Special Post-Termination Earning and Vesting Terms. Notwithstanding the provisions of Section 3(a), the following terms shall apply with respect to the Award , provided that the Participant resides in and is employed by the Company or an Affiliate based in the United States: (i) In the event of the Participant's termination of employment or service for Cause, the Award (and any remaining right to underlying Shares) shall be forfeited immediately. (ii) In the event of the Participant’s death (X) before the end of the Performance Period, the Award shall be deemed automatically earned and vested at the Target effective as of the date of the Participant’s death, or (Y) on or following the end of the Performance Period, to the extent the Award has previously been earned and is not fully vested as of the date of the Participant’s death, the Award shall automatically fully vest effective as of the date of the Participant’s death. (iii) In the event of the Participant’s termination of employment or service for any reason (including termination due to Disability) other than death or for Cause, the following terms shall apply with respect to the Award: A. If the Participant (1) has executed, within the Statutory Notice Period, a Release and, if so determined by the Company, a Severance Agreement, (2) does not revoke the Release prior to the end of the seven-day statutory revocation period, and (3) satisfies the Post-Employment Condition, then (X) if the Participant’s Termination Date is on or after the end of the Performance Period, to the extent the Award has previously been earned, the Award shall continue to vest, and (Y) if the Participant’s Termination Date precedes the end of the Performance Period, the Award shall continue to be eligible to be earned (based on the Administrator’s determination of the extent, if any, to which the Performance Objectives have been met following the end of the Performance Period) and shall vest, in each case, according to the vesting schedule stated in Section 3(a) above as if the Participant had remained an Employee of, or service provider to, the Company or an Affiliate during the Post-Termination Period. B. If the Participant fails to execute such Release and, if applicable, Severance Agreement, within the Statutory Notice Period, or revokes the Release prior to the end of the seven-day statutory revocation period, or violates the Post-Employment Condition, the Award (and any remaining right to underlying Shares) shall be deemed forfeited in its entirety as of the Participant’s Termination Date. C. If the Administrator determines in the exercise of its discretion that the Participant has committed a breach or violation of the Release, the Severance Agreement, the ICN Agreement or the Post-Employment Condition at any time on or prior to the end of the Post-Termination Period (without regard to when the Administrator first discovers or has notice of any such breach or violation), then, in addition to any other remedies available to the Company at law or in equity as a result of such breach or violation, (1) the Award (and any remaining right to underlying Shares) shall immediately be forfeited in its entirety; (2) any Shares and any other benefit subject to the Award that vested following the Participant’s Termination Date shall immediately be forfeited and returned to the Company (without the payment of any consideration for such Shares, including repayment of any amount paid by the Participant with respect to taxes related to the grant or vesting of the Award), and the Participant shall cease to have any interest in or right to such Shares and shall cease to be recognized as the legal owner of such Shares; and (3) any Gain realized by the Participant with respect to any Shares issued following the Participant’s Termination Date shall immediately be paid by the Participant to the Company. The Administrator shall have discretion to determine the basis for termination, whether any breach of the Release, the Severance Agreement, the ICN Agreement or the Post-Employment Condition has occurred and to otherwise interpret this Section 3. D. If, during the Post-Termination Period, the Participant dies (1) before the end of the Performance Period, the Award shall be deemed automatically fully earned and vested at the Target effective as of the date of the Participant’s death, or (2) on or after the end of the Performance Period, to the extent the Award has previously been earned and is not fully vested as of the date of the Participant’s death, such Award shall automatically fully vest effective as of the date of the Participant’s death. (iv) Except as otherwise provided in Section 3(b)(v) below, any Shares and any other benefit subject to the Award distributable to the Participant following the Termination Date pursuant to Section 3(b) herein shall be issued in accordance with the vesting schedule stated in Section 3(a) above and shall be distributed on such vesting dates or a later date(s) within the same taxable year of the Participant’s Termination Date, or, if later, by the 15th day of the third calendar month following the date(s) specified in Section 3(a) and the Participant shall not be permitted, directly or indirectly, to designate the taxable year of distribution, or shall otherwise be made in accordance with Code Section 409A and related regulations. (v) Any Shares issuable to such person or persons as shall have acquired the right to the Award by will or by the laws of descent and distribution following the Participant’s death pursuant to Section 3(b)(ii) or Section 3(b)(iii)(D) above shall be issued to such person or persons on the date that is the 90th day following the date of the Participant’s death and shall be distributed on such date or a later date within the same taxable year of the Participant’s death, or, if later, by the 15th day of the third calendar month following the taxable year of the Participant’s death and the Participant (or such person or persons as shall have acquired the right to the Award by will or by the laws of descent and distribution) shall not be permitted, directly or indirectly, to designate the taxable year of distribution, or shall otherwise be issued and distributed in accordance with Code Section 409A and related regulations.
Appears in 1 contract
Special Post-Termination Earning and Vesting Terms. Notwithstanding the provisions of Section 3(a), the following terms shall apply with respect to the Award Award, provided that the Participant resides in and is employed by the Company or an Affiliate based in the United States:
(i) In the event of the Participant's termination of employment or service for Cause, the Award (and any remaining right to underlying Shares) shall be forfeited immediately.
(ii) In the event of the Participant’s death (X) before the end of the Performance Period, the Award shall be deemed automatically earned and vested at the Target effective as of the date of the Participant’s death, or (Y) on or following the end of the Performance Period, to the extent the Award has previously been earned and is not fully vested as of the date of the Participant’s death, the Award shall automatically fully vest effective as of the date of the Participant’s death.
(iii) In the event of the Participant’s termination of employment or service for any reason (including termination due to Disability) other than death or for Cause, the following terms shall apply with respect to the Award:
A. If the Participant (1) has executed, within the Statutory Notice Period, a Release and, if so determined by the Company, a Severance Agreement, (2) does not revoke the Release prior to the end of the seven-day statutory revocation period, and (3) satisfies the Post-Employment Condition, then (X) if the Participant’s Termination Date is on or after the end of the Performance Period, to the extent the Award has previously been earned, the Award shall continue to vest, and (Y) if the Participant’s Termination Date precedes the end of the Performance Period, the Award shall continue to be eligible to be earned (based on the Administrator’s determination of the extent, if any, to which the Performance Objectives have been met following the end of the Performance Period) and shall vest, in each case, according to the vesting schedule stated in Section 3(a) above as if the Participant had remained an Employee of, or service provider to, the Company or an Affiliate during the Post-Termination Period.
B. If the Participant fails to execute such Release and, if applicable, Severance Agreement, within the Statutory Notice Period, or revokes the Release prior to the end of the seven-day statutory revocation period, or violates the Post-Employment Condition, the Award (and any remaining right to underlying Shares) shall be deemed forfeited in its entirety as of the Participant’s Termination Date.
C. If the Administrator determines in the exercise of its discretion that the Participant has committed a breach or violation of the Release, the Severance Agreement, the ICN Agreement or the Post-Employment Condition at any time on or prior to the end of the Post-Termination Period (without regard to when the Administrator first discovers or has notice of any such breach or violation), then, in addition to any other remedies available to the Company at law or in equity as a result of such breach or violation, (1) the Award (and any remaining right to underlying Shares) shall immediately be forfeited in its entirety; (2) any Shares and any other benefit subject to the Award that vested following the Participant’s Termination Date shall immediately be forfeited and returned to the Company (without the payment of any consideration for such Shares, including repayment of any amount paid by the Participant with respect to taxes related to the grant or vesting of the Award), and the Participant shall cease to have any interest in or right to such Shares and shall cease to be recognized as the legal owner of such Shares; and (3) any Gain realized by the Participant with respect to any Shares issued following the Participant’s Termination Date shall immediately be paid by the Participant to the Company. The Administrator shall have discretion to determine the basis for termination, whether any breach of the Release, the Severance Agreement, the ICN Agreement or the Post-Employment Condition has occurred and to otherwise interpret this Section 3.
D. If, during the Post-Termination Period, the Participant dies (1) before the end of the Performance Period, the Award shall be deemed automatically fully earned and vested at the Target effective as of the date of the Participant’s death, or (2) on or after the end of the Performance Period, to the extent the Award has previously been earned and is not fully vested as of the date of the Participant’s death, such Award shall automatically fully vest effective as of the date of the Participant’s death.
(iv) Except as otherwise provided in Section 3(b)(v) below, any Shares and any other benefit subject to the Award distributable to the Participant following the Termination Date pursuant to Section 3(b) herein shall be issued in accordance with the vesting schedule stated in Section 3(a) above and shall be distributed on such each applicable vesting dates date or a later date(s) date within the same taxable year of the Participant’s Termination Dateapplicable vesting date specified in Section 3(a), or, if later, by the 15th day of the third calendar month following the date(s) applicable vesting date specified in Section 3(a) and ). In no event shall the Participant shall not be permitted, directly or indirectly, to designate the taxable year of distribution, or shall otherwise be made in accordance with Code Section 409A and related regulations.
(v) Any Shares issuable to such person or persons as shall have acquired the right to the Award by will or by the laws of descent and distribution following the Participant’s death pursuant to Section 3(b)(ii) or Section 3(b)(iii)(D) above shall be issued to such person or persons on the date that is the 90th day following the date of the Participant’s death and shall be distributed on such issuance date or a later date within the same taxable period beginning on the issuance date and ending on December 31 of the calendar year following the calendar year of the Participant’s death, or, if later, by the 15th day of the third calendar month following the taxable year of the Participant’s death and the Participant (or . In no event shall such person or persons as shall have acquired the right to the Award by will or by the laws of descent and distribution) shall not be permitted, directly or indirectly, to designate the taxable year of distribution, or shall otherwise be issued and distributed in accordance with Code Section 409A and related regulations.
Appears in 1 contract
Special Post-Termination Earning and Vesting Terms. Notwithstanding the provisions of Section 3(a), the following terms shall apply with respect to the Award Award, provided that the Participant resides in and is employed by the Company or an Affiliate based in the United States:
(i) In the event of the Participant's ’s termination of employment or service for Cause, the Award (and any remaining right to underlying Shares) shall be forfeited immediately.
(ii) In the event of the Participant’s death (X) before the end of a Performance Period (or prior to the start of a Performance Period), the Award shall be deemed automatically earned and vested at 100% of the Target effective as of the date of the Participant’s death, or (Y) on or following the end of the Performance Period, to the extent the Award has previously been earned and is not fully vested as of the date of the Participant’s death, the Award shall automatically fully vest effective as of the date of the Participant’s deathdeath based on the Performance Level attained during the Performance Period.
(iii) In the event of the Participant’s involuntary termination of employment or service for any reason (including termination due to Disability) other than death or for Cause, the following terms shall apply with respect to the Award:
A. If the Participant (1) has executed, within the Statutory Notice Period, a Release and, if so determined by the Company, a Severance Agreement, (2) does not revoke the Release prior to the end of the seven-day statutory revocation period (or such other applicable statutory revocation period), and (3) satisfies the Post-Employment Condition, then (X) if the Participant’s Termination Date is on or after the end of the Performance Period, to the extent the Award has previously been earned, the Award shall continue to vest, and (Y) if the Participant’s Termination Date precedes the end of a Performance Period (or occurs prior to the start of a Performance Period), the Award shall continue to be eligible to be earned (based on the Administrator’s determination of the extent, if any, to which the Performance Objectives have been met following the end of the applicable Performance Period) and shall vest, in each case, according to the vesting schedule stated in Section 3(a) above as if the Participant had remained an Employee of, or service provider to, the Company or an Affiliate during the Post-Termination Period.
B. If the Participant fails to execute such Release and, if applicable, Severance Agreement, within the Statutory Notice Period, or revokes the Release prior to the end of the seven-day statutory revocation period (or such other applicable statutory revocation period), or violates the Post-Employment Condition, the Award (and any remaining right to underlying Shares) shall be deemed forfeited in its entirety as of the Participant’s Termination Date.
C. If the Administrator determines in the exercise of its discretion that the Participant has committed a breach or violation of the Release, the Severance Agreement, the ICN Agreement or the Post-Employment Condition at any time on or prior to the end of the Post-Termination Period (without regard to when the Administrator first discovers or has notice of any such breach or violation), then, in addition to any other remedies available to the Company at law or in equity as a result of such breach or violation, (1) the Award (and any remaining right to underlying Shares) shall immediately be forfeited in its entirety; (2) any Shares and any other benefit subject to the Award that vested following the Participant’s Termination Date shall immediately be forfeited and returned to the Company (without the payment of any consideration for such Shares, including repayment of any amount paid by the Participant with respect to taxes related to the grant or vesting of the Award), and the Participant shall cease to have any interest in or right to such Shares and shall cease to be recognized as the legal owner of such Shares; and (3) any Gain realized by the Participant with respect to any Shares issued following the Participant’s Termination Date shall immediately be paid by the Participant to the Company. The Administrator shall have discretion to determine the basis for termination, whether any breach of the Release, the Severance Agreement, the ICN Agreement or the Post-Employment Condition has occurred and to otherwise interpret this Section 3.
D. If, during the Post-Termination Period, the Participant dies (1) before the end of a Performance Period (or prior to the start of a Performance Period), the Award shall be deemed automatically fully earned and vested at 100% of the Target effective as of the date of the Participant’s death, or (2) on or after the end of the Performance Period, to the extent the Award has previously been earned and is not fully vested as of the date of the Participant’s death, such Award shall automatically fully vest effective as of the date of the Participant’s deathdeath based on the Performance Level attained during the Performance Period.
(iv) Except as otherwise provided in Section 3(b)(v) below, any Shares and any other benefit subject to the Award distributable to the Participant following the Termination Date pursuant to Section 3(b) herein shall be issued in accordance with the vesting schedule stated in Section 3(a) above and shall be distributed on such each applicable vesting dates date or a later date(s) date within the same taxable year of the Participant’s Termination Dateapplicable vesting date specified in Section 3(a), or, if later, by the 15th day of the third calendar month following the date(s) applicable vesting date specified in Section 3(a) and ). In no event shall the Participant shall not be permitted, directly or indirectly, to designate the taxable year of distribution, or shall otherwise be made in accordance with Code Section 409A and related regulations.
(v) Any Shares issuable to such person or persons as shall have acquired the right to the Award by will or by the laws of descent and distribution following the Participant’s death pursuant to Section 3(b)(ii) or Section 3(b)(iii)(D) above shall be issued to such person or persons on the date that is the 90th day following the date of the Participant’s death and shall be distributed on such issuance date or a later date within the same taxable period beginning on the issuance date and ending on December 31 of the calendar year following the calendar year of the Participant’s death, or, if later, by the 15th day of the third calendar month following the taxable year of the Participant’s death and the Participant (or . In no event shall such person or persons as shall have acquired the right to the Award by will or by the laws of descent and distribution) shall not be permitted, directly or indirectly, to designate the taxable year of distribution, or shall otherwise be issued and distributed in accordance with Code Section 409A and related regulations.
Appears in 1 contract
Special Post-Termination Earning and Vesting Terms. Notwithstanding the provisions of Section 3(a), the following terms shall apply with respect to the Award , provided that the Participant resides in and is employed by the Company or an Affiliate based in the United StatesAward:
(i) In the event of the Participant's termination of employment or service for Cause, the Award (and any remaining right to underlying Shares) shall be forfeited immediately.
(ii) In the event of the Participant’s death (X) before the end of the Performance Period, the Award shall be deemed automatically earned and vested fully vest at the Target Number of Shares (100% of Target) effective as of the date of the Participant’s death, or (Y) on or following the end of the Performance Period, to the extent the Award has previously been earned and is not fully vested as of the date of the Participant’s death, the Award shall automatically fully vest effective as of the date of the Participant’s death.
(iii) In the event of the Participant’s termination of employment or service for any reason (including termination due to Disability) other than death or for Cause, the following terms shall apply with respect to the Award:
A. If the Participant (1) has executed, executed within the Statutory Notice Period, a Release and, if so determined by the Company, a Severance AgreementAgreement with the Company, (2) does not revoke the Release prior to the end of the seven-day statutory revocation period, and (3) satisfies the Post-Employment Condition, then (X) if the Participant’s Termination Date is on or after the end of the Performance Period, to the extent the Award has previously been earned, the Award shall continue to vest, and (Y) if the Participant’s Termination Date precedes the end of the Performance Period, the Award shall continue to be eligible to be earned (based on the Administrator’s determination of the extent, if any, to which the Performance Objectives have been met following the end of the Performance Period) and shall vest, in each case, according to the vesting schedule stated in Section 3(a) above as if the Participant had remained an Employee employee of, or service provider to, the Company or an Affiliate during the Post-Termination Period. _________________________________ * Subject to terms and conditions of the Plan and the Agreement.
B. If the Participant fails to execute such Release and, if applicable, Severance Agreement, within the Statutory Notice Period, or revokes the Release prior to the end of the seven-day statutory revocation period, or violates the Post-Employment Condition, the Award (and any remaining right to underlying Shares) shall be deemed forfeited in its entirety as of the date of the Participant’s Termination Date.
C. If the Administrator determines in the exercise of its discretion that the Participant has committed a breach or violation of the Release, the Severance Agreement, the ICN Agreement or the Post-Employment Condition at any time on or prior to the end of the Post-Termination Period (without regard to when the Administrator first discovers or has notice of any such breach or violation), then, in addition to any other remedies available to the Company at law or in equity as a result of such breach or violation, (1) the Award (and any remaining right to underlying Shares) shall immediately be forfeited in its entirety; (2) any Shares and any other benefit subject to the Award that vested following the Participant’s Termination Date shall immediately be forfeited and returned to the Company (without the payment of any consideration for such Shares, including repayment of any amount paid by the Participant with respect to taxes related to the grant or vesting of the Award), and the Participant shall cease to have any interest in or right to such Shares and shall cease to be recognized as the legal owner of such Shares; and (3) any Gain realized by the Participant with respect to any Shares issued following the Participant’s Termination Date shall immediately be paid by the Participant to the Company. The Administrator shall have discretion to determine the basis for termination, whether any breach of the Release, the Severance Agreement, the ICN Agreement or the Post-Employment Condition has occurred and to otherwise interpret this Section 3.
D. If, during the Post-Termination Period, the Participant dies (1) before the end of the Performance Period, the Award shall be deemed automatically fully earned and vested vest at the Target Number of Shares (100% of Target) effective as of the date of the Participant’s death, or (2) on or after the end of the Performance Period, to the extent the Award has previously been earned and is not fully vested as of the date of the Participant’s death, such Award shall automatically fully vest effective as of the date of the Participant’s death.
(iv) Except as otherwise provided in Section 3(b)(v) below, any Shares shares of Common Stock and any other benefit subject to the Award distributable to the Participant following the Termination Date pursuant to Section 3(b) herein shall be issued in accordance with the vesting schedule stated in Section 3(a) above and shall be distributed on such vesting dates or a later date(s) within the same taxable year of the Participant’s Termination Date, or, if later, by the 15th day of the third calendar month following the date(s) specified in Section 3(a) and the Participant shall not be permitted, directly or indirectly, to designate the taxable year of distribution, or shall otherwise be made in accordance with Code Section 409A and related regulations.
(v) Any Shares shares of Common Stock issuable to such person or persons as shall have acquired the right to the Award by will or by the laws of descent and distribution intestate succession following the Participant’s death pursuant to Section 3(b)(ii) or Section 3(b)(iii)(D) above shall be issued to such person or persons on the date that is the 90th day following the date of the Participant’s death and shall be distributed on such date or a later date within the same taxable year of the Participant’s death, or, if later, by the 15th day of the third calendar month following the taxable year of the Participant’s death and the Participant (or such person or persons as shall have acquired the right to the Award by will or by the laws of descent and distributionintestate succession) shall not be permitted, directly or indirectly, to designate the taxable year of distribution, or shall otherwise be issued and distributed made in accordance with Code Section 409A and related regulations.
Appears in 1 contract
Special Post-Termination Earning and Vesting Terms. Notwithstanding the provisions of Section 3(a), the following terms shall apply with respect to the Award Award, provided that the Participant resides in and is employed by the Company or an Affiliate based in the United States:
(i) In the event of the Participant's ’s termination of employment or service for Cause, the Award (and any remaining right to underlying Shares) shall be forfeited immediately.
(ii) In the event of the Participant’s death (X) before the end of the any Performance Period, the Award shall automatically be deemed automatically earned and fully vested at 100% of the Target for such Performance Period (but excluding any Unearned Shares that may be available for carryover from any prior Performance Period) effective as of the date of the Participant’s death, or (Y) on or following the end of the any Performance Period, to the extent the Award has not previously been earned and is not fully vested as of the date of the Participant’s death, the Award shall automatically be eligible to be earned and fully vest vested effective as of the date of the Participant’s deathdeath (based on the Administrator’s determination of the extent, if any, to which the Performance Objectives have been met following the end of such Performance Period).
(iii) In the event of the Participant’s termination of employment or service for any reason (including termination due to Disability) other than death or for Cause, the following terms shall apply with respect to the Award:
A. If the Participant (1) has executed, within the Statutory Notice Period, a Release and, if so determined by the Company, a Severance Agreement, (2) does not revoke the Release prior to the end of the seven-day statutory revocation period, and (3) satisfies the Post-Employment Condition, then (X) if the Participant’s Termination Date is on or after the end of the Performance Period, to the extent the Award has previously been earned, the Award shall continue to vest, and (Y) if the Participant’s Termination Date precedes the end of the Performance Period, the Award shall continue to be eligible to be earned (based on the Administrator’s determination of the extent, if any, to which the Performance Objectives have been met following the end of the applicable Performance Period) and shall vest, in each case, vested according to the earning and vesting schedule stated in Section 3(a) above as if the Participant had remained an Employee employee of, or service provider to, the Company or an Affiliate during the Post-Termination Period.
B. If the Participant fails to execute such Release and, if applicable, Severance Agreement, within the Statutory Notice Period, or revokes the Release prior to the end of the seven-day statutory revocation period, or violates the Post-Employment Condition, the Award (and any remaining right to underlying Shares) shall be deemed forfeited in its entirety as of the date of the Participant’s Termination Date.
C. If the Administrator determines in the exercise of its discretion that the Participant has committed a breach or violation of the Release, the Severance Agreement, the ICN Agreement or the Post-Employment Condition at any time on or prior to the end of the Post-Termination Period (without regard to when the Administrator first discovers or has notice of any such breach or violation), then, in addition to any other remedies available to the Company at law or in equity as a result of such breach or violation, (1) the Award (and any remaining right to underlying Shares) shall immediately be forfeited in its entirety; (2) any Shares and any other benefit subject to the Award that vested following the Participant’s Termination Date shall immediately be forfeited and returned to the Company (without the payment of any consideration for such Shares, including repayment of any amount paid by the Participant with respect to taxes related to the grant or vesting of the Award), and the Participant shall cease to have any interest in or right to such Shares and shall cease to be recognized as the legal owner of such Shares; and (3) any Gain realized by the Participant with respect to any Shares issued following the Participant’s Termination Date shall immediately be paid by the Participant to the Company. The Administrator shall have discretion to determine the basis for termination, whether any breach of the Release, the Severance Agreement, the ICN Agreement or the Post-Employment Condition has occurred and to otherwise interpret this Section 3.
D. If, during the Post-Termination Period, the Participant dies (1) before the end of the any Performance Period, the Award shall automatically be deemed automatically fully earned and fully vested at 100% of the Target for such Performance Period (but excluding any Unearned Shares that may be available for carryover from any prior Performance Period) effective as of the date of the Participant’s death, or (2) on or after following the end of the any Performance Period, to the extent the Award has not previously been earned and is not fully vested as of the date of the Participant’s death, such the Award shall automatically be eligible to be earned and fully vest vested effective as of the date of the Participant’s deathdeath (based on the Administrator’s determination of the extent, if any, to which the Performance Objectives have been met following the end of such Performance Period).
(iv) Except as otherwise provided in Section 3(b)(v) below, any Shares and any other benefit subject to the Award distributable to the Participant following the Termination Date pursuant to Section 3(b) herein shall be issued in accordance with the earning and vesting schedule stated in Section 3(a) above and shall be distributed on such earning and vesting dates or a later date(s) within the same taxable year of the Participant’s Termination Date, or, if later, by the 15th day of the third calendar month following the date(s) specified in Section 3(a) and the Participant shall not be permitted, directly or indirectly, to designate the taxable year of distribution, or shall otherwise be made in accordance with Code Section 409A and related regulations.
(v) Any Shares issuable to such person or persons as shall have acquired the right to the Award by will or by the laws of descent and distribution intestate succession following the Participant’s death pursuant to Section 3(b)(ii) or Section 3(b)(iii)(D) above shall be issued to such person or persons on the date that is the 90th day following the date of the Participant’s death and shall be distributed on such date or a later date within the same taxable year of the Participant’s death, or, if later, by the 15th day of the third calendar month following the taxable year of the Participant’s death and the Participant (or such person or persons as shall have acquired the right to the Award by will or by the laws of descent and distributionintestate succession) shall not be permitted, directly or indirectly, to designate the taxable year of distribution, or shall otherwise be issued and distributed made in accordance with Code Section 409A and related regulations.
Appears in 1 contract
Special Post-Termination Earning and Vesting Terms. Notwithstanding the provisions of Section 3(a), the following terms shall apply with respect to the Award , provided that the Participant resides in and is employed by the Company or an Affiliate based in the United StatesAward:
(i) In the event of the Participant's ’s termination of employment or service for Cause, the Award (and any remaining right to underlying Shares) shall be forfeited immediately.
(ii) In the event of the Participant’s death (X) before the end of the any Performance Period, the Award shall automatically be deemed automatically earned and fully vested at 100% of the Target number of shares that may be earned for such Performance Period (but excluding any unearned shares that may be available for carryover from any prior Performance Period) effective as of the date of the Participant’s death, or (Y) on or following the end of the any Performance Period, to the extent the Award has not previously been earned and is not fully vested as of the date of the Participant’s death, the Award shall automatically be eligible to be earned and fully vest vested effective as of the date of the Participant’s deathdeath (based on the Administrator’s determination of the extent, if any, to which the Performance Objectives have been met following the end of such Performance Period).
(iii) In the event of the Participant’s termination of employment or service for any reason (including termination due to Disability) other than death or for Cause, the following terms shall apply with respect to the Award:: _______________________________ * Subject to terms and conditions of the Plan and the Agreement.
A. If the Participant (1) has executed, executed within the Statutory Notice Period, a Release and, if so determined by the Company, a Severance AgreementAgreement with the Company, (2) does not revoke the Release prior to the end of the seven-day statutory revocation period, and (3) satisfies the Post-Employment Condition, then (X) if the Participant’s Termination Date is on or after the end of the Performance Period, to the extent the Award has previously been earned, the Award shall continue to vest, and (Y) if the Participant’s Termination Date precedes the end of the Performance Period, the Award shall continue to be eligible to be earned (based on the Administrator’s determination of the extent, if any, to which the Performance Objectives have been met following the end of the applicable Performance Period) and shall vest, in each case, vested according to the earning and vesting schedule stated in Section 3(a) above as if the Participant had remained an Employee employee of, or service provider to, the Company or an Affiliate during the Post-Termination Period.
B. If the Participant fails to execute such Release and, if applicable, Severance Agreement, within the Statutory Notice Period, or revokes the Release prior to the end of the seven-day statutory revocation period, or violates the Post-Employment Condition, the Award (and any remaining right to underlying Shares) shall be deemed forfeited in its entirety as of the date of the Participant’s Termination Date.
C. If the Administrator determines in the exercise of its discretion that the Participant has committed a breach or violation of the Release, the Severance Agreement, the ICN Agreement or the Post-Employment Condition at any time on or prior to the end of the Post-Termination Period (without regard to when the Administrator first discovers or has notice of any such breach or violation), then, in addition to any other remedies available to the Company at law or in equity as a result of such breach or violation, (1) the Award (and any remaining right to underlying Shares) shall immediately be forfeited in its entirety; (2) any Shares and any other benefit subject to the Award that vested following the Participant’s Termination Date shall immediately be forfeited and returned to the Company (without the payment of any consideration for such Shares, including repayment of any amount paid by the Participant with respect to taxes related to the grant or vesting of the Award), and the Participant shall cease to have any interest in or right to such Shares and shall cease to be recognized as the legal owner of such Shares; and (3) any Gain realized by the Participant with respect to any Shares issued following the Participant’s Termination Date shall immediately be paid by the Participant to the Company. The Administrator shall have discretion to determine the basis for termination, whether any breach of the Release, the Severance Agreement, the ICN Agreement or the Post-Employment Condition has occurred and to otherwise interpret this Section 3.
D. If, during the Post-Termination Period, the Participant dies (1) before the end of the any Performance Period, the Award shall automatically be deemed automatically fully earned and fully vested at 100% of the Target number of shares that may be earned for such Performance Period (but excluding any unearned shares that may be available for carryover from any prior Performance Period) effective as of the date of the Participant’s death, or (2) on or after following the end of the any Performance Period, to the extent the Award has not previously been earned and is not fully vested as of the date of the Participant’s death, such the Award shall automatically be eligible to be earned and fully vest vested effective as of the date of the Participant’s deathdeath (based on the Administrator’s determination of the extent, if any, to which the Performance Objectives have been met following the end of such Performance Period).
(iv) Except as otherwise provided in Section 3(b)(v) below, any Shares shares of Common Stock and any other benefit subject to the Award distributable to the Participant following the Termination Date pursuant to Section 3(b) herein shall be issued in accordance with the earning and vesting schedule stated in Section 3(a) above and shall be distributed on such earning and vesting dates or a later date(s) within the same taxable year of the Participant’s Termination Date, or, if later, by the 15th day of the third calendar month following the date(s) specified in Section 3(a) and the Participant shall not be permitted, directly or indirectly, to designate the taxable year of distribution, or shall otherwise be made in accordance with Code Section 409A and related regulations.
(v) Any Shares shares of Common Stock issuable to such person or persons as shall have acquired the right to the Award by will or by the laws of descent and distribution intestate succession following the Participant’s death pursuant to Section 3(b)(ii) or Section 3(b)(iii)(D) above shall be issued to such person or persons on the date that is the 90th day following the date of the Participant’s death and shall be distributed on such date or a later date within the same taxable year of the Participant’s death, or, if later, by the 15th day of the third calendar month following the taxable year of the Participant’s death and the Participant (or such person or persons as shall have acquired the right to the Award by will or by the laws of descent and distributionintestate succession) shall not be permitted, directly or indirectly, to designate the taxable year of distribution, or shall otherwise be issued and distributed made in accordance with Code Section 409A and related regulations.
Appears in 1 contract
