Form of Global Performance-Based Restricted Stock Unit Agreement
The Carlyle Group Inc. Amended and Restated
2012 Equity Incentive Plan
Form of Global Performance-Based Restricted Stock Unit Agreement
Participant: | Date of Grant: |
Number of PSUs: |
1.Grant of PSUs. The Carlyle Group Inc. (the “Company”) hereby grants the
number of performance-based restricted stock units (the “PSUs”) listed above to the Participant
(the “Award”), effective as of [__] (the “Date of Grant”), on the terms and conditions hereinafter
set forth in this agreement, including any Appendix hereto, which includes any applicable
country-specific provisions (collectively, the “Award Agreement”). This grant is made pursuant
to the terms of The Carlyle Group Inc. Amended and Restated 2012 Equity Incentive Plan (as
amended, modified or supplemented from time to time, the “Plan”), which is incorporated herein
by reference and made a part of this Award Agreement. Each PSU represents the unfunded,
unsecured right of the Participant to receive a Share on the delivery date(s) specified in Section 4
hereof.
2.Definitions. The capitalized terms listed in this Section 2 shall have the meanings
set forth below. Capitalized terms not otherwise defined herein (including in Appendix B) shall
have the same meanings as in the Plan.
(a)“Cause” shall mean the determination by the Administrator in its sole
discretion that the Participant has (i) engaged in gross negligence or willful misconduct in
the performance of the Participant’s duties, (ii) willfully engaged in conduct that the
Participant knows or, based on facts known to the Participant, should know is materially
injurious to the Company or any of its Affiliates, (iii) materially breached any material
provision of the Participant’s employment agreement or offer letter with the Company or
its Affiliates, (iv) breached any Restrictive Covenant Agreement or any other restrictive
covenant obligation owed by the Participant to the Company or any of its Affiliates,
including, but not limited to, any restrictions relating to the Participant’s non-
competition, non-solicitation, non-disparagement and/or non-disclosure of confidential or
proprietary information, (v) engaged in fraud or other conduct in bad faith that
contributed to a financial restatement or irregularity, (vi) been convicted of, or entered a
plea bargain or settlement admitting guilt for, fraud, embezzlement, or any other felony
under the laws of the United States or of any state or the District of Columbia or any
other country or any jurisdiction of any other country (but specifically excluding felonies
involving a traffic violation), (vii) been the subject of any order, judicial or
administrative, obtained or issued by the U.S. Securities and Exchange Commission
(“SEC”) or similar agency or tribunal of any country, for any securities violation
involving xxxxxxx xxxxxxx, fraud, misappropriation, dishonesty or willful misconduct
(including, for example, any such order consented to by the Participant in which findings
of facts or any legal conclusions establishing liability are neither admitted nor denied), or
Exhibit 10.3
(viii) discussed the Company’s (or its Affiliates’) fundraising efforts, or the name of any
fund vehicle that has not had a final closing of commitments, to any reporter or
representative of any press or other public media.
(b)“Detrimental Activity” shall mean any of the following: (i) a termination
of the Participant’s Services for Cause or the Participant engaging in any activity that
would be grounds to terminate the Participant’s Services for Cause (whether or not any
termination of the Participant’s Services occurs); or (ii) a breach of any Restrictive
Covenant Agreement or any other restrictive covenant obligation owed by the Participant
to the Company or any of its Affiliates, including, but not limited to, any restrictions
relating to the Participant’s non-competition, non-solicitation, non-disparagement and/or
non-disclosure of confidential or proprietary information.
(c) “Earned Tranche” shall refer to a Tranche for which the applicable Stock
Price Hurdle has been achieved in accordance with the terms of this Award Agreement.
All PSUs subject to an Earned Tranche are referred to herein as “Earned PSUs”.
(d) “Performance Period” shall mean the period commencing on, and
including, the Date of Grant through and including the third anniversary of the Date of
Grant.
(e)“Qualifying Event” shall mean, during the Participant’s Services with the
Company and its Affiliates, the Participant’s death or Disability.
(f)“Restrictive Covenant Agreement” shall mean any agreement (including,
without limitation, this Award Agreement), and any attachments or schedules thereto,
entered into by and between the Participant and the Company or its Affiliates, pursuant to
which the Participant has agreed, among other things, to certain restrictions relating to
non-competition (if applicable), non-solicitation, non-disparagement and/or non-
disclosure of confidential or proprietary information, in order to protect the business of
the Company and its Affiliates.
(g)“Special Vesting Event” shall mean, during the Participant’s Services with
the Company and its Affiliates, the termination of the Participant’s Services by the
Company without Cause (and in the absence of the Participant’s Disability).
3.Vesting.
(a)Vesting – General. Subject to the Participant’s continued Services with
the Company and its Affiliates through each Applicable Vesting Date, the PSUs covered
by an Earned Tranche that corresponds to the Applicable Vesting Date shall become
vested as of such Applicable Vesting Date.
(b)Vesting – Qualifying Event. Upon the occurrence of a Qualifying Event
prior to the completion of the Performance Period, the Participant shall vest in each
Tranche that became an Earned Tranche prior to the Qualifying Event but for which the
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Applicable Vesting Date has not occurred prior to the Qualifying Event. Any PSUs that
are outstanding as of the occurrence of the Qualifying Event and that do not become
vested pursuant to this Section 3(b) shall be canceled immediately and the Participant
shall automatically forfeit all rights with respect to such PSUs as of the date of such
Qualifying Event.
(c)Vesting – Special Vesting Event. Subject to the Participant’s execution
and delivery of a release of claims in the form provided by the Company (and non-
revocation thereof within the time period set forth therein), upon the occurrence of a
Special Vesting Event prior to the completion of the Performance Period, the Participant
shall vest in each Tranche that became an Earned Tranche prior to the Special Vesting
Event but for which the Applicable Vesting Date has not occurred prior to the Special
Vesting Event. Any PSUs that are outstanding as of the occurrence of the Special
Vesting Event and that do not become vested pursuant to this Section 3(c) shall be
canceled immediately and the Participant shall automatically forfeit all rights with respect
to such PSUs as of the date of such Special Vesting Event.
(d)Vesting – Terminations. Except as otherwise set forth in Sections 3(b) or
3(c), in the event the Participant’s Services with the Company and its Affiliates are
terminated for any reason, any portion of the Award that has not yet vested pursuant to
Sections 3(a), 3(b) or 3(c) hereof shall be canceled immediately and the Participant shall
automatically forfeit all rights with respect to such portion of the Award as of the date of
such termination. For purposes of this provision, the effective date of termination of the
Participant’s Services will be determined in accordance with Section 9(k) hereof.
4.Vesting and Delivery Dates; Transfer Restrictions.
(a)Delivery – General. The Company shall, on or within thirty (30) days
following the Applicable Vesting Date, deliver (or cause to be delivered) to the
Participant the Shares underlying the Earned PSUs that vested on the Applicable Vesting
Date pursuant to Section 3(a).
(b)Delivery – Qualifying Event. Upon the occurrence of a Qualifying Event,
the Company shall, within thirty (30) days following the date of such event, deliver (or
cause to be delivered) to the Participant (or the Participant’s estate) the Shares underlying
the Earned PSUs that vested on the date of the Qualifying Event pursuant to Section 3(b).
(c)Delivery – Special Vesting Event. Upon the occurrence of a Special
Vesting Event, the Company shall, on or within sixty (60) days following the date of the
Special Vesting Event, deliver (or cause to be delivered) to the Participant the Shares
underlying the PSUs that vested on the date of the Special Vesting Event pursuant to
Section 3(c).
(d)Transfer Restrictions for 30% of Vested Earned PSUs. Following any
delivery of Shares in respect of vested Earned PSUs in accordance with this Section 4,
thirty percent (30)% of such Shares (calculated on a pre-tax basis, determined without
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regard to any withholding or sale of Shares to cover taxes thereon) must be retained by
the Participant and shall not be transferable until the earliest to occur of (i) the third
anniversary of the date of delivery of such Shares pursuant to Sections 4(a), 4(b), or 4(c)
or (ii) the first anniversary of the date of the Participant’s termination of Services for any
reason.
5.Forfeiture; Clawback. It is a condition of being granted the PSUs hereunder and
receiving the underlying Shares upon satisfaction of the vesting conditions set forth herein that
the Participant not engage in any Detrimental Activity. Notwithstanding anything to the contrary
herein, if the Administrator determines in its sole discretion that the Participant has engaged in
Detrimental Activity (i) all outstanding PSUs (whether or not vested) shall immediately
terminate and be forfeited without consideration upon the date of such determination and no
further Shares with respect of the Award shall be delivered to the Participant or to the
Participant’s legal representative, beneficiaries or heirs, (ii) to the extent permitted under
applicable law, any Shares that have previously been delivered to the Participant or the
Participant’s legal representative, beneficiaries or heirs pursuant to the Award and which are still
held by the Participant or the Participant’s legal representative, or beneficiaries or heirs as of the
date of such determination by the Administrator shall also immediately terminate and be
forfeited without consideration and (iii) the Administrator may require that the Participant forfeit
any proceeds realized within the one (1) year period preceding the date of such determination on
the disposition of any Shares received in settlement of the Award, and repay such proceeds to the
Company within thirty (30) days following the Company’s demand therefor. Without limiting
the foregoing, the Award and all Shares issued in respect thereof shall be subject to reduction,
cancellation, forfeiture or recoupment to the extent necessary to comply with applicable law and/
or the Company’s clawback and recoupment policies as in effect from time to time.
6.Change in Control. Notwithstanding anything to the contrary herein, in the event
of a Special Vesting Event that occurs within the twenty-four (24) months following a Change in
Control, or after such date that definitive documentation for a sale transaction is entered into but
before such transaction has been consummated, 100% of the PSUs granted hereunder which then
remain outstanding shall vest (to the extent not previously vested) upon the date of such
termination of Services and the Shares underlying such Earned PSUs shall be delivered in
accordance with Section 4(a), subject to any required delay pursuant to Section 17 of the Plan.
0.Xx Dividends or Distributions on PSUs. No dividends or other distributions shall
accrue or become payable with respect to any PSUs prior to the date upon which the Shares
underlying the PSUs are issued or transferred to the Participant.
8.Adjustments Upon Certain Events. The Administrator shall make certain
substitutions or adjustments to any PSUs subject to this Award Agreement pursuant to Section 9
of the Plan.
9.Nature of Grant. In accepting the grant, the Participant acknowledges,
understands, and agrees that:
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(a)the Plan is established voluntarily by the Company, it is discretionary in
nature and it may be modified, amended, suspended or terminated by the Company, at
any time, to the extent permitted by the Plan;
(b)the grant of the PSUs is exceptional, voluntary and occasional and does
not create any contractual or other right to receive future grants of PSUs, or benefits in
lieu of PSUs, even if PSUs have been granted in the past;
(c)all decisions with respect to future PSUs or other grants, if any, will be at
the sole discretion of the Company;
(d)the granting of the PSUs evidenced by this Award Agreement shall
impose no obligation on the Company or any Affiliate to continue the Services of the
Participant and shall not lessen or affect the Company’s or any of its Affiliate’s right to
terminate the Services of such Participant;
(e)the Participant is voluntarily participating in the Plan;
(f)the PSUs and the Shares subject to the PSUs, and the income from and
value of same, are not intended to replace any pension rights or compensation;
(g)the PSUs and the Shares subject to the PSUs, and the income from and
value of same, are not part of normal or expected compensation for purposes of
calculating any severance, resignation, termination, redundancy, dismissal, end-of-service
payments, holiday pay, bonuses, long-service awards, pension or retirement or welfare
benefits or similar payments;
(h)the PSUs should in no event be considered as compensation for, or
relating in any way to, past services for the Company, the Employer (as defined in
Section 16 of this Award Agreement) or any Affiliate or predecessor;
(i)unless otherwise agreed with the Company, the PSUs and the Shares
subject to the PSUs, and the income from and value of same, are not granted as
consideration for, or in connection with, the Services Participant may provide as a
director of an Affiliate;
(j)the future value of the underlying Shares is unknown, indeterminable and
cannot be predicted with certainty;
(k) in the event of termination of the Participant’s Services for any reason,
except as set forth in Sections 3, 4 or 6 (whether or not later to be found invalid or in
breach of employment laws in the jurisdiction where the Participant is employed or the
terms of the Participant’s employment agreement, if any), unless otherwise determined by
the Company, the Participant’s right to vest in the PSUs under the Plan, if any, will
terminate effective as of the date that the Participant is no longer actively providing
Services and will not be extended by any notice period (e.g., active Services would not
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include any contractual notice period or any period of “garden leave” or similar period
mandated under employment laws in the jurisdiction where the Participant is employed,
or the terms of the Participant’s employment agreement, if any); the Administrator shall
have the exclusive discretion to determine when the Participant is no longer actively
providing Services for purposes of the PSUs grant (including whether the Participant may
still be considered to be providing Services while on an approved leave of absence); and
(l)in addition to the provisions above in this Section 9, the following
provisions apply if the Participant is providing Services outside the United States:
(i) no claim or entitlement to compensation or damages shall arise
from forfeiture of the PSUs resulting from termination of the Participant’s
Services as set forth in Section 3(d) above for any reason (whether or not later
found to be invalid or in breach of employment laws in the jurisdiction where the
Participant is employed or the terms of the Participant’s employment agreement, if
any), and in consideration of the grant of the PSUs, the Participant agrees not to
institute any claim against the Company or any Affiliate;
(ii) the PSUs and the Shares subject to the PSUs are not part of
normal or expected compensation or salary for any purpose; and
(iii) neither the Company nor any Affiliate shall be liable for any
foreign exchange rate fluctuation between the Participant’s local currency and the
United States Dollar that may affect the value of the PSUs or of any amounts due
to the Participant pursuant to the settlement of the PSUs or the subsequent sale of
any Shares acquired upon settlement.
00.Xx Advice Regarding Grant. The Company is not providing any tax, legal or
financial advice, nor is the Company making any recommendations regarding the Participant’s
participation in the Plan, or the Participant’s acquisition or sale of the underlying Shares. The
Participant should consult with his or her own personal tax, legal and financial advisors
regarding his or her participation in the Plan before taking any action related to the Plan.
00.Xxxx Privacy Information and Consent. The Company is located at 1001
Pennsylvania Avenue, NW, Washington, DC 20004 U.S.A. and grants employees of the
Company and its Affiliates PSUs, at the Company’s sole discretion. If the Participant would
like to participate in the Plan, please review the following information about the Company’s
data processing practices and declare the Participant’s consent.
(a)Data Collection and Usage: The Company collects, processes and uses
personal data of Participants, including name, home address and telephone number,
date of birth, social insurance number or other identification number, salary,
citizenship, job title, any Shares or directorships held in the Company, and details of all
PSUs, canceled, vested, or outstanding in the Participant’s favor, which the Company
receives from the Participant or the Employer. If the Company offers the Participant a
grant of PSUs under the Plan, then the Company will collect the Participant’s personal
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data for purposes of allocating Shares and implementing, administering and managing
the Plan. The Company’s legal basis for the processing of the Participant’s personal
data would be his or her consent.
(b)Stock Plan Administration Service Providers: The Company transfers
participant data to Xxxxxx Xxxxxxx, an independent service provider based in the
United States, which assists the Company with the implementation, administration and
management of the Plan. In the future, the Company may select a different service
provider and share the Participant’s data with another company that serves in a similar
manner. The Company’s service provider will open an account for the Participant to
receive and trade Shares. The Participant will be asked to agree on separate terms and
data processing practices with the service provider, which is a condition to the
Participant’s ability to participate in the Plan.
(c)International Data Transfers: The Company and its service providers
are based in the United States. If the Participant is outside the United States, the
Participant should note that his or her country has enacted data privacy laws that are
different from the United States. The Company’s legal basis for the transfer of the
Participant’s personal data is his or her consent.
(d)Data Retention: The Company will use the Participant’s personal data
only as long as is necessary to implement, administer and manage the Participant’s
participation in the Plan or as required to comply with legal or regulatory obligations,
including under tax and security laws.
(e)Voluntariness and Consequences of Consent Denial or Withdrawal:
The Participant’s participation in the Plan and the Participant’s grant of consent is
purely voluntary. The Participant may deny or withdraw his or her consent at any
time. If the Participant does not consent, or if the Participant withdraws his or her
consent, the Participant cannot participate in the Plan. This would not affect the
Participant’s salary as an employee or his or her career; the Participant would merely
forfeit the opportunities associated with the Plan.
(f)Data Subject Rights: The Participant has a number of rights under data
privacy laws in his or her country. Depending on where the Participant is based, the
Participant’s rights may include the right to (i) request access or copies of personal
data of the Company processes, (ii) rectification of incorrect data, (iii) deletion of data,
(iv) restrictions on processing, (v) portability of data, (vi) lodge complaints with
competent authorities in the Participant’s country, and/or (vii) a list with the names
and address of any potential recipients of the Participant’s data. To receive
clarification regarding the Participant’s rights or to exercise the Participant’s rights
please contact the Company at The Carlyle Group Inc., 0000 Xxxxxxxxxxxx Xxxxxx,
NW, Washington, DC 20004 U.S.A., Attention: Equity Management.
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If the Participant agrees with the data processing practices as described in this notice, please
declare the Participant’s consent by clicking the “Accept Award” button on the Xxxxxx
Xxxxxxx award acceptance page or signing below.
00.Xx Rights of a Holder of Shares. Except as otherwise provided herein, the
Participant shall not have any rights as a holder of Shares until such Shares have been issued or
transferred to the Participant.
13.Restrictions. Any Shares issued or transferred to the Participant or to the
Participant’s beneficiary pursuant to Section 4 of this Award Agreement (including, without
limitation, following the Participant’s death or Disability) shall be subject to such stop transfer
orders and other restrictions as the Administrator may deem advisable under the Plan or the
rules, regulations, and other requirements of the SEC, any stock exchange upon which such
Shares are listed and any applicable U.S. or non-U.S. federal, state or local laws, and the
Administrator may cause a notation or notations to be put entered into the books and records of
the Company to make appropriate reference to such restrictions. Without limiting the generality
of the forgoing, a Participant’s ability to sell or transfer the Shares shall be subject to such
trading policies or limitations as the Administrator may, in its sole discretion, impose from time
to time on current or former senior professionals, employees, consultants, directors, members,
partners or other service providers of the Company or of any of its Affiliates.
14.Transferability. Unless otherwise determined or approved by the Administrator,
no PSUs may be assigned, alienated, pledged, attached, sold or otherwise transferred or
encumbered by the Participant other than by will or by the laws of descent and distribution, and
any purported assignment, alienation, pledge, attachment, sale, transfer or encumbrance not
permitted by this Section 14 shall be void and unenforceable against the Company or any
Affiliate.
15.Notices. All notices, requests, claims, demands and other communications
hereunder shall be in writing and shall be given (and shall be deemed to have been duly given
upon receipt) by delivery in person, by courier service, by fax, or by registered or certified mail
(postage prepaid, return receipt requested) to the respective parties at the following addresses (or
at such other address for a party as shall be specified in a notice given in accordance with this
Section 15):
(a) If to the Company, to:
0000 Xxxxxxxxxxxx Xxxxxx, XX
Washington, DC 20004
Attention: General Counsel
Fax: (000) 000-0000
(b) If to the Participant, to the address appearing in the personnel
records of the Company or any Affiliate.
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16.Withholding. The Participant acknowledges that he or she may be required to
pay to the Company or, if different, an Affiliate that employs the Participant (the “Employer”),
and that the Company, the Employer, or any Affiliate shall have the right and are hereby
authorized to withhold from any compensation or other amount owing to the Participant,
applicable income tax, social insurance, payroll tax, fringe benefits tax, payment on account or
other tax-related items (including taxes that are imposed on the Company or the Employer as a
result of the Participant’s participation in the Plan but are deemed by the Company or the
Employer to be an appropriate charge to the Participant) (collectively, “Tax-Related Items”),
with respect to any issuance, transfer, or other taxable event under this Award Agreement or
under the Plan and to take such action as may be necessary in the opinion of the Company to
satisfy all obligations for the payment of such Tax-Related Items. The Participant further
acknowledges that the Company and/or the Employer (i) make no representations or
undertakings regarding the treatment of any Tax-Related Items in connection with any aspect of
the PSUs, including, but not limited to the grant or vesting of the PSUs and the subsequent sale
of Shares acquired upon settlement of the vested Earned PSUs; and (ii) do not commit to and are
under no obligation to structure the terms of the grant or any aspect of the PSUs to reduce or
eliminate the Participant’s liability for Tax-Related Items or achieve a particular tax result.
Further, if the Participant is subject to Tax-Related Items in more than one jurisdiction, the
Participant acknowledges that the Company and/or the Employer (or former employer, as
applicable) may be required to withhold or account for Tax-Related Items in more than one
jurisdiction. Without limiting the foregoing, the Administrator may, from time to time, permit
the Participant to make arrangements prior to the Applicable Vesting Date described herein to
pay the applicable Tax-Related Items in a manner prescribed by the Administrator prior to the
Applicable Vesting Date; provided that, unless otherwise determined by the Administrator, any
such payment or estimate must be received by the Company prior to the Applicable Vesting
Date. Additionally, the Participant authorizes the Company and/or the Employer to satisfy the
obligations with regard to all Tax-Related Items by (i) withholding from proceeds of the sale of
Shares acquired upon settlement of the vested Earned PSUs either through a voluntary sale or
through a mandatory sale arranged by the Company (on the Participant’s behalf pursuant to this
authorization) or (ii) using a net settlement method whereby the number of Shares that would
otherwise be delivered to the Participant upon the settlement of vested Earned PSUs shall be
reduced by a number of Shares having a fair market value necessary to satisfy such obligations.
Depending on the withholding method, the Company and/or the Employer may withhold or
account for the Tax-Related Items by considering minimum statutory withholding amounts or
other applicable withholding rates in the Participant’s jurisdiction(s), including maximum
applicable rates. In the event of over-withholding, the Participant may receive a refund of any
over-withheld amount in cash through the Employer’s normal payroll process (with no
entitlement to the equivalent in Shares), or if not refunded, the Participant may seek a refund
from the applicable tax authorities. In the event of under-withholding, the Participant may be
required to pay additional Tax-Related Items directly to the applicable tax authorities or to the
Company and/or the Employer. The Participant acknowledges that, regardless of any action
taken by the Company, the Employer, or any Affiliate the ultimate liability for all Tax-Related
Items, is and remains the Participant’s responsibility and may exceed the amount, if any, actually
withheld by the Company or the Employer. The Company may refuse to issue or deliver the
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Shares or the proceeds from the sale of Shares, if the Participant fails to comply with his or her
obligations in connection with the Tax-Related Items.
[CHIEF EXECUTIVE OFFICER ONLY:
17.Choice of Law; Venue. Section 15 (Governing Law) and Section 17 (Arbitration)
of the Employment Agreement by and between the Participant and The Carlyle Group Employee
Co., L.L.C. dated February 5, 2023 (the “Employment Agreement”) are hereby incorporated by
reference herein mutatis mutandis and shall apply to this Award Agreement as if set forth herein.
18.Reserved.]
[OTHER PARTICIPANTS:
17.Choice of Law; Venue. The interpretation, performance and enforcement of this
Award Agreement shall be governed by the law of the State of New York without regard to its
conflict of law provisions. Any and all disputes, controversies or issues arising out of,
concerning or relating to this Award, this Award Agreement or the relationship between the
parties evidenced by the Award Agreement, including, without limitation, disputes, controversies
or issues arising out of, concerning or relating to the construction, interpretation, breach or
enforcement of this Award Agreement, shall be brought exclusively in the courts in the State of
Federal jurisdiction exist). Each of the parties hereby expressly represents and agrees that it/he/
she is subject to the personal jurisdiction of said courts, irrevocably consents to the personal
jurisdiction of such courts; and waives to the fullest extent permitted by law any objection which
it/he/she may now or hereafter have that the laying of the venue of any legal lawsuit or
proceeding related to such dispute, controversy or issue that is brought in any such court is
improper or that such lawsuit or proceeding has been brought in an inconvenient forum.
18.WAIVER OF RIGHT TO JURY TRIAL. AS SPECIFICALLY BARGAINED
FOR INDUCEMENT FOR EACH OF THE PARTIES HERETO TO ENTER INTO THIS
AWARD AGREEMENT (AFTER HAVING THE OPPORTUNITY TO CONSULT WITH
COUNSEL OF ITS/HIS/HER CHOICE), EACH PARTY EXPRESSLY WAIVES THE RIGHT
TO TRIAL BY JURY IN ANY LAWSUIT OR PROCEEDING ARISING OUT OF,
CONCERNING OR RELATING TO THIS AWARD, THIS AWARD AGREEMENT, THE
RELATIONSHIP BETWEEN THE PARTIES EVIDENCED BY THIS AWARD
AGREEMENT AND/OR THE MATTERS CONTEMPLATED THEREBY.]
19.Subject to Plan. By entering into this Award Agreement, the Participant agrees
and acknowledges that the Participant has received and read a copy of the Plan. All PSUs and
Shares issued or transferred with respect thereof are subject to the Plan. In the event of a conflict
between any term or provision contained herein and a term or provision of the Plan, the
applicable terms and provisions of the Plan will govern and prevail.
20.Entire Agreement. This Award Agreement contains the entire understanding
between the parties with respect to the PSUs granted hereunder (including, without limitation,
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the vesting and delivery schedules and other terms described herein and in each Appendix
attached hereto), and xxxxxx replaces and supersedes any prior communication and arrangements
between the Participant and the Company or any of its Affiliates with respect to the matters set
forth herein and any other pre-existing economic or other arrangements between the Participant
and the Company or any of its Affiliates, unless otherwise explicitly provided for in any other
agreement that the Participant has entered into with the Company or any of its Affiliates and that
is set forth on Schedule A hereto. Unless set forth on Schedule A hereto, no such other
agreement entered into prior to the Date of Grant shall have any effect on the terms of this
Award Agreement.
21.Modifications. Notwithstanding any provision of this Award Agreement to the
contrary, the Company reserves the right to modify the terms and conditions of this Award
Agreement, including, without limitation, the timing or circumstances of the issuance or transfer
of Shares to the Participant hereunder, to the extent such modification is determined by the
Company to be necessary to comply with applicable law or preserve the intended deferral of
income recognition with respect to the PSUs until the issuance or transfer of Shares hereunder.
22.Signature in Counterparts; Electronic Acceptance. This Award Agreement may
be signed in counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument. Alternatively, this Award
Agreement may be granted to and accepted by the Participant electronically (including, without
limitation, via DocuSign or through the Xxxxxx Xxxxxxx website).
23.Electronic Delivery. The Company may, in its sole discretion, decide to deliver
any documents related to current or future participation in the Plan by electronic means. The
Participant hereby consents to receive such documents by electronic delivery and agrees to
participate in the Plan through an on-line or electronic system established and maintained by the
Company or a third party designated by the Company.
24.Compliance with Law. Notwithstanding any other provision of this Award
Agreement, unless there is an available exemption from any registration, qualification or other
legal requirement applicable to the Shares, the Company shall not be required to deliver any
Shares issuable upon settlement of the PSUs prior to the completion of any registration or
qualification of the Shares under any local, state, federal or foreign securities or exchange control
law or under rulings or regulations of the SEC or of any other governmental regulatory body, or
prior to obtaining any approval or other clearance from any local, state, federal or foreign
governmental agency, which registration, qualification or approval the Company shall, in its
absolute discretion, deem necessary or advisable. The Participant understands that the Company
is under no obligation to register or qualify the Shares with the SEC or any state or foreign
securities commission or to seek approval or clearance from any governmental authority for the
issuance or sale of the Shares. Further, the Participant agrees that the Company shall have
unilateral authority to amend the Plan and the Award Agreement without the Participant’s
consent to the extent necessary to comply with securities or other laws applicable to issuance of
Shares.
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25.Language. The Participant acknowledges that he or she is sufficiently proficient
in English, or has consulted with an advisor who is sufficiently proficient in English, so as to
allow the Participant to understand the terms and conditions of this Award Agreement.
Furthermore, if the Participant has received this Award Agreement or any other document related
to the Plan translated into a language other than English and if the meaning of the translated
version is different than the English version, the English version will control, unless otherwise
required by applicable law.
26.Severability. The provisions of this Award Agreement are severable and if any
one or more provisions are determined to be illegal or otherwise unenforceable, in whole or in
part, the remaining provisions shall nevertheless be binding and enforceable.
27.Appendix. Notwithstanding any provisions in this Award Agreement, the PSUs
granted herein shall be subject to any additional terms and conditions set forth in each Appendix
to this Award Agreement for the Participant’s country. Moreover, if the Participant relocates to
another country, any additional terms and conditions for such country will apply to the
Participant, to the extent the Company determines that the application of such terms and
conditions is necessary or advisable for legal or administrative reasons. Each Appendix hereto
constitutes part of this Award Agreement.
28.Imposition of Other Requirements. The Company reserves the right to impose
other requirements on the Participant’s participation in the Plan, on the PSUs and on any Shares
acquired under the Plan, to the extent the Company determines it is necessary or advisable for
legal or administrative reasons, and to require the Participant to sign any additional agreements
or undertakings that may be necessary to accomplish the foregoing.
29.Waiver. The Participant acknowledges that a waiver by the Company of breach
of any provision of this Award Agreement shall not operate or be construed as a waiver of any
other provision of this Award Agreement, or of any subsequent breach by the Participant or any
other participant.
30.Xxxxxxx Xxxxxxx Restrictions/Market Abuse Laws. The Participant acknowledges
that, depending on his or her country of residence, or broker’s country of residence, or where the
Shares are listed, Participant may be subject to xxxxxxx xxxxxxx restrictions and/or market abuse
laws, which may affect the Participant’s ability to directly or indirectly, accept, acquire, sell, or
attempt to sell or otherwise dispose of Shares or rights to Shares (e.g., PSUs) under the Plan
during such times as Participant is considered to have “inside information” regarding the
Company (as defined by the laws or regulations in applicable jurisdictions or Participant’s
country). Local xxxxxxx xxxxxxx laws and regulations may prohibit the cancellation or amendment
of orders placed by the Participant before possessing inside information. Furthermore, the
Participant understands that he or she may be prohibited from (i) disclosing the inside
information to any third party, including fellow employees (other than on a “need to know”
basis) and (ii) “tipping” third parties or causing them to otherwise buy or sell securities. Any
restrictions under these laws or regulations are separate from and in addition to any restrictions
that may be imposed under any applicable Company xxxxxxx xxxxxxx policy. The Participant
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acknowledges that it is his or her responsibility to comply with any applicable restrictions, and
the Participant should speak to his or her personal advisor on this matter.
31.Foreign Asset/Account Reporting. The Participant’s country of residence may
have certain foreign asset and/or account reporting requirements which may affect his or her
ability to acquire or hold PSUs under the Plan or cash received from participating in the Plan
(including sales proceeds arising from the sale of Shares) in a brokerage or bank account outside
the Participant’s country. The Participant may be required to report such amounts, assets or
transactions to the tax or other authorities in his or her country. The Participant also may be
required to repatriate sale proceeds or other funds received as a result of participation in the Plan
to the Participant’s country through a designated broker or bank within a certain time after
receipt. The Participant is responsible for ensuring compliance with such regulations and should
speak with his or her personal legal advisor regarding this matter.
[Signature Page Follows]
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IN WITNESS WHEREOF, the parties hereto have executed this Award Agreement.
By:____________________________________
Name:
Title:
PARTICIPANT
By: ____________________________________
Name:
[Signature Page to PSU Award Agreement]
APPENDIX B
PERFORMANCE AND VESTING TERMS
The PSUs granted pursuant to this Award Agreement shall be eligible to become earned and to
vest pursuant to the terms described in this Appendix B.
Determination of Earned PSUs
Framework
The PSUs shall be eligible to be earned, subject to the terms of the Award Agreement, based on
the achievement of the performance conditions described below. The Award shall be divided
into five Tranches as follows:
“First Tranche” means one-third (1/3) of the total number of PSUs subject to the Award, which
PSUs shall be earned upon achievement of the First Stock Price Hurdle.
“Second Tranche” means one-third (1/3) of the total number of PSUs subject to the Award,
which PSUs shall be earned upon achievement of the Second Stock Price Hurdle.
“Third Tranche” means one-third (1/3) of the total number of PSUs subject to the Award,
which PSUs shall be earned upon achievement of the Third Stock Price Hurdle.
Each of the First Tranche, the Second Tranche, and the Third Tranche, shall be earned upon the
attainment of an Average Closing Stock Price equal to the corresponding Stock Price Hurdle set
forth below.
Stock Price Hurdles
Tranche | Stock Price Hurdle |
First Tranche | 120% of Beginning Stock Price ($[__]) (“First Stock Price Hurdle”) |
Second Tranche | 140% of Beginning Stock Price ($[__]) (“Second Stock Price Hurdle”) |
Third Tranche | 160% of Beginning Stock Price ($[__]) (“Third Stock |
Once a Stock Price Hurdle is achieved, each lower Stock Price Hurdle will be deemed to have
been achieved even if an Average Closing Stock Price equal to the lower Stock Price Hurdle has
not independently occurred. Except as otherwise expressly provided in connection with a
Change in Control (as described below), there will be no linear interpolation in measuring
achievement of the Stock Price Hurdles and each Tranche shall therefore be earned in full or not
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at all. For purposes of illustration and without limitation, if the First Stock Price Hurdle has not
been achieved as of the date on which the Average Closing Stock Price equals the Second Stock
Price Hurdle, then as of such date, both the First Tranche and the Second Tranche shall become
earned.
Except as otherwise set forth in the Award Agreement, any Earned Tranches will only be eligible
to vest on the Applicable Vesting Date.
Any Tranche that has not become an Earned Tranche as of the last day of the Performance Period
shall be canceled immediately and the Participant shall automatically forfeit all rights with
respect to such PSUs as of the last day of the Performance Period.
Change in Control
As used in this section, “Change in Control” shall mean a transaction described in Section 2(g)(i)
of the Plan, as in effect on the Date of Grant. Upon the occurrence of a Change in Control
during the Performance Period, the Performance Period shall be truncated and shall end on the
CIC Measurement Date and the applicable performance conditions shall be measured as follows:
For each Tranche that has not become an Earned Tranche prior to the Change in Control, the
corresponding Stock Price Hurdle shall be measured as of the CIC Measurement Date based on
the CIC Price (rather than based on the Average Closing Stock Price). If the CIC Price is
between two Stock Price Hurdles, the higher Stock Price Hurdle shall be deemed achieved in
part based on linear interpolation between the two Stock Price Hurdles, and a corresponding
portion of the associated Tranche shall become an Earned Tranche. For purposes of illustration
and without limitation, if the CIC Price is halfway between the Second Stock Price Hurdle and
the Third Stock Price Hurdle, then fifty percent (50%) of the Third Tranche will become an
Earned Tranche. Any whole or partial Tranche for which the Stock Price Hurdle is not achieved
as of the CIC Measurement Date shall be canceled immediately and the Participant shall
automatically forfeit all rights with respect to such PSUs as of the date of the Change in Control.
Any Tranche that becomes an Earned Tranche as of the CIC Measurement Date shall remain
outstanding and subject to the Services-based vesting requirement set forth below.
Vesting Schedule
Earned Tranches shall vest on the Applicable Vesting Date set forth below, subject to the
Participant’s continued Services with the Company and its Affiliates through the Applicable
Vesting Date. If the Participant’s Services with the Company and its Affiliates terminate for any
reason prior to the last Applicable Vesting Date, then, except as otherwise expressly provided in
the Award Agreement, the then-outstanding Tranches shall be forfeited.
For the avoidance of doubt, the below Services-based vesting conditions shall continue following
a Change in Control that occurs while the Participant is providing Services.
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Tranche | Applicable Vesting Date |
First Tranche | Later of (i) the first anniversary of the Date of Xxxxx and (ii) the next Regular Vesting Date after the First Stock Price Hurdle is achieved, subject to the Participant’s continued Services through such date. |
Second Tranche | Later of (i) the second anniversary of the Date of Xxxxx and (ii) the next Regular Vesting Date after the Second Stock Price Hurdle is achieved, subject to the Participant’s continued Services through such date. |
Third Tranche | The third anniversary of the Date of Xxxxx, subject to the Participant’s continued Services through such date. |
Certain Defined Terms
“Applicable Vesting Date” has the meaning set forth in the chart under “Vesting Schedule” of
this Appendix B.
“Average Closing Stock Price” means the average closing price of a Share on The Nasdaq
Global Select Market over any consecutive period of thirty (30) trading days that both begins and
ends during the Performance Period.
“Beginning Stock Price” means $[__], which is the average closing price of a Share on The
Nasdaq Global Select Market during the period of thirty (30) consecutive trading days ending on,
and including, the last trading day immediately preceding the Date of Xxxxx.
“CIC Measurement Date” means the second to last trading day immediately preceding the date
on which a Change in Control occurs.
“CIC Price” means the value of the consideration paid for each Share in the Change in Control
transaction, with the value of any non-cash consideration determined by the Committee in its
discretion.
“Regular Vesting Date” means each of February [__], May 1, August 1, and November 1 of
each calendar year.
“Stock Price Hurdle” means each of the First Stock Price Hurdle, the Second Stock Price
Hurdle, and the Third Stock Price Hurdle.
“Tranche” means each of the First Tranche, the Second Tranche, and the Third Tranche.
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