UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d)
of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): March 3, 2017
CIVITAS SOLUTIONS, INC.
(Exact name of registrant as specified in its charter)
| Delaware | 001-36623 | 65-1309110 | ||
|
(State or other jurisdiction of incorporation) |
(Commission File Number) |
(IRS Employer Identification No.) |
313 Congress Street, 6th Floor
Boston, Massachusetts 02210
(Address of principal executive offices, including Zip Code)
(617) 790-4800
(Registrant’s telephone number, including area code)
(Former name or former address, if changed since last report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
| ☐ | Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
| ☐ | Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
| ☐ | Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
| ☐ | Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Item 5.02. Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.
Pursuant to the Civitas Solutions, Inc. 2014 Omnibus Incentive Plan (the “Plan”), Civitas Solutions, Inc. (the “Company”) may grant from time to time, among other things, restricted stock and performance-based awards to employees, non-employee directors and consultants or independent contractors to the Company.
Equity Compensation Awards
On March 3, 2017, the Board of Directors of the Company (the “Board”) made equity compensation awards to certain employees of the Company, including the named executive officers. The types of awards that were granted are: time-based restricted stock units and performance-based restricted stock units (expressed as the target number of shares subject to such awards).
|
Name |
Time-Based Restricted
Stock Units |
Performance-Based
Restricted Stock Units (Target Number of Shares) |
||||||
|
Bruce F. Nardella |
N/A | 18,105 | ||||||
|
Denis M. Holler |
7,084 | 3,542 | ||||||
|
Brett I. Cohen |
11,492 | 5,746 | ||||||
|
David M. Petersen |
6,045 | 3,023 | ||||||
Special Award of Time-Based Restricted Stock Units
On March 3, 2017, the Board of Directors awarded time-based restricted stock units to certain employees of the Company, including the Company’s named executive officers, other than Mr. Nardella, the Chief Executive Officer. This special award was approved because the Board of Directors recognizes that retention of highly qualified leadership is critical to the Company’s financial performance and continued success. If we are unable to retain our highly qualified employees, we risk not being able to provide the operational and other expertise necessary to deliver the high quality services that, in turn, help us to drive our organic growth. We have a proven management team that has demonstrated the ability and experience to ensure the delivery of high quality services to clients, pursue and integrate numerous acquisitions, manage critical human resources, develop and maintain robust IT and financial systems, mitigate risk in the business and oversee our significant growth and expansion. With unemployment near or at historic lows, we face greater competition for these highly qualified employees and recognize the significant cost and disruption that occurs as a result of unplanned attrition. As a result of these factors, the Board of Directors recently approved a one-time grant of restricted stock units to our vice-presidents and certain of the named executive officers for the purpose of retaining employees that have delivered outstanding and consistent performance and who are expected to make important contributions in the future. The restricted stock units are time based and 50% of the restricted stock units will vest on the second year anniversary of the grant date with the remaining 50% vesting on the third year anniversary of the grant date. The recipients must generally remain employed until the time of vesting, but the awards will vest in full if the participant’s employment terminates as result of death or disability.
Performance-Based Restricted Stock Units
On March 3, 2017, the Committee adopted a new form of Performance-Based Restricted Stock Unit Agreement (the “PRSU Agreement”) to grant performance-based restricted stock unit awards (“PRSUs”) under the Plan. The PRSUs will be earned and vested over a three-year performance period based upon (a) the Company’s Incremental Return on Investment Capital (“Incremental ROIC”) performance for the three-year performance period (i.e., the three fiscal years ending September 30, 2019 (the “Performance Period”)). Incremental ROIC will be calculated as set forth in the PRSU Agreement The Board determined that Incremental ROIC was an important measure to incent the named executive officers to invest in programs, acquisitions and other assets that will drive the Company’s growth.
Vested PRSUs will be settled in shares of the Company’s common stock. The number of shares earned will range from 0% to 200% of the target award. The percentage level at which the performance conditions are satisfied
will be determined by the Committee following the end of fiscal 2019. The preliminary percentage vested will be determined based on the achievement of Incremental ROIC for the Performance Period as follows:
|
Level of Incremental ROIC Performance for the Performance Period |
Preliminary % vested based on
Adjusted EBITDA Performance |
|||
|
Threshold (87% of Target) |
50 | % | ||
|
Target (100% of Target) |
100 | % | ||
|
Maximum (113% of Target) |
200 | % | ||
To the extent that Incremental ROIC is between the threshold and target levels or between the target and maximum levels, the percentage at which the Incremental ROIC performance condition is satisfied will be determined on a pro rata basis using straight line interpolation.
If a participant’s employment is terminated voluntarily (other than for “good reason” or due to retirement) or for cause before the end of the three-year Performance Period, all of the PRSUs will be forfeited. If a participant’s employment is terminated without cause or for “good reason,” the time-based vesting component of the PRSUs will vest based on the number of full years of the performance period that have been completed at such time (i.e., 1/3 for one year, 2/3 for two years), but the total number of PRSUs that will be earned is subject to the achievement of the performance goal as described above. If a participant’s employment is terminated due to death or disability, the entire PRSU award will vest and the participant will receive the target number of shares subject to the award. If a participant’s employment is terminated due to retirement at more than 60 years of age (or such younger age with the consent of the Committee) following 10 years of service with the Company, or at more than 65 years of age (or such younger age with the consent of the Committee) following five (5) years of service with the Company, then the time-based vesting component of the PRSU award will vest in its entirety, but the total number of PRSUs that will be earned is subject to the achievement of the performance goal as described above. In connection with a Change of Control, as defined in the PRSU Agreement, the PRSUs do not automatically vest and the Committee will have the discretion to adjust PRSUs and certain performance conditions as provided in the Plan.
The form of time-based Restricted Stock Unit Agreement was filed as Exhibit 10.33 to Amendment No. 4 to the Company’s Registration Statement on Form S-1 on September 3, 2014. The form of Performance-Based Restricted Stock Unit Agreement (ROIC) is filed as Exhibit 10.1 to this Current Report on Form 8-K. This description of the performance-based restricted stock units set forth below is qualified in its entirety by reference to the full text of the form of Performance-Based Restricted Stock Unit Agreement, which is incorporated herein by reference.
Item 5.07. Submission of Matters to a Vote of Security Holders.
On March 3, 2017, Civitas Solutions, Inc. (the “Company”) held its Annual Meeting of Stockholders (the “2017 Annual Meeting”). At the 2017 Annual Meeting, the Company’s stockholders elected each of the Company’s three nominees to serve on the Company’s Board of Directors until the Company’s 2020 annual meeting of stockholders, approved the compensation of the Company’s named executive officers on an advisory basis, re-approved performance measures for certain performance based awards under the Company’s 2014 Omnibus Incentive Plan and ratified the appointment of Deloitte & Touche LLP as the Company’s independent registered public accounting firm.
The results of the voting were as follows:
| Votes For |
Votes
Withheld |
Broker
Non-Votes |
||||||||||
|
Election of Directors |
||||||||||||
|
James L. Elrod, Jr. |
31,908,027 | 2,715,107 | 1,687,725 | |||||||||
|
Pamela F. Lenehan |
33,842,044 | 781,090 | 1,687,725 | |||||||||
|
Mary Ann Tocio |
34,512,088 | 111,046 | 1,687,725 | |||||||||
Accordingly, the three nominees received the highest number of votes cast and therefore each of the three nominees was elected to serve as a director.
| Votes For | Votes Against | Abstentions |
Broker
Non-Votes |
|||||||||||||
|
Advisory Vote on Named Executive Officer Compensation |
34,164,491 | 258,538 | 200,105 | 1,687,725 | ||||||||||||
Accordingly, a majority of votes cast in the advisory vote on named executive officer compensation were “for” the approval of executive compensation as disclosed in the Company’s proxy statement.
| Votes For | Votes Against | Abstentions |
Broker
Non-Votes |
|||||||||||||
| Re-approval of performance measures for certain performance-based awards under the Omnibus Incentive Plan | 28,614,772 | 6,000,751 | 7,611 | 1,687,725 | ||||||||||||
Accordingly, a majority of votes cast on the re-approval of performance measures for certain performance-based awards under the Omnibus Incentive Plan were “for” the re-approval of such performance measures for certain performance-based awards as disclosed in the Company’s proxy statement.
| Votes For | Votes Against | Abstentions | ||||||||||
|
Ratification of Independent Registered Public Accounting Firm |
36,243,338 | 67,516 | 5 | |||||||||
Accordingly, a majority of votes cast on the ratification of auditors were in favor of the proposal and the appointment of Deloitte & Touche LLP as the Company’s independent registered public accounting firm was ratified.
| Item 9.01 | Financial Statements and Exhibits. |
(d) Exhibits.
|
Exhibit No. |
Description of Exhibit |
|
| 10.1 | Form of Performance-Based Restricted Stock Unit Agreement (ROIC) | |
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized.
| CIVITAS SOLUTIONS, INC. | ||||
| By: |
/s/ Bruce F. Nardella |
|||
| Bruce F. Nardella | ||||
| Chairman, Chief Executive Officer and President | ||||
Date: March 9, 2017
Exhibit Index
|
Exhibit No. |
Description |
|
| 10.1 | Form of Performance-Based Restricted Stock Unit Agreement (ROIC) | |
Exhibit 10.1
RESTRICTED STOCK UNIT AGREEMENT (PERFORMANCE SHARES)
PURSUANT TO THE
CIVITAS SOLUTIONS, INC. 2014 OMNIBUS INCENTIVE PLAN
* * * * *
Participant: [ ]
Grant Date: [ ]
Target Number of Restricted Stock Units (the “ Target RSUs ”): [ ]
Maximum Number of Shares of Common Stock that may be issued pursuant to this Agreement (the “ Maximum Shares ”): [ ] 1
* * * * *
THIS RESTRICTED STOCK UNIT AWARD AGREEMENT (PERFORMANCE SHARES) (this “ Agreement ”), dated as of the Grant Date specified above, is entered into by and between Civitas Solutions, Inc., a corporation organized in the State of Delaware (the “ Company ”), and the Participant specified above, pursuant to the Civitas Solutions, Inc. 2014 Omnibus Incentive Plan, as in effect and as amended from time to time (the “ Plan ”), which is administered by the Committee; and
WHEREAS, it has been determined under the Plan that it would be in the best interests of the Company to grant the Restricted Stock Units (“ RSUs ”) provided herein to the Participant.
NOW, THEREFORE, in consideration of the mutual covenants and promises hereinafter set forth and for other good and valuable consideration, the parties hereto hereby mutually covenant and agree as follows:
1. Incorporation By Reference; Plan Document Receipt . This Agreement is subject in all respects to the terms and provisions of the Plan (including, without limitation, any amendments thereto adopted at any time and from time to time unless such amendments are expressly intended not to apply to the Restricted Stock Unit Award provided hereunder), all of which terms and provisions are made a part of and incorporated in this Agreement as if they were each expressly set forth herein. Any capitalized term not defined in this Agreement shall have the same meaning as is ascribed thereto in the Plan. The Participant hereby acknowledges receipt of a true copy of the Plan and that the Participant has read the Plan carefully and fully understands its content. In the event of any conflict between the terms of this Agreement and the terms of the Plan, the terms of this Agreement shall control.
2. Grant of Restricted Stock Unit Award . The Company hereby grants to the Participant, as of the Grant Date specified above, the number of Target RSUs specified above, with the actual number of shares of Common Stock to be issued pursuant to this Award
| 1 |
NTD: Maximum number of shares to equal 200% of the target. |
contingent upon satisfaction of the vesting conditions described in Section 3 hereof, subject to Section 4 , which may not exceed the Maximum Shares. The grant of the RSUs is intended to constitute a Performance Award for purposes of Article IX of the Plan. Except as otherwise provided by the Plan, the Participant agrees and understands that nothing contained in this Agreement provides, or is intended to provide, the Participant with any protection against potential future dilution of the Participant’s interest in the Company for any reason, and no adjustments shall be made for dividends in cash or other property, distributions or other rights in respect of the shares of Common Stock underlying the RSUs, except as otherwise specifically provided for in the Plan or this Agreement.
3. Vesting .
(a) The RSUs subject to this Award shall be subject to both a time-based vesting condition (the “ Time-Based Condition ”) and a performance-based vesting condition (the “ Performance Condition ”), as described herein. Except as expressly provided herein, none of the RSUs (or any portion thereof) shall be “vested” for purposes of this Agreement unless and until both the Time-Based Condition and the Performance Condition for such RSUs are satisfied. The number of RSUs that are “vested” for purposes of this Agreement at any time shall equal the product of (i) the number of the RSUs that have satisfied the Time-Based Condition and (ii) the percentage level at which the Performance Condition has been satisfied.
(i) The Time-Based Condition for the RSUs shall be satisfied on September 30, [ ], subject to the Participant not incurring a Termination prior to such date. There shall be no proportionate or partial satisfaction of the Time-Based Condition prior to such date, except as specifically provided in this Agreement.
(ii) The percentage level at which the Performance Condition is satisfied shall be based upon the Company’s “Incremental ROIC”. First, the Company’s Incremental ROIC shall be determined as of the Performance Period ending September 30, [ ], as further described below. This result is expressed as a percentage. Next, this actual Incremental ROIC shall be compared to the proposed Target level of Incremental ROIC, which is also expressed as a percentage. Finally, the level at which the Performance Condition is satisfied shall be based upon this comparison, as provided in the table below, and the number of RSUs that satisfy the Performance Condition shall be determined by multiplying the number of Target RSUs granted hereunder by the percentage at which the Performance Condition is satisfied.
INCREMENTAL ROIC
|
Level of Performance |
Actual Incremental
ROIC as Compared to Target Incremental ROIC |
Percentage for which the Performance
Condition is Satisfied |
||||
|
Threshold |
87% of Target | 50% | ||||
|
Target |
100% of Target | 100% | ||||
|
Maximum |
113% of Target | 200% | ||||
2
The “Target” level associated with Incremental ROIC shall be established by the Committee, and will be communicated in writing separately to the Participant by the Company within thirty (30) days following the date first above written.
For the avoidance of doubt, in no event shall the Performance Condition be deemed satisfied unless actual Incremental ROIC equals or exceeds the threshold level provided in the table above. To the extent that actual Incremental ROIC is between the threshold and target levels or between the target and maximum levels described in the table above, the percentage at which the Performance Condition is satisfied shall be determined on a pro rata basis using straight-line interpolation. In no event will the percentage at which the Performance Condition is satisfied exceed 200%.
For example. Suppose that actual Incremental ROIC, when compared to the Target Incremental ROIC level, results in the percentage comparison of 93.5%. The percentage at which the Performance Condition is satisfied would be 75%. The maximum number of RSUs that could vest hereunder would be 75% of the number of Target RSUs listed above, but would still be subject to the satisfaction of the Time-Based Condition. If the Time-Based Condition is not satisfied, then no RSUs will vest.
For purposes of this Section 3(a) :
“ Average Incremental Earnings ” means the excess of (i) the average Earnings for each fiscal year of the Company ending on September 30, [ ] (“ FY[ ] ”), September 30, [ ] (“ FY[ ] ”) and September 30, [ ] (“ FY[ ] ”) (i.e., total Earnings for each such fiscal year, divided by 3) over (ii) Earnings for the fiscal year ending September 30, [ ] (“ FY[ ] ”).
“ Average Incremental Invested Capital ” means the excess of (i) the average Invested Capital for each of FY[ ], FY[ ] and FY[ ] (i.e., the total Invested Capital for each such fiscal year, divided by 3) over (ii) Invested Capital for the fiscal year ending September 30, [ ].
“ Earnings ” for any fiscal year means “income from operations” (EBIT) as provided in the Consolidated Statements of Operations in the Company’s Form 10-K for such fiscal year, multiplied by (1 - the “effective tax rate”), where the “effective tax rate” of the Company for a fiscal year is determined by dividing the “Provision (benefit) for income taxes” by the “Income (loss) from continuing operations before income taxes”, as each of these are provided in the Consolidated Statements of Operations in the Company’s Form 10-K for such fiscal year, plus the “amortization expense” for the fiscal year being calculated, as such amount is reported in the footnotes to the Company’s audited financial statements in the Company’s Form 10-K for such fiscal year.
“ Invested Capital ” for a particular fiscal years means (i) “total assets” as shown on the Company’s consolidated balance sheets as provided in the Company’s Form 10-K for such fiscal year, plus (ii) the “accumulated amortization” for such fiscal year as reported in the “Goodwill and Intangible Assets” footnote in the Company’s Form 10-K for such fiscal year, minus (iii) “total current liabilities” as shown on the Company’s consolidated balance sheets as provided in the Company’s Form 10-K for such fiscal year.
3
“ Incremental ROIC ” equals (i) Average Incremental Earnings, divided by (ii) Average Incremental Invested Capital.
Following the end of FY[ ], the Committee shall determine Incremental ROIC in its reasonable discretion. Both the target and actual amount of Incremental ROIC shall be adjusted by the Committee to take into account any changes in accounting methods, corporate transactions (including, without limitation, dispositions and acquisitions) and other similar type events or circumstances, as determined by the Committee in its reasonable discretion.
(b) Change in Control . For the avoidance of doubt, and except as specifically provided in Section 3(c) below, (i) a Change in Control shall not result in the accelerated vesting of either the Time-Based Condition or the Performance Condition, and (ii) in connection with a Change in Control or any other event described in Section 4.2 of the Plan, the Committee shall have the discretion to adjust the RSUs and the Performance Condition as provided in the Plan.
(c) Forfeiture .
(i) Other than as set forth in this Section 3(c) , RSUs for which the Time-Based Condition has not been satisfied prior to a Participant’s Termination shall be immediately forfeited upon such Termination and the Participant shall have no further rights to such RSUs hereunder.
(ii) Notwithstanding the prior paragraph, in the event of the Participant’s Termination (x) by the Participant for “Good Reason”, (y) by the Company other than for “Cause” or (z) due to the Participant’s “Retirement”, in each case following October 1, [ ], the Time-Based Condition shall be immediately satisfied in a prorated amount (rounded down to the nearest whole number of RSUs) equal to the product of (i) the Target RSUs and (ii) the percent as determined in accordance with the table below.
| Date of Termination | Percent | |||
|
Between October 1, [ ] and September 30, [ ] |
33.33% | |||
|
Between October 1, [ ] and September 30, [ ] |
66.66% | |||
|
On or after October 1, [ ] |
100% | |||
To the extent that any RSUs have satisfied the Time-Based Condition as of the Participant’s Termination, such RSUs shall remain outstanding until the end of the Performance Period and shall have the opportunity to vest at such time determined based upon the percentage level at which the Performance Condition is satisfied.
(iii) Notwithstanding the foregoing, in the event of the Participant’s Termination due to the Participant’s death or Disability, the Time-Based Condition for all of the RSUs shall be immediately satisfied in full and the Performance Condition shall be immediately satisfied at 100%.
4
(iv) Notwithstanding the foregoing, in the event of the Participant’s Termination (x) by the Participant for Good Reason, or (y) by the Company other than for “Cause”, in each case within the two (2) year period following a Change in Control, the Time-Based Condition for all of the RSUs shall be immediately satisfied in full and the Performance Condition shall be immediately satisfied at 100%.
(v) For purposes of this agreement, “ Cause ” and “ Good Reason ” shall have the meaning given such term in the definitive employment agreement between the Participant and the Company or any of its subsidiaries, provided, however that if there is no such agreement or no such defined term exists, no Termination shall be deemed to be without “Cause” or for “Good Reason” hereunder. For purposes of this Agreement, “ Retirement ” shall mean a Termination by the Participant following the date that either (x) the Participant has reached age sixty (60) (or such younger age with the consent of the Committee) and has completed ten (10) years of service with the Company, or (y) the Participant has reached age sixty five (65) (or such younger age with the consent of the Committee) and has completed at least five (5) years of service with the Company, in each case as determined by the Committee.
(vi) Any RSUs that do not become fully vested as of the end of the Performance Period shall expire immediately following the date that the Committee determines the level at which the Performance Condition is satisfied.
4. Delivery of Shares . Following the satisfaction of both the Time-Based Condition and the Performance Condition with respect to any part of the RSUs granted hereunder, the Participant shall receive the number of shares of Common Stock that correspond to the number of such RSUs, which shall be delivered no later than March 15 of the calendar year following the calendar year in which or with respect to which both such vesting conditions were satisfied.
5. Dividends; Rights as Stockholder . Cash dividends on shares of Common Stock issuable hereunder shall be credited to a dividend book entry account on behalf of the Participant with respect to each RSU granted to the Participant, provided that such cash dividends shall not be deemed to be reinvested in shares of Common Stock and shall be held uninvested and without interest and paid in cash at the same time that the shares of Common Stock underlying the RSUs are delivered to the Participant in accordance with the provisions hereof. Stock dividends on shares of Common Stock shall be credited to a dividend book entry account on behalf of the Participant with respect to each RSU granted to the Participant, provided that such stock dividends shall be paid in shares of Common Stock at the same time that the shares of Common Stock underlying the RSUs are delivered to the Participant in accordance with the provisions hereof. Except as otherwise provided herein, the Participant shall have no rights as a stockholder with respect to any shares of Common Stock covered by any RSU unless and until the Participant has become the holder of record of such shares.
6. Non-Transferability . No portion of the RSUs may be sold, assigned, transferred, encumbered, hypothecated or pledged by the Participant, other than to the Company as a result of forfeiture of the RSUs as provided herein, unless and until payment is made in respect of vested RSUs in accordance with the provisions hereof and the Participant has become the holder of record of the vested shares of Common Stock issuable hereunder.
5
7. Governing Law . All questions concerning the construction, validity and interpretation of this Agreement shall be governed by, and construed in accordance with, the laws of the State of Delaware, without regard to the choice of law principles thereof.
8. Withholding of Tax . The Company shall have the power and the right to deduct or withhold, or require the Participant to remit to the Company, an amount sufficient to satisfy any federal, state, local and foreign taxes of any kind (including, but not limited to, the Participant’s FICA and SDI obligations) which the Company, in its sole discretion, deems necessary to be withheld or remitted to comply with the Code and/or any other applicable law, rule or regulation with respect to the RSUs and, if the Participant fails to do so, the Company may otherwise refuse to issue or transfer any shares of Common Stock otherwise required to be issued pursuant to this Agreement. Any minimum statutorily required withholding obligation with regard to the Participant may be satisfied by reducing the amount of cash or shares of Common Stock otherwise deliverable to the Participant hereunder.
9. Legend . The Company may at any time place legends referencing any applicable federal, state or foreign securities law restrictions on all certificates representing shares of Common Stock issued pursuant to this Agreement. The Participant shall, at the request of the Company, promptly present to the Company any and all certificates representing shares of Common Stock acquired pursuant to this Agreement in the possession of the Participant in order to carry out the provisions of this Section 9 .
10. Securities Representations . This Agreement is being entered into by the Company in reliance upon the following express representations and warranties of the Participant. The Participant hereby acknowledges, represents and warrants that:
(a) The Participant has been advised that the Participant may be an “affiliate” within the meaning of Rule 144 under the Securities Act and in this connection the Company is relying in part on the Participant’s representations set forth in this Section 10 .
(b) If the Participant is deemed an affiliate within the meaning of Rule 144 of the Securities Act, the shares of Common Stock issuable hereunder must be held indefinitely unless an exemption from any applicable resale restrictions is available or the Company files an additional registration statement (or a “re-offer prospectus”) with regard to such shares of Common Stock and the Company is under no obligation to register such shares of Common Stock (or to file a “re-offer prospectus”).
(c) If the Participant is deemed an affiliate within the meaning of Rule 144 of the Securities Act, the Participant understands that (i) the exemption from registration under Rule 144 will not be available unless (A) a public trading market then exists for the Common Stock of the Company, (B) adequate information concerning the Company is then available to the public, and (C) other terms and conditions of Rule 144 or any exemption therefrom are complied with, and (ii) any sale of the shares of Common Stock issuable hereunder may be made only in limited amounts in accordance with the terms and conditions of Rule 144 or any exemption therefrom.
11. Entire Agreement; Amendment . This Agreement, together with the Plan, contains the entire agreement between the parties hereto with respect to the subject matter
6
contained herein, and supersedes all prior agreements or prior understandings, whether written or oral, between the parties relating to such subject matter. The Committee shall have the right, in its sole discretion, to modify or amend this Agreement from time to time in accordance with and as provided in the Plan. This Agreement may also be modified or amended by a writing signed by both the Company and the Participant. The Company shall give written notice to the Participant of any such modification or amendment of this Agreement as soon as practicable after the adoption thereof.
12. Notices . Any notice hereunder by the Participant shall be given to the Company in writing and such notice shall be deemed duly given only upon receipt thereof by the General Counsel of the Company. Any notice hereunder by the Company shall be given to the Participant in writing and such notice shall be deemed duly given only upon receipt thereof at such address as the Participant may have on file with the Company.
13. No Right to Employment . Any questions as to whether and when there has been a Termination and the cause of such Termination shall be determined in the sole discretion of the Committee. Nothing in this Agreement shall interfere with or limit in any way the right of the Company, its Subsidiaries or its Affiliates to terminate the Participant’s employment or service at any time, for any reason and with or without Cause.
14. Transfer of Personal Data . The Participant authorizes, agrees and unambiguously consents to the transmission by the Company (or any Subsidiary) of any personal data information related to the RSUs awarded under this Agreement for legitimate business purposes. This authorization and consent is freely given by the Participant.
15. Compliance with Laws . The grant of RSUs and the issuance of shares of Common Stock hereunder shall be subject to, and shall comply with, any applicable requirements of any foreign and U.S. federal and state securities laws, rules and regulations (including, without limitation, the provisions of the Securities Act, the Exchange Act and in each case any respective rules and regulations promulgated thereunder) and any other law, rule regulation or exchange requirement applicable thereto. The Company shall not be obligated to issue the RSUs or any shares of Common Stock pursuant to this Agreement if any such issuance would violate any such requirements. As a condition to the settlement of the RSUs, the Company may require the Participant to satisfy any qualifications that may be necessary or appropriate to evidence compliance with any applicable law or regulation.
16. Section 409A . Notwithstanding anything herein or in the Plan to the contrary, the RSUs are intended to be exempt from the applicable requirements of Section 409A of the Code and shall be limited, construed and interpreted in accordance with such intent as is reasonable under the circumstances.
17. Binding Agreement; Assignment . This Agreement shall inure to the benefit of, be binding upon, and be enforceable by the Company and its successors and assigns. The Participant shall not assign (except in accordance with Section 6 hereof) any part of this Agreement without the prior express written consent of the Company.
7
18. Headings . The titles and headings of the various sections of this Agreement have been inserted for convenience of reference only and shall not be deemed to be a part of this Agreement.
19. Counterparts . This Agreement may be executed in one or more counterparts and by facsimile or other electronic submission, each of which shall be deemed to be an original, but all of which shall constitute one and the same instrument.
20. Further Assurances . Each party hereto shall do and perform (or shall cause to be done and performed) all such further acts and shall execute and deliver all such other agreements, certificates, instruments and documents as either party hereto reasonably may request in order to carry out the intent and accomplish the purposes of this Agreement and the Plan and the consummation of the transactions contemplated thereunder.
21. Severability . The invalidity or unenforceability of any provisions of this Agreement in any jurisdiction shall not affect the validity, legality or enforceability of the remainder of this Agreement in such jurisdiction or the validity, legality or enforceability of any provision of this Agreement in any other jurisdiction, it being intended that all rights and obligations of the parties hereunder shall be enforceable to the fullest extent permitted by law.
22. Acquired Rights . The Participant acknowledges and agrees that: (a) the Company may terminate or amend the Plan at any time; (b) the Award of RSUs made under this Agreement is completely independent of any other award or grant and is made at the sole discretion of the Company; (c) no past grants or awards (including, without limitation, the RSUs awarded hereunder) give the Participant any right to any grants or awards in the future whatsoever; and (d) any benefits granted under this Agreement are not part of the Participant’s ordinary salary, and shall not be considered as part of such salary in the event of severance, redundancy or resignation.
* * * * *
8
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first written above.
| CIVITAS SOLUTIONS, INC. | ||
| By: |
|
|
| Name: |
|
|
| Title: |
|
|
| PARTICIPANT | ||
| Name: |
|
|
Signature Page to Restricted Stock Unit Agreement