Co., Inc., a Delaware corporation (the “Company”), and the Recipient named on the Acceptance Page, with reference to the following facts: Capitalized terms used and not otherwise defined in this Agreement have the meanings ascribed to such terms in...
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EXHIBIT 99.5 2019 COMPANY OP PERFORMANCE & TIME BASED RESTRICTED STOCK UNIT AGREEMENT Company: Xxxxxxx Manufacturing Co., Inc. Recipient: The recipient’s name (the “Recipient”) is set forth on the Recipient’s online award acceptance page on Xxxxxx Xxxxxxx Xxxxx Xxxxxx’x StockPlan Connect website (the “Acceptance Page”) at xxxxx://xxx.xxxxxxxxxxxxxxxx.xxx, which is incorporated by reference to this Agreement. Target PRSU Shares: The aggregate number of shares of Common Stock as stated on the Acceptance Page. The Number of Shares of 100% of the Target PRSU Shares. Common Stock Subject to PRSUs Granted Hereunder (the “PRSU Shares”): The Effective Date of the Award A date in 2019 as determined by the Committee in its absolute (the “Award Date”): discretion and as set forth on the Acceptance Page. Measurement Period A one-year period beginning on January 1, 2019, and ending (the “Measurement Period”): on December 31, 2019. The Date the PRSU Shares A date subsequent to the Measurement Period as determined Start To Vest by the Committee in its absolute discretion and as set forth on (the “Vesting Start Date”): the Acceptance Page. Vesting Schedule One fourth of the Adjusted Shares (defined on Exhibit A) will (the “Vesting Schedule”): vest on each of the Vesting Start Date and the first, second and third anniversaries thereof; provided, however, that if any of such dates falls on a weekend or federal holiday, the applicable portion of the Adjusted Shares shall vest on the 1 immediately following business day. Vesting Period A period beginning on the Vesting Start Date, and ending on (the “Vesting Period”): the third anniversary of the Vesting Start Date; provided, however, that if such anniversary date falls on a weekend or federal holiday, such period shall end on the immediately following business day.2 Specific Performance Goals The Specific Performance Goals are set forth on Exhibit A. (the “Specific Performance Goals”): This PERFORMANCE & TIME BASED RESTRICTED STOCK UNIT AGREEMENT (this “Agreement”) is made as of the Award Date stated on the Acceptance Page by and between Xxxxxxx Manufacturing 1 For example, if the Vesting Start Date is determined by the Committee to be February 15, 2020, then 1/4 of the Adjusted Shares, if any (based on the Specific Performance Goals), will vest on each of (i) February 18, 2020 (because February 15, 2020 falls on a Saturday and Monday February 17, 2020 is a federal holiday, President’s Day, the immediately following business day is February 18, 2020), (ii) February 16, 2021 (because Monday February 15, 2021 is a federal holiday, President’s Day, the immediately following business day is February 16, 2021), (iii) February 15, 2022 and (iv) February 15, 2023, and the Vesting Period will be from February 15, 2020 to February 15, 2023. 2 See footnote 2, supra. 1 | P a g e 01435\040\8330619.v3
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Co., Inc., a Delaware corporation (the “Company”), and the Recipient named on the Acceptance Page, with reference to the following facts: Capitalized terms used and not otherwise defined in this Agreement have the meanings ascribed to such terms in the amended and restated Xxxxxxx Manufacturing Co., Inc. 2011 Incentive Plan effective on April 21, 2015 (as amended from time to time, the “Plan”). The Board has delegated to the Committee all authority to administer the Plan. The Committee has determined to grant to the Recipient, under the Plan, performance and time based Restricted Stock Units (the “PRSUs”) with respect to the PRSU Shares stated on the Acceptance Page. To evidence the PRSUs and to set forth the terms and conditions thereof, the Company and the Recipient agree as follows: 1. Confirmation of Grant. (a) The Company grants the PRSUs to the Recipient and the Recipient agrees to accept the PRSUs and participate in the Plan, effective as of the Award Date. As a condition of the grant, this Agreement and the PRSUs shall be governed by the terms and conditions of the Plan and shall be subject to all applicable policies and guidelines of the Company, including the Company’s compensation recovery policy. (b) The PRSUs shall be reflected in a bookkeeping account maintained by the Company through the date on which the PRSUs become vested pursuant to section 2 or are forfeited pursuant to section 3. The Recipient acknowledges and agrees that (i) the PRSU Shares merely represent the maximum number of shares of Common Stock that are granted under the PRSUs and are not necessarily the number of shares of Common Stock that will eventually vest in favor of the Recipient, and (ii) pursuant to section 2 and otherwise in accordance with this Agreement and the Plan, the number of shares of Common Stock, which will eventually vest in favor of the Recipient under the PRSUs (the “Vested Shares”), will be subject to the Specific Performance Goals and will be between 0% and 100% of the Target PRSU Shares. (c) The Company’s obligations under this Agreement shall be unfunded and unsecured. No special or separate fund shall be established therefor and no other segregation of assets shall be required or made with respect thereto. The rights of the Recipient under this Agreement shall be no greater than those of a general unsecured creditor of the Company. (d) Except as otherwise provided in this Agreement and the Plan, the PRSUs shall be settled by the issuance and delivery of the Vested Shares, or as provided in this Section 1(d), by cash (as determined by the Committee in its sole discretion), within sixty days after the PRSUs have vested pursuant to section 2 subject to satisfaction of any other terms and conditions applicable to the PRSUs; provided, however, that to the extent the Committee determines that any of the PRSUs are subject to Code section 409A, to the extent necessary to comply with Code section 409A, no distribution or payment of any amount under such PRSUs shall be made until the earliest of the date (i) set for such PRSUs to vest according to the Vesting Schedule (a time or fixed schedule specified for the purpose of Code section 409A), (ii) of the Recipient’s “separation from service” (as defined in Code section 409A), (iii) of the Recipient’s death, or (iv) when the Recipient becomes “disabled” (as defined in Code section 409A); and further provided that, the number of the Vested Shares issued or delivered (or for which a cash payment is made) to the Recipient in any calendar year, together with the number of shares of Common Stock issued or delivered (or for which a cash payment is made) to the Recipient in the same calendar year under any other RSU Awards, shall not exceed the annual maximum aggregate number of shares of Common Stock issuable or deliverable under RSU Awards as set forth in the Plan that is effective at the time of the issuance or delivery of (or making a cash payment for) the Vested Shares. Notwithstanding the foregoing, to the extent the Committee determines that any of the PRSUs are subject to Code section 409A and the Recipient is a Specified Employee3 on 3 The determination of whether the Recipient is a Specified Employee will be made annually by the Committee or its delegate pursuant to Code section 409A for the 12-month period ending every December 31st (the “Specified Employee Identification Date”). The Committee’s determination shall be final and binding on the Recipient. If the Recipient was determined by the Committee as a Specified Employee at any time during such 12-month period ending on the Specified Employee Identification 2 | P a g e 01435\040\8330619.v3
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13. Entire Agreement. This Agreement and the Plan together contain the entire agreement of the parties and supersede all prior or contemporaneous negotiations, correspondence, understandings and agreements, whether written or oral, between the parties, regarding the PRSUs. The Recipient specifically acknowledges and agrees that all descriptions of the PRSUs in any prior letters, memoranda or other documents provided to him or her by the Company or any Subsidiary are hereby replaced and superseded in their entirety by this Agreement and shall be of no further force or effect. To the extent there is any inconsistency between the descriptions of any such documents and the terms of this Agreement, the terms of this Agreement shall prevail. 14. Amendment. This Agreement may be amended, modified or supplemented only by a written instrument signed by the Recipient and the Company. 15. Assignment. The Recipient shall not sell, assign, transfer, pledge, hypothecate or otherwise encumber or dispose of this Agreement, any of the PRSUs or any other rights hereunder, and shall not delegate any duties hereunder, except only as may be permitted pursuant to section 13(B) of the Plan, and any such action or transaction that may otherwise be attempted or purported by the Recipient shall be void and of no effect; provided, however, that this section 15 does not restrict the sale, assignment, transfer, pledging, hypothecation or other encumbrance or disposal of Vested Shares. 16. Successors. Subject to section 15, this Agreement shall bind and inure to the benefit of the Company and the Recipient and their respective successors, assigns, heirs, legatees, devisees, executors, administrators and legal representatives. Nothing in this Agreement, express or implied, is intended to confer on any other Person any right or benefit in or under this Agreement or the Plan. 17. Separate Payments. All amounts payable in connection with the PRSUs hereunder or any other Awards granted under the Plan shall be treated as separate payments for the purposes of Code section 409A. 18. Governing Law. This Agreement shall be governed by and construed and interpreted in accordance with the laws of the State of Delaware. 19. Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original but all of which together shall constitute one and the same instrument. 20. Order of Precedence and Construction. This Agreement and the PRSUs are subject to all provisions of the Plan (a copy of which is attached hereto as Exhibit B), including the Restricted Stock Unit provisions of section 6 thereof, and are further subject to all interpretations and amendments thereto that may from time to time be adopted pursuant to the Plan. In the event of any inconsistency between any provision of this Agreement and any provision of the Plan, the provision of the Plan shall govern. The headings of sections herein are for convenience of reference only, are not part of this Agreement and shall not affect the construction or interpretation of any provision hereof. Whenever the context requires, the use in this Agreement of the singular number shall be deemed to include the plural and vice versa, and each gender shall be deemed to include each other gender. References herein to sections refer to sections of this Agreement, except as otherwise stated. The meaning of general words is not limited by specific examples introduced by “includes”, “including”, “for example”, “such as” or similar expressions, which shall be deemed to be followed by the phrase “without limitation”. 21. Further Assurances. The Recipient agrees to do and perform all acts and execute and deliver all additional documents, instruments and agreements as the Company or the Committee may reasonably request in connection with this Agreement. 22. Data Privacy. Recipient hereby explicitly and unambiguously consents to the collection, use and transfer, in electronic or other form, of Recipient’s personal data as described in this Agreement by and among, as applicable, Recipient’s employer, the Company, and any Subsidiary for the exclusive purposes of implementing, administering, and managing Recipient’s participation in the Plan. Recipient understands that the Company and the employing Subsidiary may hold certain personal information about Recipient, including, but not limited to, Recipient’s name, home address and telephone number, date of birth, social insurance number or other identification number, salary, nationality, job title, and any shares of stock or directorships held in the Company or any Subsidiary, 6 | P a g e 01435\040\8330619.v3
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Exhibit B XXXXXXX MANUFACTURING CO. INC. 2011 INCENTIVE PLAN Adopted April 26, 2011, and Amended and Restated April 21, 2015 SECTION 1. PURPOSE The purpose of the Xxxxxxx Manufacturing Co., Inc. 2011 Incentive Plan is to promote the interests of the Company and its stockholders by providing incentives to directors, officers and employees of, and consultants to, the Company and the Subsidiaries. Accordingly, the Company may grant to selected officers, Employees, Consultants and Outside Directors Option Awards, Restricted Stock Awards and RSU Awards in an effort to attract and retain qualified individuals as employees, directors and consultants and to provide such individuals with incentives to continue service with the Company, devote their best efforts to the Company and improve the Company’s economic performance, thus enhancing the value of the Company for the benefit of stockholders. This Plan amends and restates in their entirety, and incorporates and supersedes, both the Xxxxxxx Manufacturing Co., Inc. 1994 Stock Option Plan, as amended (the “1994 Plan”), and the Xxxxxxx Manufacturing Co., Inc. 1995 Independent Director Stock Option Plan, as amended (the “1995 Plan” and, together with the 1994 Plan, the “Prior Plans”); provided that any stock option granted under the 1994 Plan or the 1995 Plan that has not been exercised in full and that has not expired or terminated shall continue in effect in accordance with its terms and conditions and shall continue to be subject to and governed by the 1994 Plan or the 1995 Plan, respectively, as in effect immediately before the adoption of this Plan. SECTION 2. DEFINITIONS As used in this Plan, the following terms have the meanings indicated: “Agreement” means an agreement, in written or electronic form, entered into by the Company and a Recipient setting forth the terms and conditions applicable to an Award granted under this Plan. “Award” means an Option Award, a Restricted Stock Award or an RSU Award, in each case granted under this Plan. “Beneficial Ownership” and “Beneficially Own” have the meanings set forth in Rule 13d-3 under the Exchange Act. “Beneficiary” means each Person designated as such by a Recipient or, if no designation has been made, each Person entitled by will or the laws of descent and distribution to receive the benefits specified under this Plan in the event of a Recipient’s death. “Board” means the Board of Directors of the Company. Exhibit B - 1 01435\040\8330619.v3
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“Change in Control” means the occurrence of any one (or more) of the following events: (i) the consummation of a consolidation or merger of the Company in which the Company is not the surviving corporation; (ii) the consummation of a reverse merger in which the Company is the surviving corporation but the shares of the Common Stock outstanding immediately preceding such reverse merger are converted by virtue of such reverse merger into other property, whether securities, cash or otherwise; or (iii) the approval by the stockholders of the Company of a plan or proposal for the dissolution and liquidation of the Company; provided that a “Change in Control” shall not be deemed to have occurred by virtue of the consummation of any transaction or series of related transactions immediately following which the record holders of the Common Stock immediately before such transaction or transactions continue to have substantially the same proportionate ownership in an entity that owns all or substantially all of the assets of the Company immediately thereafter. “Code” means the Internal Revenue Code of 1986, as amended from time to time. “Committee” means the Compensation and Leadership Development Committee of the Board, as from time to time constituted, or any successor committee of the Board with similar functions, which shall consist of three or more members, each of whom shall be an outside director as defined in the regulations issued under Code section 162(m) and a non-employee director within the meaning of applicable regulatory requirements, including those promulgated under Exchange Act section 16. “Common Stock” means the Common Stock, par value $0.01 per share, of the Company, subject to adjustment pursuant to section 11 hereof. “Company” means Xxxxxxx Manufacturing Co., Inc., a Delaware corporation, or any successor thereto. “Consultant” means a Person that (i) renders services to the Company as an independent contractor (and not as an Employee or Outside Director) pursuant to a contract between such Person and the Company and (ii) is selected by the Committee to receive an Award under this Plan. “Disability” means (i) in the case of a Participant, determination by the Committee that he or she has become unable to perform the functions required by his or her regular job due to physical or mental illness or incapacity and, in connection with the grant of an ISO, he or she is within the meaning of that term as provided in Code section 22(e)(3), and (ii) in the case of an Outside Director, determination by the Committee that he or she is unable to attend to his or her duties and responsibilities as a member of the Board due to physical or mental illness or incapacity. “Employee” means a regular, full-time or part-time employee of the Company or any Subsidiary; provided that, for purposes of determining whether any Person may be a Participant for purposes of any grant of ISOs, the term “Employee” shall have the meaning ascribed to such term in Code section 3401(c). “Exercise Price” means, with respect to each share of Common Stock subject to an Option, the price fixed by the Committee at which such share may be purchased from the Company on the exercise of such Option. “Exchange Act” means the Securities Exchange Act of 1934, as amended. “Fair Market Value” means (i) as of any date, the closing sale price per share of Common Stock as reported on the Composite Tape of the New York Stock Exchange, or if there are no sales on such day, on the next prior trading day during which a sale occurred; and (ii) in the absence of such market for the shares of Common Stock, Exhibit B - 2 01435\040\8330619.v3
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the fair market value per share of Common Stock determined by the Committee in good faith (which determination shall, to the extent applicable, be made in a manner that complies with Code sections 422(b) and 409A). “Incentive Stock Option” or “ISO” means an Option that is intended by the Committee to meet the requirements of Code section 422 or any successor provision. “ISO Award” means an Award of an Incentive Stock Option pursuant to section 9 hereof. “NQSO” means an Option granted pursuant to this Plan that does not qualify as an Incentive Stock Option. “NQSO Award” means an Award of an NQSO pursuant to section 7 hereof. “Option” means the right to purchase Common Stock at an Exercise Price to be specified and on terms to be designated by the Committee or otherwise determined pursuant to this Plan. The Committee shall designate each Option as either an NQSO or an Incentive Stock Option. “Option Award” means an Award of an Option pursuant to section 7 hereof. “Outside Director” means a director of the Company, who is not also an Employee and who is selected by the Committee to receive an Award under this Plan. “Participant” means an Employee who is selected by the Committee to receive an Award under this Plan. “Performance Goals” means performance goals established by the Committee from time to time. Such goals may be absolute in their terms or measured against or in relation to other companies comparably or otherwise situated. Such performance goals may be particular to a Participant or the Subsidiary, division or other unit in which the Participant works or may be based on the performance of the Company as a whole. The Performance Goals applicable to any Award that is intended to qualify for the performance-based exception from the tax deductibility limitations of Code section 162(m) shall be based on one or more of (i) earnings, (ii) unit sales, sales volume or revenue, (iii) sales growth, (iv) stock price (including comparison with various stock market indices), (v) return on equity, (vi) return on investment, (vii) total return to stockholders, (viii) economic profit, (ix) debt rating, (x) operating income, (xi) cash flows, (xii) cost targets, (xiii) return on assets or margins or (xiv) implementation, completion or attainment of measurable objectives with respect to (1) software development, (2) new distribution channels, (3) customer growth targets, (4) acquisition identification and integration, (5) manufacturing, production or inventory targets, (6) new product introductions, (7) product quality control, (8) accounting and reporting, (9) recruiting and maintaining personnel, or (10) compliance or regulatory program targets. Any criteria used may be measured, as applicable, (a) in absolute terms, (b) in relative terms (including but not limited to, the passage of time or against other companies or financial metrics), (c) on a per share basis, (d) against the performance of the Company as a whole or against particular entities, segments, operating units or products of the Company or (e) on a pre-tax or after tax basis. “Person” has the meaning ascribed to that term in Exchange Act section 3(a)(9), as modified and used in Exchange Act sections 13(d) and 14(d), except that such term shall not include (a) the Company, (b) a trustee or other fiduciary holding securities under an employee benefit plan of the Company, or (c) an underwriter temporarily holding securities pursuant to an offering on behalf of the Company. Exhibit B - 3 01435\040\8330619.v3
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“Personal Representative” means the Person or Persons who, on the Disability or incompetence of a Recipient, shall have acquired on behalf of the Recipient by legal proceeding or otherwise the right to receive benefits pursuant to this Plan. “Plan” means this Xxxxxxx Manufacturing Co., Inc. 2011 Incentive Plan. “Recipient” means a Participant, an Outside Director or a Consultant, as appropriate. “Restricted Period” means the period during which Restricted Stock or Restricted Stock Units are subject to a substantial risk of forfeiture (based on the passage of time, the achievement of Performance Goals or the occurrence of other events, as determined by the Committee). “Restricted Stock” means those shares of Common Stock issued pursuant to a Restricted Stock Award, which are subject to the restrictions, terms, and conditions set forth in the related Agreement or designated by the Committee in accordance with this Plan. “Restricted Stock Award” means an Award of Restricted Stock pursuant to section 6 hereof. “Restricted Stock Units” or “RSUs” means units issued pursuant to an RSU Award, which are valued in terms of shares of Common Stock equivalents and are subject to the restrictions, terms and conditions set forth in the related Agreement or designated by the Committee in accordance with this Plan. “Retirement” means (i) in the case of a Participant, retirement from employment with the Company or any Subsidiary at any time as described in the Xxxxxxx Manufacturing Co., Inc. Profit Sharing Plan for Salaried Employees or in any successor plan, as from time to time in effect, or as otherwise determined by the Committee, (ii) in the case of an Outside Director, retirement from the Board after the date, if any, established by the Committee as the date for mandatory retirement, as from time to time in effect, or as otherwise determined by the Committee, and (iii) in the case of a Consultant, such date as is determined by the Committee. “RSU Award” means an Award of Restricted Stock Units pursuant to section 6 hereof. “Subsidiary” means a corporation, limited liability company, partnership or other entity (i) more than fifty percent of the outstanding voting equity securities (representing the right to vote for the election of directors or other managing authority) are now or hereafter owned or controlled, directly or indirectly, by the Company, or (ii) which does not have outstanding voting equity securities (as may be the case in a partnership, limited liability company, joint venture or unincorporated association), but more than fifty percent of the ownership interests of which, representing the right generally to make decisions for such entity, is now or hereafter owned or controlled, directly or indirectly, by the Company; provided that, for purposes of determining whether any Person may be a Participant for purposes of any grant of Incentive Stock Options, the term “Subsidiary” shall have the meaning ascribed to such term in Code section 424(f), as interpreted by the regulations thereunder and applicable law. “Tax Date” means the date the withholding tax obligation arises with respect to an Award. SECTION 3. STOCK SUBJECT TO PLAN (A) Subject to section 3(B) hereof and to adjustment pursuant to section 11 hereof, 16,320,000 shares of Common Stock are reserved for issuance under this Plan, any or all of which may be delivered with respect to Exhibit B - 4 01435\040\8330619.v3
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Option Awards, Restricted Stock Awards and RSU Awards and any or all of which may be authorized and unissued shares or treasury shares; provided that such 16,320,000 shares include all shares heretofore reserved for issuance pursuant to the Prior Plans. Subject to section 3(B) hereof and to adjustment pursuant to section 11 hereof, the following limits shall apply with respect to Awards that are intended to qualify for the performance-based exception from the tax deductibility limitations of Code section 162(m): (i) the maximum aggregate number of shares of Common Stock that may be subject to Options granted in any calendar year to any one Participant shall be 150,000 shares; and (ii) the maximum aggregate number of Restricted Stock Awards and shares of Common Stock issuable or deliverable under RSU Awards granted in any calendar year to any one Participant shall be 100,000 shares. (B) Shares of Common Stock subject to Awards under this Plan or stock options granted under the Prior Plans that are forfeited, terminated, canceled or settled without the delivery of Common Stock under this Plan or the Prior Plans, respectively, will again be available for Awards under this Plan as if such Awards or grants had not been made; provided that, notwithstanding any other provision herein to the contrary, the aggregate number of shares of Common Stock that may be issued under this Plan shall not be increased by (i) shares of Common Stock tendered in full or partial payment of the Exercise Price of any Option or any stock option granted under either of the Prior Plans, (ii) shares of Common Stock withheld by the Company or any Subsidiary to satisfy any tax withholding obligation, or (iii) shares of Common Stock that are repurchased by the Company. (C) Notwithstanding anything in this section 3 to the contrary and solely for purposes of determining whether shares are available for the grant of ISOs, the maximum aggregate number of shares that may be granted under this Plan shall be determined without regard to any shares restored pursuant to this section 3 that, if taken into account, would cause this Plan to fail the requirement under Code section 422 that this Plan designate a maximum aggregate number of shares that may be issued. SECTION 4. ADMINISTRATION The Committee shall have exclusive authority to administer this Plan. In addition to any implied powers and duties that may be needed to carry out the provisions hereof, the Committee shall have all the powers vested in it by the terms hereof, including exclusive authority to select the Recipients, to determine the type, size and terms of any and all Awards to be made to each Recipient, to determine the time when Awards will be granted, and to prescribe the form, terms and conditions of any Agreement relating to any Award under this Plan. The Committee is authorized to interpret this Plan and the Awards granted under this Plan, to establish, amend and rescind any rules and regulations relating to this Plan, to make any other determinations that the Committee believes necessary or advisable for the administration hereof, and to correct any defect or supply any omission or reconcile any inconsistency in this Plan or in any Award in the manner and to the extent that the Committee deems desirable and consistent with the intent of this Plan. The Committee may exercise any and all of the Committee’s rights, powers, authority and discretion under this Plan in the Committee’s absolute and exclusive discretion, and the Committee is authorized and empowered to grant or give any consent, approval or authorization, make any determination or do or perform any other act or thing conditionally or unconditionally, arbitrarily, or inconsistently in varying or similar circumstances, without any accountability to any Recipient, except only as otherwise expressly provided by this Plan or any Agreement with such Recipient. Any decision, determination, direction or other action of the Committee in the administration of this Plan shall be final, binding and conclusive for all purposes, subject only to the further exercise of authority of the Committee hereunder. SECTION 5. ELIGIBILITY Exhibit B - 5 01435\040\8330619.v3
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(2) the Recipient performs any act or engages in any activity that the Committee determines is materially detrimental to the best interests of the Company or any Subsidiary; or (3) the Recipient materially breaches any agreement with or duty to the Company or any Subsidiary, including any non-competition agreement, non-solicitation agreement, confidentiality or non-disclosure agreement, or assignment of inventions or ownership of works agreement, as determined by the Committee. (J) Participants Outside the United States. Notwithstanding any provision of this Plan to the contrary, to comply with the laws of other countries in which the Company and the Subsidiaries operate or have Employees or Consultants, the Committee shall have the power and authority to: (i) determine which Subsidiaries shall be covered by this Plan; (ii) determine which Employees or Consultants outside the United States are eligible to participate in this Plan; (iii) modify the terms and conditions of any Award granted to Employees or Consultants outside the United States to comply with applicable foreign laws; (iv) modify exercise procedures and other terms and procedures, to the extent such actions may be necessary or advisable; and (v) take any action, before or after an Award is made, that it deems necessary or advisable to obtain approval or comply with any government regulatory exemption or requirement; provided that the Committee is not authorized to take any action hereunder, and no Awards shall be granted, that would violate any applicable law. (K) Successors. All obligations of the Company under this Plan and with respect to Awards shall be binding on any successor to the Company, whether the existence of such successor is the result of a direct or indirect purchase, merger, consolidation or other event, or a sale or disposition of all or substantially all of the business or assets of the Company, and references to the “Company” herein and in any Agreements shall be deemed to refer to such successors. (L) Severability. If any provision of this Plan, or the application of such provision to any Person or circumstance, shall be held by a court of competent jurisdiction to be invalid or unenforceable, the remainder of this Plan, or the application of such provision to Persons or circumstances other than those to which it is held to be invalid or unenforceable, shall not be affected thereby. (M) Construction. The headings of the sections hereof are for convenience of reference only and are not part of this Plan. As used herein, each gender includes each other gender, and the singular includes the plural and vice versa, as the context may require. Reference herein to any section includes reference to each and all subsections of such section. For purposes of this Plan, each of the words “include,” “includes” and “including” shall be deemed to be followed by the phrase “without limitation.” (N) Governing Law. This Plan shall be governed by and interpreted and construed in accordance with the laws of the State of Delaware. SECTION 14. EFFECTIVENESS OF THIS PLAN This amended and restated Plan shall be submitted to the stockholders of the Company for their approval at their annual meeting scheduled to be held on April 21, 2015, or at such other annual or special meeting as the Board may specify, or any adjournment or postponement thereof. This Plan will be effective as of the date of its approval by the stockholders of the Company. Exhibit B - 13 01435\040\8330619.v3