Forfeiture of Restricted Stock Units. (A) The RESTRICTED STOCK UNITS shall be subject to the following additional forfeiture conditions, to which the PARTICIPANT, by accepting the RESTRICTED STOCK UNITS, agrees. If any of the events specified in Section 5(B)(i), (ii), or (iii) occurs (a “FORFEITURE EVENT”), the following forfeiture will result: (i) any RESTRICTED STOCK UNITS held by the PARTICIPANT and not then settled will be immediately forfeited and canceled upon the occurrence of the Forfeiture Event; and (ii) The PARTICIPANT will be obligated to repay to the Company, in cash, within five business days after demand is made therefor by the Company, the total amount of “AWARD GAIN” (as defined below) realized by the PARTICIPANT upon each settlement of RESTRICTED STOCK UNITS that occurred on or after (x) the date that is six months prior to the occurrence of the FORFEITURE EVENT, if the FORFEITURE EVENT occurred while the PARTICIPANT was employed by the COMPANY or a subsidiary or affiliate, or (y) the date that is six months prior to the date the PARTICIPANT’s employment by the COMPANY or a subsidiary or affiliate terminated, if the FORFEITURE EVENT occurred after the PARTICIPANT ceased to be so employed. For purposes of this Section, the term “AWARD GAIN” shall mean, in respect of any settlement of RESTRICTED STOCK UNITS granted to the Participant, the Fair Market Value of the cash or COMMON SHARES paid or payable to the Participant (regardless of any elective deferrals). (B) The forfeitures specified in Section 5(A) will be triggered upon the occurrence of any one of the following FORFEITURE EVENTS at any time during PARTICIPANT’ employment by the COMPANY or a subsidiary or affiliate, or during the one-year period following termination of such employment: (i) PARTICIPANT, acting alone or with others, directly or indirectly, (I) engages, either as employee, employer, consultant, advisor, or director, or as an owner, investor, partner, or stockholder unless PARTICIPANT’s interest is insubstantial, in any business in an area or region in which the COMPANY conducts business at the date the event occurs, which is directly in competition with a business then conducted by the COMPANY or a subsidiary or affiliate; (II) induces any customer or supplier of the COMPANY or a subsidiary or affiliate, with which the COMPANY or a subsidiary or affiliate has a business relationship, to curtail, cancel, not renew, or not continue his or her or its business with the COMPANY or any subsidiary or affiliate; or (III) induces, or attempts to influence, any employee of or service provider to the COMPANY or a subsidiary or affiliate to terminate such employment or service. The COMMITTEE shall, in its discretion, determine which lines of business the COMPANY conducts on any particular date and which third parties may reasonably be deemed to be in competition with the COMPANY. For purposes of this Section 5(B)(i), an PARTICIPANT’s interest as a stockholder is insubstantial if it represents beneficial ownership of less than five percent of the outstanding class of stock, and a PARTICIPANT’s interest as an owner, investor, or partner is insubstantial if it represents ownership, as determined by the COMMITTEE in its discretion, of less than five percent of the outstanding equity of the entity; (ii) PARTICIPANT discloses, uses, sells, or otherwise transfers, except in the course of employment with or other service to the COMPANY or any subsidiary or affiliate, any confidential or proprietary information of the COMPANY or any subsidiary or affiliate, including but not limited to information regarding the COMPANY’s current and potential customers, organization, employees, finances, and methods of operations and investments, so long as such information has not otherwise been disclosed to the public or is not otherwise in the public domain (other than by PARTICIPANT’s breach of this provision), except as required by law or pursuant to legal process, or PARTICIPANT makes statements or representations, or otherwise communicates, directly or indirectly, in writing, orally, or otherwise, or takes any other action which may, directly or indirectly, disparage or be damaging to the COMPANY or any of its subsidiaries or affiliates or their respective officers, directors, employees, advisors, businesses or reputations, except as required by law or pursuant to legal process; or (iii) PARTICIPANT fails to cooperate with the COMPANY or any subsidiary or affiliate in any way, including, without limitation, by making himself or herself available to testify on behalf of the COMPANY or such subsidiary or affiliate in any action, suit, or proceeding, whether civil, criminal, administrative, or investigative, or otherwise fails to assist the COMPANY or any subsidiary or affiliate in any way, including, without limitation, in connection with any such action, suit, or proceeding by providing information and meeting and consulting with members of management of, other representatives of, or counsel to, the COMPANY or such subsidiary or affiliate, as reasonably requested. (C) Despite the conditions set forth in this Section 5, a PARTICIPANT is not hereby prohibited from engaging in any activity, including but not limited to competition with the COMPANY and its subsidiaries and affiliates. Rather, the non-occurrence of the FORFEITURE EVENTS set forth in Section 5(B) is a condition to the PARTICIPANT’s right to realize and retain value from the RESTRICTED STOCK UNITS, and the consequence under the PLAN and this AGREEMENT if the PARTICIPANT engages in an activity giving rise to any such FORFEITURE EVENTS are the forfeitures specified therein and herein. The COMPANY and PARTICIPANT shall not be precluded by this provision or otherwise from entering into other agreements concerning the subject matter of Sections 5(A) and 5(B). (D) The COMMITTEE may, in its discretion, waive in whole or in part the COMPANY’s right to forfeiture under this Section 5, but no such waiver shall be effective unless evidenced by a writing signed by a duly authorized officer of the COMPANY. (E) This Section 5(E) shall apply only if the PARTICIPANT was granted the RESTRICTED STOCK UNITS under this AGREEMENT pursuant to the achievement of a performance goal under Section 7(c) of the PLAN. If the Committee determines that the earlier determination as to the achievement of the performance goal was based on incorrect data and that in fact the performance goal had not been achieved or had been achieved to a lesser extent than originally determined and a number of the RESTRICTED STOCK UNITS would not have been granted, given the correct data, then (i) the aggregate number of RESTRICTED STOCK UNITS set forth in Section 1 above shall be reduced by such number of RESTRICTED STOCK UNITS that would not have been granted (such RESTRICTED STOCK UNITS, the “EXCESS RSUs”), (ii) any EXCESS RSUs that have not yet vested in accordance with the terms of this AGREEMENT shall be forfeited and (iii) any COMMON SHARES received upon settlement of vested EXCESS RSUs (or if such COMMON SHARES were disposed of the cash equivalent) shall be returned to the COMPANY as provided by the COMMITTEE.
Appears in 4 contracts
Samples: Restricted Stock Unit Award Agreement (Abercrombie & Fitch Co /De/), Restricted Stock Unit Award Agreement (Abercrombie & Fitch Co /De/), Restricted Stock Unit Award Agreement (Abercrombie & Fitch Co /De/)
Forfeiture of Restricted Stock Units. (A) The RESTRICTED STOCK UNITS shall be subject to the following additional forfeiture conditions, to which the PARTICIPANT, by accepting the RESTRICTED STOCK UNITS, agrees. If any of the events specified in Section 5(B)(i), (ii), or (iii) or (iv) of this AGREEMENT occurs (a “FORFEITURE EVENT”), the following forfeiture will result:
(i) any RESTRICTED STOCK UNITS held by the PARTICIPANT and not then settled will be immediately forfeited and canceled upon the occurrence of the Forfeiture EventFORFEITURE EVENT; and
(ii) The PARTICIPANT will be obligated to repay to the CompanyCOMPANY, in cash, within five business days after demand is made therefor by the CompanyCOMPANY, the total amount of “AWARD GAIN” (as defined below) realized by the PARTICIPANT upon each settlement of RESTRICTED STOCK UNITS that occurred on or after (x) the date that is six twenty-four months prior to the occurrence of the FORFEITURE EVENT, if the FORFEITURE EVENT occurred while the PARTICIPANT was employed by the COMPANY or a subsidiary or affiliateaffiliate of the COMPANY, or (y) the date that is six twenty-four months prior to the date the PARTICIPANT’s employment by the COMPANY or a subsidiary or affiliate of the COMPANY terminated, if the FORFEITURE EVENT occurred after the PARTICIPANT ceased to be so employed. For purposes of this SectionSection 5, the term “AWARD GAIN” shall mean, in respect of any settlement of RESTRICTED STOCK UNITS granted to the ParticipantPARTICIPANT, the Fair Market Value FAIR MARKET VALUE as of the applicable VESTING DATE of the cash or COMMON and/or SHARES of the COMPANY paid or payable to the Participant PARTICIPANT (regardless of any elective deferrals).
(B) The forfeitures specified in Section 5(A) of this AGREEMENT will be triggered upon the occurrence of any one of the following FORFEITURE EVENTS at any time during PARTICIPANT’ ’s employment by the COMPANY or a subsidiary or affiliateaffiliate of the COMPANY, or during the onetwenty-year four-month period following termination of such employment:
(i) PARTICIPANT, acting alone or with others, directly or indirectly, (I) engages, either as an employee, employer, consultant, advisor, or director, or as an owner, investor, partner, or stockholder unless PARTICIPANT’s interest is insubstantial, in any business in an area or region in which the COMPANY or any subsidiary or affiliate of the COMPANY conducts business at the date the event occurs, which is directly in competition with a business then conducted by the COMPANY or a subsidiary or affiliateaffiliate of the COMPANY; (II) induces any customer or supplier of the COMPANY or a subsidiary or affiliateaffiliate of the COMPANY, with which the COMPANY or a subsidiary or affiliate of the COMPANY has a business relationship, to curtail, cancel, not renew, or not continue his or her or its business with the COMPANY or any subsidiary or affiliateaffiliate of the COMPANY; or (III) induces, or attempts to influence, any employee of or service provider to the COMPANY or a subsidiary or affiliate of the COMPANY to terminate such employment or service. The COMMITTEE shall, in its discretion, determine which lines of business the COMPANY conducts and the subsidiaries and affiliates of the COMPANY conduct on any particular date and which third parties may reasonably be deemed to be in competition with the COMPANY or any subsidiary or affiliate of the COMPANY. For purposes of this Section 5(B)(i), an PARTICIPANT’s interest as a stockholder is insubstantial if it represents beneficial ownership of less than five percent of the outstanding class of stock, and a PARTICIPANT’s interest as an owner, investor, or partner is insubstantial if it represents ownership, as determined by the COMMITTEE in its discretion, of less than five percent of the outstanding equity of the entity;
(ii) PARTICIPANT discloses, uses, sells, or otherwise transfers, except in the course of employment with or other service to the COMPANY or any subsidiary or affiliateaffiliate of the COMPANY, any confidential or proprietary information of the COMPANY or any subsidiary or affiliateaffiliate of the COMPANY, including but not limited to information regarding the COMPANY’s or any subsidiary’s or affiliate’s current and potential customers, organization, employees, finances, and methods of operations and investments, so long as such information has not otherwise been disclosed to the public or is not otherwise in the public domain (other than by PARTICIPANT’s breach of this provision), except as required by law or pursuant to legal process, or PARTICIPANT makes statements or representations, or otherwise communicates, directly or indirectly, in writing, orally, or otherwise, or takes any other action which may, directly or indirectly, disparage or be damaging to the COMPANY or any of its the subsidiaries or affiliates of the COMPANY or their respective officers, directors, employees, advisors, businesses or reputations, except as required by law or pursuant to legal process; or;
(iii) PARTICIPANT fails to cooperate with the COMPANY or any subsidiary or affiliate of the COMPANY in any way, including, without limitation, by making himself or herself PARTICIPANT available to testify on behalf of the COMPANY or such subsidiary or affiliate of the COMPANY in any action, suit, or proceeding, whether civil, criminal, administrative, or investigative, or otherwise fails to assist the COMPANY or any subsidiary or affiliate of the COMPANY in any way, including, without limitation, in connection with any such action, suit, or proceeding by providing information and meeting and consulting with members of management of, other representatives of, or counsel to, the COMPANY or such subsidiary or affiliateaffiliate of the COMPANY, as reasonably requested; or
(iv) PARTICIPANT, during the period PARTICIPANT is employed by the COMPANY or any subsidiary or affiliate of the COMPANY and for twenty-four months thereafter (the “NON-SOLICITATION PERIOD”), alone or in conjunction with another person, (I) interferes with or xxxxx, or attempts to interfere with or harm, the relationship of the Company or any subsidiary or affiliate of the COMPANY with any person who at any time was a customer or supplier of the Company or any subsidiary or affiliate of the COMPANY or otherwise had a business relationship with the Company or any subsidiary or affiliate of the COMPANY; or (II) hires, solicits for hire, aids in or facilitates the hire, or causes to be hired, either as an employee, contractor or consultant, any person who is currently employed, or was employed at any time during the six-month period prior thereto, as an employee, contractor or consultant of the Company or any subsidiary or affiliate of the COMPANY.
(C) Despite the conditions set forth in this Section 5, a PARTICIPANT is not hereby prohibited from engaging in any activityactivity set forth in Section 5(B)(i) of this AGREEMENT, including but not limited to competition with the COMPANY and its the subsidiaries and affiliatesaffiliates of the COMPANY. Rather, the non-occurrence of the FORFEITURE EVENTS set forth in Section 5(B) of this AGREEMENT is a condition to the PARTICIPANT’s right to realize and retain value from the RESTRICTED STOCK UNITS, and the consequence consequences under the PLAN and this AGREEMENT if the PARTICIPANT engages in an activity giving rise to any such FORFEITURE EVENTS are the forfeitures specified therein and hereinas otherwise provided in this AGREEMENT. The COMPANY and PARTICIPANT shall not be precluded by this provision or otherwise from entering into other agreements concerning the subject matter of Sections 5(A) and 5(B)) of this AGREEMENT.
(D) The COMMITTEE may, in its discretion, waive in whole or in part the COMPANY’s right to forfeiture under this Section 5, but no such waiver shall be effective unless evidenced by a writing signed by a duly authorized officer of the COMPANY.
(E) In addition to the above, PARTICIPANT agrees that any of the conduct described in Sections 5(B)(ii) and (iv) of this AGREEMENT would result in irreparable injury and damage to the Company for which the Company would have no adequate remedy at law. PARTICIPANT agrees that in the event of such occurrence or any threat thereof, the Company shall be entitled to an immediate injunction and restraining order to prevent such conduct and threatened conduct and/or continued conduct by PARTICIPANT and/or any and all persons and/or entities acting for and/or with PARTICIPANT, and without having to prove damages and to all costs and expenses incurred by the Company in seeking to enforce the COMPANY’s rights under this Agreement. These remedies are in addition to any other remedies to which the Company may be entitled at law or in equity. PARTICIPANT agrees that the covenants of PARTICIPANT contained in Section 5(B) of this AGREEMENT are reasonable. For the same reasons, the COMPANY shall be entitled to an immediate injunction without having to prove damages to enforce the COMPANY’s right to forfeit the RESTRICTED STOCK UNITS pursuant to Section 5(C) for a violation of Section 5(B)(i).
(F) This Section 5(E5(F) shall apply only if the PARTICIPANT was granted the RESTRICTED STOCK UNITS under this AGREEMENT pursuant to the achievement of a performance goal under Section 7(c) 7 of the PLAN. If the Committee COMMITTEE determines that the earlier determination as to the achievement of the performance goal was based on incorrect data and that in fact the performance goal had not been achieved or had been achieved to a lesser extent than originally determined and a number of the RESTRICTED STOCK UNITS would not have been granted, given the correct data, then (i) the aggregate number of RESTRICTED STOCK UNITS set forth in Section 1 above of this AGREEMENT shall be reduced by such number of RESTRICTED STOCK UNITS that would not have been granted (such RESTRICTED STOCK UNITS, the “EXCESS RSUs”), (ii) any EXCESS RSUs that have not yet vested in accordance with the terms of this AGREEMENT shall be forfeited and (iii) any COMMON SHARES of the COMPANY received upon settlement of vested EXCESS RSUs (or if such COMMON SHARES were disposed of of, the cash equivalent) shall be returned to the COMPANY as provided by the COMMITTEE.
Appears in 2 contracts
Samples: Restricted Stock Unit Award Agreement (Abercrombie & Fitch Co /De/), Restricted Stock Unit Award Agreement (Abercrombie & Fitch Co /De/)
Forfeiture of Restricted Stock Units. (A) The In addition to the forfeiture provisions described in Section 3 of the NON-COMPETE, the RESTRICTED STOCK UNITS shall be subject to the following additional forfeiture conditions, to which the PARTICIPANT, by accepting the RESTRICTED STOCK UNITS, agrees. If any of the events specified in Section 5(B)(i), (ii), or (iii) or (iv) of this AGREEMENT occurs (a “FORFEITURE EVENT”), the following forfeiture will result:
(i) any RESTRICTED STOCK UNITS held by the PARTICIPANT and not then settled will be immediately forfeited and canceled upon the occurrence of the Forfeiture EventFORFEITURE EVENT; and
(ii) The PARTICIPANT will be obligated to repay to the CompanyCOMPANY, in cash, within five business days after demand is made therefor by the CompanyCOMPANY, the total amount of “AWARD GAIN” (as defined below) realized by the PARTICIPANT upon each settlement of RESTRICTED STOCK UNITS that occurred on or after (x) the date that is six months prior to the occurrence of the FORFEITURE EVENT, if the FORFEITURE EVENT occurred while the PARTICIPANT was employed by the COMPANY or a subsidiary or affiliateaffiliate of the COMPANY, or (y) the date that is six months prior to the date the PARTICIPANT’s employment by the COMPANY or a subsidiary or affiliate of the COMPANY terminated, if the FORFEITURE EVENT occurred after the PARTICIPANT ceased to be so employed. For purposes of this SectionSection 5, the term “AWARD GAIN” shall mean, in respect of any settlement of RESTRICTED STOCK UNITS granted to the ParticipantPARTICIPANT, the Fair Market Value FAIR MARKET VALUE of the cash or COMMON and/or SHARES of the COMPANY paid or payable to the Participant PARTICIPANT (regardless of any elective deferrals).
(B) The forfeitures specified in Section 5(A) of this AGREEMENT will be triggered upon the occurrence of any one of the following FORFEITURE EVENTS at any time during PARTICIPANT’ ’s employment by the COMPANY or a subsidiary or affiliateaffiliate of the COMPANY, or during the one-year -month period following termination of such employment:
(i) PARTICIPANT, acting alone or with others, directly or indirectly, (I) engages, either as an employee, employer, consultant, advisor, or director, or as an owner, investor, partner, or stockholder unless PARTICIPANT’s interest is insubstantial, in any business in an area or region in which the COMPANY or any subsidiary or affiliate of the COMPANY conducts business at the date the event occurs, which is directly in competition with a business then conducted by the COMPANY or a subsidiary or affiliateaffiliate of the COMPANY; (II) induces any customer or supplier of the COMPANY or a subsidiary or affiliateaffiliate of the COMPANY, with which the COMPANY or a subsidiary or affiliate of the COMPANY has a business relationship, to curtail, cancel, not renew, or not continue his or her or its business with the COMPANY or any subsidiary or affiliateaffiliate of the COMPANY; or (III) induces, or attempts to influence, any employee of or service provider to the COMPANY or a subsidiary or affiliate of the COMPANY to terminate such employment or service. The COMMITTEE shall, in its discretion, determine which lines of business the COMPANY conducts and the subsidiaries and affiliates of the COMPANY conduct on any particular date and which third parties may reasonably be deemed to be in competition with the COMPANY or any subsidiary or affiliate of the COMPANY. For purposes of this Section 5(B)(i), an PARTICIPANT’s interest as a stockholder is insubstantial if it represents beneficial ownership of less than five percent of the outstanding class of stock, and a PARTICIPANT’s interest as an owner, investor, or partner is insubstantial if it represents ownership, as determined by the COMMITTEE in its discretion, of less than five percent of the outstanding equity of the entity;
(ii) PARTICIPANT discloses, uses, sells, or otherwise transfers, except in the course of employment with or other service to the COMPANY or any subsidiary or affiliateaffiliate of the COMPANY, any confidential or proprietary information of the COMPANY or any subsidiary or affiliateaffiliate of the COMPANY, including but not limited to information regarding the COMPANY’s or any subsidiary’s or affiliate’s current and potential customers, organization, employees, finances, and methods of operations and investments, so long as such information has not otherwise been disclosed to the public or is not otherwise in the public domain (other than by PARTICIPANT’s breach of this provision), except as required by law or pursuant to legal process, or PARTICIPANT makes statements or representations, or otherwise communicates, directly or indirectly, in writing, orally, or otherwise, or takes any other action which may, directly or indirectly, disparage or be damaging to the COMPANY or any of its the subsidiaries or affiliates of the COMPANY or their respective officers, directors, employees, advisors, businesses or reputations, except as required by law or pursuant to legal process; or;
(iii) PARTICIPANT fails to cooperate with the COMPANY or any subsidiary or affiliate of the COMPANY in any way, including, without limitation, by making himself or herself PARTICIPANT available to testify on behalf of the COMPANY or such subsidiary or affiliate of the COMPANY in any action, suit, or proceeding, whether civil, criminal, administrative, or investigative, or otherwise fails to assist the COMPANY or any subsidiary or affiliate of the COMPANY in any way, including, without limitation, in connection with any such action, suit, or proceeding by providing information and meeting and consulting with members of management of, other representatives of, or counsel to, the COMPANY or such subsidiary or affiliateaffiliate of the COMPANY, as reasonably requested; or
(iv) PARTICIPANT, during the period PARTICIPANT is employed by the COMPANY or any subsidiary or affiliate of the COMPANY and for months thereafter (the “NON-SOLICITATION PERIOD”), alone or in conjunction with another person, (I) interferes with or xxxxx, or attempts to interfere with or harm, the relationship of the Company or any subsidiary or affiliate of the COMPANY with any person who at any time was a customer or supplier of the Company or any subsidiary or affiliate of the COMPANY or otherwise had a business relationship with the Company or any subsidiary or affiliate of the COMPANY; or (II) hires, solicits for hire, aids in or facilitates the hire, or causes to be hired, either as an employee, contractor or consultant, any person who is currently employed, or was employed at any time during the six-month period prior thereto, as an employee, contractor or consultant of the Company or any subsidiary or affiliate of the COMPANY.
(C) Despite the conditions set forth in this Section 55 but subject to the provisions of the NON-COMPETE, a PARTICIPANT is not hereby prohibited from engaging in any activityactivity set forth in Section 5(B) of this AGREEMENT, including but not limited to competition with the COMPANY and its the subsidiaries and affiliatesaffiliates of the COMPANY. Rather, the non-occurrence of the FORFEITURE EVENTS set forth in Section 5(B) of this AGREEMENT is a condition to the PARTICIPANT’s right to realize and retain value from the RESTRICTED STOCK UNITS, and the consequence consequences under the PLAN and this AGREEMENT if the PARTICIPANT engages in an activity giving rise to any such FORFEITURE EVENTS are the forfeitures specified therein and hereinas otherwise provided in this AGREEMENT. The COMPANY and PARTICIPANT shall not be precluded by this provision or otherwise from entering into other agreements concerning the subject matter of Sections 5(A) and 5(B)) of this AGREEMENT, including the NON-COMPETE.
(D) The COMMITTEE may, in its discretion, waive in whole or in part the COMPANY’s right to forfeiture under this Section 5, but no such waiver shall be effective unless evidenced by a writing signed by a duly authorized officer of the COMPANY.
(E) In addition to the above, PARTICIPANT agrees that any of the conduct described in Sections 5(B)(i), (ii) and (iv) of this AGREEMENT would result in irreparable injury and damage to the Company for which the Company would have no adequate remedy at law. PARTICIPANT agrees that in the event of such occurrence or any threat thereof, the Company shall be entitled to an immediate injunction and restraining order to prevent such conduct and threatened conduct and/or continued conduct by PARTICIPANT and/or any and all persons and/or entities acting for and/or with PARTICIPANT, and without having to prove damages and to all costs and expenses incurred by the Company in seeking to enforce the COMPANY’s rights under this Agreement. These remedies are in addition to any other remedies to which the Company may be entitled at law or in equity. PARTICIPANT agrees that the covenants of PARTICIPANT contained in Section 5(B) of this AGREEMENT are reasonable.
(F) This Section 5(E5(F) shall apply only if the PARTICIPANT was granted the RESTRICTED STOCK UNITS under this AGREEMENT pursuant to the achievement of a performance goal under Section 7(c) 7 of the PLAN. If the Committee COMMITTEE determines that the earlier determination as to the achievement of the performance goal was based on incorrect data and that in fact the performance goal had not been achieved or had been achieved to a lesser extent than originally determined and a number of the RESTRICTED STOCK UNITS would not have been granted, given the correct data, then (i) the aggregate number of RESTRICTED STOCK UNITS set forth in Section 1 above of this AGREEMENT shall be reduced by such number of RESTRICTED STOCK UNITS that would not have been granted (such RESTRICTED STOCK UNITS, the “EXCESS RSUs”), (ii) any EXCESS RSUs that have not yet vested in accordance with the terms of this AGREEMENT shall be forfeited and (iii) any COMMON SHARES of the COMPANY received upon settlement of vested EXCESS RSUs (or if such COMMON SHARES were disposed of of, the cash equivalent) shall be returned to the COMPANY as provided by the COMMITTEE.
Appears in 2 contracts
Samples: Restricted Stock Unit Award Agreement (Abercrombie & Fitch Co /De/), Restricted Stock Unit Award Agreement (Abercrombie & Fitch Co /De/)
Forfeiture of Restricted Stock Units. (A) The In addition to the forfeiture provisions described in Section 3 of the NON-COMPETE, the RESTRICTED STOCK UNITS shall be subject to the following additional forfeiture conditions, to which the PARTICIPANT, by accepting the RESTRICTED STOCK UNITS, agrees. If any of the events specified in Section 5(B)(i), (ii), (iii) or (iiiiv) occurs (a “FORFEITURE EVENT”), the following forfeiture will result:
(i) any RESTRICTED STOCK UNITS held by the PARTICIPANT and not then settled will be immediately forfeited and canceled upon the occurrence of the Forfeiture Event; and
(ii) The PARTICIPANT will be obligated to repay to the Company, in cash, within five business days after demand is made therefor by the Company, the total amount of “AWARD GAIN” (as defined below) realized by the PARTICIPANT upon each settlement of RESTRICTED STOCK UNITS that occurred on or after (x) the date that is six _________ months prior to the occurrence of the FORFEITURE EVENT, if the FORFEITURE EVENT occurred while the PARTICIPANT was employed by the COMPANY or a subsidiary or affiliate, or (y) the date that is six _________ months prior to the date the PARTICIPANT’s 's employment by the COMPANY or a subsidiary or affiliate terminated, if the FORFEITURE EVENT occurred after the PARTICIPANT ceased to be so employed. For purposes of this Section, the term “AWARD GAIN” shall mean, in respect of any settlement of RESTRICTED STOCK UNITS granted to the Participant, the Fair Market Value of the cash or COMMON SHARES paid or payable to the Participant (regardless of any elective deferrals).
(B) The forfeitures specified in Section 5(A) will be triggered upon the occurrence of any one of the following FORFEITURE EVENTS at any time during PARTICIPANT’ 's employment by the COMPANY or a subsidiary or affiliate, or during the one-year ________ month period following termination of such employment:
(i) PARTICIPANT, acting alone or with others, directly or indirectly, (I) engages, either as employee, employer, consultant, advisor, or director, or as an owner, investor, partner, or stockholder unless PARTICIPANT’s 's interest is insubstantial, in any business in an area or region in which the COMPANY conducts business at the date the event occurs, which is directly in competition with a business then conducted by the COMPANY or a subsidiary or affiliate; (II) induces any customer or supplier of the COMPANY or a subsidiary or affiliate, with which the COMPANY or a subsidiary or affiliate has a business relationship, to curtail, cancel, not renew, or not continue his or her or its business with the COMPANY or any subsidiary or affiliate; or (III) induces, or attempts to influence, any employee of or service provider to the COMPANY or a subsidiary or affiliate to terminate such employment or service. The COMMITTEE shall, in its discretion, determine which lines of business the COMPANY conducts on any particular date and which third parties may reasonably be deemed to be in competition with the COMPANY. For purposes of this Section 5(B)(i), an PARTICIPANT’s 's interest as a stockholder is insubstantial if it represents beneficial ownership of less than five percent of the outstanding class of stock, and a PARTICIPANT’s 's interest as an owner, investor, or partner is insubstantial if it represents ownership, as determined by the COMMITTEE in its discretion, of less than five percent of the outstanding equity of the entity;
(ii) PARTICIPANT discloses, uses, sells, or otherwise transfers, except in the course of employment with or other service to the COMPANY or any subsidiary or affiliate, any confidential or proprietary information of the COMPANY or any subsidiary or affiliate, including but not limited to information regarding the COMPANY’s 's current and potential customers, organization, employees, finances, and methods of operations and investments, so long as such information has not otherwise been disclosed to the public or is not otherwise in the public domain (other than by PARTICIPANT’s 's breach of this provision), except as required by law or pursuant to legal process, or PARTICIPANT makes statements or representations, or otherwise communicates, directly or indirectly, in writing, orally, or otherwise, or takes any other action which may, directly or indirectly, disparage or be damaging to the COMPANY or any of its subsidiaries or affiliates or their respective officers, directors, employees, advisors, businesses or reputations, except as required by law or pursuant to legal process; or;
(iii) PARTICIPANT fails to cooperate with the COMPANY or any subsidiary or affiliate in any way, including, without limitation, by making himself or herself available to testify on behalf of the COMPANY or such subsidiary or affiliate in any action, suit, or proceeding, whether civil, criminal, administrative, or investigative, or otherwise fails to assist the COMPANY or any subsidiary or affiliate in any way, including, without limitation, in connection with any such action, suit, or proceeding by providing information and meeting and consulting with members of management of, other representatives of, or counsel to, the COMPANY or such subsidiary or affiliate, as reasonably requested; or
(iv) PARTICIPANT, during the period he or she is employed by the COMPANY and for __________ months thereafter (the “NON-SOLICITATION PERIOD”), alone or in conjunction with another party, (I) interferes with or xxxxx, or attempts to interfere with or harm, the relationship of the Company with any person who at any time was a customer or supplier of the Company or otherwise had a business relationship with the Company; (II) hires, solicits for hire, aids in or facilitates the hire, or causes to be hired, either as an employee, contractor or consultant, any person who is currently employed, or was employed at any time during the six (6) month period prior thereto, as an employee, contractor or consultant of the Company.
(C) Despite the conditions set forth in this Section 5, a PARTICIPANT is not hereby prohibited from engaging in any activity, including but not limited to competition with the COMPANY and its subsidiaries and affiliates. Rather, the non-occurrence of the FORFEITURE EVENTS set forth in Section 5(B) is a condition to the PARTICIPANT’s right to realize and retain value from the RESTRICTED STOCK UNITS, and the consequence under the PLAN and this AGREEMENT if the PARTICIPANT engages in an activity giving rise to any such FORFEITURE EVENTS are the forfeitures specified therein and herein. The COMPANY and PARTICIPANT shall not be precluded by this provision or otherwise from entering into other agreements concerning the subject matter of Sections 5(A) and 5(B).
(D) The COMMITTEE may, in its discretion, waive in whole or in part the COMPANY’s 's right to forfeiture under this Section 5, but no such waiver shall be effective unless evidenced by a writing signed by a duly authorized officer of the COMPANY.
(D) In addition to the above, PARTICIPANT agrees that any of the conduct described in Section 5(B)(ii) and (iv) would result in irreparable injury and damage to the Company for which the Company would have no adequate remedy at law. PARTICIPANT agrees that in the event of such occurrence or any threat thereof, the Company shall be entitled to an immediate injunction and restraining order to prevent such conduct and threatened conduct and/or continued conduct by PARTICIPANT and/or any and all persons and/or entities acting for and/or with PARTICIPANT, and without having to prove damages and to all costs and expenses incurred by the Company in seeking to enforce its rights under this Agreement. These remedies are in addition to any other remedies to which the Company may be entitled at law or in equity. PARTICIPANT agrees that the covenants of PARTICIPANT contained in Section 5(B) are reasonable.
(E) This Section 5(E) shall apply only if the PARTICIPANT was granted the RESTRICTED STOCK UNITS under this AGREEMENT pursuant to the achievement of a performance goal under Section 7(c) of the PLAN. If the Committee COMMITTEE determines that the earlier determination as to the achievement of the performance goal was based on incorrect data and that in fact the performance goal had not been achieved or had been achieved to a lesser extent than originally determined and a number of the RESTRICTED STOCK UNITS would not have been granted, given the correct data, then (i) the aggregate number of RESTRICTED STOCK UNITS set forth in Section 1 above shall be reduced by such number of RESTRICTED STOCK UNITS that would not have been granted (such RESTRICTED STOCK UNITS, the “EXCESS RSUs”), (ii) any EXCESS RSUs that have not yet vested in accordance with the terms of this AGREEMENT shall be forfeited and (iii) any COMMON SHARES received upon settlement of vested EXCESS RSUs (or if such COMMON SHARES were disposed of the cash equivalent) shall be returned to the COMPANY as provided by the COMMITTEE.
Appears in 2 contracts
Samples: Restricted Stock Unit Award Agreement (Abercrombie & Fitch Co /De/), Restricted Stock Unit Award Agreement (Abercrombie & Fitch Co /De/)
Forfeiture of Restricted Stock Units. (A) The RESTRICTED STOCK UNITS shall be subject to the following additional forfeiture conditions, to which the PARTICIPANT, by accepting the RESTRICTED STOCK UNITS, agrees. If any of the events specified in Section 5(B)(i), (ii), (iii) or (iiiiv) occurs (a “FORFEITURE EVENT”), the following forfeiture will result:
(i) any RESTRICTED STOCK UNITS held by the PARTICIPANT and not then settled will be immediately forfeited and canceled upon the occurrence of the Forfeiture Event; and
(ii) The PARTICIPANT will be obligated to repay to the Company, in cash, within five business days after demand is made therefor by the Company, the total amount of “AWARD GAIN” (as defined below) realized by the PARTICIPANT upon each settlement of RESTRICTED STOCK UNITS that occurred on or after (x) the date that is six _______ months prior to the occurrence of the FORFEITURE EVENT, if the FORFEITURE EVENT occurred while the PARTICIPANT was employed by the COMPANY or a subsidiary or affiliate, or (y) the date that is six ________ months prior to the date the PARTICIPANT’s 's employment by the COMPANY or a subsidiary or affiliate terminated, if the FORFEITURE EVENT occurred after the PARTICIPANT ceased to be so employed. For purposes of this Section, the term “AWARD GAIN” shall mean, in respect of any settlement of RESTRICTED STOCK UNITS granted to the Participant, the Fair Market Value of the cash or COMMON SHARES paid or payable to the Participant (regardless of any elective deferrals).
(B) The forfeitures specified in Section 5(A) will be triggered upon the occurrence of any one of the following FORFEITURE EVENTS at any time during PARTICIPANT’ 's employment by the COMPANY or a subsidiary or affiliate, or during the one-year ________ month period following termination of such employment:
(i) PARTICIPANT, acting alone or with others, directly or indirectly, (I) engages, either as employee, employer, consultant, advisor, or director, or as an owner, investor, partner, or stockholder unless PARTICIPANT’s 's interest is insubstantial, in any business in an area or region in which the COMPANY conducts business at the date the event occurs, which is directly in competition with a business then conducted by the COMPANY or a subsidiary or affiliate; (II) induces any customer or supplier of the COMPANY or a subsidiary or affiliate, with which the COMPANY or a subsidiary or affiliate has a business relationship, to curtail, cancel, not renew, or not continue his or her or its business with the COMPANY or any subsidiary or affiliate; or (III) induces, or attempts to influence, any employee of or service provider to the COMPANY or a subsidiary or affiliate to terminate such employment or service. The COMMITTEE shall, in its discretion, determine which lines of business the COMPANY conducts on any particular date and which third parties may reasonably be deemed to be in competition with the COMPANY. For purposes of this Section 5(B)(i), an PARTICIPANT’s 's interest as a stockholder is insubstantial if it represents beneficial ownership of less than five percent of the outstanding class of stock, and a PARTICIPANT’s 's interest as an owner, investor, or partner is insubstantial if it represents ownership, as determined by the COMMITTEE in its discretion, of less than five percent of the outstanding equity of the entity;
(ii) PARTICIPANT discloses, uses, sells, or otherwise transfers, except in the course of employment with or other service to the COMPANY or any subsidiary or affiliate, any confidential or proprietary information of the COMPANY or any subsidiary or affiliate, including but not limited to information regarding the COMPANY’s 's current and potential customers, organization, employees, finances, and methods of operations and investments, so long as such information has not otherwise been disclosed to the public or is not otherwise in the public domain (other than by PARTICIPANT’s 's breach of this provision), except as required by law or pursuant to legal process, or PARTICIPANT makes statements or representations, or otherwise communicates, directly or indirectly, in writing, orally, or otherwise, or takes any other action which may, directly or indirectly, disparage or be damaging to the COMPANY or any of its subsidiaries or affiliates or their respective officers, directors, employees, advisors, businesses or reputations, except as required by law or pursuant to legal process; or;
(iii) PARTICIPANT fails to cooperate with the COMPANY or any subsidiary or affiliate in any way, including, without limitation, by making himself or herself available to testify on behalf of the COMPANY or such subsidiary or affiliate in any action, suit, or proceeding, whether civil, criminal, administrative, or investigative, or otherwise fails to assist the COMPANY or any subsidiary or affiliate in any way, including, without limitation, in connection with any such action, suit, or proceeding by providing information and meeting and consulting with members of management of, other representatives of, or counsel to, the COMPANY or such subsidiary or affiliate, as reasonably requested; or
(iv) PARTICIPANT, during the period he or she is employed by the COMPANY and for ___________ months thereafter (the “NON-SOLICITATION PERIOD”), alone or in conjunction with another party, (I) interferes with or xxxxx, or attempts to interfere with or harm, the relationship of the Company with any person who at any time was a customer or supplier of the Company or otherwise had a business relationship with the Company; (II) hires, solicits for hire, aids in or facilitates the hire, or causes to be hired, either as an employee, contractor or consultant, any person who is currently employed, or was employed at any time during the six (6) month period prior thereto, as an employee, contractor or consultant of the Company.
(C) Despite the conditions set forth in this Section 5, a PARTICIPANT is not hereby prohibited from engaging in any activityactivity set forth in Section 5(B)(i), including but not limited to competition with the COMPANY and its subsidiaries and affiliates. Rather, the non-occurrence of the FORFEITURE EVENTS set forth in Section 5(B) is a condition to the PARTICIPANT’s 's right to realize and retain value from the RESTRICTED STOCK UNITS, and the consequence under the PLAN and this AGREEMENT if the PARTICIPANT engages in an activity giving rise to any such FORFEITURE EVENTS are the forfeitures specified therein and hereinas otherwise provided in this AGREEMENT. The COMPANY and PARTICIPANT shall not be precluded by this provision or otherwise from entering into other agreements concerning the subject matter of Sections 5(A) and 5(B).
(D) The COMMITTEE may, in its discretion, waive in whole or in part the COMPANY’s 's right to forfeiture under this Section 5, but no such waiver shall be effective unless evidenced by a writing signed by a duly authorized officer of the COMPANY.
(E) In addition to the above, PARTICIPANT agrees that any of the conduct described in Section 5(B)(ii) and (iv) would result in irreparable injury and damage to the Company for which the Company would have no adequate remedy at law. PARTICIPANT agrees that in the event of such occurrence or any threat thereof, the Company shall be entitled to an immediate injunction and restraining order to prevent such conduct and threatened conduct and/or continued conduct by PARTICIPANT and/or any and all persons and/or entities acting for and/or with PARTICIPANT, and without having to prove damages and to all costs and expenses incurred by the Company in seeking to enforce its rights under this Agreement. These remedies are in addition to any other remedies to which the Company may be entitled at law or in equity. PARTICIPANT agrees that the covenants of PARTICIPANT contained in Section 5(B) are reasonable.
(F) This Section 5(E5(F) shall apply only if the PARTICIPANT was granted the RESTRICTED STOCK UNITS under this AGREEMENT pursuant to the achievement of a performance goal under Section 7(c) of the PLAN. If the Committee COMMITTEE determines that the earlier determination as to the achievement of the performance goal was based on incorrect data and that in fact the performance goal had not been achieved or had been achieved to a lesser extent than originally determined and a number of the RESTRICTED STOCK UNITS would not have been granted, given the correct data, then (i) the aggregate number of RESTRICTED STOCK UNITS set forth in Section 1 above shall be reduced by such number of RESTRICTED STOCK UNITS that would not have been granted (such RESTRICTED STOCK UNITS, the “EXCESS RSUs”), (ii) any EXCESS RSUs that have not yet vested in accordance with the terms of this AGREEMENT shall be forfeited and (iii) any COMMON SHARES received upon settlement of vested EXCESS RSUs (or if such COMMON SHARES were disposed of the cash equivalent) shall be returned to the COMPANY as provided by the COMMITTEE.
Appears in 2 contracts
Samples: Restricted Stock Unit Award Agreement (Abercrombie & Fitch Co /De/), Restricted Stock Unit Award Agreement (Abercrombie & Fitch Co /De/)
Forfeiture of Restricted Stock Units. (A) The RESTRICTED STOCK UNITS shall be subject to the following additional forfeiture conditions, to which the PARTICIPANT, by accepting the RESTRICTED STOCK UNITS, agrees. If any of the events specified in Section 5(B)(i), (ii), or (iii) or (iv) of this AGREEMENT occurs (a “FORFEITURE EVENT”), the following forfeiture will result:
(i) any RESTRICTED STOCK UNITS held by the PARTICIPANT and not then settled will be immediately forfeited and canceled upon the occurrence of the Forfeiture EventFORFEITURE EVENT; and
(ii) The PARTICIPANT will be obligated to repay to the CompanyCOMPANY, in cash, within five business days after demand is made therefor by the CompanyCOMPANY, the total amount of “AWARD GAIN” (as defined below) realized by the PARTICIPANT upon each settlement of RESTRICTED STOCK UNITS that occurred on or after (x) the date that is six months prior to the occurrence of the FORFEITURE EVENT, if the FORFEITURE EVENT occurred while the PARTICIPANT was employed by the COMPANY or a subsidiary or affiliateaffiliate of the COMPANY, or (y) the date that is six months prior to the date the PARTICIPANT’s employment by the COMPANY or a subsidiary or affiliate of the COMPANY terminated, if the FORFEITURE EVENT occurred after the PARTICIPANT ceased to be so employed. For purposes of this SectionSection 5, the term “AWARD GAIN” shall mean, in respect of any settlement of RESTRICTED STOCK UNITS granted to the ParticipantPARTICIPANT, the Fair Market Value FAIR MARKET VALUE of the cash or COMMON and/or SHARES of the COMPANY paid or payable to the Participant PARTICIPANT (regardless of any elective deferrals).
(B) The forfeitures specified in Section 5(A) of this AGREEMENT will be triggered upon the occurrence of any one of the following FORFEITURE EVENTS at any time during PARTICIPANT’ ’s employment by the COMPANY or a subsidiary or affiliateaffiliate of the COMPANY, or during the one-year -month period following termination of such employment:
(i) PARTICIPANT, acting alone or with others, directly or indirectly, (I) engages, either as employee, employer, consultant, advisor, or director, or as an owner, investor, partner, or stockholder unless PARTICIPANT’s interest is insubstantial, in any business in an area or region in which the COMPANY or any subsidiary or affiliate of the COMPANY conducts business at the date the event occurs, which is directly in competition with a business then conducted by the COMPANY or a subsidiary or affiliateaffiliate of the COMPANY; (II) induces any customer or supplier of the COMPANY or a subsidiary or affiliateaffiliate of the COMPANY, with which the COMPANY or a subsidiary or affiliate of the COMPANY has a business relationship, to curtail, cancel, not renew, or not continue his or her or its business with the COMPANY or any subsidiary or affiliateaffiliate of the COMPANY; or (III) induces, or attempts to influence, any employee of or service provider to the COMPANY or a subsidiary or affiliate of the COMPANY to terminate such employment or service. The COMMITTEE shall, in its discretion, determine which lines of business the COMPANY conducts and the subsidiaries and affiliates of the COMPANY conduct on any particular date and which third parties may reasonably be deemed to be in competition with the COMPANY or any subsidiary or affiliate of the COMPANY. For purposes of this Section 5(B)(i), an PARTICIPANT’s interest as a stockholder is insubstantial if it represents beneficial ownership of less than five percent of the outstanding class of stock, and a PARTICIPANT’s interest as an owner, investor, or partner is insubstantial if it represents ownership, as determined by the COMMITTEE in its discretion, of less than five percent of the outstanding equity of the entity;
(ii) PARTICIPANT discloses, uses, sells, or otherwise transfers, except in the course of employment with or other service to the COMPANY or any subsidiary or affiliateaffiliate of the COMPANY, any confidential or proprietary information of the COMPANY or any subsidiary or affiliateaffiliate of the COMPANY, including but not limited to information regarding the COMPANY’s or any subsidiary’s or affiliate’s current and potential customers, organization, employees, finances, and methods of operations and investments, so long as such information has not otherwise been disclosed to the public or is not otherwise in the public domain (other than by PARTICIPANT’s breach of this provision), except as required by law or pursuant to legal process, or PARTICIPANT makes statements or representations, or otherwise communicates, directly or indirectly, in writing, orally, or otherwise, or takes any other action which may, directly or indirectly, disparage or be damaging to the COMPANY or any of its the subsidiaries or affiliates of the COMPANY or their respective officers, directors, employees, advisors, businesses or reputations, except as required by law or pursuant to legal process; or;
(iii) PARTICIPANT fails to cooperate with the COMPANY or any subsidiary or affiliate of the COMPANY in any way, including, without limitation, by making himself or herself PARTICIPANT available to testify on behalf of the COMPANY or such subsidiary or affiliate of the COMPANY in any action, suit, or proceeding, whether civil, criminal, administrative, or investigative, or otherwise fails to assist the COMPANY or any subsidiary or affiliate of the COMPANY in any way, including, without limitation, in connection with any such action, suit, or proceeding by providing information and meeting and consulting with members of management of, other representatives of, or counsel to, the COMPANY or such subsidiary or affiliateaffiliate of the COMPANY, as reasonably requested; or
(iv) PARTICIPANT, during the period PARTICIPANT is employed by the COMPANY or any subsidiary or affiliate of the COMPANY and for months thereafter (the “NON-SOLICITATION PERIOD”), alone or in conjunction with another person, (I) interferes with or xxxxx, or attempts to interfere with or harm, the relationship of the Company or any subsidiary or affiliate of the COMPANY with any person who at any time was a customer or supplier of the Company or any subsidiary or affiliate of the COMPANY or otherwise had a business relationship with the Company or any subsidiary or affiliate of the COMPANY; or (II) hires, solicits for hire, aids in or facilitates the hire, or causes to be hired, either as an employee, contractor or consultant, any person who is currently employed, or was employed at any time during the six-month period prior thereto, as an employee, contractor or consultant of the Company or any subsidiary or affiliate of the COMPANY.
(C) Despite the conditions set forth in this Section 5, a PARTICIPANT is not hereby prohibited from engaging in any activityactivity set forth in Section 5(B) of this AGREEMENT, including but not limited to competition with the COMPANY and its the subsidiaries and affiliatesaffiliates of the COMPANY. Rather, the non-occurrence of the FORFEITURE EVENTS set forth in Section 5(B) of this AGREEMENT is a condition to the PARTICIPANT’s right to realize and retain value from the RESTRICTED STOCK UNITS, and the consequence consequences under the PLAN and this AGREEMENT if the PARTICIPANT engages in an activity giving rise to any such FORFEITURE EVENTS are the forfeitures specified therein and hereinas otherwise provided in this AGREEMENT. The COMPANY and PARTICIPANT shall not be precluded by this provision or otherwise from entering into other agreements concerning the subject matter of Sections 5(A) and 5(B)) of this AGREEMENT.
(D) The COMMITTEE may, in its discretion, waive in whole or in part the COMPANY’s right to forfeiture under this Section 5, but no such waiver shall be effective unless evidenced by a writing signed by a duly authorized officer of the COMPANY.
(E) In addition to the above, PARTICIPANT agrees that any of the conduct described in Sections 5(B)(i), (ii) and (iv) of this AGREEMENT would result in irreparable injury and damage to the Company for which the Company would have no adequate remedy at law. PARTICIPANT agrees that in the event of such occurrence or any threat thereof, the Company shall be entitled to an immediate injunction and restraining order to prevent such conduct and threatened conduct and/or continued conduct by PARTICIPANT and/or any and all persons and/or entities acting for and/or with PARTICIPANT, and without having to prove damages and to all costs and expenses incurred by the Company in seeking to enforce the COMPANY’s rights under this Agreement. These remedies are in addition to any other remedies to which the Company may be entitled at law or in equity. PARTICIPANT agrees that the covenants of PARTICIPANT contained in Section 5(B) of this AGREEMENT are reasonable.
(F) This Section 5(E5(F) shall apply only if the PARTICIPANT was granted the RESTRICTED STOCK UNITS under this AGREEMENT pursuant to the achievement of a performance goal under Section 7(c) 7 of the PLAN. If the Committee COMMITTEE determines that the earlier determination as to the achievement of the performance goal was based on incorrect data and that in fact the performance goal had not been achieved or had been achieved to a lesser extent than originally determined and a number of the RESTRICTED STOCK UNITS would not have been granted, given the correct data, then (i) the aggregate number of RESTRICTED STOCK UNITS set forth in Section 1 above of this AGREEMENT shall be reduced by such number of RESTRICTED STOCK UNITS that would not have been granted (such RESTRICTED STOCK UNITS, the “EXCESS RSUs”), (ii) any EXCESS RSUs that have not yet vested in accordance with the terms of this AGREEMENT shall be forfeited and (iii) any COMMON SHARES of the COMPANY received upon settlement of vested EXCESS RSUs (or if such COMMON SHARES were disposed of of, the cash equivalent) shall be returned to the COMPANY as provided by the COMMITTEE.
Appears in 2 contracts
Samples: Restricted Stock Unit Award Agreement (Abercrombie & Fitch Co /De/), Restricted Stock Unit Award Agreement (Abercrombie & Fitch Co /De/)
Forfeiture of Restricted Stock Units. (A) The In addition to the forfeiture provisions described in Section 3 of the NON-COMPETE, the RESTRICTED STOCK UNITS shall be subject to the following additional forfeiture conditions, to which the PARTICIPANT, by accepting the RESTRICTED STOCK UNITS, agrees. If any of the events specified in Section 5(B)(i), (ii), or (iii) or (iv) of this AGREEMENT occurs (a “FORFEITURE EVENT”), the following forfeiture will result:
(i) any RESTRICTED STOCK UNITS held by the PARTICIPANT and not then settled will be immediately forfeited and canceled upon the occurrence of the Forfeiture EventFORFEITURE EVENT; and
(ii) The PARTICIPANT will be obligated to repay to the CompanyCOMPANY, in cash, within five business days after demand is made therefor by the CompanyCOMPANY, the total amount of “AWARD GAIN” (as defined below) realized by the PARTICIPANT upon each settlement of RESTRICTED STOCK UNITS that occurred on or after (x) the date that is six twenty-four months prior to the occurrence of the FORFEITURE EVENT, if the FORFEITURE EVENT occurred while the PARTICIPANT was employed by the COMPANY or a subsidiary or affiliateaffiliate of the COMPANY, or (y) the date that is six twenty-four months prior to the date the PARTICIPANT’s employment by the COMPANY or a subsidiary or affiliate of the COMPANY terminated, if the FORFEITURE EVENT occurred after the PARTICIPANT ceased to be so employed. For purposes of this SectionSection 5, the term “AWARD GAIN” shall mean, in respect of any settlement of RESTRICTED STOCK UNITS granted to the ParticipantPARTICIPANT, the Fair Market Value FAIR MARKET VALUE as of the applicable VESTING DATE of the cash or COMMON and/or SHARES of the COMPANY paid or payable to the Participant PARTICIPANT (regardless of any elective deferrals).
(B) The forfeitures specified in Section 5(A) of this AGREEMENT will be triggered upon the occurrence of any one of the following FORFEITURE EVENTS at any time during PARTICIPANT’ ’s employment by the COMPANY or a subsidiary or affiliateaffiliate of the COMPANY, or during the onetwenty-year four-month period following termination of such employment:
(i) PARTICIPANT, acting alone or with others, directly or indirectly, (I) engages, either as an employee, employer, consultant, advisor, or director, or as an owner, investor, partner, or stockholder unless PARTICIPANT’s interest is insubstantial, in any business in an area or region in which the COMPANY or any subsidiary or affiliate of the COMPANY conducts business at the date the event occurs, which is directly in competition with a business then conducted by the COMPANY or a subsidiary or affiliateaffiliate of the COMPANY; (II) induces any customer or supplier of the COMPANY or a subsidiary or affiliateaffiliate of the COMPANY, with which the COMPANY or a subsidiary or affiliate of the COMPANY has a business relationship, to curtail, cancel, not renew, or not continue his or her or its business with the COMPANY or any subsidiary or affiliateaffiliate of the COMPANY; or (III) induces, or attempts to influence, any employee of or service provider to the COMPANY or a subsidiary or affiliate of the COMPANY to terminate such employment or service. The COMMITTEE shall, in its discretion, determine which lines of business the COMPANY conducts and the subsidiaries and affiliates of the COMPANY conduct on any particular date and which third parties may reasonably be deemed to be in competition with the COMPANY or any subsidiary or affiliate of the COMPANY. For purposes of this Section 5(B)(i), an PARTICIPANT’s interest as a stockholder is insubstantial if it represents beneficial ownership of less than five percent of the outstanding class of stock, and a PARTICIPANT’s interest as an owner, investor, or partner is insubstantial if it represents ownership, as determined by the COMMITTEE in its discretion, of less than five percent of the outstanding equity of the entity;
(ii) PARTICIPANT discloses, uses, sells, or otherwise transfers, except in the course of employment with or other service to the COMPANY or any subsidiary or affiliateaffiliate of the COMPANY, any confidential or proprietary information of the COMPANY or any subsidiary or affiliateaffiliate of the COMPANY, including but not limited to information regarding the COMPANY’s or any subsidiary’s or affiliate’s current and potential customers, organization, employees, finances, and methods of operations and investments, so long as such information has not otherwise been disclosed to the public or is not otherwise in the public domain (other than by PARTICIPANT’s breach of this provision), except as required by law or pursuant to legal process, or PARTICIPANT makes statements or representations, or otherwise communicates, directly or indirectly, in writing, orally, or otherwise, or takes any other action which may, directly or indirectly, disparage or be damaging to the COMPANY or any of its the subsidiaries or affiliates of the COMPANY or their respective officers, directors, employees, advisors, businesses or reputations, except as required by law or pursuant to legal process; or;
(iii) PARTICIPANT fails to cooperate with the COMPANY or any subsidiary or affiliate of the COMPANY in any way, including, without limitation, by making himself or herself PARTICIPANT available to testify on behalf of the COMPANY or such subsidiary or affiliate of the COMPANY in any action, suit, or proceeding, whether civil, criminal, administrative, or investigative, or otherwise fails to assist the COMPANY or any subsidiary or affiliate of the COMPANY in any way, including, without limitation, in connection with any such action, suit, or proceeding by providing information and meeting and consulting with members of management of, other representatives of, or counsel to, the COMPANY or such subsidiary or affiliateaffiliate of the COMPANY, as reasonably requested; or
(iv) PARTICIPANT, during the period PARTICIPANT is employed by the COMPANY or any subsidiary or affiliate of the COMPANY and for twenty-four months thereafter (the “NON-SOLICITATION PERIOD”), alone or in conjunction with another person, (I) interferes with or xxxxx, or attempts to interfere with or harm, the relationship of the Company or any subsidiary or affiliate of the COMPANY with any person who at any time was a customer or supplier of the Company or any subsidiary or affiliate of the COMPANY or otherwise had a business relationship with the Company or any subsidiary or affiliate of the COMPANY; or (II) hires, solicits for hire, aids in or facilitates the hire, or causes to be hired, either as an employee, contractor or consultant, any person who is currently employed, or was employed at any time during the six-month period prior thereto, as an employee, contractor or consultant of the Company or any subsidiary or affiliate of the COMPANY.
(C) Despite the conditions set forth in this Section 55 but subject to the provisions of the NON-COMPETE, a PARTICIPANT is not hereby prohibited from engaging in any activityactivity set forth in Section 5(B)(i) of this AGREEMENT, including but not limited to competition with the COMPANY and its the subsidiaries and affiliatesaffiliates of the COMPANY. Rather, the non-occurrence of the FORFEITURE EVENTS set forth in Section 5(B) of this AGREEMENT is a condition to the PARTICIPANT’s right to realize and retain value from the RESTRICTED STOCK UNITS, and the consequence consequences under the PLAN and this AGREEMENT if the PARTICIPANT engages in an activity giving rise to any such FORFEITURE EVENTS are the forfeitures specified therein and hereinas otherwise provided in this AGREEMENT. The COMPANY and PARTICIPANT shall not be precluded by this provision or otherwise from entering into other agreements concerning the subject matter of Sections 5(A) and 5(B)) of this AGREEMENT, including the NON-COMPETE. For purposes of clarity, this Section 5(C) shall not affect the COMPANY’S and PARTICIPANTS rights and obligations under the NON-COMPETE.
(D) The COMMITTEE may, in its discretion, waive in whole or in part the COMPANY’s right to forfeiture under this Section 5, but no such waiver shall be effective unless evidenced by a writing signed by a duly authorized officer of the COMPANY.
(E) In addition to the above, PARTICIPANT agrees that any of the conduct described in Sections 5(B)(ii) and (iv) of this AGREEMENT would result in irreparable injury and damage to the Company for which the Company would have no adequate remedy at law. PARTICIPANT agrees that in the event of such occurrence or any threat thereof, the Company shall be entitled to an immediate injunction and restraining order to prevent such conduct and threatened conduct and/or continued conduct by PARTICIPANT and/or any and all persons and/or entities acting for and/or with PARTICIPANT, and without having to prove damages and to all costs and expenses incurred by the Company in seeking to enforce the COMPANY’s rights under this Agreement. These remedies are in addition to any other remedies to which the Company may be entitled at law or in equity. PARTICIPANT agrees that the covenants of PARTICIPANT contained in Section 5(B) of this AGREEMENT are reasonable. For the same reasons, the COMPANY shall be entitled to an immediate injunction without having to prove damages to enforce the COMPANY’s right to forfeit the RESTRICTED STOCK UNITS pursuant to Section 5(C) for a violation of Section 5(B)(i).
(F) This Section 5(E5(F) shall apply only if the PARTICIPANT was granted the RESTRICTED STOCK UNITS under this AGREEMENT pursuant to the achievement of a performance goal under Section 7(c) 7 of the PLAN. If the Committee COMMITTEE determines that the earlier determination as to the achievement of the performance goal was based on incorrect data and that in fact the performance goal had not been achieved or had been achieved to a lesser extent than originally determined and a number of the RESTRICTED STOCK UNITS would not have been granted, given the correct data, then (i) the aggregate number of RESTRICTED STOCK UNITS set forth in Section 1 above of this AGREEMENT shall be reduced by such number of RESTRICTED STOCK UNITS that would not have been granted (such RESTRICTED STOCK UNITS, the “EXCESS RSUs”), (ii) any EXCESS RSUs that have not yet vested in accordance with the terms of this AGREEMENT shall be forfeited and (iii) any COMMON SHARES of the COMPANY received upon settlement of vested EXCESS RSUs (or if such COMMON SHARES were disposed of of, the cash equivalent) shall be returned to the COMPANY as provided by the COMMITTEE.
Appears in 1 contract
Samples: Restricted Stock Unit Award Agreement (Abercrombie & Fitch Co /De/)
Forfeiture of Restricted Stock Units. (A) The RESTRICTED STOCK UNITS shall be subject to the following additional forfeiture conditions, to which the PARTICIPANT, by accepting the RESTRICTED STOCK UNITS, agrees. If any of the events specified in Section 5(B)(i), (ii), or (iii) or (iv) of this AGREEMENT occurs (a “FORFEITURE EVENT”), the following forfeiture will result:
(i) any RESTRICTED STOCK UNITS held by the PARTICIPANT and not then settled will be immediately forfeited and canceled upon the occurrence of the Forfeiture EventFORFEITURE EVENT; and
(ii) The PARTICIPANT will be obligated to repay to the CompanyCOMPANY, in cash, within five business days after demand is made therefor by the CompanyCOMPANY, the total amount of “AWARD GAIN” (as defined below) realized by the PARTICIPANT upon each settlement of RESTRICTED STOCK UNITS that occurred on or after (x) the date that is six twenty-four months prior to the occurrence of the FORFEITURE EVENT, if the FORFEITURE EVENT occurred while the PARTICIPANT was employed by the COMPANY or a subsidiary or affiliateaffiliate of the COMPANY, or (y) the date that is six twenty-four months prior to the date the PARTICIPANT’s employment by the COMPANY or a subsidiary or affiliate of the COMPANY terminated, if the FORFEITURE EVENT occurred after the PARTICIPANT ceased to be so employed; provided, however, that this right of recoupment shall not limit the BOARD’s recoupment authority under any applicable clawback or recoupment policy approved by the BOARD. For purposes of this SectionSection 5, the term “AWARD GAIN” shall mean, in respect of any settlement of RESTRICTED STOCK UNITS granted to the ParticipantPARTICIPANT, the Fair Market Value FAIR MARKET VALUE as of the applicable VESTING DATE of the cash or COMMON and/or SHARES of the COMPANY paid or payable to the Participant PARTICIPANT (regardless of any elective deferrals).
(B) The forfeitures specified in Section 5(A) of this AGREEMENT will be triggered upon the occurrence of any one of the following FORFEITURE EVENTS at any time during PARTICIPANT’ ’s employment by the COMPANY or a subsidiary or affiliateaffiliate of the COMPANY, or during the onetwenty-year four-month period following termination of such employment:
(i) PARTICIPANT, acting alone or with others, directly or indirectly, (I) engages, either as an employee, employer, consultant, advisor, or director, or as an owner, investor, partner, or stockholder unless PARTICIPANT’s interest is insubstantial, in any business in an area or region in which the COMPANY or any subsidiary or affiliate of the COMPANY conducts business at the date the event occurs, which is directly in competition with a business then conducted by the COMPANY or a subsidiary or affiliateaffiliate of the COMPANY; (II) induces any customer or supplier of the COMPANY or a subsidiary or affiliateaffiliate of the COMPANY, with which the COMPANY or a subsidiary or affiliate of the COMPANY has a business relationship, to curtail, cancel, not renew, or not continue his or her or its business with the COMPANY or any subsidiary or affiliateaffiliate of the COMPANY; or (III) induces, or attempts to influence, any employee of or service provider to the COMPANY or a subsidiary or affiliate of the COMPANY to terminate such employment or service. The COMMITTEE shall, in its discretion, determine which lines of business the COMPANY conducts and the subsidiaries and affiliates of the COMPANY conduct on any particular date and which third parties may reasonably be deemed to be in competition with the COMPANY or any subsidiary or affiliate of the COMPANY. For purposes of this Section 5(B)(i), an PARTICIPANT’s interest as a stockholder is insubstantial if it represents beneficial ownership of less than five percent of the outstanding class of stock, and a PARTICIPANT’s interest as an owner, investor, or partner is insubstantial if it represents ownership, as determined by the COMMITTEE in its discretion, of less than five percent of the outstanding equity of the entity;
(ii) PARTICIPANT discloses, uses, sells, or otherwise transfers, except in the course of employment with or other service to the COMPANY or any subsidiary or affiliateaffiliate of the COMPANY, any confidential or proprietary information of the COMPANY or any subsidiary or affiliateaffiliate of the COMPANY, including but not limited to information regarding the COMPANY’s or any subsidiary’s or affiliate’s current and potential customers, organization, employees, finances, and methods of operations and investments, so long as such information has not otherwise been disclosed to the public or is not otherwise in the public domain (other than by PARTICIPANT’s breach of this provision), except as required by law or pursuant to legal process, or PARTICIPANT makes statements or representations, or otherwise communicates, directly or indirectly, in writing, orally, or otherwise, or takes any other action which may, directly or indirectly, disparage or be damaging to the COMPANY or any of its the subsidiaries or affiliates of the COMPANY or their respective officers, directors, employees, advisors, businesses or reputations, except as required by law or pursuant to legal process; or;
(iii) PARTICIPANT fails to cooperate with the COMPANY or any subsidiary or affiliate of the COMPANY in any way, including, without limitation, by making himself or herself PARTICIPANT available to testify on behalf of the COMPANY or such subsidiary or affiliate of the COMPANY in any action, suit, or proceeding, whether civil, criminal, administrative, or investigative, or otherwise fails to assist the COMPANY or any subsidiary or affiliate of the COMPANY in any way, including, without limitation, in connection with any such action, suit, or proceeding by providing information and meeting and consulting with members of management of, other representatives of, or counsel to, the COMPANY or such subsidiary or affiliateaffiliate of the COMPANY, as reasonably requested; or
(iv) PARTICIPANT, during the period PARTICIPANT is employed by the COMPANY or any subsidiary or affiliate of the COMPANY and for twenty-four months thereafter (the “NON-SOLICITATION PERIOD”), alone or in conjunction with another person,
(I) interferes with or xxxxx, or attempts to interfere with or harm, the relationship of the COMPANY or any subsidiary or affiliate of the COMPANY with any person who at any time was a customer or supplier of the COMPANY or any subsidiary or affiliate of the COMPANY or otherwise had a business relationship with the COMPANY or any subsidiary or affiliate of the COMPANY; or (II) hires, solicits for hire, aids in or facilitates the hire, or causes to be hired, either as an employee, contractor or consultant, any person who is currently employed, or was employed at any time during the six-month period prior thereto, as an employee, contractor or consultant of the COMPANY or any subsidiary or affiliate of the COMPANY.
(C) Despite the conditions set forth in this Section 5, a PARTICIPANT is not hereby prohibited from engaging in any activityactivity set forth in Section 5(B)(i) of this AGREEMENT, including but not limited to competition with the COMPANY and its the subsidiaries and affiliatesaffiliates of the COMPANY. Rather, the non-occurrence of the FORFEITURE EVENTS set forth in Section 5(B) of this AGREEMENT is a condition to the PARTICIPANT’s right to realize and retain value from the RESTRICTED STOCK UNITS, and the consequence consequences under the PLAN and this AGREEMENT if the PARTICIPANT engages in an activity giving rise to any such FORFEITURE EVENTS are the forfeitures specified therein and hereinas otherwise provided in this AGREEMENT. The COMPANY and PARTICIPANT shall not be precluded by this provision or otherwise from entering into other agreements concerning the subject matter of Sections 5(A) and 5(B)) of this AGREEMENT.
(D) The COMMITTEE may, in its discretion, waive in whole or in part the COMPANY’s right to forfeiture under this Section 5, but no such waiver shall be effective unless evidenced by a writing signed by a duly authorized officer of the COMPANY.
(E) In addition to the above, PARTICIPANT agrees that any of the conduct described in Sections 5(B)(ii) and (iv) of this AGREEMENT would result in irreparable injury and damage to the COMPANY for which the COMPANY would have no adequate remedy at law. PARTICIPANT agrees that in the event of such occurrence or any threat thereof, the COMPANY shall be entitled to an immediate injunction and restraining order to prevent such conduct and threatened conduct and/or continued conduct by PARTICIPANT and/or any and all persons and/or entities acting for and/or with PARTICIPANT, and without having to prove damages and to all costs and expenses incurred by the COMPANY in seeking to enforce the COMPANY’s rights under this AGREEMENT. These remedies are in addition to any other remedies to which the COMPANY may be entitled at law or in equity. PARTICIPANT agrees that the covenants of PARTICIPANT contained in Section 5(B) of this AGREEMENT are reasonable. For the same reasons, the COMPANY shall be entitled to an immediate injunction without having to prove damages to enforce the COMPANY’s right to forfeit the RESTRICTED STOCK UNITS pursuant to Section 5(C) for a violation of Section 5(B)(i).
(F) This Section 5(E5(F) shall apply only if the PARTICIPANT was granted the RESTRICTED STOCK UNITS under this AGREEMENT pursuant to the achievement of a performance goal under Section 7(c) 7 of the PLAN. If the Committee COMMITTEE determines that the earlier determination as to the achievement of the performance goal was based on incorrect data and that in fact the performance goal had not been achieved or had been achieved to a lesser extent than originally determined and a number of the RESTRICTED STOCK UNITS would not have been granted, given the correct data, then (i) the aggregate number of RESTRICTED STOCK UNITS set forth in Section 1 above of this AGREEMENT shall be reduced by such number of RESTRICTED STOCK UNITS that would not have been granted (such RESTRICTED STOCK UNITS, the “EXCESS RSUs”), (ii) any EXCESS RSUs that have not yet vested in accordance with the terms of this AGREEMENT shall be forfeited and (iii) any COMMON SHARES of the COMPANY received upon settlement of vested EXCESS RSUs (or if such COMMON SHARES were disposed of of, the cash equivalent) shall be returned to the COMPANY as provided by the COMMITTEE; provided, however, that this right of recoupment shall not limit the BOARD’s recoupment authority under any applicable clawback or recoupment policy approved by the BOARD.
Appears in 1 contract
Samples: Restricted Stock Unit Award Agreement (Abercrombie & Fitch Co /De/)
Forfeiture of Restricted Stock Units. (A) The RESTRICTED STOCK UNITS shall be subject to the following additional forfeiture conditions, to which the PARTICIPANT, by accepting the RESTRICTED STOCK UNITS, agrees. If any of the events specified in Section 5(B)(i), (ii), or (iii) or (iv) of this AGREEMENT occurs (a “FORFEITURE EVENT”), the following forfeiture will result:
(i) any the RESTRICTED STOCK UNITS held by the PARTICIPANT and not then settled will be immediately forfeited and canceled upon the occurrence of the Forfeiture EventFORFEITURE EVENT; and
(ii) The PARTICIPANT will be obligated to repay to the CompanyCOMPANY, in cash, within five business days after demand is made therefor by the CompanyCOMPANY, the total amount of “AWARD GAIN” (as defined below) realized by the PARTICIPANT upon each settlement of RESTRICTED STOCK UNITS that occurred on or after (x) the date that is six twenty-four months prior to the occurrence of the FORFEITURE EVENT, if the FORFEITURE EVENT occurred while the PARTICIPANT was employed by the COMPANY or a subsidiary or affiliateaffiliate of the COMPANY, or (y) the date that is six twenty-four months prior to the date the PARTICIPANT’s employment by the COMPANY or a subsidiary or affiliate of the COMPANY terminated, if the FORFEITURE EVENT occurred after the PARTICIPANT ceased to be so employed. For purposes of this SectionAGREEMENT, the term “AWARD GAIN” shall mean, in respect of any settlement of RESTRICTED STOCK UNITS granted to the ParticipantPARTICIPANT, the Fair Market Value FAIR MARKET VALUE as of the cash or COMMON VESTING DATE of the SHARES of the COMPANY paid or payable to the Participant PARTICIPANT (regardless of any elective deferrals).
(B) The forfeitures specified in Section 5(A) of this AGREEMENT will be triggered upon the occurrence of any one of the following FORFEITURE EVENTS at any time during PARTICIPANT’ ’s employment by the COMPANY or a subsidiary or affiliateaffiliate of the COMPANY, or during the onetwenty-year four-month period following termination of such employment:
(i) PARTICIPANT, acting alone or with others, directly or indirectly, (I) engages, either as an employee, employer, consultant, advisor, or director, or as an owner, investor, partner, or stockholder unless PARTICIPANT’s interest is insubstantial, in any business in an area or region in which the COMPANY or any subsidiary or affiliate of the COMPANY conducts business at the date the event occurs, which is directly in competition with a business then conducted by the COMPANY or a subsidiary or affiliateaffiliate of the COMPANY; (II) induces any customer or supplier of the COMPANY or a subsidiary or affiliateaffiliate of the COMPANY, with which the COMPANY or a subsidiary or affiliate of the COMPANY has a business relationship, to curtail, cancel, not renew, or not continue his or her or its business with the COMPANY or any subsidiary or affiliateaffiliate of the COMPANY; or (III) induces, or attempts to influence, any employee of or service provider to the COMPANY or a subsidiary or affiliate of the COMPANY to terminate such employment or service. The COMMITTEE shall, in its discretion, determine which lines of business the COMPANY conducts and the subsidiaries and affiliates of the COMPANY conduct on any particular date and which third parties may reasonably be deemed to be in competition with the COMPANY or any subsidiary or affiliate of the COMPANY. For purposes of this Section 5(B)(i), an PARTICIPANT’s interest as a stockholder is insubstantial if it represents beneficial ownership of less than five percent of the outstanding class of stock, and a PARTICIPANT’s interest as an owner, investor, or partner is insubstantial if it represents ownership, as determined by the COMMITTEE in its discretion, of less than five percent of the outstanding equity of the entity;
(ii) PARTICIPANT discloses, uses, sells, or otherwise transfers, except in the course of employment with or other service to the COMPANY or any subsidiary or affiliateaffiliate of the COMPANY, any confidential or proprietary information of the COMPANY or any subsidiary or affiliateaffiliate of the COMPANY, including but not limited to information regarding the COMPANY’s or any subsidiary’s or affiliate’s current and potential customers, organization, employees, finances, and methods of operations and investments, so long as such information has not otherwise been disclosed to the public or is not otherwise in the public domain (other than by PARTICIPANT’s breach of this provision), except as required by law or pursuant to legal process, or PARTICIPANT makes statements or representations, or otherwise communicates, directly or indirectly, in writing, orally, or otherwise, or takes any other action which may, directly or indirectly, disparage or be damaging to the COMPANY or any of its the subsidiaries or affiliates of the COMPANY or their respective officers, directors, employees, advisors, businesses or reputations, except as required by law or pursuant to legal process; or;
(iii) PARTICIPANT fails to cooperate with the COMPANY or any subsidiary or affiliate of the COMPANY in any way, including, without limitation, by making himself or herself PARTICIPANT available to testify on behalf of the COMPANY or such subsidiary or affiliate of the COMPANY in any action, suit, or proceeding, whether civil, criminal, administrative, or investigative, or otherwise fails to assist the COMPANY or any subsidiary or affiliate of the COMPANY in any way, including, without limitation, in connection with any such action, suit, or proceeding by providing information and meeting and consulting with members of management of, other representatives of, or counsel to, the COMPANY or such subsidiary or affiliateaffiliate of the COMPANY, as reasonably requested; or
(iv) PARTICIPANT, during the period PARTICIPANT is employed by the COMPANY or any subsidiary or affiliate of the COMPANY and for twenty-four months thereafter (the “NON-SOLICITATION PERIOD”), alone or in conjunction with another person, (I) interferes with or xxxxx, or attempts to interfere with or harm, the relationship of the COMPANY or any subsidiary or affiliate of the COMPANY with any person who at any time was a customer or supplier of the COMPANY or any subsidiary or affiliate of the COMPANY or otherwise had a business relationship with the COMPANY or any subsidiary or affiliate of the COMPANY; or (II) hires, solicits for hire, aids in or facilitates the hire, or causes to be hired, either as an employee, contractor or consultant, any person who is currently employed, or was employed at any time during the six-month period prior thereto, as an employee, contractor or consultant of the COMPANY or any subsidiary or affiliate of the COMPANY.
(C) Despite the conditions set forth in this Section 5, a PARTICIPANT is not hereby prohibited from engaging in any activityactivity set forth in Section 5(B)(i) of this AGREEMENT, including but not limited to competition with the COMPANY and its the subsidiaries and affiliatesaffiliates of the COMPANY. Rather, the non-occurrence of the FORFEITURE EVENTS set forth in Section 5(B) of this AGREEMENT is a condition to the PARTICIPANT’s right to realize and retain value from the RESTRICTED STOCK UNITS, and the consequence consequences under the PLAN and this AGREEMENT if the PARTICIPANT engages in an activity giving rise to any such FORFEITURE EVENTS are the forfeitures specified therein and hereinas otherwise provided in this AGREEMENT. The COMPANY and PARTICIPANT shall not be precluded by this provision or otherwise from entering into other agreements concerning the subject matter of Sections 5(A) and 5(B)) of this AGREEMENT.
(D) The COMMITTEE may, in its discretion, waive in whole or in part the COMPANY’s right to forfeiture under this Section 5, but no such waiver shall be effective unless evidenced by a writing signed by a duly authorized officer of the COMPANY.
(E) This In addition to the other provisions of this Section 5(E5, PARTICIPANT agrees that any of the conduct described in Sections 5(B)(ii) and (B)(iv) of this AGREEMENT would result in irreparable injury and damage to the COMPANY for which the COMPANY would have no adequate remedy at law. PARTICIPANT agrees that in the event of such conduct or any threat thereof, the COMPANY shall apply only if be entitled to an immediate injunction and restraining order to prevent such conduct and threatened conduct and/or continued conduct by PARTICIPANT and/or any and all persons and/or entities acting for and/or with PARTICIPANT, and without having to prove damages and to all costs and expenses incurred by the COMPANY in seeking to enforce the COMPANY’s rights under this AGREEMENT. These remedies are in addition to any other remedies to which the COMPANY may be entitled at law or in equity. PARTICIPANT was granted agrees that the covenants of PARTICIPANT contained in Section 5(B) of this AGREEMENT are reasonable. For the same reasons, the COMPANY shall be entitled to an immediate injunction without having to prove damages to enforce the COMPANY’s right to cause the RESTRICTED STOCK UNITS under this AGREEMENT to be forfeited by PARTICIPANT pursuant to the achievement Section 5(A) and Section 5(C) for a violation of a performance goal under Section 7(c) of the PLAN. If the Committee determines that the earlier determination as to the achievement of the performance goal was based on incorrect data and that in fact the performance goal had not been achieved or had been achieved to a lesser extent than originally determined and a number of the RESTRICTED STOCK UNITS would not have been granted, given the correct data, then (i) the aggregate number of RESTRICTED STOCK UNITS set forth in Section 1 above shall be reduced by such number of RESTRICTED STOCK UNITS that would not have been granted (such RESTRICTED STOCK UNITS, the “EXCESS RSUs”5(B)(i), (ii) any EXCESS RSUs that have not yet vested in accordance with the terms of this AGREEMENT shall be forfeited and (iii) any COMMON SHARES received upon settlement of vested EXCESS RSUs (or if such COMMON SHARES were disposed of the cash equivalent) shall be returned to the COMPANY as provided by the COMMITTEE.
Appears in 1 contract
Samples: Retention Restricted Stock Unit Award Agreement (Abercrombie & Fitch Co /De/)
Forfeiture of Restricted Stock Units. (Aa) The RESTRICTED STOCK UNITS Any Restricted Stock Units that have not become non-forfeitable pursuant to Section 4 above on or before the date on which the Holder ceases to be an employee of the Company shall be subject to the following additional forfeiture conditionsforfeited as of that date, to which the PARTICIPANT, by accepting the RESTRICTED STOCK UNITS, agrees. If any and all of the events specified Holder’s rights and interest in Section 5(B)(i), (ii), or (iii) occurs (a “FORFEITURE EVENT”), the following forfeiture will result:
(i) any RESTRICTED STOCK UNITS held by the PARTICIPANT and not then settled will be immediately to such forfeited and canceled upon the occurrence Restricted Stock Units shall thereupon terminate without payment of the Forfeiture Event; and
(ii) The PARTICIPANT will be obligated to repay to the Company, in cash, within five business days after demand is made therefor consideration by the Company. For purposes of the preceding sentence, Restricted Stock Units that become non-forfeitable pursuant to Section 4(a) or 4(c) shall be considered to be non-forfeitable on the total date on which the Holder ceases to be an employee of the Company even if the Holder executes the covenant not to compete and release referred to therein after the date of termination, provided that he does so within a reasonable period of time after that date and the covenant and release are effective as of that date. No Award or other amount payable to the Holder shall be reduced by the amount of “AWARD GAIN” (as defined below) realized by the PARTICIPANT upon each settlement of RESTRICTED STOCK UNITS that occurred on or after (x) the date that is six months prior any dividend equivalents previously paid to the occurrence of the FORFEITURE EVENT, if the FORFEITURE EVENT occurred while the PARTICIPANT was employed by the COMPANY or a subsidiary or affiliate, or (y) the date that is six months prior Holder with respect to the date the PARTICIPANT’s employment by the COMPANY or a subsidiary or affiliate terminated, if the FORFEITURE EVENT occurred after the PARTICIPANT ceased to be so employedforfeited Restricted Stock Units. For purposes of this SectionAgreement, the term “AWARD GAIN” shall mean, in respect continuous employment of the Holder by the Company will not be deemed to be interrupted by reason of the transfer of the Holder’s employment from the Company to any settlement of RESTRICTED STOCK UNITS granted Subsidiary or from any Subsidiary to the ParticipantCompany or another Subsidiary, the Fair Market Value or by reason of the cash or COMMON SHARES paid or payable to the Participant (regardless an approved leave of any elective deferrals)absence.
(Bb) The forfeitures specified in Section 5(A) will be triggered upon If the occurrence of any one of the following FORFEITURE EVENTS Holder, at any time during PARTICIPANT’ employment by before payment is made pursuant to Section 6 for all of the COMPANY or a subsidiary or affiliate, or during the oneRestricted Stock Units that become non-year period following termination of such employment:
forfeitable: (i) PARTICIPANT, acting alone or with others, directly or indirectly, (I) engages, either as employee, employer, consultant, advisor, or director, or whether as an owner, investor, partner, shareholder, consultant, agent, employee, investor or stockholder unless PARTICIPANT’s interest is insubstantial, in any other capacity, accepts employment with, renders services to or otherwise assists any other business in an area which competes with the business conducted by the Company or region any of its Subsidiaries in which the COMPANY conducts business at Holder has worked, during the date Holder’s last two years with the event occurs, which is directly in competition with a business then conducted by the COMPANY Company or a subsidiary or affiliateany of its Subsidiaries; (IIii) induces any customer directly or supplier indirectly, hires or solicits or arranges for the hiring or solicitation of the COMPANY or a subsidiary or affiliate, with which the COMPANY or a subsidiary or affiliate has a business relationship, to curtail, cancel, not renew, or not continue his or her or its business with the COMPANY or any subsidiary or affiliate; or (III) induces, or attempts to influence, any employee of the Company or service provider to any of its Subsidiaries on behalf of any business or enterprise other than the COMPANY Company or a subsidiary or affiliate to terminate such employment or service. The COMMITTEE shall, in its discretion, determine which lines of business the COMPANY conducts on any particular date and which third parties may reasonably be deemed to be in competition with the COMPANY. For purposes of this Section 5(B)(i), an PARTICIPANT’s interest as a stockholder is insubstantial if it represents beneficial ownership of less than five percent of the outstanding class of stock, and a PARTICIPANT’s interest as an owner, investorSubsidiary, or partner is insubstantial if it represents ownershipencourages any such employee to leave such employment; (iii) uses, as determined by the COMMITTEE in its discretion, of less than five percent of the outstanding equity of the entity;
(ii) PARTICIPANT discloses, uses, sells, misappropriates or otherwise transfers, except in the course of employment with or other service to the COMPANY or any subsidiary or affiliate, any transfers confidential or proprietary information of concerning the COMPANY Company or any subsidiary or affiliate, including but not limited to information regarding the COMPANY’s current and potential customers, organization, employees, finances, and methods of operations and investments, so long as such information has not otherwise been disclosed to the public or is not otherwise in the public domain its Subsidiaries (other than by PARTICIPANT’s breach of this provision), except as required by law or pursuant to legal process, or PARTICIPANT makes statements or representations, or otherwise communicates, directly or indirectly, in writing, orally, or otherwise, or takes any other action which may, directly or indirectly, disparage or be damaging to the COMPANY Holder’s work responsibilities with the Company or any of its subsidiaries Subsidiaries); or affiliates (iv) is convicted of a crime against the Company or their respective officersany of its Subsidiaries; or (v) engages in any activity in violation of the policies of the Company or any of its Subsidiaries, directorsincluding without limitation the Company’s Code of Business Ethics and Conduct, employeesor, advisorsat any time, businesses engages in conduct adverse to the best interests of the Company or reputationsany of its Subsidiaries; then should any of the foregoing events occur, except as required by law or any Restricted Stock Units for which payment has not theretofore been made pursuant to legal process; or
(iii) PARTICIPANT fails to cooperate with Section 6 shall be forfeited unless the COMPANY or any subsidiary or affiliate in any way, including, without limitation, by making himself or herself available to testify on behalf of the COMPANY or such subsidiary or affiliate in any action, suit, or proceeding, whether civil, criminal, administrative, or investigative, or otherwise fails to assist the COMPANY or any subsidiary or affiliate in any way, including, without limitationCommittee, in connection with its sole discretion, elects otherwise. The provisions of this Section 5(b) are in addition to any other agreements related to non-competition, non-solicitation and preservation of Company confidential and proprietary information entered into between the Holder and the Company, and nothing herein is intended to waive, modify, alter or amend the terms of any such action, suit, or proceeding by providing information and meeting and consulting with members of management of, other representatives of, or counsel to, the COMPANY or such subsidiary or affiliate, as reasonably requestedagreement.
(Cc) Despite the conditions set forth in By executing this Section 5, a PARTICIPANT is not hereby prohibited from engaging in any activity, including but not limited to competition with the COMPANY and its subsidiaries and affiliates. RatherAgreement, the non-occurrence of the FORFEITURE EVENTS set forth in Section 5(B) is a condition to the PARTICIPANT’s right to realize and retain value from the RESTRICTED STOCK UNITS, and the consequence under the PLAN and this AGREEMENT if the PARTICIPANT engages in an activity giving rise Holder irrevocably consents to any such FORFEITURE EVENTS are the forfeitures specified therein and herein. The COMPANY and PARTICIPANT shall not be precluded forfeiture of Restricted Stock Units required or authorized by this provision or otherwise from entering into other agreements concerning the subject matter of Sections 5(A) and 5(B)Agreement.
(D) The COMMITTEE may, in its discretion, waive in whole or in part the COMPANY’s right to forfeiture under this Section 5, but no such waiver shall be effective unless evidenced by a writing signed by a duly authorized officer of the COMPANY.
(E) This Section 5(E) shall apply only if the PARTICIPANT was granted the RESTRICTED STOCK UNITS under this AGREEMENT pursuant to the achievement of a performance goal under Section 7(c) of the PLAN. If the Committee determines that the earlier determination as to the achievement of the performance goal was based on incorrect data and that in fact the performance goal had not been achieved or had been achieved to a lesser extent than originally determined and a number of the RESTRICTED STOCK UNITS would not have been granted, given the correct data, then (i) the aggregate number of RESTRICTED STOCK UNITS set forth in Section 1 above shall be reduced by such number of RESTRICTED STOCK UNITS that would not have been granted (such RESTRICTED STOCK UNITS, the “EXCESS RSUs”), (ii) any EXCESS RSUs that have not yet vested in accordance with the terms of this AGREEMENT shall be forfeited and (iii) any COMMON SHARES received upon settlement of vested EXCESS RSUs (or if such COMMON SHARES were disposed of the cash equivalent) shall be returned to the COMPANY as provided by the COMMITTEE.
Appears in 1 contract
Samples: Restricted Stock Unit Award Agreement (Barnes Group Inc)
