If an emerging growth company, indicate by check mark if the registrant has elected to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act.
|
☐
|
CALCULATION OF REGISTRATION FEE
|
||||||||||||||||
Title of securities
to be registered
|
Amount to be
registered
|
Proposed maximum
offering price per share
|
Proposed maximum
aggregate offering price
|
Amount of
registration fee
|
||||||||||||
Common stock,
$.01 par value per share
|
900,000
(1)
|
|
|
$57.56
(2)
|
|
|
$51,804,000
|
|
$6,450
|
(1)
|
Pursuant to Rule 416 under the Securities Act of 1933, this Registration Statement includes an indeterminate number of additional shares which may be necessary to adjust the number of shares reserved for issuance pursuant to the Banner Corporation 2018 Omnibus Incentive Plan as a result of a stock split, stock dividend or similar adjustment of the outstanding common stock of the registrant.
|
(2)
|
Estimated in accordance with Rule 457(c) and Rule 457(h) of the Securities Act of 1933, calculated on the basis of $57.56 per share, the average of the high and low sale prices per share of the registrant's common stock on the Nasdaq Global Select Market on
May 1, 2018.
|
(a) |
the Registrant's Annual Report on Form 10-K for the fiscal year ended December 31, 2017 (File No. 0-26584) filed with the Commission on February 23, 2018;
|
(b) |
all other reports filed by the Registrant pursuant to Section 13(a) or 15(d) of the Securities Exchange Act since the end of the fiscal year covered by the Annual Report on Form 10-K referred to in Item 3(a) above; and
|
(c) |
the description of the Registrant's common stock set forth in its Registration Statement on Form 8-A registering the Registrant's common stock pursuant to Section 12(g) of the Securities Exchange Act, filed August 8, 1995, and all amendments thereto or reports filed for the purpose of updating such description.
|
Exhibit
Number
|
Description of Document
|
|
___________ |
(1) |
Incorporated by reference to the Registrant's Current Report on Form 8-K filed with the Commission on April 29, 2010, as amended on May 26, 2011 (incorporated by reference to the Current Report on Form 8-K filed with the Commission on June 1, 2011).
|
(2) |
Incorporated by reference to the Registrant's Current Report on Form 8-K filed with the Commission on March 18, 2015.
|
(3) |
Incorporated by reference to the Registrant's Current Report on Form 8-K filed with the Commission on December 20, 2016.
|
(a) |
The undersigned Registrant hereby undertakes:
|
|
BANNER CORPORATION
|
|
|
|
By:
/s/ Mark J. Grescovich
|
|
Mark J. Grescovich
|
|
President and Chief Executive Officer
(Duly Authorized Representative)
|
/s/ Mark J. Grescovich
|
/s/ Peter J. Conner
|
|
Mark J. Grescovich
|
Peter J. Conner
|
|
President, Chief Executive Officer and Director
(Principal Executive Officer)
|
Executive Vice President and Chief Financial Officer
(Principal Financial and Accounting Officer)
|
|
May 4, 2018
|
May 4, 2018
|
|
/s/ John R. Layman
|
/s/ Robert D. Adams
|
|
John R. Layman
|
Robert D. Adams
|
|
Director
|
Director
|
|
May 4, 2018
|
May 4, 2018
|
|
/s/ Connie R. Collingsworth
|
/s/ David I. Matson
|
|
Connie R. Collingsworth
|
David I. Matson
|
|
Director
|
Director
|
|
May 4, 2018
|
May 4, 2018
|
|
/s/ Gary Sirmon
|
/s/ Merline Saintil
|
|
Gary Sirmon
|
Merline Saintil
|
|
Chairman of the Board
|
Director
|
|
May 4, 2018
|
May 4, 2018
|
|
/s/ Brent A. Orrico
|
/s/ Gordon E. Budke
|
|
Brent A. Orrico
|
Gordon E. Budke
|
|
Director
|
Director
|
|
May 4, 2018
|
May 4, 2018
|
|
/s/ David A. Klaue
|
/s/ Roberto Herencia
|
|
David A. Klaue
|
Roberto Herencia
|
|
Director
|
Director
|
|
May 4, 2018
|
May 4, 2018
|
|
/s/ Kevin F. Riordan
|
/s/ Terry Schwakopf
|
|
Kevin F. Riordan
|
Terry Schwakopf
|
|
Director
|
Director
|
|
May 4, 2018
|
May 4, 2018
|
Exhibit
Number
|
Description of Document
|
|
|
Page
|
|
|
ARTICLE I ESTABLISHMENT, PURPOSE AND DURATION
|
1
|
|
|
Section 1.1
Establishment of the Plan
|
1
|
Section 1.2
Purpose of the Plan
|
1
|
Section 1.3
Duration of the Plan
|
1
|
|
|
ARTICLE II DEFINITIONS
|
1
|
ARTICLE III AVAILABLE SHARES- ELIGIBILITY - PARTICIPATION | 4 |
|
|
Section 3.1
Shares Available Under the Plan
|
4
|
Section 3.2
Maximum awards
|
5
|
Section 3.3 Computation of Shares Issued |
5
|
Section 3.4
Eligibility
|
5
|
Section 3.5 Actual Participation |
5
|
|
|
ARTICLE IV ADMINISTRATION | 5 |
Section 4.1 Committee | 5 |
Section 4.2 Committee Powers | 5 |
ARTICLE V STOCK OPTIONS | 6 |
Section 5.1 Grant of Options | 6 |
Section 5.2 Size of Option | 6 |
Section 5.3 Exercise Price | 6 |
Section 5.4
Exercise Period
|
6
|
Section 5.5 Vesting Date | 7 |
Section 5.6 Additional Restrictions on Incentive Stock Options |
7
|
Section 5.7
Method of Exercise
|
8
|
Section 5.8 Limitations on Options |
9
|
Section 5.9 Prohibition Against Option Repricing | 9 |
ARTICLE VI STOCK APPRECIATION RIGHTS | 10 |
Section 6.1 Grant of Stock Appreciation Rights | 10 |
Section 6.2 Size of Stock Appreciation Right | 10 |
Section 6.3 Exercise Price | 10 |
Section 6.4 Exercise Period | 10 |
Section 6.5 Vesting Date | 11 |
Section 6.6 Method of Exercise | 11 |
Section 6.7 Limitations on Stock Appreciation Rights | 12 |
Section 6.8 Prohibition Against Stock Appreciation Right Repricing | 12 |
ARTICLE VII RESTRICTED STOCK AWARDS | 13 |
Section 7.1 In General | 13 |
Section 7.2 Vesting Date | 13 |
Section 7.3 Dividend Rights | 13 |
Section 7.4 Voting Rights | 15 |
Section 7.5 Designation of Beneficiary | 15 |
Section 7.6 Manner of Distribution of Awards | 15 |
ARTICLE VIII PERFORMANCE SHARES AND PERFORMANCE UNITS | 15 |
Section 8.1 Grant of Performance Shares and Performance Units | 15 |
Section 8.2 amount of award | 15 |
Section 8.3 award agreement | 15 |
Section 8.4 performance goals | 16 |
Section 8.5 discretionary adjustments | 16 |
Section 8.6 payment of awards | 16 |
Section 8.7 termination of Employment or Service Due to Death, Disability or Retirement | 16 |
Section 8.8 termination of Employment or Service for other reasons | 16 |
Section 8.9 nontransferability | 17 |
ARTICLE IX OTHER STOCK-BASED AWARDS AND CASH AWARDS | 17 |
Section 9.1 Other Stock Based Awards | 17 |
Section 9.2 cash awards | 17 |
Section 9.3 Section 409A Compliance | 17 |
ARTICLE X ADDITIONAL TAX PROVISION | 18 |
Section 10.1 Tax Withholding Rights | 18 |
ARTICLE XI AMENDMENT AND TERMINATION
|
18
|
Section 11.1 Termination | 18 |
Section 11.2 Amendment | 18 |
Section 11.3 Adjustments in the Event of Business Reorganization | 18 |
ARTICLE XII MISCELLANEOUS | 19 |
Section 12.1 Status as an Employee Benefit Plan | 19 |
Section 12.2 No Right to Continued Service | 19 |
Section 12.3 Construction of Language | 19 |
Section 12.4 Severability | 19 |
Section 12.5 Governing Law | 19 |
Section 12.6 Headings | 19 |
Section 12.7 Non-Alienation of Benefits | 19 |
Section 12.8 Notices | 20 |
Section 12.9 Approval of Shareholders | 20 |
Section 12.10 Clawback | 20 |
Section 12.11 Compliance with Section 409A | 20 |
|
ISO No. _______________ |
|
Grant Date: _______________ |
1.
|
ISO Award
. The Corporation grants to Option Holder ISOs to purchase
[
Number
]
Shares at an Exercise Price of
$
[
Number
]
per Share. These ISOs are subject to forfeiture until they vest and to limits on transferability, as provided in Sections 5 and 6 of this Agreement and in Article V of the Plan.
|
2.
|
Vesting Dates
. The ISOs shall vest as follows, subject to earlier vesting in the event of a termination of Service as provided in Section 6 or a Change in Control as provided in Section 7:
|
ISOs for | |
Vesting Date
|
Number of Shares Vesting |
3.
|
Exercise
. The Option Holder (or in the case of the death of the Option Holder, the designated legal representative or heir of the Option Holder) may exercise the ISOs during the Exercise Period by giving written notice to the
[____________________]
[include appropriate officer]
in the form required by the Committee ("Exercise Notice"). The Exercise Notice must specify the number of Shares to be purchased, which shall be at least 100 unless fewer shares remain unexercised. The exercise date is the date the Exercise Notice is received by the Corporation. The Exercise Period commences on the Vesting Date and expires at 5:00 p.m., pacific time, on the date 10 years
[five years for over 10% owners of Corporation on the Grant Date]
after the Grant Date, such later time and date being hereinafter referred to as the "Expiration Date," subject to earlier expiration in the event of a termination of Service as provided in Section 6. Any ISOs not exercised as of the close of business on the last day of the Exercise Period shall be cancelled without consideration at that time.
|
4.
|
Related Awards
. These ISOs
[are not
related to any other Award under the Plan.]
or
[are related to Stock Appreciation Rights granted on the Grant Date. To the extent any of the SARs are exercised, the ISOs shall terminate with respect to the same number of Shares.]
|
5.
|
Transferability
. The Option Holder may not sell, assign, transfer, pledge or otherwise encumber any ISOs, except in the event of the Option Holder's death, by will or by the laws of descent and distribution or pursuant to a Domestic Relations Order.
|
6.
|
Termination
of Service
. If the Option Holder terminates Service for any reason other than in connection with a Change in Control or the death or Disability of the Option Holder, any ISOs that have not vested as of the date of that termination shall be forfeited to the Corporation, and the Exercise Period of any vested ISOs shall expire three months after that termination of Service (but in no event after the Expiration Date), except where that termination of Service is due to Retirement, in which case the Exercise Period of any vested ISOs shall expire one year after that termination of Service (but in no event after the Expiration Date), or in the case of a Termination for Cause, in which case all ISOs held by the Option Holder shall expire immediately. If the Option Holder's Service terminates on account of the Option Holder's death or Disability, the Vesting Date for all ISOs that have not vested or been forfeited shall be accelerated to the date of that termination of Service, and the Exercise Period of all ISOs shall expire one year after that termination of Service (but in no event after the Expiration Date).
Note to Option Holder: If the exercise of an Option granted hereunder does not occur within three months of the Option Holder's termination of Service, then the Option will not receive ISO tax treatment.
[Post-termination exercise period may be modified at Committee's election except with respect to a Termination for Cause.]
|
7.
|
Effect of Change in Control
. If a Change in Control occurs prior to the Vesting Date of an ISO that is outstanding on the date of the Change in Control, and the Option Holding experiences an Involuntary Separation from Service during the 365-day period following the date of such Change in Control, then the Vesting Date for any non-vested ISO shall be accelerated to the date of the Option Holder's Involuntary Separation from Service. Notwithstanding the preceding sentence, if at the effective time of the Change in Control the successor to the Corporation's business and/or assets does not either assume the outstanding ISO or replace the outstanding ISO with an award that is determined by the
|
|
Committee to be at least equivalent in value to such outstanding ISO on the date of the Change in Control, then the Vesting Date of such outstanding ISO shall be accelerated to the earliest date of the Change in Control.
|
8.
|
Option Holder's Rights
. The ISOs awarded hereby do not entitle the Option Holder to any rights of a shareholder of the Corporation.
|
9.
|
Delivery of Shares to Option Holder
. Promptly after receipt of an Exercise Notice and full payment of the Exercise Price for the Shares being acquired, the Corporation shall issue and deliver to the Option Holder (or other person validly exercising the ISO) a certificate or certificates representing the Shares of Common Stock being purchased, or evidence of the issuance of such Shares in book-entry form, registered in the name of the Option Holder (or such other person), or, upon request, in the name of the Option Holder (or such other person) and in the name of another person in such form of joint ownership as requested by the Option Holder (or such other person) pursuant to applicable state law. The Corporation's obligation to deliver a stock certificate or evidence of the issuance of Shares in book-entry form for Shares purchased upon the exercise of an ISO can be conditioned upon the receipt of a representation of investment intent from the Option Holder (or the Option Holder's Beneficiary) in such form as the Committee requires. The Corporation shall not be required to deliver stock certificates or evidence of the issuance of Shares in book-entry form for Shares purchased prior to: (a) the listing of those Shares on the Nasdaq; or (b) the completion of any registration or qualification of those Shares required under applicable law.
|
10.
|
Notice of Sale of Shares
. The Option Holder (or other person who received Shares from the exercise of the ISOs) shall give written notice to the Corporation promptly in the event of the sale or other disposition of Shares received from the exercise of the ISOs within either: (a) two years from the Grant Date; or (b) one year from the exercise date for the ISOs exercised.
|
11.
|
Adjustments in Shares
. In the event of any recapitalization, forward or reverse stock split, reorganization, merger, consolidation, spin-off, combination, exchange of Shares or other securities, stock dividend, special or recurring dividend or distribution, liquidation, dissolution or other similar corporate transaction or event, the Committee, in its sole discretion, shall adjust the number of Shares or class of securities of the Corporation covered by the ISOs or the Exercise Price of the ISOs. The Option Holder agrees to execute any documents required by the Committee in connection with an adjustment under this Section 11.
|
12.
|
Tax Withholding
. The Corporation shall have the right to require the Option Holder to pay to the Corporation the amount of any tax that the Corporation is required to withhold with respect to such Shares, or in lieu thereof, to retain or sell without notice, a sufficient number of Shares to cover the minimum amount required to be withheld. The Corporation shall have the right to deduct from all dividends paid with respect to the Shares the amount of any taxes that the Corporation is required to withhold with respect to such dividend payments.
|
13.
|
Plan and Committee Decisions are Controlling
. This Agreement, the award of ISOs to the Option Holder and the issuance of Shares upon the exercise of the ISOs are subject in all respects to the provisions of the Plan, which are controlling. Capitalized terms herein not defined in this Agreement shall have the meaning ascribed to them in the Plan. All decisions, determinations and interpretations by the Committee respecting the Plan, this Agreement, the award of ISOs or the issuance of Shares upon the exercise of the ISOs shall be binding and conclusive upon the Option Holder, any Beneficiary of the Option Holder or the legal representative thereof.
The Grantee acknowledges and agrees that this Award and receipt of any Shares hereunder by any person is subject to (a) Plan Section 12.10, including possible reduction, cancellation, forfeiture or recoupment (clawback), and (b) any policies which the Corporation may adopt in furtherance of any regulatory requirements (including, but not limited to, the Dodd-Frank Wall Street Reform and Consumer Protection Act) or otherwise.
|
14.
|
Option Holder's Employment
. Nothing in this Agreement shall limit the right of the Corporation or any of its Affiliates to terminate the Option Holder's service or employment as a director, advisory director, director emeritus, officer or employee, or otherwise impose upon the Corporation or any of its Affiliates any obligation to employ or accept the services or employment of the Option Holder.
|
15.
|
Amendment
. The Committee may waive any conditions of or rights of the Corporation or modify or amend the terms of this Agreement; provided, however, that the Committee may not amend, alter, suspend, discontinue or terminate any provision of this Agreement if such action may adversely affect the Option Holder without the Option Holder's written consent. To the extent permitted by applicable laws and regulations, the Committee shall have the authority, in its sole discretion but with the permission of the Option Holder, to accelerate the vesting of the Shares or remove any other restrictions imposed on the Option Holder with respect to the Shares, whenever the Committee may determine that such action is appropriate.
|
16.
|
Loss of ISO Status
. If any of the ISOs fail, for any reason, to qualify for the special tax treatment afforded the ISOs, they shall be treated as Non-Qualified Stock Options under the Plan. The ISOs will lose ISO status: (a) if the Option Holder is not an employee of the Corporation or its Affiliates from the Grant date through the date three months before the exercise date; or (b) if the Shares acquired upon the exercise of the ISO are sold or disposed of within one of the time periods described in Section 10 (except if the ISO is exercised on account of the Option Holder's death or Disability, as described in Section 6).
|
17.
|
Option Holder Acceptance
. The Option Holder shall signify acceptance of the terms and conditions of this Agreement and acknowledge receipt of a copy of the Plan by signing in the space provided below and returning the signed copy to the Corporation.
|
|
NQSO No. _______________
|
|
Grant Date: _______________
|
1.
|
NQSO Award
. The Corporation grants to Option Holder NQSOs to purchase
[
Number
]
Shares at an Exercise Price of
$
[
Number
]
per Share. These NQSOs are subject to forfeiture and to limits on transferability until they vest, as provided in Sections 5 and 6 of this Agreement and in Article V of the Plan.
|
2.
|
Vesting Dates
. The NQSOs shall vest as follows, subject to earlier vesting in the event of a termination of Service as provided in Section 6:
|
NQSOs for | |
Vesting Date |
Number of Shares Vesting
|
3.
|
Exercise
. The Option Holder (or in the case of the death of the Option Holder, the designated legal representative or heir of the Option Holder) may exercise the NQSOs during the Exercise Period by giving written notice to the
[_________________]
[include appropriate officer]
in the form required by the Committee ("Exercise Notice"). The Exercise Notice must specify the number of Shares to be purchased, which shall be at least 100 unless fewer shares remain unexercised. The exercise date is the date the Exercise Notice is received by the Corporation. The Exercise Period commences on the Vesting Date and expires at 5:00 p.m., pacific time, on the date 10 years after the Grant Date, such later time and date being hereinafter referred to as the "Expiration Date," subject to earlier expiration in the event of a termination of Service as provided in Section 6. Any NQSOs not exercised as of the close of business on the last day of the Exercise Period shall be cancelled without consideration at that time.
|
4.
|
Related Awards
: These NQSOs
[are not
related to any other Award under the Plan.]
or
[are related to Stock Appreciation Rights granted on the Grant Date. To the extent any of the SARs are exercised, the NQSOs shall terminate with respect to the same number of Shares.]
|
5.
|
Transferability
. The Option Holder may not sell, assign, transfer, pledge or otherwise encumber any NQSOs, except in the event of the Option Holder's death, by will or by the laws of descent and distribution or pursuant to a Domestic Relations Order. The Committee, in its sole and absolute discretion, may allow the Option Holder to transfer one or more NQSOs to the Option Holder's Family Members or a grantor trust, as provided for in the Plan.
|
6.
|
Termination
of Service
. If the Option Holder terminates Service for any reason other than in connection with a Change in Control or the death or Disability of the Option Holder, any NQSOs that have not vested as of the date of that termination shall be forfeited to the Corporation, and the Exercise Period of any vested NQSOs shall expire three months after that termination of Service (but in no event after the Expiration Date), except where that termination of Service is due to Retirement, in which case the Exercise Period of any vested NQSOs shall expire one year after that termination of Service (but in no event after the Expiration Date), or in the case of a Termination for Cause, in which case all NQSOs held by the Option Holder shall expire immediately. If the Option Holder's Service terminates on account of the Option Holder's death or Disability, the Vesting Date for all NQSOs that have not vested or been forfeited shall be accelerated to the date of that termination of Service, and the Exercise Period of all NQSOs shall expire one year after that termination of Service (but in no event after the Expiration Date).
[Post-termination exercise period may be modified at Committee's election except with respect to a Termination for Cause.]
|
7.
|
Effect of Change in Control
. If a Change in Control occurs prior to the Vesting Date of an NQSO that is outstanding on the date of the Change in Control, and the Option Holding experiences an Involuntary Separation from Service during the 365-day period following the date of such Change in Control, then the Vesting Date for any non-vested NQSO shall be accelerated to the date of the Option Holder's Involuntary Separation from Service. Notwithstanding the preceding sentence, if at the effective time of the Change in Control the successor to the Corporation's business and/or assets does not either assume the outstanding NQSO or replace the outstanding NQSO with an award that is determined by the Committee to be at least equivalent in value to such outstanding
|
|
NQSO on the date of the Change in Control, then the Vesting Date of such outstanding NQSO shall be accelerated to the earliest date of the Change in Control.
|
8.
|
Option Holder's Rights
. The NQSOs awarded hereby do not entitle the Option Holder to any rights of a shareholder of the Corporation.
|
9.
|
Delivery of Shares to Option Holder
. Promptly after receipt of an Exercise Notice and full payment of the Exercise Price for the Shares being acquired, the Corporation shall issue and deliver to the Option Holder (or other person validly exercising the NQSO) a certificate or certificates representing the Shares of Common Stock being purchased, or evidence of the issuance of such Shares in book-entry form, registered in the name of the Option Holder (or such other person), or, upon request, in the name of the Option Holder (or such other person) and in the name of another person in such form of joint ownership as requested by the Option Holder (or such other person) pursuant to applicable state law. The Corporation's obligation to deliver a stock certificate or evidence of the issuance of Shares in book-entry form for Shares purchased upon the exercise of an NQSO can be conditioned upon the receipt of a representation of investment intent from the Option Holder (or the Option Holder's Beneficiary) in such form as the Committee requires. The Corporation shall not be required to deliver stock certificates or evidence of the issuance of Shares in book-entry form for Shares purchased prior to: (a) the listing of those Shares on the Nasdaq; or (b) the completion of any registration or qualification of those Shares required under applicable law.
|
10.
|
Adjustments in Shares
. In the event of any recapitalization, forward or reverse stock split, reorganization, merger, consolidation, spin-off, combination, exchange of Shares or other securities, stock dividend, special or recurring dividend or distribution, liquidation, dissolution or other similar corporate transaction or event, the Committee, in its sole discretion, shall adjust the number of Shares or class of securities of the Corporation covered by the NQSOs or the Exercise Price of the NQSOs. The Option Holder agrees to execute any documents required by the Committee in connection with an adjustment under this Section 10.
|
11.
|
Tax Withholding
. The Corporation shall have the right to require the Option Holder to pay to the Corporation the amount of any tax that the Corporation is required to withhold with respect to such Shares, or in lieu thereof, to retain or sell without notice, a sufficient number of Shares to cover the minimum amount required to be withheld. The Corporation shall have the right to deduct from all dividends paid with respect to the Shares the amount of any taxes that the Corporation is required to withhold with respect to such dividend payments.
|
12.
|
Plan and Committee Decisions are Controlling
. This Agreement, the award of NQSOs to the Option Holder and the issuance of Shares upon the exercise of the NQSOs are subject in all respects to the provisions of the Plan, which are controlling. Capitalized terms herein not defined in this Agreement shall have the meaning ascribed to them in the Plan. All decisions, determinations and interpretations by the Committee respecting the Plan, this Agreement, the award of NQSOs or the issuance of Shares upon the exercise of the NQSOs shall be binding and conclusive upon the Option Holder, any Beneficiary of
|
|
the Option Holder or the legal representative thereof.
The Grantee acknowledges and agrees that this Award and receipt of any Shares hereunder by any person is subject to (a) Plan Section 12.10, including possible reduction, cancellation, forfeiture or recoupment (clawback), and (b) any policies which the Corporation may adopt in furtherance of any regulatory requirements (including, but not limited to, the Dodd-Frank Wall Street Reform and Consumer Protection Act) or otherwise.
|
13.
|
Option Holder's Employment
. Nothing in this Agreement shall limit the right of the Corporation or any of its Affiliates to terminate the Option Holder's service or employment as a director, advisory director, director emeritus, officer or employee, or otherwise impose upon the Corporation or any of its Affiliates any obligation to employ or accept the services or employment of the Option Holder.
|
14.
|
Amendment
. The Committee may waive any conditions of or rights of the Corporation or modify or amend the terms of this Agreement; provided, however, that the Committee may not amend, alter, suspend, discontinue or terminate any provision of this Agreement if such action may adversely affect the Option Holder without the Option Holder's written consent. To the extent permitted by applicable laws and regulations, the Committee shall have the authority, in its sole discretion but with the permission of the Option Holder, to accelerate the vesting of the Shares or remove any other restrictions imposed on the Option Holder with respect to the Shares, whenever the Committee may determine that such action is appropriate.
|
15.
|
Option Holder Acceptance
. The Option Holder shall signify acceptance of the terms and conditions of this Agreement and acknowledge receipt of a copy of the Plan by signing in the space provided below and returning the signed copy to the Corporation.
|
|
RS No. _______________ |
|
Grant Date: _______________ |
1.
|
Restricted Stock Award
. The Corporation makes this Restricted Stock Award of
[
Number
]
Shares to Grantee. These Shares are subject to forfeiture and to limits on transferability until they vest, as provided in Sections 2, 3, 4 and 5 of this Agreement and in Article VII of the Plan.
|
2.
|
Period of Restriction
: The Shares are subject to a Period of Restriction, during which the Grantee shall not receive the Shares, be able to transfer the Shares, or otherwise have rights with respect to the Shares, subject to earlier vesting in the event of a termination of Service as provided in Section 4 or a Change in Control as provided in Section 5. After the Period of Restriction ends with respect to a Share, such Share shall be considered vested, except as provided in this Agreement or the Plan. The Period of Restriction end with respect to the Shares in accordance with the following schedule:
|
Date Period of Restriction Ends |
With Respect to the Following
Number of Shares
|
|
3.
|
Transferability
. The Grantee may not sell, assign, transfer, pledge or otherwise encumber any Shares that have not vested, except in the event of the Grantee's death, by will or by the laws of descent and distribution or pursuant to a Domestic Relations Order. The Committee, in its sole and absolute discretion, may allow the Grantee to transfer all or any portion of this Restricted Stock Award to the Grantee's Family Members, as provided for in the Plan.
|
4.
|
Termination
of Service
. If the Grantee terminates Service for any reason other than in connection with a Change in Control or the death or Disability of the Grantee, any Shares that have not vested as of the date of that termination shall be forfeited to the Corporation. The Shares never vest in the event of a Termination for Cause. If the Grantee's Service terminates on account of the Grantee's death or Disability, the Period
|
|
of Restriction for all Shares that have not previously vested shall end on the date of that termination of Service and the Grantee shall then be vested in the Shares.
|
5.
|
Effect of Change in Control
. If a Change in Control occurs prior to the Vesting Date of a Restricted Stock Award that is outstanding on the date of the Change in Control, and the Grantee experiences an Involuntary Separation from Service during the 365-day period following the date of such Change in Control, then the Vesting Date for any non-vested Restricted Stock Award shall be accelerated to the date of the Grantee's Involuntary Separation from Service. Notwithstanding the preceding sentence, if at the effective time of the Change in Control the successor to the Corporation's business and/or assets does not either assume the outstanding Restricted Stock Award or replace the outstanding Restricted Stock Award with an award that is determined by the Committee to be at least equivalent in value to such outstanding Restricted Stock Award on the date of the Change in Control, then the Vesting Date of such outstanding Restricted Stock Award shall be accelerated to the earliest date of the Change in Control.
|
6.
|
Stock Power
. The Grantee agrees to execute a stock power with respect to each stock certificate reflecting the Shares, or other evidence of book-entry stock ownership, in favor of the Corporation. The Shares shall not be issued by the Corporation until the required stock powers are delivered to the Corporation.
|
7.
|
Delivery of Restricted Shares
. The Corporation shall issue stock certificates or evidence of the issuance of such Shares in book-entry form, in the name of the Grantee reflecting the Shares vesting on each Vesting Date in Section 2. The Corporation shall retain these certificates or evidence of the issuance of Shares in book-entry form until the Shares represented thereby become vested. Prior to vesting, the Shares shall be subject to the following restriction, communicated in writing to the Corporation's stock transfer agent:
|
8.
|
Grantee's Rights
. Grantee shall be entitled to dividend payments by the Corporation with respect to Shares but only as and when the Shares become vested pursuant to Sections 2-5 hereof. Dividends on unvested Shares will be held by the Corporation and transferred to the Grantee, without interest, no later than 10 days following the date that the Shares vest. Dividends on Shares that are forfeited shall not be paid to the Grantee and shall be retained by the Corporation. Dividends on vested Shares shall be paid at the same time that they are paid to other holders of the Corporation's common stock. The Grantee may exercise all voting rights appurtenant to the Shares whether vested or unvested.
|
9.
|
Delivery of Unrestricted Shares to Grantee
. Upon the vesting of any Shares, the restrictions in Sections 3 and 4 shall terminate, and the Corporation shall deliver only to the Grantee (or, if applicable, the Grantee's Beneficiary, estate or Family Member) a certificate (without the legend referenced in Section 7) or evidence of the issuance of Shares in book-entry form, and the related stock power in respect of the vesting Shares. The Corporation's obligation to deliver a stock certificate for vested Shares, or evidence of the issuance of Shares in book-entry form, can be conditioned upon the receipt of a representation of investment intent from the Grantee (or the Grantee's Beneficiary, estate or Family Member) in such form as the Committee requires. The Corporation shall not be required to deliver stock certificates for vested Shares, or evidence of the issuance of Shares in book-entry form, prior to: (a) the listing of those Shares on the Nasdaq; or (b) the completion of any registration or qualification of those Shares required under applicable law.
|
10.
|
Adjustments in Shares
. In the event of any recapitalization, forward or reverse stock split, reorganization, merger, consolidation, spin-off, combination, exchange of Shares or other securities, stock dividend, special or recurring dividend or distribution, liquidation, dissolution or other similar corporate transaction or event, the Committee, in its sole discretion, shall adjust the number of Shares or class of securities of the Corporation covered by this Agreement. Any additional Shares or other securities received by the Grantee as a result of any such adjustment shall be subject to all restrictions and requirements applicable to Shares that have not vested. The Grantee agrees to execute any documents required by the Committee in connection with an adjustment under this Section 10.
|
11.
|
Tax Election
.
The Grantee understands that an election may be made under Section 83(b) of the Code to accelerate the Grantee's tax obligation with respect to receipt of the Shares from the date the Shares would otherwise vest under this Agreement to the Grant Date by timely submitting an election to the Internal Revenue Service in accordance with the Internal Revenue Service rules in effect at the time the election is made.
|
12.
|
Tax Withholding
. If the Grantee makes a Code Section 83(b) election, the Grantee shall pay to the Corporation the amount of any tax that the Corporation is required to withhold with respect to the Shares. Otherwise, the Corporation shall retain or sell without notice, a sufficient number of Shares to cover the minimum amount required to be withheld with respect to Shares upon vesting. The Corporation shall have the right to deduct from all dividends paid with respect to the Shares the amount of any taxes that the Corporation is required to withhold with respect to such dividend payments.
|
13.
|
Plan and Committee Decisions are Controlling
. This Agreement and the award of Shares to the Grantee are subject in all respects to the provisions of the Plan, which are controlling. Capitalized terms herein not defined in this Agreement shall have the meaning ascribed to them in the Plan. All decisions, determinations and interpretations by the Committee respecting the Plan, this Agreement or the award of Shares shall be binding and conclusive upon the Grantee, any Beneficiary of the Grantee or the legal representative thereof.
The Grantee acknowledges and agrees that this Award and
|
|
receipt of any Shares hereunder by any person is subject to (a) Plan Section 12.10, including possible reduction, cancellation, forfeiture or recoupment (clawback), and (b) any policies which the Corporation may adopt in furtherance of any regulatory requirements (including, but not limited to, the Dodd-Frank Wall Street Reform and Consumer Protection Act) or otherwise.
|
14.
|
Grantee's Employment
. Nothing in this Agreement shall limit the right of the Corporation or any of its Affiliates to terminate the Grantee's service or employment as a director, advisory director, director emeritus, officer or employee, or otherwise impose upon the Corporation or any of its Affiliates any obligation to employ or accept the services or employment of the Grantee.
|
15.
|
Amendment
. The Committee may waive any conditions of or rights of the Corporation or modify or amend the terms of this Agreement; provided, however, that the Committee may not amend, alter, suspend, discontinue or terminate any provision of this Agreement if such action may adversely affect the Grantee without the Grantee's written consent. To the extent permitted by applicable laws and regulations, the Committee shall have the authority, in its sole discretion but with the permission of the Grantee, to accelerate the vesting of the Shares or remove any other restrictions imposed on the Grantee with respect to the Shares, whenever the Committee may determine that such action is appropriate.
|
16.
|
Grantee Acceptance
. The Grantee shall signify acceptance of the terms and conditions of this Agreement and acknowledge receipt of a copy of the Plan by signing in the space provided below and returning the signed copy to the Corporation.
|
|
RSU No. _______________
|
|
Grant Date: _______________ |
1.
|
RSU Award
. The Corporation makes this Award of
[
Number
]
RSUs to Grantee. These RSUs are subject to forfeiture and to limits on transferability until they vest, as provided in Sections 2, 3, 4 and 5 of this Agreement and in Article VII of the Plan.
|
2.
|
Period of Restriction
: The RSUs are subject to a Period of Restriction, during which the Grantee shall not vest in the RSUs, subject to earlier vesting in the event of a termination of Service as provided in Section 4 or a Change in Control as provided in Section 5. After the Period of Restriction ends with respect to an RSU, such RSU shall be considered vested, except as provided in this Agreement or the Plan. The Period of Restriction ends with respect to the RSUs in accordance with the following schedule:
|
Date Period of Restriction Ends
|
With Respect to the Following
Number of RSUs
|
|
|
|
3.
|
Transferability
. The Grantee may not sell, assign, transfer, pledge or otherwise encumber any RSUs that have not vested, except in the event of the Grantee's death, by will or by the laws of descent and distribution or pursuant to a Domestic Relations Order. The Committee, in its sole and absolute discretion, may allow the Grantee to transfer all or any portion of this Award of RSUs to the Grantee's Family Members, as provided for in the Plan.
|
4.
|
Termination
of Service
. If the Grantee terminates Service for any reason other than due to the death or Disability of the Grantee, any RSUs that have not vested as of the date of that termination shall be forfeited to the Corporation. The RSUs never vest in the event of a Termination for Cause. If the Grantee's Service terminates on account of the Grantee's death or Disability, the Period of Restriction for all RSUs that have not vested or been forfeited shall end on the date of that termination of Service and the Grantee shall then be vested in the RSUs.
|
5.
|
Effect of Change in Control
. If a Change in Control occurs prior to the Vesting Date of an RSU that is outstanding on the date of the Change in Control, and the Grantee experiences an Involuntary Separation from Service during the 365-day period following the date of such Change in Control, then the Vesting Date for any non-vested RSU shall be accelerated to the date of the Grantee's Involuntary Separation from Service. Notwithstanding the preceding sentence, if at the effective time of the Change in Control the successor to the Corporation's business and/or assets does not either assume the outstanding RSU or replace the outstanding RSU with an award that is determined by the Committee to be at least equivalent in value to such outstanding RSU on the date of the Change in Control, then the Vesting Date of such outstanding RSU shall be accelerated to the earliest date of the Change in Control.
|
6.
|
Grantee's Rights
. The Grantee shall be entitled to dividend equivalent payments by the Company with respect to RSUs but only as and when the RSUs to which the dividend equivalents relate are paid out pursuant to Section 7 hereof. Dividend equivalents on RSUs shall be subject to the same vesting restrictions as the RSUs to which they are attributable. Dividend equivalents will be held by the Corporation and transferred to the Grantee, without interest, on the same date that vested shares are paid out. Dividend equivalents on RSUs that are forfeited shall be retained by the Corporation. The Grantee shall have no voting rights as a result of the grant of RSUs. The Company's obligation to issue Shares is an unfunded and unsecured promise of the Corporation, and the rights of the Grantee hereunder are no greater than those of an unsecured general creditor. No assets of the Corporation will be held or set aside as security for the obligations of the Corporation under this Agreement.
|
7.
|
Payout of Shares to Grantee
. The Corporation shall deliver only to the Grantee (or, if applicable, the Grantee's Beneficiary, estate or Family Member) a certificate or evidence of the issuance of Shares in book-entry form, equal to the aggregate number of vested RSUs credited to the Grantee. Such vested Shares shall be issued at the following time (initial the applicable Option and in the case of Option 3, complete as necessary):
|
_________ |
no later than 30 days following the date that the RSUs related to such Shares first vest (and for the avoidance of doubt, such RSUs and Shares shall not subject to Section 409A as an exempt "short-term deferral").
|
_________ |
no later than 30 days following the date that the Grantee experiences a "Separation From Service", provided that: (a) if this 30-day period spans more than one year, then the Corporation and not the Grantee shall specify the year of issuance, and (b) if the Grantee is a "Specified Employee" on the date of his Separation from Service, then no issuance shall be made until the six-month anniversary of the date of the Grantee's Separation from Service,
|
except upon the Grantee's earlier death. (Subject to Section 409A).
|
_________ |
on the 30
th
day following the following date(s):
_________________ _____________ ___________
|
8.
|
Adjustments in RSUs
. In the event of any recapitalization, forward or reverse stock split, reorganization, merger, consolidation, spin-off, combination, exchange of Shares or other securities, stock dividend, special or recurring dividend or distribution, liquidation, dissolution or other similar corporate transaction or event, the Committee, in its sole discretion, shall adjust the number of RSUs or class of securities of the Corporation covered by this Agreement. Any additional RSUs or other securities received by the Grantee as a result of any such adjustment shall be subject to all restrictions and requirements applicable to RSUs that have not vested. The Grantee agrees to execute any documents required by the Committee in connection with an adjustment under this Section 8.
|
9.
|
Tax Withholding
. The Corporation shall retain or sell without notice, a sufficient number of those Shares to cover the minimum amount required to be withheld upon the vesting or payout of RSUs or Shares
.
The Corporation shall have the right to deduct from all dividend equivalents paid with respect to the RSUs the amount of any taxes that the Corporation is required to withhold with respect to such dividend equivalents.
|
10.
|
Plan and Committee Decisions are Controlling
. This Agreement, the award of RSUs and issuance of Shares upon the payout of the RSUs to the Grantee are subject in all respects to the provisions of the Plan, which are controlling. Capitalized terms herein not defined in this Agreement shall have the meaning ascribed to them in the Plan. All decisions, determinations and interpretations by the Committee respecting the Plan, this Agreement, the award of RSUs or the issuance of Shares upon the payout of the RSUs shall be binding and conclusive upon the Grantee, any Beneficiary of the Grantee or the legal representative thereof.
The Grantee acknowledges and agrees that this Award and
|
|
receipt of any Shares hereunder by any person is subject to (a) Plan Section 12.10, including possible reduction, cancellation, forfeiture or recoupment (clawback), and (b) any policies which the Corporation may adopt in furtherance of any regulatory requirements (including, but not limited to, the Dodd-Frank Wall Street Reform and Consumer Protection Act) or otherwise.
|
11.
|
Grantee's Employment
. Nothing in this Agreement shall limit the right of the Corporation or any of its Affiliates to terminate the Grantee's service or employment as a director, advisory director, director emeritus, officer or employee, or otherwise impose upon the Corporation or any of its Affiliates any obligation to employ or accept the services or employment of the Grantee.
|
12.
|
Amendment
. The Committee may waive any conditions of or rights of the Corporation or modify or amend the terms of this Agreement; provided, however, that the Committee may not amend, alter, suspend, discontinue or terminate any provision of this Agreement if such action may adversely affect the Grantee without the Grantee's written consent. To the extent permitted by applicable laws and regulations, the Committee shall have the authority, in its sole discretion but with the permission of the Grantee, to accelerate the vesting of the RSUs or remove any other restrictions imposed on the Grantee with respect to the RSUs, whenever the Committee may determine that such action is appropriate. Notwithstanding the preceding sentence, if this Award is subject to (and not exempt from) Section 409A, then such accelerated vesting shall not accelerate when Shares would be issued hereunder, except as may be permitted by Section 409A and the terms of the Plan and this Agreement.
|
13.
|
Grantee Acceptance
. The Grantee shall signify acceptance of the terms and conditions of this Agreement and acknowledge receipt of a copy of the Plan by signing in the space provided below and returning the signed copy to the Corporation.
|
14.
|
Section 409A
. The RSUs are intended to comply with Section 409A of the Code. Notwithstanding anything herein to the contrary, this Award shall be interpreted, operated and administered in a manner consistent with this intention.
|
|
RSU No. _______________
|
|
Grant Date: _______________ |
1.
|
RSU Award
. The Corporation makes this Award of
[
Number
]
RSUs to Grantee. These RSUs are subject to forfeiture and to limits on transferability until they vest, as provided in Sections 2, 3, 4 and 5 of this Agreement and in Article VII of the Plan.
|
2.
|
Period of Restriction
: The RSUs are subject to a Period of Restriction, during which the Grantee shall not vest in the RSUs, subject to earlier vesting in the event of a termination of Service as provided in Section 4 or a Change in Control as provided in Section 5. After the Period of Restriction ends with respect to an RSU, such RSU shall be considered vested, except as provided in this Agreement or the Plan. The Period of Restriction ends with respect to the RSUs in accordance with the following schedule:
|
Date Period of Restriction Ends
|
With Respect to the Following
Number of RSUs
|
|
|
3.
|
Transferability
. The Grantee may not sell, assign, transfer, pledge or otherwise encumber any RSUs that have not vested, except in the event of the Grantee's death, by will or by the laws of descent and distribution or pursuant to a Domestic Relations Order.
|
4.
|
Termination
of Service
. If the Grantee terminates Service for any reason other than due to the death or Disability of the Grantee, any RSUs that have not vested as of the date of that termination shall be forfeited to the Corporation. The RSUs never vest in the event of a Termination for Cause. If the Grantee's Service terminates on account of the Grantee's death or Disability, the Period of Restriction for all RSUs that have not vested or been forfeited shall end on the date of that termination of Service and the Grantee shall then be vested in the RSUs.
|
5.
|
Effect of Change in Control
. If a Change in Control occurs prior to the Vesting Date of an RSU that is outstanding on the date of the Change in Control, and the Grantee experiences an Involuntary Separation from Service during the 365-day period following the date of such Change in Control, then the Vesting Date for any non-vested RSU shall
|
|
be accelerated to the date of the Grantee's Involuntary Separation from Service. Notwithstanding the preceding sentence, if at the effective time of the Change in Control the successor to the Corporation's business and/or assets does not either assume the outstanding RSU or replace the outstanding RSU with an award that is determined by the Committee to be at least equivalent in value to such outstanding RSU on the date of the Change in Control, then the Vesting Date of such outstanding RSU shall be accelerated to the earliest date of the Change in Control.
|
6.
|
Grantee's Rights
. The Grantee shall be entitled to dividend equivalent payments by the Corporation with respect to RSUs; provided that the dividend equivalents shall be subject to the same vesting restrictions as the RSUs to which the dividend equivalents relate. Dividend equivalents on unvested RSUs will be held by the Corporation and transferred to the Grantee, without interest, no later than 10 days following the date that the RSUs vest. Dividend equivalents on RSUs that are forfeited shall not be paid to the Grantee, and shall be retained by the Corporation. The Grantee shall have no voting rights as a result of the grant of RSUs. The Corporation's obligation to issue Shares is an unfunded and unsecured promise of the Corporation, and the rights of the Grantee hereunder are no greater than those of an unsecured general creditor. No assets of the Corporation will be held or set aside as security for the obligations of the Corporation under this Agreement.
|
7.
|
Payout of Shares to Grantee
. The Corporation shall deliver only to the Grantee (or, if applicable, the Grantee's Beneficiary, estate or Family Member) a certificate or evidence of the issuance of Shares in book-entry form, equal to the aggregate number of vested RSUs credited to the Grantee. Such vested Shares shall be issued no later than 30 days following the date that the RSUs related to such Shares first vest.
|
8.
|
Adjustments in RSUs
. In the event of any recapitalization, forward or reverse stock split, reorganization, merger, consolidation, spin-off, combination, exchange of Shares or other securities, stock dividend, special or recurring dividend or distribution, liquidation, dissolution or other similar corporate transaction or event, the Committee, in its sole discretion, shall adjust the number of RSUs or class of securities of the Corporation covered by this Agreement. Any additional RSUs or other securities received by the Grantee as a result of any such adjustment shall be subject to all restrictions and requirements applicable to RSUs that have not vested. The Grantee agrees to execute any documents required by the Committee in connection with an adjustment under this Section 8.
|
9.
|
Tax Withholding
. The Corporation shall retain or sell without notice, a sufficient number of those Shares to cover the minimum amount required to be withheld upon the vesting or payout of RSUs or Shares
.
The Corporation shall have the right to deduct from all dividend equivalents paid with respect to the RSUs the amount of any taxes that the Corporation is required to withhold with respect to such dividend equivalents.
|
10.
|
Plan and Committee Decisions are Controlling
. This Agreement, the award of RSUs and issuance of Shares upon the payout of the RSUs to the Grantee are subject in all respects to the provisions of the Plan, which are controlling. Capitalized terms herein not defined in this Agreement shall have the meaning ascribed to them in the Plan. All decisions, determinations and interpretations by the Committee respecting the Plan, this Agreement, the award of RSUs or the issuance of Shares upon the payout of the RSUs shall be binding and conclusive upon the Grantee, any Beneficiary of the Grantee or the legal representative thereof.
The Grantee acknowledges and agrees that this Award and receipt of any Shares hereunder by any person is subject to (a) Plan Section 12.10, including possible reduction, cancellation, forfeiture or recoupment (clawback), and (b) any policies which the Corporation may adopt in furtherance of any regulatory requirements (including, but not limited to, the Dodd-Frank Wall Street Reform and Consumer Protection Act) or otherwise.
|
11.
|
Grantee's Employment
. Nothing in this Agreement shall limit the right of the Corporation or any of its Affiliates to terminate the Grantee's service or employment as a director, advisory director, director emeritus, officer or employee, or otherwise impose upon the Corporation or any of its Affiliates any obligation to employ or accept the services or employment of the Grantee.
|
12.
|
Amendment
. The Committee may waive any conditions of or rights of the Corporation or modify or amend the terms of this Agreement; provided, however, that the Committee may not amend, alter, suspend, discontinue or terminate any provision of this Agreement if such action may adversely affect the Grantee without the Grantee's written consent. To the extent permitted by applicable laws and regulations, the Committee shall have the authority, in its sole discretion but with the permission of the Grantee, to accelerate the vesting of the RSUs or remove any other restrictions imposed on the Grantee with respect to the RSUs, whenever the Committee may determine that such action is appropriate.
|
13.
|
Grantee Acceptance
. The Grantee shall signify acceptance of the terms and conditions of this Agreement and acknowledge receipt of a copy of the Plan by signing in the space provided below and returning the signed copy to the Corporation.
|
14.
|
Section 409A
. The RSUs are intended to be exempt from Section 409A of the Code. Notwithstanding anything herein to the contrary, this Award shall be interpreted, operated and administered in a manner consistent with this intention.
|
|
RSU No. _______________
|
|
Grant Date: _______________ |
1.
|
RSU Award
. The Corporation makes this Award of
[
Number
]
RSUs to Grantee. These RSUs are subject to forfeiture and to limits on transferability until they vest, as provided in Sections 2, 3 and 4 of this Agreement and in Article VII of the Plan.
|
2.
|
Performance Period
:
[Date]
to
[Date]
.
|
3.
|
Vesting Determination
:
As set forth in the
[Date]
Long-term Incentive Plan. The number of RSUs to vest that correspond to threshold, target and stretch performance outcomes are as follows:
|
Performance Measure
|
Below Threshold
# of Units |
Threshold
# of Units |
Target
# of Units |
Stretch (Maximum)
# of Units |
0
|
||||
0
|
4.
|
Transferability
. The Grantee may not sell, assign, transfer, pledge or otherwise encumber any RSUs that have not vested, except in the event of the Grantee's death, by will or by the laws of descent and distribution or pursuant to a Domestic Relations Order.
|
5.
|
Termination
of Service
. If the Grantee terminates Service for any reason other than the death or Disability of the Grantee, any RSUs that have not vested as of the date of that termination shall be forfeited to the Corporation. The RSUs never vest in the event of a Termination for Cause. If the Grantee's Service terminates on account of death or Disability, the Grantee will vest in a pro rata portion of Performance-Based Restricted Shares earned, if any, based on the actual performance achieved through the end of the Performance Period, as determined under Sections 2 and 3. Pro rata amounts vesting shall
|
|
be based on the number of complete months of service during the performance period divided by 36.
Payment under these circumstances, if any, shall be made at the time payments are made to grantees who did not terminate service prior to the Payout Date, subject to Section 8.6 of the 2018 Omnibus Incentive Plan (i.e., for Section 409A purposes, a fixed time payout).
|
6.
|
Effect of Change in Control
. If a Change in Control occurs prior to the Vesting Date of an RSU that is outstanding on the date of the Change in Control, and the Grantee experiences an Involuntary Separation from Service during the 365-day period following the date of such Change in Control, then the Vesting Date for any non-vested RSU shall be accelerated to the date of the Grantee's Involuntary Separation from Service. Notwithstanding the preceding sentence, if at the effective time of the Change in Control the successor to the Corporation's business and/or assets does not either assume the outstanding RSU or replace the outstanding RSU with an award that is determined by the Committee to be at least equivalent in value to such outstanding RSU on the date of the Change in Control, then the Vesting Date of such outstanding RSU shall be accelerated to the earliest date of the Change in Control.
|
7.
|
Grantee's Rights
. The Grantee shall be entitled to dividend equivalent payments by the Corporation with respect to RSUs; provided that the dividend equivalents shall be subject to the same vesting restrictions as the RSUs to which the dividend equivalents related. Dividend equivalents on unvested RSUs will be held by the Corporation and transferred to the Grantee, without interest, no later than 10 days following the date that the RSUs vest. Dividend equivalents on RSUs that are forfeited shall not be paid to the Grantee and shall be retained by the Corporation. The Grantee shall have no voting rights as a result of the grant of RSUs. The Corporation's obligation to issue Shares is an unfunded and unsecured promise of the Corporation, and the rights of the Grantee hereunder are no greater than those of an unsecured general creditor. No assets of the Corporation will be held or set aside as security for the obligations of the Corporation under this Agreement.
|
8.
|
Payout of Shares to Grantee
. The Corporation shall deliver only to the Grantee (or, if applicable, the Grantee's Beneficiary, estate or Family Member) a certificate or evidence of the issuance of Shares in book-entry form, equal to the aggregate number of vested RSUs credited to the Grantee. Such vested Shares shall be issued no later than 30 days following the date that the RSUs related to such Shares first vest.
|
9.
|
Adjustments in RSUs
. In the event of any recapitalization, forward or reverse stock split, reorganization, merger, consolidation, spin-off, combination, exchange of Shares or
|
|
other securities, stock dividend, special or recurring dividend or distribution, liquidation, dissolution or other similar corporate transaction or event, the Committee, in its sole discretion, shall adjust the number of RSUs or class of securities of the Corporation covered by this Agreement. Any additional RSUs or other securities received by the Grantee as a result of any such adjustment shall be subject to all restrictions and requirements applicable to RSUs that have not vested. The Grantee agrees to execute any documents required by the Committee in connection with an adjustment under this Section 8.
|
10.
|
Tax Withholding
. The Corporation shall retain or sell without notice, a sufficient number of those Shares to cover the minimum amount required to be withheld upon the vesting or payout of RSUs or Shares
.
The Corporation shall have the right to deduct from all dividend equivalents paid with respect to the RSUs the amount of any taxes that the Corporation is required to withhold with respect to such dividend equivalents.
|
11.
|
Plan and Committee Decisions are Controlling
. This Agreement, the award of RSUs and issuance of Shares upon the payout of the RSUs to the Grantee are subject in all respects to the provisions of the Plan, which are controlling. Capitalized terms herein not defined in this Agreement shall have the meaning ascribed to them in the Plan. All decisions, determinations and interpretations by the Committee respecting the Plan, this Agreement, the award of RSUs or the issuance of Shares upon the payout of the RSUs shall be binding and conclusive upon the Grantee, any Beneficiary of the Grantee or the legal representative thereof.
The Grantee acknowledges and agrees that this Award and receipt of any Shares hereunder by any person is subject to (a) Plan Section 12.10, including possible reduction, cancellation, forfeiture or recoupment (clawback), and (b) any policies which the Corporation may adopt in furtherance of any regulatory requirements (including, but not limited to, the Dodd-Frank Wall Street Reform and Consumer Protection Act) or otherwise.
|
12.
|
Grantee's Employment
. Nothing in this Agreement shall limit the right of the Corporation or any of its Affiliates to terminate the Grantee's service or employment as a director, advisory director, director emeritus, officer or employee, or otherwise impose upon the Corporation or any of its Affiliates any obligation to employ or accept the services or employment of the Grantee.
|
13.
|
Amendment
. The Committee may waive any conditions of or rights of the Corporation or modify or amend the terms of this Agreement; provided, however, that the Committee may not amend, alter, suspend, discontinue or terminate any provision of this Agreement if such action may adversely affect the Grantee without the Grantee's written consent. To the extent permitted by applicable laws and regulations, the Committee shall have the authority, in its sole discretion but with the permission of the Grantee, to accelerate the vesting of the RSUs or remove any other restrictions imposed on the Grantee with respect to the RSUs, whenever the Committee may determine that such action is appropriate.
|
14.
|
Grantee Acceptance
. The Grantee shall signify acceptance of the terms and conditions of this Agreement and acknowledge receipt of a copy of the Plan by signing in the space provided below and returning the signed copy to the Corporation.
|
15
.
|
Section 409A
. The RSUs are intended to be exempt from Section 409A of the Code. Notwithstanding anything herein to the contrary, this Award shall be interpreted, operated and administered in a manner consistent with this intention.
|
|
SAR No. _______________
|
|
Grant Date: _______________ |
1.
|
SAR Award
. The Corporation grants to SAR Holder SARs to purchase
[
Number
]
Shares at an Exercise Price of
$
[
Number
]
per Share. Each SAR gives the SAR Holder a right to receive a payment in Shares with an aggregate Fair Market Value on the exercise date equal to the amount by which the Fair Market Value of a Share on the exercise date exceeds the Exercise Price of the SAR. No fractional shares or cash in lieu of fractional shares shall be issued. These SARs are subject to forfeiture until they vest and to limits on transferability, as provided in Sections 5 and 6 of this Agreement and in Article VI of the Plan.
|
2.
|
Vesting Dates
: The SARs shall vest as follows, subject to earlier vesting in the event of a termination of Service as provided in Section 6 or a Change in Control as provided in Section 7:
|
Vesting Date |
SARs for
Number of Shares Vesting
|
|
3.
|
Exercise
: The SAR Holder (or in the case of the death of the SAR Holder, the designated legal representative or heir of the SAR Holder) may exercise the SARs during the Exercise Period by giving written notice to the
[
include appropriate officer
]
in the form required by the Committee ("Exercise Notice"). The Exercise Notice must specify the number of Shares to be purchased, which shall be at least 100 unless fewer shares remain unexercised. The exercise date is the date the Exercise Notice is received by the Corporation. The Exercise Period commences on the Vesting Date and expires at 5:00 p.m., pacific time, on the date 10 years after the Grant Date (the "Expiration Date"), subject to earlier expiration in the event of a termination of Service as provided in Section 6. Any SARs not exercised as of the close of business on the last day of the Exercise Period shall be canceled without consideration at that time.
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4.
|
Related Awards
: These SARs
[are not
related to any other Award under the Plan.]
or
[are related to stock options granted on the Grant Date and designated ISO or NQSO Nos. ___. To the extent any of the related stock options are exercised, the SARs shall terminate with respect to the same number of Shares.]
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5.
|
Transferability
. The SAR Holder may not sell, assign, transfer, pledge or otherwise encumber any SARs, except in the event of the SAR Holder's death, by will or by the laws of descent and distribution or pursuant to a Domestic Relations Order. The Committee, in its sole and absolute discretion, may allow the SAR Holder to transfer one or more SARs to the SAR Holder's Family Members, as provided in the Plan.
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6.
|
Termination
of Service
. If the SAR Holder terminates Service for any reason other than in connection with a Change in Control or the death or Disability of the SAR Holder, any SARs that have not vested as of the date of that termination shall be forfeited to the Corporation, and the Exercise Period of any vested SARs shall expire three months after that termination of Service (but in no event after the Expiration Date), except where that termination of Service is due to Retirement, in which case the Exercise Period of any vested SARs shall expire one year after that termination of Service (but in no event after the Expiration Date) or in the case of a Termination for Cause, in which case all SARs held by the SAR Holder shall expire immediately. If the SAR Holder's Service terminates on account of the SAR Holder's death or Disability, the Vesting Date for all SARs that have not vested or been forfeited shall be accelerated to the date of that termination of Service, and the Exercise Period of all SARs shall expire one year after that termination of Service (but in no event after the Expiration Date).
[Post-termination exercise period may be modified at Committee's election except with respect to a Termination for Cause.]
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7.
|
Effect of Change in Control
. If a Change in Control occurs prior to the Vesting Date of a SAR that is outstanding on the date of the Change in Control, and the SAR Holder experiences an Involuntary Separation from Service during the 365-day period following the date of such Change in Control, then the Vesting Date for any non-vested SAR shall be accelerated to the date of the SAR Holder's Involuntary Separation from Service. Notwithstanding the preceding sentence, if at the effective time of the Change in Control the successor to the Corporation's business and/or assets does not either assume the outstanding SAR or replace the outstanding SAR with an award that is determined by the Committee to be at least equivalent in value to such outstanding SAR on the date of the Change in Control, then the Vesting Date of such outstanding SAR shall be accelerated to the earliest date of the Change in Control.
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8.
|
SAR Holder's Rights
. The SARs awarded hereby do not entitle the SAR Holder to any rights of a stockholder of the Corporation.
|
9.
|
Delivery of Shares to SAR Holder
. Promptly after receipt of an Exercise Notice, the Corporation shall issue and deliver to the SAR Holder (or other person validly exercising the SAR) a certificate or certificates representing the Shares of Common Stock being purchased, or evidence of the issuance of such Shares in book-entry form, registered in the name of the
|
|
SAR Holder (or such other person), or, upon request, in the name of the SAR Holder (or such other person) and in the name of another person in such form of joint ownership as requested by the SAR Holder (or such other person) pursuant to applicable state law. The Corporation's obligation to deliver a stock certificate or evidence of the issuance of Shares in book-entry form for Shares purchased upon the exercise of an SAR can be conditioned upon the receipt of a representation of investment intent from the SAR Holder (or the SAR Holder's Beneficiary) in such form as the Committee requires. The Corporation shall not be required to deliver stock certificates or evidence of the issuance of Shares in book-entry form for Shares purchased prior to: (a) the listing of those Shares on the Nasdaq; or (b) the completion of any registration or qualification of those Shares required under applicable law.
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10.
|
Adjustments in Shares
. In the event of any recapitalization, forward or reverse stock split, reorganization, merger, consolidation, spin-off, combination, exchange of Shares or other securities, stock dividend, special or recurring dividend or distribution, liquidation, dissolution or other similar corporate transaction or event, the Committee, in its sole discretion, shall adjust the number of Shares or class of securities of the Corporation covered by the SARs or the Exercise Price of the SARs. The SAR Holder agrees to execute any documents required by the Committee in connection with an adjustment under this Section 10.
|
11.
|
Tax Withholding
. The Corporation shall retain or sell without notice, a sufficient number of Shares to cover the minimum amount of any tax that the Corporation is required to withhold.
|
12.
|
Plan and Committee Decisions are Controlling
. This Agreement, the award of SARs to the SAR Holder and the issuance of Shares upon the exercise of the SARs are subject in all respects to the provisions of the Plan, which are controlling. Capitalized terms herein not defined in this Agreement shall have the meaning ascribed to them in the Plan. All decisions, determinations and interpretations by the Committee respecting the Plan, this Agreement, the award of SARs or the issuance of Shares upon the exercise of the SARs shall be binding and conclusive upon the SAR Holder, any Beneficiary of the SAR Holder or the legal representative thereof.
The Grantee acknowledges and agrees that this Award and receipt of any Shares hereunder by any person is subject to (a) Plan Section 12.10, including possible reduction, cancellation, forfeiture or recoupment (clawback), and (b) any policies which the Corporation may adopt in furtherance of any regulatory requirements (including, but not limited to, the Dodd-Frank Wall Street Reform and Consumer Protection Act) or otherwise.
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13.
|
SAR Holder's Employment
. Nothing in this Agreement shall limit the right of the Corporation or any of its Affiliates to terminate the SAR Holder's service or employment as a director, advisory director, director emeritus, officer or employee, or otherwise impose upon the Corporation or any of its Affiliates any obligation to employ or accept the services or employment of the SAR Holder.
|
14.
|
Tax Status
. The SARs are intended to comply with the provisions of Treasury Regulations Section 1.409A-1(b)(5)(i)(B), so as to not be subject to Section 409A of the Code.
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15.
|
Amendment
. The Committee may waive any conditions of or rights of the Corporation or modify or amend the terms of this Agreement; provided, however, that the Committee may not amend, alter, suspend, discontinue or terminate any provision of this Agreement if such action may adversely affect the SAR Holder without the SAR Holder's written consent. To the extent permitted by applicable laws and regulations, the Committee shall have the authority, in its sole discretion but with the permission of the SAR Holder, to accelerate the vesting of the Shares or remove any other restrictions imposed on the SAR Holder with respect to the Shares, whenever the Committee may determine that such action is appropriate.
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16.
|
SAR Holder Acceptance
. The SAR Holder shall signify acceptance of the terms and conditions of this Agreement and acknowledge receipt of a copy of the Plan by signing in the space provided below and returning the signed copy to the Corporation.
|
|
1.
|
Grantee's Name:
|
_____________________ |
|
2.
|
Grantee's Title:
|
_____________________ |
|
3.
|
Grant Date:
|
_____________________ |
|
4.
|
Number of Performance Shares/Units (referred to herein as "PSUs"):
|
5.
|
Annual Incentive Targets
(PROVIDE ATTACHMENT OR OTHER INCENTIVE TARGET INFORMATION AS NECESSARY)
:
|
Below Threshold
|
Threshold
|
Target
|
Stretch
|
6.
|
Performance Period:
____________________________________
|
7.
|
Vesting Date:
100% of the earned PSUs will vest on [ ], provided that Grantee is then serving as an Employee of the Corporation or any Affiliate on that date.
[FOLLOWING TWO SENTENCES OPTIONAL]
If the Grantee's
Service terminates before the end of the Performance Period by reason of death, Disability or Retirement, then the Grantee shall be entitled to a
pro rata payment based on the number of months' Service during the Performance Period but based on the achievement of performance goals during the entire Performance Period. In no event shall payments be made in connection with a PSU upon a Termination for Cause.
[INCLUDE ADDITIONAL SCHEDULE FOR ACCELERATED VESTING IN EVENT OF CHANGE IN CONTROL, INVOLUNTARY TERMINATION, ETC.]
|
8.
|
Corporate and Individual Performance Weightings
(INCLUDE ATTACHMENT OR OTHER PERFORMANCE WEIGHTING INFORMATION AS NECESSARY)
:
|
Corporate
|
Individual
|
9.
|
Corporate Performance Measures, Performance Gate and Weightings:
Performance will be measured from __________________ to ___________________, as summarized in the table below
(
INCLUDE ATTACHMENT OR OTHER PERFORMANCE MEASURE INFORMATION AS NECESSARY
)
.
|
Relative
|
Absolute Performance
|
Weighting
% of Target
|
||||
Performance Measure
|
Performance Gate
|
Threshold
|
Target
|
Stretch
|
||
10.
|
Individual Performance Measures (
ATTACH SCHEDULE AS NECESSARY
):
______________________________________________________________________
__________________________________________________________________________________________________________________________________
__________________________________________________________________________________________________________________________________
|
11.
|
Dividend Equivalents (applicable only to the extent PSUs are to be paid in Shares)
:
PSUs will accumulate dividend equivalents. The dividend equivalents shall equal the dividends actually paid with respect to Shares of Corporation common stock during the period while (and to the extent) the PSUs remain outstanding and unpaid. The dividend equivalents shall accumulate, without interest, and be paid in cash at the time the Shares are paid with respect to any earned PSUs, or shall be forfeited at the time the PSUs are forfeited. For purposes of determining the amount of dividends accumulated and to be paid with respect any PSUs that become payable, the PSUs which are payable will be considered to have been outstanding from the Grant Date.
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12.
|
Payout Date
:
If the Committee determines that payments are due under a PSU with respect to a Performance Period, then payment shall be made in a lump sum within 60 days after the Committee determination, but in no event
later than the end of the year following that Performance Period, provided the Grantee is actively employed by the Corporation or an Affiliate on the last day of the Performance Period to which the PSU relates.
(
SPECIFY WHETHER THE GRANTEE MUST ALSO BE EMPLOYED ON THE DATE OF PAYMENT. SPECIFY ADDITIONAL OR DIFFERENT PAYOUT TERMS. IF PAYOUT TERMS PROVIDE FOR THE DEFERRAL OF COMPENSATION, INCLUDE PROVISIONS THAT COMPLY WITH SECTION 409A OF THE CODE.
)
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13.
|
Transferability:
The Grantee may not sell, assign, transfer, pledge or otherwise encumber any PSU award benefits that have not vested, except in the event of the Grantee's death, by will or by the laws of descent and distribution, or pursuant to a Domestic Relations Order.
|
14.
|
Tax Withholding:
Applicable tax withholding shall apply to the payment of any PSU awards.
|
15.
|
Plan and Committee Decisions are Controlling:
This Agreement and the award and payment of performance compensation to the Grantee are subject in all respects to the provisions of the Plan, which is incorporated herein by this reference and is controlling.
All awards are subject to Committee discretion.
Capitalized terms herein not defined in this Agreement shall have the meaning ascribed to them in the Plan. All decisions, determinations and interpretations by the Committee respecting the Plan, this Agreement or the award of PSUs shall be binding and conclusive upon the Grantee, any Beneficiary of the Grantee or the legal representative thereof.
|
16.
|
Adjustments for Changes in the Capitalization of the Corporation:
In the event of any recapitalization, forward or reverse stock split, reorganization, merger, consolidation, spin-off, combination, exchange of Shares or other securities, stock dividend, special or recurring dividend or distribution, liquidation, dissolution or other similar corporate transaction or event, the Committee, in its sole discretion, shall adjust the number of PSUs that are designated to be paid in Shares. Any additional PSUs received by the Grantee as a result of any such adjustment shall be subject to all restrictions and requirements applicable to PSUs that have not vested. The Grantee agrees to execute any documents required by the Committee in connection with an adjustment under this Section 16.
|
17.
|
Grantee's Employment:
Nothing in this Agreement shall limit the right of the Corporation or any of its Affiliates to terminate the Grantee's service or employment, or otherwise impose upon the Corporation or any of its Affiliates any obligation to employ or accept the services or employment of the Grantee.
|
18.
|
Regulatory, Recoupment and Holding Period Requirements:
The Grantee acknowledges and agrees that this Award and receipt of any Shares hereunder by any person is subject to (a) the provisions of the Plan, including but not limited to Section 12.10, including possible reduction, cancellation, forfeiture or recoupment (clawback), delayed payment or holding period requirements, and (b) any policies which the Corporation may adopt in furtherance of any regulatory requirements (including, but not limited to, the Dodd-Frank Wall Street Reform and Consumer Protection Act) or otherwise.
|
19.
|
Amendment:
The Committee may waive any conditions of or rights of the Corporation or modify or amend the terms of this Agreement, as and to the extent permitted by the Plan.
|
20.
|
Grantee Acceptance:
The Grantee shall signify acceptance of the terms and conditions of this Agreement and acknowledge receipt of a copy of the Plan by signing in the space provided below and returning the signed copy to the Corporation.
|