GSI Commerce, Inc. 2010 Equity Incentive Plan Performance Restricted Stock Unit Award Agreement
Exhibit 10.6
PARTICIPANT: |
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GRANT DATE: |
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TARGET NUMBER OF PERFORMANCE RESTRICTED STOCK UNITS: |
_____ units | |
MAXIMUM NUMBER OF PERFORMANCE
RESTRICTED STOCK UNITS GRANTED (_____%
OF TARGET):
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_____ units | |
AWARD AND VESTING CRITERIA
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The actual number of Performance Restricted Stock Units to be awarded to Participant and that may vest will be determined in accordance with conditions specified below. | |
PERFORMANCE PERIOD:
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THIS AGREEMENT, effective as of the Grant Date set forth above, is between GSI Commerce, Inc., a
Delaware corporation (the “Company”, “we”, “our” or “us”), and the Participant named above (“you”
or “yours”), pursuant to the provisions of the Company’s 2010 Equity Incentive Plan (the “Plan”)
with respect to the grant of the maximum number of performance restricted stock units (“PRSUs”)
specified above. Capitalized terms used and not defined in this Performance Restricted Stock Unit
Award Agreement (this “Agreement”) shall have the meanings given to them in the Plan.
By accepting this Agreement, you irrevocably agree, on your own behalf and on behalf of your heirs
and any other person claiming rights under this Agreement, to all of the terms and conditions of
the PRSUs as set forth in or pursuant to this Agreement and the Plan (as such may be amended from
time to time). You and the Company agree as follows:
1. Application of Plan;
Administration
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This Agreement and your rights under this Agreement are subject to all the terms and conditions of the Plan, as it may be amended from time to time, as well as to such rules and regulations as the Board (or an appropriate committee thereof) may adopt. It is expressly understood that the Board (or an appropriate committee thereof) that administers the Plan is authorized to administer, construe and make all determinations necessary or appropriate to the administration of the Plan and this Agreement, all of which shall be binding upon you to the extent permitted by the Plan. |
2. Performance Goal
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(a) The number of PRSUs to be awarded to you under this Agreement shall depend upon the extent to which the [Performance Metric(s)] equals, exceeds or falls short of $_____ for the Performance Period. If actual [Performance Metric(s)] does not equal or exceed the _____% [of the Performance Target(s)], as set forth in the table below, the right to receive an award of any PRSUs pursuant to this Agreement shall expire without consideration. | |
| (b) [Definition of Performance Metric] | ||
| (c) Subject to the foregoing, and provided that you have remained in Continuous Service with the Company from the Grant Date set forth above, the number of PRSUs to be awarded to you following completion of the Performance Period (such PRSUs, the “Awarded PRSUs”) shall be determined in accordance with the following schedules: | ||
| Notwithstanding anything herein to the contrary, in no event shall more than _____ times the Target Number of PRSUs be awarded under this Agreement. | ||
| Following the end of the Performance Period and the collection of relevant data necessary to determine the extent to which the [Performance Target(s)] has been satisfied, the Board (or an appropriate committee thereof) will determine: (a) the [Performance Metric(s)] achieved by the Company for the Performance Period, and (b) the multiple of the Target Number of PRSUs to be awarded as Awarded PRSUs. The Board (or an appropriate committee thereof) shall make these determinations in its sole discretion. The class and number of securities to be issued under this Agreement shall be subject to adjustment as provided for in Section 9(a) of the Plan. The Board’s (or an appropriate committee thereof) determination pursuant to this paragraph shall be evidenced by a written certification. | ||
3. Vesting
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100% of the Awarded PRSUs will vest (becoming “Vested Performance Units”) on _____ (the “Vesting Date”), provided that you have remained in Continuous Service with the Company from the Grant Date set forth above until the Vesting Date, and provided further that in no case shall any Awarded PRSUs vest before the date of the Board’s (or an appropriate committee thereof) written certification pursuant to Section 2 hereof. Notwithstanding the foregoing, the terms and provisions of any employment agreement or offer letter between you and the Company (your “Offer Letter”), may provide that any vesting restrictions contained in this Section 3 will earlier lapse in certain circumstances. | |
4. Termination of
Continuous Service
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Except as otherwise provided in your Offer Letter and Section 7 of this Agreement, your right to any award of PRSUs and your rights under any Awarded PRSUs that have not become Vested Performance Units will be forfeited without consideration as of the date of termination of your Continuous Service with the Company for any reason. |
5. Settlement of Vested
Performance Units and
Issuance of Shares of our
Common Stock
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Each Vested Performance Unit will be settled
by the delivery of one share of Common Stock
(subject to adjustment under Section 9(a) of
the Plan, a “Share”) to you or, in the event
of your death, to your designated
beneficiary, within 5 days following the
Vesting Date, but in no event later than 2 1/2
months following the last day of the
Company’s fiscal year in which the Vesting
Date occurs, subject to your satisfaction of
any tax withholding obligations as described
in Section 9 of this Agreement. Notwithstanding any other provision of this Agreement or the Plan, the Company will not be obligated to issue or deliver any Shares pursuant to this Agreement (i) until all conditions to this Agreement have been satisfied or removed, (ii) until, in the opinion of counsel to the Company, all applicable federal and state laws and regulations have been complied with, (iii) if the outstanding Common Stock is at the time listed on any stock exchange or included for quotation on an inter-dealer system, until the Shares have been listed or included or authorized to be listed or included on such exchange or system upon official notice of issuance, (iv) until the issuance or delivery of the Shares would not cause the Company to issue or sell more shares of Common Stock than the Company is then legally entitled to issue or sell, and (v) until all other legal matters in connection with the issuance and delivery of such Shares have been approved by counsel to the Company. You hereby authorize any brokerage service provider determined acceptable to the Company to open a securities account for you to be used for the settlement of Vested Performance Units. The date on which Shares are issued may include a delay in order to provide the Company such time as it determines appropriate to address tax withholding and other administrative matters. |
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6. Rights as Stockholder
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Except as otherwise provided in this Agreement, you will not be entitled to any privileges of ownership of the shares of Common Stock underlying your PRSUs, including voting, receipt of dividends or any other rights as a stockholder of the Company, unless and until shares of Common Stock are actually delivered to you under this Agreement. | |
7. Change in Control
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Notwithstanding anything to the contrary in this Agreement, the Awarded PRSUs shall be subject to such acceleration of vesting upon a Change in Control as may be provided for in your Offer Letter or in the Change in Control Agreement between you and the Company, if any (the “Change in Control Agreement”). |
8. Transferability
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Except as provided in Section 10(k) hereof, your right to receive PRSUs under this Agreement, your Awarded PRSUs and any Vested Performance Units that you hold pursuant to this Agreement are not transferable, whether voluntarily or involuntarily, by operation of law or otherwise, other than by will or the laws of descent and distribution. Any voluntary or involuntary assignment, pledge, transfer, or other disposition of, or any attachment, execution, garnishment, or lien issued against or placed upon your right to receive PRSUs under this Agreement, your Awarded PRSUs and any Vested Performance Units that you hold pursuant to this Agreement in violation of the terms of this Agreement shall be void. Notwithstanding the foregoing, by delivering written notice to the Company, in a form satisfactory to the Company, you may designate a third party who, in the event of your death, will thereafter be entitled to receive any distribution of Shares pursuant to this Agreement. | |
9. Taxes
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(a) General. You are ultimately liable and
responsible for all taxes owed by you in
connection with your PRSUs, regardless of any
action the Company takes or any transaction
pursuant to this Section 9 with respect to
any tax withholding obligations that arise in
connection with the PRSUs. The Company makes
no representation or undertaking regarding
the treatment of any tax withholding in
connection with the grant, award, vesting or
settlement of the PRSUs, the Awarded PRSUs or
the Vested Performance Units, and the
subsequent sale of any of the Shares issued
in respect of any Awarded PRSUs that may
vest. Except as otherwise provided in your
Offer Letter or Change in Control Agreement,
the Company does not commit and is under no
obligation to structure this Agreement to
reduce or eliminate your tax liability. |
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(b) Withholding. On or before any Vesting
Date, the date your Vested Performance Units
are settled and Shares are issued to you
pursuant to the terms of Section 5, and any
other date upon which tax withholding
obligations of the Company may arise, or at
any time thereafter as requested by the
Company, you hereby authorize withholding
from, at the Company’s election, the Shares,
payroll and any other amounts payable to you
and you otherwise agree to make adequate
provision for, as determined by the Company,
any sums required to satisfy the Federal,
state, local and foreign tax withholding
obligations of the Company or an Affiliate,
if any, which arise in connection with any of
the above events or otherwise. Unless the
tax withholding obligations of the Company or
any Affiliate are satisfied, the Company will
have no obligation to issue a certificate for
Shares. |
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10. Miscellaneous
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(a) YOU ACKNOWLEDGE AND AGREE THAT THE
VESTING OF ANY AWARDED XXXXX PURSUANT TO
SECTION 3 HEREOF IS EARNED ONLY BY YOUR
CONTINUOUS SERVICE WITH THE COMPANY (AND NOT
THROUGH THE ACT OF BEING HIRED OR ACQUIRING
GRANTED PRSUS HEREUNDER). YOU FURTHER
ACKNOWLEDGE AND AGREE THAT THIS AGREEMENT,
THE TRANSACTIONS CONTEMPLATED HEREUNDER AND
THE VESTING SCHEDULE SET FORTH HEREIN DO NOT
CONSTITUTE AN EXPRESS OR IMPLIED PROMISE OF
CONTINUED ENGAGEMENT AS AN EMPLOYEE,
DIRECTOR, OR CONSULTANT OF THE COMPANY FOR
THE VESTING PERIOD, FOR THE PERFORMANCE
PERIOD, FOR ANY PERIOD, OR AT ALL, AND SHALL
NOT INTERFERE WITH YOUR RIGHT OR THE
COMPANY’S RIGHT TO TERMINATE YOUR
RELATIONSHIP (I) AS AN EMPLOYEE AT ANY TIME,
FOR ANY REASON OR NO REASON, WITH OR WITHOUT
CAUSE; (II) AS A CONSULTANT PURSUANT TO THE
TERMS OF YOUR AGREEMENT WITH THE COMPANY OR
AN AFFILIATE; OR (III) AS A DIRECTOR PURSUANT
TO THE BYLAWS OF THE COMPANY AND ANY
APPLICABLE PROVISIONS OF THE CORPORATE LAW OF
THE STATE OR OTHER JURISDICTION IN WHICH THE
COMPANY IS DOMICILED, AS THE CASE MAY BE. |
(b) Your PRSUs are unfunded and as a holder
of Vested Performance Units you will be
considered an unsecured creditor of the
Company with respect to the Company’s
obligation, if any, to issue Shares pursuant
to this Agreement. Upon such issuance, you
will obtain full voting and other rights as a
stockholder of the Company. Nothing
contained in this Agreement, and no action
taken pursuant to its provisions, will create
or be construed to create a trust of any kind
or a fiduciary relationship between you and
the Company or any other person. |
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(c) This Agreement will be subject to all
applicable laws, rules, and regulations, and
to such approvals by any governmental
agencies or stock exchanges as may be
required. The Company may impose such
restrictions, conditions or limitations as it
determines appropriate as to the timing and
manner of any resales by you or other
subsequent transfers by you of any Shares
issued as a result of or under this
Agreement, including without limitation (i)
restrictions under an xxxxxxx xxxxxxx policy,
(ii) restrictions that may be necessary in
the absence of an effective registration
statement under the Securities Act of 1933,
as amended, covering the PRSUs and (iii)
restrictions as to the use of a specified
brokerage firm or other agent for such
resales or other transfers. Any sale of
Shares issued pursuant to this Agreement must
also comply with other applicable laws and
regulations governing the sale of such
Shares. |
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(d) The benefits provided under this
Agreement are intended to be subject to a
“substantial risk of forfeiture” under Code
Section 409A, and to qualify for the “short
term deferral exemption” from application of
Code Section 409A as payable only within the
permitted period following lapse of the
applicable forfeiture conditions, and any
ambiguities contained herein shall be
interpreted in a manner so as to comply with
the requirements of such exemption.
Notwithstanding anything in the Plan or this
Agreement to the contrary, the Board (or an
appropriate committee thereof) may, without
your consent, amend this Agreement to comply
with all of the requirements of Section 409A
of the Code and any corresponding guidance
and regulations issued under Section 409A of
the Code to the extent it is determined, in
the sole discretion of the Board (or an
appropriate committee thereof), that such
amendment is necessary to comply with the
requirements of Section 409A of the Code. |
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(e) The interpretation, performance and
enforcement of this Agreement will be
governed by the law of the state of Delaware
without regard to such state’s conflicts of
laws rules. |
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(f) Any question concerning the
interpretation of this Agreement or the Plan,
any adjustments required to be made under the
Plan and any controversy that may arise under
the Plan or this Agreement shall be
determined by the Board (or an appropriate
committee thereof) (including any person(s)
to whom the Board has delegated its
authority) in its sole and absolute
discretion. Such decision by the Board (or
an appropriate committee thereof) shall be
final and binding. |
(g) This Agreement, the Plan, the Offer
Letter, the Employee Agreement (if any) and
the Change in Control Agreement represent the
entire agreement between the parties with
respect to the PRSUs. In the event of a
conflict between the terms and conditions of
the Plan and the terms and conditions of this
Agreement or any other agreement, the terms
and conditions of the Plan shall prevail. In
the event of a conflict between the terms and
conditions of this Agreement and the terms
and conditions of the Offer Letter, the terms
and conditions of the Offer Letter shall
prevail. |
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(h) If all or any part of this Agreement or
the Plan is declared by any court or
governmental authority to be unlawful or
invalid, such unlawfulness or invalidity will
not invalidate any portion of this Agreement
or the Plan not declared to be unlawful or
invalid. Any Section of this Agreement (or
part of such a Section) so declared to be
unlawful or invalid will, if possible, be
construed in a manner which will give effect
to the terms of such Section or part of such
Section to the fullest extent possible while
remaining lawful and valid. |
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(i) Either party’s failure to enforce any
provision of this Agreement shall not in any
way be construed as a waiver of any such
provision, nor prevent that party from
thereafter enforcing any other provision of
this Agreement. The rights granted both
parties hereunder are cumulative and shall
not constitute a waiver of either party’s
right to assert any other legal remedy
available to it. |
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(j) This Agreement may be amended only by a
writing executed by you and the Company which
specifically states that it is amending this
Agreement. Notwithstanding the foregoing and
subject to Section 2(b)(viii) of the Plan,
this Agreement may be amended solely by the
Board (or an appropriate committee thereof)
by a writing which specifically states that
it is amending this Agreement, so long as a
copy of such amendment is delivered to you.
Without limiting the foregoing, the Board (or
an appropriate committee thereof) reserves
the right to change, by written notice to
you, the provisions of this Agreement in any
way it may deem necessary or advisable to
carry out the purpose of the grant as a
result of any change in applicable laws or
regulations or any future law, regulation,
ruling or judicial decision, provided that
any such change will be applicable only to
rights relating to that portion of the PRSUs
which are then subject to restrictions as
provided herein. |
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(k) The rights and obligations of the Company
under this Agreement will be transferable by
the Company to any one or more persons or
entities, and all covenants and agreements
hereunder will inure to the benefit of, and
be enforceable by the Company’s successors
and assigns. You may not assign, transfer or
pledge the granted PRSUs, the Awarded PRSUs,
the Vested Performance Units or any right or
interest therein or thereunder to anyone
other than by will or the laws of descent and
distribution except with the prior written
consent of the Company. The Company may
cancel your rights hereunder if you attempt
to assign or transfer them in a manner
inconsistent with this Agreement. |
(l) All notices with respect to this
Agreement shall be in writing and shall be
hand delivered or sent by first class mail or
reputable overnight delivery service,
expenses prepaid. Notice may also be given
by electronic mail or facsimile and shall be
effective on the date transmitted if
confirmed within 24 hours thereafter by a
signed original sent in a manner provided in
the preceding sentence. Notices to the
Company or the Board (or an appropriate
committee thereof) shall be delivered or sent
to the Company’s headquarters, 000 Xxxxx
Xxxxxx, Xxxx xx Xxxxxxx, XX 00000, to the
attention of its Chief Financial Officer and
its General Counsel. Notices to the
Participant or holder of Shares issued
pursuant to this Agreement shall be
sufficient if delivered or sent to such
person’s address as it appears in the regular
records of the Company or its transfer agent. |
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(m) The headings of the Sections in this
Agreement are inserted for convenience only
and will not be deemed to constitute a part
of this Agreement or to affect the meaning of
this Agreement. |
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(n) You agree upon request to execute any
further documents or instruments necessary or
desirable in the sole determination of the
Company to carry out the purposes or intent
of this Agreement. |
By the signatures below, you and the authorized representative of the Company acknowledge your
agreement to this Performance Restricted Stock Unit Award Agreement as of the Grant Date specified
above.
Accepted by: |
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GSI COMMERCE, INC. |
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