Vesting and Forfeiture Any Award which has become payable pursuant to the performance measures set forth in Section 4 shall be considered as fully earned by you, subject to the further provisions of this Section 3. Notwithstanding any other provision of this Award Agreement to the contrary, any Award will be forfeited back to Tyson in the event of: (i) your Termination of Employment before the Vesting Date, except as otherwise provided in Sections 3.2 through 3.4, or (ii) the failure to satisfy any of the performance measures provided in Section 4.
Vesting; Forfeiture (a) Subject to the Participant’s continued employment or service through the applicable vesting date and except as otherwise provided in this Section 3, the Award shall vest at the time(s) set forth on the signature page hereto. The Administrator has authority to determine whether and to what degree the Award shall be deemed vested.
(b) Notwithstanding Section 3(a) herein, with respect to Employees and Consultants, in the event that the Participant’s employment or service with the Company is terminated due to a Qualifying Termination, then a pro-rata portion of the unvested Shares subject to the Award as of each applicable vesting date, determined as of the date of the Qualifying Termination in accordance with the provisions of this Section 3(b), shall be deemed vested. The pro-rata portion of the unvested Shares subject to the Award that shall be deemed vested as of each applicable vesting date shall be determined by multiplying the total number of the unvested Shares subject to vesting on the applicable vesting date, by a fraction, the numerator of which is the number of calendar days from the Date of Grant through the date of the Qualifying Termination, and the denominator of which is the total number of calendar days in the period commencing on the Date of Grant and ending on the applicable vesting date. The remaining unvested Shares subject to the Award shall be forfeited as of the date of the Qualifying Termination.
(c) Notwithstanding Section 3(a) herein, with respect to Directors, in the event that the Participant’s employment or service with the Company is terminated due to death or Disability, then the Award shall, to the extent not then vested or previously forfeited or cancelled, become fully vested effective as of the Participant’s Termination Date.
(d) Notwithstanding Section 3(a) herein, in the event of a Change of Control, then the Award shall, to the extent not then vested or previously forfeited or cancelled, become vested as follows:
(i) To the extent that the successor or surviving company in the Change of Control event does not assume or substitute for the Award (or in which the Company is the ultimate parent corporation and does not continue the Award) on substantially similar terms or with substantially equivalent economic benefits (as determined by the Administrator) as Awards outstanding under the Plan immediately prior to the Change of Control event, the Award shall become fully vested as of the date of the Change of Control.
(ii) Further, in the event that the Award is substituted, assumed or continued as provided in Section 3(d)(i) herein, the Award will nonetheless become vested if the Participant’s employment or service is terminated by the Company and its Affiliates without Cause or by the Participant with Good Reason within six months before (in which case vesting shall not occur until the effective date of the Change of Control) or one year after the effective date of a Change of Control (in which case vesting shall occur as of the Participant’s Termination Date).
(e) If the Participant’s employment or service with the Company is terminated for any reason other than a Change of Control, a Qualifying Termination with respect to Employees and Consultants, or death or disability with respect to Directors as provided herein (including but not limited to a termination for Cause), the unvested portion of the Award shall immediately terminate and the Participant shall have no rights with respect to the Award or the Shares underlying the unvested portion of the Award.
Vesting of PSUs The PSUs granted pursuant to this Award shall vest, if at all, as follows:
(a) The Committee, in its sole discretion, has established, or within 90 days following the Date of Grant will establish, Performance Goals based on factors consistent with Section 3.1(e)(ii) of the Executive Employment Agreement by and between NIL, NII and the Grantee effective as of January 2, 2020, as amended from time to time (the “Employment Agreement”), which will be measured over a one-year performance period commencing on _____________ and ending on _____________ (such period, the “Performance Period”).
(b) Up to 200% of the Target PSUs subject to this Award are eligible to become earned based upon achievement of the applicable Performance Goals. The Committee shall have sole discretion to determine the level of achievement of the applicable Performance Goals and the percentage of the Target PSUs subject to this Award that shall become earned based on such performance (the “Earned PSUs”). The Committee’s determinations pursuant to the exercise of discretion with respect to all matters described in this paragraph shall be final and binding on the Grantee. The Committee shall make this determination within 60 days following the end of the Performance Period or as soon as administratively practicable thereafter (the “Performance Determination Date”).
(c) If, on the Performance Determination Date or any other applicable date as set forth in this Section 3, the Committee determines that any of the PSUs subject to this Award shall not become Earned PSUs, then any such PSUs that did not become Earned PSUs (and all rights arising from such PSUs and from being a holder thereof) will terminate automatically without any further action by the Company and will be forfeited without further notice and at no cost to the Company.
(d) One-third of the Earned PSUs shall become vested on each of the first three anniversaries of the Date of Grant if the Grantee remains continuously employed by NIL and/or NII from the Date of Grant through the applicable vesting date; provided that any Earned PSUs scheduled to vest prior to the Performance Determination Date shall instead vest upon the Performance Determination Date; provided further, that if the preceding calculation results in any fractional shares, such fractional shares shall be rounded down to the next whole number of shares, with the remainder of shares due to be paid in the third annual instalment.
(e) In the event of a Change in Control of NIL (as defined in the Employment Agreement), notwithstanding anything to the contrary in the Employment Agreement, all of the Earned PSUs subject to this Award that remain unvested shall become vested as of the date of such Change in Control if the Grantee remains continuously employed by NIL and/or NII from the Date of Grant through the date of such Change in Control; provided that, if such Change in Control of NIL occurs prior to the Performance Determination Date, the Earned PSUs shall be deemed to equal 100% of the Target PSUs.
(f) In the event of the Grantee’s Termination due to the Grantee’s death or Disability (as defined in the Employment Agreement), all of the Earned PSUs subject to this Award that remain unvested shall become vested as of the date of such Termination; provided that, if the date of such Termination occurs prior to the conclusion of the Performance Period, then the Grantee shall forfeit all PSUs subject to this Award, and if the date of such Termination occurs after the conclusion of the Performance Period but prior to the Performance Determination Date, then the number of Earned PSUs shall be determined based on actual performance.
(g) In the event of the Grantee’s Termination either due to the Grantee’s Constructive Termination Without Cause or by the Company Without Cause (each as defined in the Employment Agreement), all of the Earned PSUs subject to this Award that remain unvested shall become vested as of the date of such Termination; provided that, if the date of such Termination occurs prior to the conclusion of the Performance Period, then the Grantee shall forfeit all PSUs subject to this Award, and if the date of such Termination occurs after the conclusion of the Performance Period but prior to the Performance Determination Date, then the number of Earned PSUs shall be determined based on actual performance.
(h) Anything herein notwithstanding, in the event of the Grantee’s Termination by the Company for Cause or by the written voluntary resignation of the Grantee (each as defined or contemplated, as applicable, in the Employment Agreement), the Grantee shall forfeit any PSUs subject to this Award that remain unvested as of the date of such Termination.
Forfeiture of RSUs If you (a) breach any restrictive covenant (which, for the avoidance of doubt, includes any non-compete, non-solicit, non-disparagement or confidentiality provisions) contained in any arrangements with the Company (including your Employment Agreement and the confidentiality covenant contained in Section 10(c) hereof) to which you are subject or (b) engage in fraud or willful misconduct that contributes materially to any financial restatement or material loss to the Company or any of its Subsidiaries, your rights with respect to the RSUs shall immediately terminate, and you shall be entitled to no further payments or benefits with respect thereto and, if the RSUs are vested and/or settled, the Company may require you to forfeit or remit to the Company any amount payable, or the after-tax net amount paid or received by you, in respect of any RSUs; provided, however, that (i) the Company shall make such demand that you forfeit or remit any such amount no later than six months after learning of the conduct described in this Section 4 and (ii) in cases where cure is possible, you shall first be provided a 15-day cure period to cease, and to cure, such conduct.
Vesting and Lapse of Restrictions Subject to Sections 2.2(a) and 2.2(c), the Award shall vest and Restrictions shall lapse in accordance with the vesting schedule set forth on the Grant Notice.
Forfeiture of Award Section 4.1 If, at any time during the Award Recipient’s tenure as a director of the Company or within 18 months after termination of such tenure, the Award Recipient engages in any activity in competition with any activity of CenturyTel or its subsidiaries (collectively, the “Company”), or inimical, contrary or harmful to the interests of the Company, including but not limited to: (a) conduct relating to the Award Recipient’s service on the Board for which either criminal or civil penalties against the Award Recipient may be sought, (b) conduct or activity that results in removal of the Award Recipient from the Board for cause, (c) violation of the Company’s policies, including, without limitation, the Company’s xxxxxxx xxxxxxx policy or corporate compliance program, (d) accepting employment after the date hereof with, acquiring a 5% or more equity or participation interest in, serving as a consultant, advisor, director or agent of, directly or indirectly soliciting or recruiting any officer of the Company who was employed at any time during the Award Recipient’s service on the Board, or otherwise assisting in any other capacity or manner any company or enterprise that is directly or indirectly in competition with or acting against the interests of the Company or any of its lines of business (a “competitor”), except for (A) any employment, investment, service, assistance or other activity that is undertaken at the request or with the written permission of the CenturyTel Board of Directors or (B) any assistance of a competitor that is provided in the ordinary course of the Award Recipient engaging in his or her principal occupation in the good faith and reasonable belief that such assistance will neither harm the Company’s interests in any substantial manner or violate any of the Award Recipient’s duties or responsibilities under the Company’s policies or applicable law, (e) disclosing or misusing any confidential information or material concerning the Company, (f) engaging in, promoting, assisting or otherwise participating in a hostile takeover attempt of the Company or any other transaction or proxy contest that could reasonably be expected to result in a Change of Control (as defined in the Plan) not approved by the CenturyTel Board of Directors or (g) making any statement or disclosing any information to any customers, suppliers, lessors, lessees, licensors, licensees, regulators, employees or others with whom the Company engages in business that is defamatory or derogatory with respect to the business, operations, technology, management, or other employees of the Company, or taking any other action that could reasonably be expected to injure the Company in its business relationships with any of the foregoing parties or result in any other detrimental effect on the Company, then (i) all unvested shares of Restricted Stock granted hereunder shall automatically terminate and be forfeited effective on the date on which the Award Recipient first engages in such activity and (ii) all shares of Common Stock acquired by the Award Recipient upon vesting of the Restricted Stock hereunder after the date that precedes by one year the date on which the Award Recipient’s tenure as a director of the Company terminated or the date the Award Recipient first engaged in such activity if no such termination occurs (or other securities into which such shares have been converted or exchanged) shall be returned to the Company or, if no longer held by the Award Recipient, the Award Recipient shall return to the Company, without interest, all cash, securities or other assets received by the Award Recipient upon the sale or transfer of such stock or securities.
Section 4.2 If the Award Recipient owes any amount to the Company under Section 4.1 above, the Award Recipient acknowledges that the Company may, to the fullest extent permitted by applicable law, deduct such amount from any amounts the Company owes the Award Recipient from time to time for any reason (including without limitation amounts owed to the Award Recipient as directors fees, reimbursements, retirement payments, or other compensation or benefits). Whether or not the Company elects to make any such set-off in whole or in part, if the Company does not recover by means of set-off the full amount the Award Recipient owes it, the Award Recipient hereby agrees to pay immediately the unpaid balance to the Company.
Section 4.3 The Award Recipient may be released from the Award Recipient’s obligations under Sections 4.1 and 4.2 above only if the CenturyTel Board of Directors determines in its sole discretion that such action is in the best interests of the Company.
Forfeiture of Awards The Restricted Stock Units granted hereunder (and gains earned or accrued in connection therewith) shall be subject to such generally applicable policies as to forfeiture and recoupment (including, without limitation, upon the occurrence of material financial or accounting errors, financial or other misconduct or Competitive Activity) as may be adopted by the Administrator or the Board from time to time and communicated to the Employee or as required by applicable law, and are otherwise subject to forfeiture or disgorgement of profits as provided by the Plan.
Forfeiture of Units (a) Except as otherwise agreed to in writing between the General Partner and the applicable Person and reflected in the books and records of the Partnership, if a Person that is a Service Provider ceases to be a Service Provider for any reason, all Unvested Units held by such Person (or any Personal Planning Vehicle of such Person), and/or in which such Person (or any Personal Planning Vehicle of such Person) has an indirect interest, as set forth in the books and records of the Partnership, shall be immediately forfeited without any consideration, and any such Person (or any such Personal Planning Vehicle) shall cease to own or have any rights, directly or indirectly, with respect to such forfeited Unvested Units.
(b) Except as otherwise agreed to in writing between the General Partner and the applicable Person and reflected in the books and records of the Partnership, if the General Partner determines in good faith that Cause exists with respect to any Person that is or was at any time a Service Provider, the Units (whether or not vested) held by such Person (or any Personal Planning Vehicle of such Person), and/or in which such Person (or any Personal Planning Vehicle of such Person) has an indirect interest, as set forth in the books and records of the Partnership, shall be immediately forfeited without any consideration, and any such Person (or any such Personal Planning Vehicle) shall cease to own or have any rights, directly or indirectly, with respect to such forfeited Units. Such determinations need not be uniform and may be made selectively among such Persons, whether or not such Persons are similarly situated, and shall not constitute the breach by the General Partner or any of its directors, managers, officers or members of any duty (including any fiduciary duty) hereunder or otherwise existing at law, in equity or otherwise.
(c) Notwithstanding anything otherwise to the contrary herein, including without limitation Section 9.06 and Section 10.01, if any Person who is or was at any time a Service Provider shall fail to perform when due any “giveback,” “true-up” or “clawback” obligation owed by such Person to the Partnership or any of its Affiliates or to any fund sponsored by the Partnership or any of its Affiliates, the General Partner may in its sole discretion and without the consent of any other Person, cause to be forfeited a number of Units held by such Person (or any Personal Planning Vehicle of such Person), and/or in which such Person (or any Personal Planning Vehicle of such Person) has an indirect interest, as set forth in the books and records of the Partnership, equivalent in value to the obligation which was not performed, as determined by the General Partner in its sole discretion. Such determinations need not be uniform and may be made selectively among such Persons, whether or not such Persons are similarly situated, and shall not constitute the breach by the General Partner or any of its directors, managers, officers or members of any duty (including any fiduciary duty) hereunder or otherwise existing at law, in equity or otherwise.
(d) Upon the forfeiture of any Units in accordance with this Section 8.02, such Units shall be cancelled and the General Partner shall modify the books and records of the Partnership to reflect such forfeiture and cancellation.
Forfeiture of Restricted Stock Units i. If the Participant’s employment is terminated by reason of the Retirement of the Participant before October 1, <Year_of_Grant>, then the Restricted Stock Units shall be forfeited immediately and all rights of the Participant to such Units shall terminate immediately without further obligation on the part of the Corporation or any Subsidiary Company.
ii. If the Participant’s employment is terminated for any reason other than Retirement, Disability, or death, any Restricted Stock Units that are subject to a Restriction Period shall be forfeited immediately without further obligation on the part of the Corporation or any Subsidiary Company, and all rights of the Participant with respect to such Restricted Stock Units shall terminate. If the Participant is granted a leave of absence before the expiration of the Restriction Period, the Participant shall not forfeit any rights with respect to any Restricted Stock Units subject to the Restriction Period, except for Dividend Equivalent Payments as provided in Section 4 of this Agreement, unless the Participant’s employment with the Corporation or a Subsidiary Company terminates at any time during or at the end of the leave of absence and before the expiration of the Restriction Period, at which time all rights of the Participant with respect to such Restricted Stock Units shall terminate without further obligation on the part of the Corporation or any Subsidiary Company.
iii. Notwithstanding any provision of this Agreement to the contrary, if the Participant’s employment is terminated by reason of the Retirement or Disability of the Participant, and the Participant Engages in Competing Employment within a period of two years following Retirement or Disability, and before the expiration of the Restriction Period, then any Restricted Stock Units subject to a Restriction Period shall be forfeited immediately and all rights of the Participant to such Units shall terminate without further obligation on the part of the Corporation or any Subsidiary Company. A Participant “Engages in Competing Employment” if the Participant works for or provides services for any Competitor, on the Participant’s own behalf or on behalf of others, including, but not limited to, as a consultant, independent contractor, director, owner, officer, partner, joint venturer, or employee. For this purpose, a “Competitor” is any entity in the same line of business as the Corporation in North American markets in which the Corporation competes, including, but not limited to, any North American Class I rail carrier, any other rail carrier competing with the Corporation (including without limitation a holding or other company that controls or operates or is otherwise affiliated with any rail carrier competing with the Corporation), and any other provider of transportation services competing with Corporation, including motor and water carriers. Moreover, notwithstanding any provision of this Agreement to the contrary, the Restricted Stock Units shall be forfeited immediately and all rights of the Participant to such Units shall terminate if:
A. the Participant’s employment is terminated by reason of the Retirement or Disability of the Participant before the expiration of the Restriction Period, and
B. it is determined that the Participant engaged in any of the following:
1. the Participant engaged in an act of fraud, embezzlement, or theft in connection with the Participant’s duties or in the course of the Participant’s employment with the Corporation or Subsidiary Company; or
2. the Participant disclosed confidential information in violation of a confidentiality agreement with the Corporation or a Subsidiary Company, or otherwise in violation of the law. A determination under this paragraph shall be made by the Committee with respect to a participant who was, at any time, employed at the level of Vice President or above, and this determination shall be made by the Vice President Human Resources with respect to all other participants, and in either situation upon consultation with the Corporation’s chief legal officer. Participant understands that nothing in this Agreement (1) prohibits or impedes Participant from reporting possible violations of federal law or regulation to any governmental agency or entity (including but not limited to the Department of Justice, the Securities and Exchange Commission (SEC), the Congress, and any agency Inspector General), from making other disclosures that are protected under the whistleblower provisions of federal law or regulation, or from receiving a monetary award from the SEC related to participation in an SEC investigation or proceeding, or (2) requires Participant to obtain prior authorization of the Corporation to make any such reports or disclosures or to notify the Corporation of such reports or disclosures.
Vesting and Exercisability (a) Options to purchase 87,500 shares, 43,750 shares and 43,750 shares, respectively, will vest on the first three anniversaries of the Start Date (as defined in the Employment Agreement).
(b) If the Employee's employment with the Company terminates for any reason prior to the time that the Option has been fully exercised, the unexercised portion of the Option on the date of termination of employment (whether exercisable or not) shall immediately expire; provided, however, that (i) if the Employee's employment is terminated by reason of the Employee's disability (pursuant to Section 3.3 of the Employment Agreement), all portions of the Option that are vested at the time of termination shall remain exercisable for a period of one year from the date of such termination or until the expiration of the Exercise Period, whichever is shorter; (ii) in the event of the death of the Employee while in the employ of the Company, all portions of the Option that are vested at the time of death shall remain exercisable by the legal representative of the estate or by the legatee of the Employee under the will of the Employee for a period of one year from the date of such death or until the expiration of the Exercise Period, whichever is shorter; and (iii) in the event the Employee is terminated without "Cause" (as defined in the Employment Agreement), or Executive terminates his employment for "Good Reason" (as defined in the Employment Agreement), then the Option shall become fully vested and exercisable and may be exercised for a period of five years from the date of such termination of employment or until the expiration of the Exercise Period, whichever is shorter.
(c) The Board of Directors may, in the event the Executive's employment is terminated for Cause (as provided for in the Employment Agreement), annul the Option and, in such event, may require the Executive to return to the Company the economic benefit of any Option Shares purchased hereunder by the Executive within the six month period prior to the date of termination. In such event, the Executive hereby agrees to remit to the Company, in cash, an amount equal to the difference between the fair market value of the Option Shares on the date of termination (or the sales price of such Shares if the Option Shares were sold during such six month period) and the exercise price of such Shares.
