FORM OF PERFORMANCE-BASED RESTRICTED STOCK UNIT AWARD AGREEMENT
Exhibit 99.3
FORM OF PERFORMANCE-BASED RESTRICTED STOCK UNIT
AWARD AGREEMENT
AWARD AGREEMENT
This Award Agreement (the “Agreement”) is entered into as of ___(the “Award Date”) by
and between Columbia Sportswear Company, an Oregon corporation (the “Company”), and ___
(the “Recipient”), for the award of restricted stock units with respect to the Company’s Common
Stock (“Common Stock”).
The award of restricted stock units to the Recipient is made pursuant to Section 9 of the 1997
Stock Incentive Plan (the “Plan”) and the Recipient desires to accept the award subject to the
terms and conditions of this Agreement.
IN CONSIDERATION of the mutual covenants and agreements set forth in this Agreement, the
parties agree to the following.
1. Award and Terms of Restricted Stock Units. The Company awards to the Recipient under the
Plan ___restricted stock units (the “Award”), subject to forfeiture or increase as
provided in Section 1(b) of this Agreement and to the restrictions, terms and conditions set forth
in this Agreement.
(a) Rights under Restricted Stock Units. A restricted stock unit (a “RSU”) represents the
unfunded, unsecured right to require the Company to deliver to the Recipient one share of Common
Stock for each RSU. The number of shares of Common Stock deliverable with respect to each RSU is
subject to adjustment (1) as provided in Section 1(c) of this Agreement and (2) as determined by
the Board of Directors of the Company as to the number and kind of shares of stock deliverable upon
any merger, reorganization, consolidation, recapitalization, stock dividend, spin-off or other
change in the corporate structure affecting the Common Stock generally.
(b) Vesting Date. The RSUs not forfeited pursuant to Section 1(c) of this Agreement shall
vest on the first anniversary of the last day of the Performance Period, as defined below (the
"vesting date”) provided that the Recipient has been employed by the Company continuously from the
Award Date to the vesting date. If the vesting date falls on a weekend or any other day on which
the Nasdaq Stock Market (“NSM”) or any national securities exchange on which the Common Stock then
is principally traded (the “Exchange”) is not open, affected RSUs shall vest on the next following
NSM or Exchange business day, as the case may be.
(c) Adjustment of RSUs.
(1) Forfeiture of RSUs on Termination of Service. If the Recipient ceases to be an
employee of the Company for any reason prior to the vesting date, the Recipient shall
immediately forfeit all outstanding RSUs awarded pursuant to this Agreement and the
Recipient shall have no right to receive the related Common Stock. Absence on leave
approved by the Company (or, if the Recipient is an executive officer of the Company, by the
Board of Directors), shall not be deemed a termination or interruption of employment or
service. Unless otherwise determined by the Company or the Board of Directors in its sole
discretion, (i) vesting of RSUs shall continue during a medical, family or military leave of
absence, whether paid or unpaid, and
(ii) vesting of RSUs shall be suspended during, and the number of shares deliverable at
the vesting date shall be proportionately reduced as a result of, any other unpaid leave of
absence.
(2) Forfeiture of RSUs on Violation of Code of Business Conduct and Ethics. Recipient
acknowledges that compliance with the Company’s Code of Business Conduct and Ethics is a
condition to the receipt and vesting of the RSUs. If, during the term of this Agreement,
the Board of Directors (or a committee of directors designated by the Board of Directors)
determines in good faith that the Recipient’s conduct is or has been in violation of the
Company’s Code of Business Conduct and Ethics, then the Board of Directors or committee may
cause the Recipient to immediately forfeit all or a portion of the unvested RSUs granted
pursuant to this Agreement and the Recipient shall have no right to receive the related
Common Stock.
(3) Forfeiture or Increase of RSUs Based on Performance. For the period beginning
___and ending ___(the “Performance Period”), the Award shall be
adjusted as follows.
(i) 20% of the Award (the “Individual Performance Component”) shall be subject
to forfeiture, and if forfeited the Recipient shall have no right to receive the
related Common Stock, based on individual performance ratings. One-third of the
Individual Performance Component shall be forfeited each time the Recipient receives
less than “exceeds expectations” on any of the Recipient’s three annual evaluations
in the Performance Period.
(ii) 80% of the Award (the “Company Performance Component”) is subject to
increase or forfeiture (and if forfeited the Recipient shall have no right to receive
the related Common Stock) based on the Cumulative Operating Income and the Average
ROIC of the Company in the Performance Period, in each case as defined below. The
Company Performance Component will be adjusted by multiplying it by the percentage
set forth at the intersection of the Cumulative Operating Income and Average ROIC in
the following matrix. If results are between data points, the percentage of the
Award payable shall be determined by interpolation between data points.
| Cumulative Operating Income | ||||||||||||||||||||||||||||
| ($ millions) | ||||||||||||||||||||||||||||
| At least | ||||||||||||||||||||||||||||
Average ROIC |
— | % | 0 | % | 25 | % | 55 | % | 70 | % | 85 | % | 100 | % | ||||||||||||||
| — | % | 25 | % | 55 | % | 80 | % | 100 | % | 115 | % | 130 | % | |||||||||||||||
| — | % | 55 | % | 80 | % | 100 | % | 120 | % | 135 | % | 150 | % | |||||||||||||||
| — | % | 70 | % | 100 | % | 120 | % | 135 | % | 155 | % | 170 | % | |||||||||||||||
| — | % | 85 | % | 115 | % | 135 | % | 150 | % | 170 | % | 200 | % | |||||||||||||||
"Cumulative Operating Income” means the sum of the annual income from operations
for each of the fiscal years in the Performance Period as set forth in the audited
consolidated financial statements of the Company.
“Average ROIC” means the average annual percentage return on invested capital in
the Performance Period. The return on invested capital is calculated as follows.
ROIC
|
= | (net operating profit after taxes) | ||
| (total assets) — (excess cash) — (non-interest- bearing current liabilities) |
(d) Restrictions
on Transfer and Delivery on Death. The Recipient may not sell,
transfer, assign, pledge or otherwise encumber or dispose of the RSUs
subject to this Agreement. If the Recipient dies before the delivery
date, the shares will be delivered to the Recipient’s estate.
(e) Voting Rights and Dividend Equivalents. The Recipient shall have no rights as a
shareholder with respect to the RSUs or the Common Stock underlying the RSUs until the vesting date
for the relevant RSUs. The Recipient will not be entitled to receive a cash payment equal to any
cash dividends paid with respect to the Common Stock underlying the RSUs awarded under this
Agreement that are declared prior to the particular vesting date for the relevant RSUs.
(f) Physical Delivery of Share Certificates. As soon as practicable following the vesting
date, provided that the Recipient has satisfied its tax withholding obligations as specified under
Section 1(g) and the Recipient has completed, signed and returned any documents and taken any
additional action the Company deems appropriate, the Company shall deliver the shares of Common
Stock represented by vested RSUs to the Recipient (the date of delivery of such shares is referred
to as a “delivery date”), rounded to the nearest whole share. No fractional shares of Common Stock
shall be issued.
Notwithstanding the foregoing, (i) the Company shall not be obligated to vest or deliver any
shares of Common Stock during any period when the Company determines that the conversion of a RSU
or the delivery of shares hereunder would violate any federal, state or other applicable laws and
may issue shares with any restrictive legend that, as determined by the Company, is necessary to
comply with securities laws or other regulatory requirements, and (ii) a delivery date may be
delayed in order to provide the Company such time as it determines appropriate to determine tax
withholding and other administrative matters; provided, however, that in any event the shares
shall be delivered not later than the later to occur of the date that is 2 1/2 months from the end
of (i) the Recipient’s tax year that includes the vesting date, or (ii) the Company’s tax year that
includes the vesting date.
(g) Taxes and Tax Withholding.
(i) The Recipient acknowledges that under United States federal tax laws in
effect on the Award Date, the Recipient will have taxable compensation income at the time of
vesting based on the Market Value (as defined below) of the Common Stock on the vesting
date. The Recipient shall be responsible for all taxes imposed in connection with the
Award, regardless of any action the Company takes with respect to any tax withholding
obligations that arise in connection with the Award. The Company makes no representation or
undertaking regarding the adequacy of any tax withholding in connection with the grant or
vesting of the Award.
(ii) The Company shall be entitled to withhold from any delivery of Common Stock
hereunder all domestic or foreign income, employment or other tax withholding obligations,
whether national, federal, state or local (the “Tax Withholding Obligation”), arising as a
result of any grant,
vesting or delivery of Common Stock pursuant to this Award, in amounts determined by
the Company. Unless otherwise determined by the Company, the Tax Withholding Obligation
will be satisfied by the Company withholding from the vested shares of Common Stock a number
of whole shares of Common Stock with an aggregate Market Value (as defined below) equal to
the required tax withholding. The Company shall pay to the Recipient, in cash or through
its regular payroll process, the amount of any overwithholding. The Recipient shall pay to
the Company in cash, upon demand, the amount of any Tax Withholding Obligation that is not
satisfied by the withholding of shares described above, and authorizes the Company to
withhold from other amounts payable by the Company to the Recipient, including through
additional payroll withholding, any amount not so paid.
(h) No Solicitation. The Recipient agrees that for 18 months after the Recipient’s
employment with the Company terminates for any reason, with or without cause, whether by the
Company or the Recipient, the Recipient shall not recruit, attempt to hire, solicit, or assist
others in recruiting or hiring, any person who is an employee of the Company, or any of its
subsidiaries. In addition to other remedies that may be available to the Company, the Recipient
shall pay to the Company in cash, upon demand, the net value of any shares of Common Stock, valued
as of the vesting date, delivered under this Agreement if the Recipient violates this section 1(h).
(i) Not a Contract of Employment. This Agreement shall not be construed as a contract of
employment between the Company and the Recipient and nothing contained in this Agreement or in the
Plan shall confer upon the Recipient any right to be continued in the employment of the Company or
any subsidiary or to interfere in any way with the right of the Company or any subsidiary by whom
the Recipient is employed to terminate the Recipient’s employment at any time for any reason, with
or without cause, or to decrease the Recipient’s compensation or benefits.
2. Miscellaneous.
(a) Entire Agreement. This Agreement constitutes the entire agreement of the parties with
regard to the subjects hereof.
(b) Interpretation of the Plan and the Agreement. The Board of Directors, or a committee of
the Board of Directors responsible for administering the Plan (the “Administrator”), shall have the
sole authority to interpret the provisions of this Agreement and the Plan, and all determinations
by it shall be final and conclusive.
(c) Section 409A. The Award made pursuant to this Agreement is intended not to
constitute a “nonqualified deferred compensation plan” within the meaning of Section 409A the
Internal Revenue Code of 1986, as amended, and instead is intended to be exempt from the
application of Section 409A. To the extent that the Award is nevertheless deemed to be subject to
Section 409A, the Award shall be interpreted in accordance with Section 409A and Treasury
regulations and other interpretive guidance issued thereunder, including without limitation any
such regulations or other guidance issued after the grant of the Award. Notwithstanding any
provision of the Award to the contrary, in the event that the Administrator determines
that the Award is or may be subject to Section 409A, the Administrator may adopt such
amendments to the Award or adopt other policies and procedures (including amendments, policies and
procedures with retroactive effect), or take any other actions, that the Administrator
determines are necessary or appropriate to (i) exempt the Award from the application of Section
409A or preserve the intended tax treatment of the benefits provided with respect to the Award, or
(ii) comply with the requirements of Section 409A.
(d) Market Value. "Market Value” as of a particular date shall mean (i) the
closing sales price per share of Common Stock as reported by the NSM on that date, or (ii) if the
shares of Common Stock are not listed or admitted to trading on the NSM, the closing price on the
national securities exchange on which such stock is principally traded on that date, or (iii) if
the shares of Common Stock are not then listed on the NSM or on a national securities exchange, the
average of the highest reported bid and lowest reported asked prices for the shares of Common Stock
as reported by the National Association of Securities Dealers, Inc. Automated Quotations (“NASDAQ”)
system on that date or (iv) if the shares of Common Stock are not then listed on any securities
exchange and prices therefor are not then quoted in the NASDAQ system, such value as determined in
good faith by the Board of Directors (or any duly authorized committee thereof) as of that date.
(e) Electronic Delivery. The Recipient consents to the electronic delivery of any
prospectus and any other documents relating to this Award in lieu of mailing or other form of
delivery.
(f) Rights and Benefits. The rights and benefits of this Agreement shall inure to the benefit
of and be enforceable by the Company’s successors and assigns and, subject to the restrictions on
transfer of this Agreement, be binding upon the Recipient’s heirs, executors, administrators,
successors and assigns.
(g) Further Action. The parties agree to execute such further instruments and to take such
further action as may reasonably be necessary to carry out the intent of this Agreement.
(h) Governing Law, Venue and Jurisdiction; Attorneys’ Fees. This Agreement and the Plan will
be interpreted under the laws of the state of Oregon, exclusive of conflicts of law rules. Venue
and jurisdiction will be in the state or federal courts in Washington County, Oregon, and nowhere
else. In the event either party institutes litigation hereunder, the prevailing party shall be
entitled to reasonable attorneys’ fees to be set by the trial court and, upon any appeal, the
appellate court.
(i) Consent to Transfer Personal Data. By signing this Agreement, the Recipient voluntarily
acknowledges and consents to the collection, use, processing and transfer of personal data as
described in this paragraph. The Recipient is not obliged to consent to such collection, use,
processing and transfer of personal data. However, failure to provide the consent may affect the
Recipient’s ability to participate in the Plan. The Company and its subsidiaries hold certain
personal information about the Recipient, including name, home address and telephone number, date
of birth, social security number or other employee identification number, salary, nationality, job
title, any shares of stock or directorships held in the Company, details of all entitlement to
shares of stock awarded, canceled, purchased, vested, unvested or outstanding in the Recipient’s
favor, for the purpose of managing and administering the Plan (“Data”). The Company and/or its
subsidiaries will transfer Data amongst themselves as necessary for the purpose of implementation,
administration and management of the Plan, and the Company and/or any of its subsidiaries may each
further transfer Data to any third parties assisting the Company in the implementation,
administration and management of the Plan. These recipients may be located in the European
Economic Area, or elsewhere throughout the world, including the United States. The Recipient
authorizes such recipients to receive, possess, use, retain and transfer the Data, in electronic or
other form, for the purposes of implementing, administering and managing the Recipient’s
participation in the Plan, including any requisite transfer of such Data as may be required for the
administration of the Plan and/or the subsequent holding of shares of stock on the Recipient’s
behalf to a broker or other third party with whom the Recipient may elect to deposit any shares of
stock acquired pursuant to the Plan. The Recipient may, at any time, review Data, require any
necessary amendments to it or withdraw the consents herein in
writing by contacting the Company; however, withdrawing consent may affect the Recipient’s
ability to participate in the Plan.
(j) Acknowledgement of Discretionary Nature of the Plan; No Vested Rights. The Recipient
acknowledges and agrees that the Plan is discretionary in nature and limited in duration, and may
be amended, cancelled, or terminated by the Company, in its sole discretion, at any time. The
award of RSUs under the Plan is a one-time benefit and does not create any contractual or other
right to receive a grant of RSUs or benefits in lieu of RSUs in the future. Future awards, if any,
will be at the sole discretion of the Company, including, but not limited to, the timing of any
award, the number of RSUs and vesting provisions.
(k) Character of Award. Participation in the Plan is voluntary. The value of the Award is an
extraordinary item of compensation outside the scope of the Recipient’s employment contract, if
any. As such, the Award is not part of normal or expected compensation for purposes of calculating
any severance, resignation, redundancy, end of service payments, bonuses, long-service awards,
pension, or retirement benefits or similar payments
(l) Counterparts. This Agreement may be executed in two or more counterparts, each of which
shall be deemed an original.
| COLUMBIA SPORTSWEAR COMPANY |
||||
| By: | ||||
| RECIPIENT |
||||
| By: | ||||
