EX-10.5 5 a13-8735_1ex10d5.htm EX-10.5 ABBVIE INC. PERFORMANCE RESTRICTED STOCK AGREEMENT
Exhibit 10.5
ABBVIE INC.
PERFORMANCE RESTRICTED STOCK AGREEMENT
On this «Grant_Day» day of «Grant_Month», 201 (the “Grant Date”), AbbVie Inc. (the “Company”) hereby grants to «First Name» «MI» «Last Name» (the “Employee”) a Performance Restricted Stock Award (the “Award”) of «NoShares12345» Shares.
The Award is granted under the Program and is subject to the provisions of the Program, the Program prospectus, the Program administrative rules, and the terms and conditions set forth in this Agreement. In the event of any inconsistency among the provisions of this Agreement, the provisions of the Program, the Program prospectus, and the Program administrative rules, the Program shall control. This Award is intended to conform with the qualified performance-based compensation requirements of Section 162(m) of the Code and the regulations thereunder, to the extent applicable, and shall be construed accordingly.
The terms and conditions of the Award are as follows:
(a) Agreement: This Performance Restricted Stock Agreement.
(b) Cause: Cause shall mean the following, as determined by the Company in its sole discretion:
(i) material breach by the Employee of the terms and conditions of the Employee’s employment, including, but not limited to:
(A) material breach by the Employee of the Code of Business Conduct;
(B) material breach by the Employee of the Employee’s Employee Agreement;
(C) commission by the Employee of an act of fraud, embezzlement or theft in connection with the Employee’s duties or in the course of the Employee’s employment;
(D) wrongful disclosure by the Employee of secret processes or confidential information of the Company or any of its Subsidiaries; or
(E) failure by the Employee to substantially perform the duties of the Employee’s employment (other than any such failure resulting from the Employee’s Disability); or
(ii) to the extent permitted by applicable law, engagement by the Employee, directly or indirectly, for the benefit of the Employee or others, in any
activity, employment or business which is competitive with the Company or any of its Subsidiaries.
(d) Code of Business Conduct: The Company’s Code of Business Conduct, as amended from time to time.
(f) Data: Certain personal information about the Employee held by the Company and the Subsidiary that employs the Employee (if applicable), including (but not limited to) the Employee’s name, home address and telephone number, date of birth, social security number or other employee identification number, salary, nationality, job title, any Shares held in the Company, details of all Awards or any other entitlement to Shares awarded, canceled, purchased, vested, unvested or outstanding in the Employee’s favor, for the purpose of managing and administering the Program.
(i) Employee’s Representative: The Employee’s legal guardian or other legal representative.
(j) Program: The AbbVie 2013 Incentive Stock Program.
(i) Except as provided under (ii) or (iii) below, Retirement means either of the following:
· age 55 with 10 years of service; or
· age 65 with at least three years of service.
(ii) For Employees who (A) are not covered by (iii) below and (B) transferred to the Company directly from Xxxxxx Laboratories either as a result of the Company’s spin-off from Xxxxxx Laboratories or during the period from January 1, 2013 through June 30, 2015 with the consent of each company’s head of human resources and were hired into the Xxxxxx Laboratories controlled group prior to January 1, 2004, Retirement means any of the following:
· age 50 with 10 years of service;
· age 65 with at least three years of service; or
· age 55 with an age and service combination of 70 points, where each year of age is one point and each year of service is one point.
(iii) For participants in the AbbVie Pension Plan for Former BASF and Former Solvay Employees, Retirement means either of the following:
· age 55 with 10 years of service; or
· age 65 with at least three years of service.
(iv) For purposes of calculating service under this Section 1(k), except as otherwise provided by the Committee or its delegate: (A) service is earned only if performed for a member of the Controlled Group while that Controlled Group member is a part of the Controlled Group; and (B) for Employees who transferred to the Company directly from Xxxxxx Laboratories during the period from January 1, 2013 through June 30, 2015 either as a result of the Company’s spin-off from Xxxxxx Laboratories or with the consent of each company’s head of human resources, service includes service with Xxxxxx Laboratories that is counted for benefit calculation purposes under the AbbVie Pension Plan, the AbbVie Pension Plan for Former BASF and Former Solvay Employees, or another Company-sponsored pension plan, as applicable.
4. Lapse of Restrictions. Subject to the provisions of Section 6 below:
(a) Based on Performance. While the Employee is employed with the Company or its Subsidiaries:
(i) the Restrictions on one-third of the Shares will lapse on the last day of February 201 , provided the Company’s prior year return on equity is a minimum of 18 percent;
(ii) the Restrictions on an additional one-third of the total number of Shares will lapse on the last day of February 201 , provided the Company’s prior year return on equity is a minimum of 18 percent;
(iii) the Restrictions on an additional one-third of the total number of Shares will lapse on the last day of February 201 , provided the Company’s prior year return on equity is a minimum of 18 percent; and
(iv) any Shares for which Restrictions have not previously lapsed on the dates described in subsections 4(a)(i), (ii), and (iii) above shall remain outstanding and the Restrictions shall lapse on the last business day of February 201 and/or 201 , provided that the Company’s applicable prior year return on equity is a minimum of 18 percent, and provided further that no more than one-third of the Shares will vest in any one year.
(c) Death. The Restrictions shall lapse on the date of the Employee’s Termination due to death.
such Change in Control, and (b) was initiated by the Company (or the Surviving Entity) for a reason other than Cause (as defined in the applicable Change in Control Agreement) or was initiated by the Employee for Good Reason (as defined in the applicable Change in Control Agreement), the Restrictions shall lapse on the later of the date of the Change in Control and the date of the Employee’s Termination. The provisions of this Section 5 shall supersede Section 13(a)(iii) and (v) of the Plan.
6. Effect of Certain Bad Acts. Shares with respect to which Restrictions have not lapsed shall be cancelled and forfeited immediately if, in the sole opinion and discretion of the Committee or its delegate, the Employee engages in activity that constitutes Cause, whether or not the Employee experiences a Termination or remains employed with the Company or a Subsidiary.
(a) tendering a cash payment;
(b) having the Company withhold Shares from the Shares to be delivered to satisfy the minimum applicable withholding tax;
(c) tendering Shares received in connection with the Award back to the Company; or
(d) delivering other previously acquired Shares having a Fair Market Value approximately equal to the amount to be withheld.
The Company shall have the right and is hereby authorized to withhold from the Shares deliverable to the Employee pursuant to this Agreement or (to the extent permitted by applicable law, including without limitation Code Section 409A) from any other compensation or other amount owing to the Employee, such amount as may be necessary in the opinion of the Company to satisfy all such taxes, requirements and withholding obligations. If the Company withholds for tax purposes from the Shares otherwise to be delivered to the Employee, the Employee is deemed to have been issued the full number of Shares underlying the Award, subject to the lapse of Restrictions as set forth in this Agreement.
(a) form an employment contract or relationship with the Company or its Subsidiaries;
(b) confer upon the Employee any right to continue in the employ of the Company or any of its Subsidiaries; or
(c) interfere with the ability of the Company or its Subsidiaries to terminate the Employee’s employment at any time.
(a) Pursuant to applicable personal data protection laws, the collection, processing and transfer of the Employee’s personal Data is necessary for the Company’s administration of the Program and the Employee’s participation in the Program. The Employee’s denial and/or objection to the collection, processing and transfer of personal Data may affect his or her ability to participate in the Program. As such (where required under applicable law), the Employee:
(i) voluntarily acknowledges, consents and agrees to the collection, use, processing and transfer of personal Data as described herein; and
(ii) authorizes Data recipients to receive, possess, use, retain and transfer the Data, in electronic or other form, for purposes of implementing, administering and managing the Employee’s participation in the Program, including any requisite transfer of such Data as may be required for the administration of the Program and/or the subsequent holding of Shares on the Employee’s behalf to a broker or other third party with whom the Employee may elect to deposit any Shares acquired pursuant to the Program.
(b) Data may be provided by the Employee or collected, where lawful, from third parties, and the Company and the Subsidiary that employs the Employee (if applicable) will process the Data for the exclusive purpose of implementing, administering and managing the Employee’s participation in the Program. Data processing will take place through electronic and non-electronic means according to logics and procedures strictly correlated to the purposes for which the Data is collected and with confidentiality and security provisions as set forth by applicable laws and regulations in the Employee’s country of residence. Data processing operations will be performed minimizing the use of personal and identification data when such operations are unnecessary for the processing purposes sought. The Data will be accessible within the Company’s organization only by those persons requiring access for purposes of the implementation, administration and operation of the Program and for the Employee’s participation in the Program.
(c) The Company and the Subsidiary that employs the Employee (if applicable) will transfer Data as necessary for the purpose of implementation, administration and management of the Employee’s participation in the Program, and the Company and the Subsidiary that employs the Employee (if applicable) may further transfer Data to any third parties assisting the Company in the implementation, administration and management of the Program. These recipients may be located throughout the world.
(d) The Employee may, at any time, exercise his or her rights provided under applicable personal data protection laws, which may include the right to:
(i) obtain confirmation as to the existence of the Data;
(ii) verify the content, origin and accuracy of the Data;
(iii) request the integration, update, amendment, deletion or blockage (for breach of applicable laws) of the Data; and
(iv) oppose, for legal reasons, the collection, processing or transfer of the Data which is not necessary or required for the implementation, administration and/or operation of the Program and the Employee’s participation in the Program.
The Employee may seek to exercise these rights by contacting his or her local human resources manager.
personal tax, legal and financial advisors regarding participation in the Program before taking any action related to the Program.
Although this Agreement and the Benefits provided hereunder are intended to be exempt from the requirements of Code Section 409A, the Company does not represent or warrant that this Agreement or the Benefits provided hereunder will comply with Code Section 409A or any other provision of federal, state, local, or non-United States law. None of the Company, its Subsidiaries, or their respective directors, officers, employees or advisers shall be liable to the Employee (or any other individual claiming a benefit through the Employee) for any tax, interest, or penalties the Employee may owe as a result of compensation paid under this Agreement, and the Company and its Subsidiaries shall have no obligation to indemnify or otherwise protect the Employee from the obligation to pay any taxes pursuant to Code Section 409A.
upon all persons, including, without limitation, the Company, the Employee, the Employee’s Representative, and the person or persons to whom rights under the Award have passed by will or the laws of descent or distribution.
20. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware without giving effect to any state’s conflict of laws principles.
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ABBVIE INC. | |
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By |
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Xxxxxxx X. Xxxxxxxx |
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Chairman of the Board |
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and Chief Executive Officer |