicable to a Change in Control or Reorganization Event shall apply to the Performance Shares, and, in the event of a Change in Control or Reorganization Event, the Board may take such actions as it deems appropriate pursuant to the Plan. |
Leave of Absence | The impact of any leave of absence on the Participant’s Service for purposes of this Award Agreement will be determined in accordance with the Company’s policies and procedures and applicable laws. |
Taxes | All obligations of the Company under this Award Agreement shall be subject to the rights of the Company as set forth in the Plan to withhold amounts required to be withheld, collected or accounted for with respect to any federal, state, local and foreign tax, including but not limited to income taxes, employment taxes, social insurance, social security, national insurance contributions, other contributions, payroll taxes, payment on account obligations and other amounts (“Taxes”), if applicable, relating to the Performance Shares. Unless otherwise determined by the Board, the Company will withhold shares of Common Stock subject to vested Performance Shares to cover the applicable Taxes due from the Participant required by law to be withheld, collected or accounted for with respect to the Performance Shares. To the extent not withheld in accordance with the immediately preceding sentence or to the extent the number of shares of Common Stock withheld is not sufficient to cover the obligation for Taxes, the Participant shall be required to pay to the Company, or make other arrangements satisfactory to the Company to provide for the payment of, any Taxes required to be withheld, collected or accounted for with respect to the Performance Shares. The Participant acknowledges that regardless of any action the Company (or any of its Affiliates employing or retaining the Participant) takes with respect to any or all Taxes, the ultimate liability for all Taxes legally due by the Participant is and remains the Participant’s responsibility and that the Company (and its Affiliates) (i) makes no representations or undertakings regarding the treatment of any Taxes in connection with any aspect of the Performance Shares, including the grant, vesting or delivery of the Performance Shares, and the subsequent sale of any shares of Common Stock issued upon vesting of the Performance Shares; and (ii) does not commit to structure the terms of the grant or any aspect of the Performance Shares to reduce or eliminate the Participant’s liability for Taxes. Further, if the Participant is subject to taxation in more than one jurisdiction between the Grant Date and the date of any relevant taxable or tax withholding event in respect of the Performance Shares, as applicable, the Participant acknowledges that the Company and/or the Participant’s employer (or former employer, as applicable) may be required to withhold, collect or account for Taxes in more than one jurisdiction. |
No Right to Continued Service | None of the Performance Shares, the Summary of Award or this Award Agreement gives the Participant the right to continued Service in any capacity. The Company (and any parent, Subsidiaries, or Affiliates) reserves the right to terminate the Participant’s Service at any time and for any reason not prohibited by law. |
Nature of Grant; No Entitlement; No Claim for Compensation | In accepting the grant of Performance Shares as specified in the Summary of Award and this Award Agreement, the Participant acknowledges the following: •The Plan is established voluntarily by the Company, it is discretionary in nature and may be modified, amended, suspended or terminated by the Company at any time. •The grant of the Performance Shares is voluntary and occasional and does not create any contractual or other right to receive future grants of awards, or benefits in lieu of awards, even if awards have been granted repeatedly in the past. •All decisions with respect to future awards of Performance Shares or other awards, if any, will be at the sole discretion of the Board. •The Participant is voluntarily participating in the Plan. •The value of any shares of Common Stock underlying the Performance Shares is an extraordinary item of compensation outside the scope of the Participant’s Service Provider Agreement, if any. •The Performance Shares and the underlying shares of Common Stock are not part of the Participant’s normal or expected compensation or salary for any purpose, including, but not limited to, calculating any severance, resignation, termination, redundancy, end of service payments, bonuses, long-service awards, pension or retirement benefits, welfare benefits or similar payments. |
Stockholder Rights; Dividends | The Participant has no rights as a stockholder of the Company unless and until the shares of Common Stock relating to vested Performance Shares have been issued. Except as described in the Plan, no adjustments are made for dividends or other rights if the applicable record date occurs before the shares of Common Stock are issued. |
Assignment by Company | The rights and protections of the Company hereunder shall extend to any successors or assigns of the Company and to the Company’s parents and Affiliates. This Award Agreement may be assigned by the Company without the Participant’s consent. |
Applicable Law | The validity and construction of this Award Agreement will be governed by, and construed and interpreted in accordance with, the laws of the State of Delaware, other than any conflicts or choice of law rule or principle that might otherwise refer construction or interpretation of this Award Agreement to the substantive laws of any other jurisdiction. |
The Plan | The text of the Plan is incorporated by reference into this Award Agreement. Capitalized terms used but not defined in the Summary of Award (and Exhibit B thereto) and this Award Agreement have the meanings ascribed to them in the Plan. The Summary of Award, this Award Agreement and the Plan constitute the entire understanding between the Participant and the Company regarding the Performance Shares. Any prior agreements, commitments, or negotiations concerning the Performance Shares are superseded. This grant of Performance Shares is subject to the provisions of the Plan and to interpretations, regulations and determinations concerning the Plan established from time to time by the Board in accordance with the provisions of the Plan, including, but not limited to, provisions pertaining to (a) rights and obligations with respect to Taxes, (b) the registration, qualification or listing of the shares of Company Stock underlying the Performance Shares, (c) changes in capitalization of the Company, and (d) other requirements of applicable law. The Board shall have the authority to interpret and construe the grant pursuant to the terms of the Plan, and its decisions shall be conclusive as to any questions arising hereunder. |
Data Privacy | The Participant hereby explicitly and unambiguously consents to the collection, use and transfer, in electronic or other form, of the Participant’s personal data as described in this Award Agreement by and among, as applicable, the Participant’s employer, the Company and its Affiliates for the exclusive purpose of implementing, administering and managing the Participant’s participation in the Plan. The Participant understands that the Participant’s employer, the Company and its Affiliates, as applicable, hold certain personal information about the Participant regarding the Participant’s Service, the nature and amount of the Participant’s compensation and the facts and conditions of the Participant’s participation in the Plan, including, but not limited to, the Participant’s name, home address, telephone number and email address, date of birth, social security or insurance number or other identification number, salary, nationality, job title, any shares of stock or directorships held in the Company and its Affiliates, details of all awards or any other entitlement to shares of stock awarded, canceled, exercised, vested, unvested or outstanding in the Participant’s favor, for the purpose of implementing, administering and managing the Plan (the “Data”). The Participant understands that the Data may be transferred to any third parties assisting in the implementation, administration and management of the Plan, that these recipients may be located in the Participant’s country, or elsewhere, and that the recipient’s country may have different data privacy laws and protections than the Participant’s country. The Participant understands that the Participant may request a list with the names and addresses of any potential recipients of the Data by contacting the Participant’s local human resources representative. The Participant authorizes the recipients to receive, possess, use, retain and transfer the Data, in electronic or other form, for the purposes of implementing, administering and managing the Participant’s participation in the Plan, including any requisite transfer of such Data as may be required to a broker or other third party. The Participant understands that the Data will be held only as long as is necessary to implement, administer and manage Participant’s participation in the Plan. The Participant understands that the Participant may, at any time, view the Data, request additional information about the storage and processing of the Data, require any necessary amendments to the Data or refuse or withdraw the consents herein, in any case without cost, by contacting in writing the Participant’s local human resources representative. The Participant understands, however, that refusing or withdrawing the Participant’s consent may affect the Participant’s ability to participate in the Plan. For more information on the consequences of refusal to consent or withdrawal of consent, the Participant understands that the Participant may contact the Participant’s local human resources representative. |
Company Policies | The Participant agrees that the Performance Shares may be subject to clawback or recoupment policies, share trading policies and other policies that may be implemented by the Board or a Committee or imposed under applicable rules or regulations from time to time. No shares of Common Stock underlying the Performance Shares (nor any pro rata portion thereof) shall be earned until the Participant has met all the conditions of the Performance Shares, and, to the extent applicable, any clawback, recoupment or forfeiture provisions of any clawback, recoupment or forfeiture policy have been applied (and any provided amount, as applicable, shall be deemed an advance that remained subject to the Participant satisfying all eligibility conditions for earning the amounts deferred, accrued, or credited under the Plan). |
Code Section 409A | It is intended that the Summary of Award and this Award Agreement will be exempt from or comply with Code Section 409A to the extent subject thereto. Accordingly, to the maximum extent permitted, this Award Agreement will be interpreted and administered to be in compliance with Code Section 409A. To the extent that the Company determines that the Participant would be subject to the additional taxes or penalties imposed on certain nonqualified deferred compensation plans pursuant to Code Section 409A as a result of any provision of this Award Agreement, that provision will be deemed amended to the minimum extent necessary to avoid application of the additional taxes or penalties. The nature of the amendment will be determined by the Company. Notwithstanding anything to the contrary in this Award Agreement or the Plan, to the extent required to avoid accelerated taxation and penalties under Code Section 409A, amounts that would otherwise be payable and benefits that would otherwise be provided pursuant to this Award Agreement during the six (6)-month period immediately following the Participant’s “separation from service” (as defined for purposes of Code Section 409A, a “Separation from Service”) will instead be paid on the first payroll date after the six (6)-month anniversary of the Participant’s Separation from Service (or the Participant’s death, if earlier). Notwithstanding anything to the contrary in this Award Agreement, for purposes of any provision of this Award Agreement providing for the settlement of any shares of Common Stock upon or following a termination of employment or a termination of Service that are considered “deferred compensation” under Code Section 409A, references to the Participant’s “termination of employment” or “termination of Service” (and corollary terms) will be construed to refer to the Participant’s Separation from Service. Each installment of Performance Shares that vests under this Award Agreement (if there is more than one installment) will be considered one of a series of separate payments for purposes of Code Section 409A. |