Performance-Based Adjustment. The number of Restricted Stock Units vesting on the Scheduled Vesting Date shall be subject to reduction as follows:
(i) In the event that the Core Earnings of the Company for the Company’s fiscal year ended immediately prior to such Scheduled Vesting Date, as certified by the Committee, are not positive (i.e., Core Earnings are not greater than zero):
(A) The number of Restricted Stock Units scheduled to vest on such Scheduled Vesting Date shall be reduced by 50%, rounding up to the nearest whole share; and
(B) the Committee shall determine the extent, if any, to which you are accountable for such outcome and, based on such determination, the Committee shall determine (I) whether all or any portion of the remaining Restricted Stock Units scheduled to vest on such Scheduled Vesting Date shall be forfeited and (II) whether the Scheduled Vesting Date shall be delayed for all or any portion of such Restricted Stock Units that are not so forfeited. The Committee shall make the determinations referenced in Section 13(a)(i)(B) in its sole discretion, taking into account the factors set forth on Appendix A hereto.
(ii) For purposes of this Section 13(a), “Core Earnings” means the Company’s net income available to common stockholders, excluding, on a tax-adjusted basis, the impact of (A) impairment or amortization of intangible assets, (B) the build or release of the allowance for loan and lease losses, calculated as the difference between the provision for loan and lease losses and charge-offs, net of recoveries, and (C) the change in the combined uncollectible finance charge and fee reserve.
(iii) In the event of any change to U.S. generally accepted accounting principles affecting the treatment or classification of any component of Core Earnings, such metric shall be calculated in a manner consistent with the definitions herein to the extent practicable. Notwithstanding anything to the contrary in this Agreement and for the avoidance of doubt, in the event of a Change of Control of Capital One, there shall be no reduction pursuant to this Section 13(a) for any fiscal year ending after the date of such Change of Control.
Performance-Based Adjustment. (a) The number of Restricted Stock Units vesting on the Vesting Date shall be subject to reduction as follows:
(i) For each fiscal year of the Company ending during the Performance Period, if any, that (A) Core Earnings for the Company for such fiscal year, as certified by the Committee, are not positive (i.e., Core Earnings are not greater than zero) and (B) Base ROA for the Company for such fiscal year, as certified by the Committee, is better than or equal to negative one percent (-1%), the number of Restricted Stock Units scheduled to vest on the Vesting Date shall be reduced by 6,474; and
(ii) For each fiscal year of the Company ending during the Performance Period, if any, that Base ROA for the Company for such fiscal year, as certified by the Committee, is not better than or equal to negative one percent (-1%), the number of Restricted Stock Units scheduled to vest on the Vesting Date shall be reduced by 12,947 regardless of the Core Earnings of the Company for such fiscal year, and there shall be no additional reduction for such fiscal year pursuant to subsection 14(a)(i) above.
(b) For purposes of this Section 14:
Performance-Based Adjustment. (a) The number of shares of Restricted Stock vesting on any Scheduled Vesting Date shall be subject to reduction as follows:
(i) In the event that the Core Earnings of the Company for the Company’s fiscal year ended immediately prior to such Scheduled Vesting Date, as certified by the Committee, are not positive (i.e., Core Earnings are not greater than zero), the number of shares of Restricted Stock scheduled to vest on such Scheduled Vesting Date shall be reduced by 50%, rounding up to the nearest whole share; and
(ii) In the event that the Base ROA of the Company for the Company’s fiscal year ended immediately prior to such Scheduled Vesting Date, as certified by the Committee, is not better than or equal to negative two percent (-2%), all shares of Restricted Stock scheduled to vest on such Scheduled Vesting Date shall be forfeited, regardless the Core Earnings of the Company for such fiscal year.
(b) For purposes of this Section 16:
Performance-Based Adjustment. (a) The number of Options vesting on the Vesting Date shall be subject to reduction as follows:
(i) For each fiscal year of the Company ending during the Performance Period, if any, that (A) Core Earnings for the Company for such fiscal year, as certified by the Committee, are not positive (i.e., Core Earnings are not greater than zero) and (B) Base ROA for the Company for such fiscal year, as certified by the Committee, is better than or equal to negative one percent (–1%), the number of Options scheduled to vest on the Vesting Date shall be reduced by 54,331; and
(ii) For each fiscal year of the Company ending during the Performance Period, if any, that Base ROA for the Company for such fiscal year, as certified by the Committee, is not better than or equal to negative one percent (–1%), the number of Options scheduled to vest on the Vesting Date shall be reduced by 108,662 regardless of the Core Earnings of the Company for such fiscal year, and there shall be no additional reduction for such fiscal year pursuant to subsection 13(a)(i) above.
(b) For purposes of this Section 13:
Performance-Based Adjustment. 6.1 The parties acknowledge that the Investor’s Percentage Ownership immediately following the Closing is calculated based upon a post-money valuation of US$ 343,462,957 (the “Valuation”) and estimated Audited Consolidated Net Profit for the fiscal years of 2009, 2010 and 2011 as set forth below (each a “Profits Target”):
6.2 The Company shall and the Sponsor Shareholders shall procure that the Company deliver to the Investor the Audited Consolidated Financial Statements within ninety (90) days after the end of each fiscal year of 2009, 2010 and 2011. If the Audited Consolidated Net Profit for any given year is less than the corresponding Profits Target as set forth in Section 6.1 above, then the Founding Shareholders shall, within thirty (30) after the date of the Audited Consolidated Financial Statements, on a pro rata basis based on their respective Founding Shareholder Ownership Percentage, pay to the Investor an amount in cash in U. S. dollars equal to the amount derived from the formula set forth below (such amount the “Performance Adjustment Amount”): Performance Adjustment Amount = Investor Ownership Percentage X (Profits Target – Audited Consolidated Net Profits) X Valuation
6.3 The Investor and the Sponsor Shareholders hereby agree that the payment of any Performance Adjustment Amount shall be treated as an adjustment to the Purchase Price (as defined in the Purchase Agreement) for U.S. federal income tax purposes.
6.4 At the sole option of the Founding Shareholders, the Founding Shareholders may satisfy their obligation to pay the Investor the Performance Adjustment Amount by a transfer of additional shares of Common Stock to the Investor (the “Performance-based Share Transfer”) based on the average of the closing price of Common Stock for the thirty (30)-day period ending three (3) Business Days prior to the date that the Performance based Share Transfer is made, provided, however, that the Performance Adjustment Amount may be satisfied through the Performance-based Share Transfer only to the extent that the aggregate number of shares of Common Stock acquired or acquirable by the Investor from the Transactions together with the number of shares transferred pursuant to the Performance-based Share Transfer does not exceed 19.9% of the total number of shares of Common Stock issued and outstanding as of the date of the Purchase Agreement and any remaining Performance Adjustment Amount shall be paid in cash.
6.5 The Founding Shareholders shall be re...
Performance-Based Adjustment. Over the first three years of the Term of this Agreement (the “Three-Year Term”), OrbiMed will receive a portion of the performance fee paid to the Adviser pursuant to the Advisory Agreement (the “Performance Fee”), based on the aggregate “in-the-money” amount of relative performance of the Portfolio attributable to OrbiMed’s tenure as investment adviser of the Portfolio. By way of example, if OrbiMed’s tenure as investment adviser accounts for 90% of the outperformance for a given 36-month Performance Fee measurement period, OrbiMed would receive 90% of the Performance Fee paid by the Portfolio with respect to such Performance Fee measurement period. If there is no Performance Fee paid by the Portfolio for a given measurement period, OrbiMed shall receive no Performance Fee (regardless of OrbiMed's past performance). If Performance Fees are paid (versus received) by the Adviser for a given Performance Fee measurement period, OrbiMed would participate in payments made, proportional to the contribution of OrbiMed's tenure as investment manager to the aggregate underperformance over such Performance Fee measurement period. After the Three-Year Term, OrbiMed shall not participate in performance fees received or paid.
Performance-Based Adjustment. The number of Options vesting on the Vesting Date shall be subject to reduction as follows:
(i) For each fiscal year of the Company ending during the Performance Period, if any, that the Core Earnings for the Company for such fiscal year, as certified by the Committee, are not positive (i.e., Core Earnings are not greater than zero):
(A) The number of Options scheduled to vest on the Vesting Date shall be reduced by 17,829; and
(B) The Committee shall determine the extent, if any, to which you are accountable for such outcome, and, based on such determination, the Committee shall determine (I) whether the number of Options scheduled to vest on the Vesting Date shall be reduced by up to an additional 17,829 Options and (II) whether the Vesting Date shall be delayed for all or any portion of such Options that are not so reduced. The Committee shall make the determinations referenced in Section 11(a)(i)(B) in its sole discretion, taking into account the factors set forth on Appendix A hereto.
(ii) For purposes of this Section 11(a), “Core Earnings” means the Company’s net income available to common stockholders, excluding, on a tax-adjusted basis, the impact of (A) impairment or amortization of intangible assets, (B) the build or release of the allowance for loan and lease losses, calculated as the difference between the provision for loan and lease losses and charge-offs, net of recoveries, and (C) the change in the combined uncollectible finance charge and fee reserve.
Performance-Based Adjustment. (a) The number of Options vesting on any Scheduled Vesting Date shall be subject to reduction as follows:
(i) In the event that the Core Earnings of the Company for the Company’s fiscal year ended immediately prior to such Scheduled Vesting Date, as certified by the Committee, are not positive (i.e., Core Earnings are not greater than zero), the number of Options scheduled to vest on such Scheduled Vesting Date shall be reduced by 50%, rounding up to the nearest whole share; and
(ii) In the event that the Base ROA of the Company for the Company’s fiscal year ended immediately prior to such Scheduled Vesting Date, as certified by the Committee, is not better than or equal to negative one percent (–1%), all Options scheduled to vest on such Scheduled Vesting Date shall be forfeited, regardless of the Core Earnings of the Company for such fiscal year.
(b) For purposes of this Section 13:
Performance-Based Adjustment. Notwithstanding any provision of this Article I to the contrary, in the event that the level of achievement of the Final Applicable Performance Criteria (as defined below) for Fiscal Year 2010 or 2011 is less than the Floor Level (determined as set forth below) for such fiscal year, the Committee shall reduce the size of the annual grant to be made during Fiscal Year 2011 (in the case of achievement below the Floor Level in Fiscal Year 2010) or Fiscal Year 2012 (in the case of achievement below the Floor Level in Fiscal Year 2011) by 5000 Restricted Shares for each 1 percent by which the level of achievement is less than the Floor Level, and in the event that the level of achievement of the Final Applicable Performance Criteria for Fiscal Year 2010 or 2011 is greater than the Full Stretch Level (determined as set forth below) for such fiscal year, the Committee shall increase the size of the annual grant to be made during Fiscal Year 2011 (in the case of achievement above the Full Stretch Level in Fiscal Year 2010) or Fiscal Year 2012 (in the case of achievement above the Full Stretch Level in Fiscal Year 2011) by 5000 Restricted Shares for each 1 percent by which the level of achievement exceeds the Full Stretch Level, provided that, so long as the Executive is entitled to an annual grant hereunder, the number of Restricted Shares to be granted during each of Fiscal Years 2011 and 2012 shall not be less than 225,000 and shall not be greater than 275,000. The term “Final Applicable Performance Criteria” for any fiscal year means the applicable performance criteria established in writing by the Committee in the first quarter of such fiscal year and certified as actually attained (including the effect of permitted adjustments) by the Committee in the first quarter of the immediately subsequent fiscal year in accordance with the Big Lots 2006 Bonus Plan, as amended (or any successor to such Plan, hereinafter, the “Bonus Plan”). Floor Level and Full Stretch Level for any fiscal year shall be determined by the Committee in accordance with the terms of the Company’s Bonus Program.
Performance-Based Adjustment. The number of Options vesting on any Scheduled Vesting Date shall be subject to reduction as follows:
