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ý
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QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
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¨
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TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
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Delaware
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27-3403111
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(State or other jurisdiction of incorporation or organization)
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(I.R.S. Employer Identification No.)
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Large accelerated filer
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x
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Accelerated filer
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¨
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Non-accelerated filer
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¨
(Do not check if a smaller reporting company)
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Smaller reporting company
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¨
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Emerging growth company
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¨
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Page
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Item 1.
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Item 2.
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Item 3.
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Item 4.
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Item 1.
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Item 1A.
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Item 2.
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Item 5.
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Item 6.
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Three Months Ended March 31,
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2017
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2016
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(In thousands, except per share data)
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||||||
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Net service revenue
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$
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252,078
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$
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248,997
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Reimbursable out-of-pocket expenses
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129,840
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164,090
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Total revenue
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381,918
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413,087
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Costs and operating expenses:
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Direct costs (exclusive of depreciation and amortization)
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154,835
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152,058
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Reimbursable out-of-pocket expenses
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129,840
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164,090
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Selling, general, and administrative
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44,934
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43,479
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Restructuring, CEO transition, and other costs
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1,927
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6,038
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Transaction expenses
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2
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561
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Depreciation
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6,164
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4,892
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Amortization
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9,464
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9,461
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Total operating expenses
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347,166
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380,579
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Income from operations
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34,752
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32,508
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Other (expense) income, net:
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Interest income
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112
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34
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Interest expense
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(3,100
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)
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(3,004
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)
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Other (expense) income, net
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(3,457
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)
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(5,117
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)
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Total other (expense) income, net
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(6,445
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)
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(8,087
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)
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Income before provision for income taxes
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28,307
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24,421
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Income tax expense
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(7,120
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)
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(7,016
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)
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Net income
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$
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21,187
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$
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17,405
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Earnings per share:
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Basic
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$
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0.39
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$
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0.32
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Diluted
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$
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0.38
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$
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0.31
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Weighted average common shares outstanding:
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Basic
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54,015
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53,955
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Diluted
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55,123
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55,862
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Three Months Ended March 31,
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2017
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2016
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(In thousands)
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Net income
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$
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21,187
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$
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17,405
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Unrealized gains on derivative instruments, net of income tax expense of $87 and $0, respectively
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150
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—
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Foreign currency translation adjustments
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4,846
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5,336
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Comprehensive income
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$
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26,183
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$
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22,741
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March 31, 2017
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December 31, 2016
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(In thousands, except share data)
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ASSETS
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Current assets:
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Cash and cash equivalents
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$
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164,405
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$
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102,471
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Restricted cash
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635
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607
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Accounts receivable billed, net
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187,819
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211,476
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Accounts receivable unbilled
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159,015
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173,873
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Prepaid expenses and other current assets
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27,272
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34,202
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Total current assets
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539,146
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522,629
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Property and equipment, net
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57,485
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58,306
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Goodwill
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553,071
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552,502
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Intangible assets, net
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105,074
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114,486
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Deferred income taxes
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18,136
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14,726
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Other long-term assets
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18,686
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25,858
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Total assets
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$
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1,291,598
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$
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1,288,507
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LIABILITIES AND SHAREHOLDERS' EQUITY
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Current liabilities:
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Accounts payable
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$
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18,851
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$
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23,693
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Accrued liabilities
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133,663
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153,559
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Deferred revenue
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287,920
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277,600
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Current portion of long-term debt
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17,813
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11,875
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Total current liabilities
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458,247
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466,727
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Long-term debt, less current portion
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470,053
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485,849
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Deferred income taxes
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1,903
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8,295
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Other long-term liabilities
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25,949
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26,163
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Total liabilities
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956,152
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987,034
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Commitments and contingencies (Note 14)
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Shareholders' equity:
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Preferred stock, $0.01 par value; 30,000,000 shares authorized, 0 shares issued and outstanding at March 31, 2017 and December 31, 2016, respectively
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—
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—
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Common stock, $0.01 par value; 600,000,000 shares authorized, 54,089,087 and 53,762,786 shares issued and outstanding at March 31, 2017 and December 31, 2016, respectively
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541
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538
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Additional paid-in capital
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582,972
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573,176
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Accumulated other comprehensive loss, net of taxes
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(37,254
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)
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(42,250
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)
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Accumulated deficit
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(210,813
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)
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(229,991
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)
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Total shareholders' equity
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335,446
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301,473
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Total liabilities and shareholders' equity
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$
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1,291,598
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$
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1,288,507
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Three Months Ended March 31,
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2017
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2016
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(In thousands)
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||||||
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Cash flows from operating activities:
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Net income
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$
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21,187
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$
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17,405
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Adjustments to reconcile net income to net cash provided by (used in) operating activities:
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Depreciation and amortization
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15,628
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14,353
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Amortization of capitalized loan fees
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201
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262
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Share-based compensation
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5,819
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2,816
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(Recovery of) provision for doubtful accounts
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(7
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)
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1,129
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Deferred income taxes
|
87
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(1,268
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)
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Foreign currency adjustments
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2,707
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7,774
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Other non-cash items
|
364
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130
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Changes in operating assets and liabilities:
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Billed and unbilled accounts receivable
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39,264
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(60,833
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)
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Accounts payable and accrued expenses
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(20,457
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)
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13,048
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Deferred revenue
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8,232
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(1,058
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)
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Other assets and liabilities
|
2,673
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|
|
5,596
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|
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Net cash provided by (used in) operating activities
|
75,698
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(646
|
)
|
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Cash flows from investing activities:
|
|
|
|
||||
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Purchases of property and equipment
|
(10,571
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)
|
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(4,774
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)
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Net cash used in investing activities
|
(10,571
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)
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|
(4,774
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)
|
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Cash flows from financing activities:
|
|
|
|
||||
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Proceeds from revolving line of credit
|
15,000
|
|
|
—
|
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Repayments of revolving line of credit
|
(25,000
|
)
|
|
(30,000
|
)
|
||
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Proceeds from exercise of stock options
|
5,153
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|
|
3,559
|
|
||
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Payments related to tax withholding for share-based compensation
|
(1,173
|
)
|
|
(11
|
)
|
||
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Net cash used in financing activities
|
(6,020
|
)
|
|
(26,452
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)
|
||
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Effect of exchange rate changes on cash and cash equivalents
|
2,827
|
|
|
42
|
|
||
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Net increase (decrease) in cash and cash equivalents
|
61,934
|
|
|
(31,830
|
)
|
||
|
Cash and cash equivalents, beginning of period
|
102,471
|
|
|
85,011
|
|
||
|
Cash and cash equivalents, end of period
|
$
|
164,405
|
|
|
$
|
53,181
|
|
|
|
March 31, 2017
|
|
December 31, 2016
|
||||
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Billed accounts receivable
|
$
|
193,708
|
|
|
$
|
217,360
|
|
|
Allowance for doubtful accounts
|
(5,889
|
)
|
|
(5,884
|
)
|
||
|
Billed accounts receivable, net
|
$
|
187,819
|
|
|
$
|
211,476
|
|
|
|
Total
|
|
Clinical
Development Services |
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Phase I
Services |
||||||
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Balance at December 31, 2016:
|
|
|
|
|
|
||||||
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Gross carrying amount
|
$
|
568,668
|
|
|
$
|
560,526
|
|
|
$
|
8,142
|
|
|
Accumulated impairment losses
|
(16,166
|
)
|
|
(8,024
|
)
|
|
(8,142
|
)
|
|||
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Goodwill net of accumulated impairment losses
|
552,502
|
|
|
552,502
|
|
|
—
|
|
|||
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2017 Activity:
|
|
|
|
|
|
||||||
|
Impact of foreign currency translation
|
569
|
|
|
569
|
|
|
—
|
|
|||
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Balance at March 31, 2017:
|
|
|
|
|
|
||||||
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Gross carrying amount
|
569,237
|
|
|
561,095
|
|
|
8,142
|
|
|||
|
Accumulated impairment losses
|
(16,166
|
)
|
|
(8,024
|
)
|
|
(8,142
|
)
|
|||
|
Goodwill net of accumulated impairment losses
|
$
|
553,071
|
|
|
$
|
553,071
|
|
|
$
|
—
|
|
|
|
March 31, 2017
|
|
December 31, 2016
|
||||
|
Foreign currency translation adjustments
|
$
|
(38,510
|
)
|
|
$
|
(43,356
|
)
|
|
Unrealized gains on derivative instruments, net of tax
|
1,256
|
|
|
1,106
|
|
||
|
Accumulated other comprehensive loss, net of tax
|
$
|
(37,254
|
)
|
|
$
|
(42,250
|
)
|
|
|
Unrealized gain on derivative instruments, net of tax
|
|
Foreign currency translation adjustments
|
|
Total
|
||||||
|
Balance at December 31, 2016
|
$
|
1,106
|
|
|
$
|
(43,356
|
)
|
|
$
|
(42,250
|
)
|
|
Other comprehensive gain before reclassifications
|
193
|
|
|
4,846
|
|
|
5,039
|
|
|||
|
Amount of gain reclassified from accumulated other comprehensive loss into statement of operations
|
(43
|
)
|
|
—
|
|
|
(43
|
)
|
|||
|
Net current period other comprehensive gain, net of tax
|
150
|
|
|
4,846
|
|
|
4,996
|
|
|||
|
Balance at March 31, 2017
|
$
|
1,256
|
|
|
$
|
(38,510
|
)
|
|
$
|
(37,254
|
)
|
|
|
Before-Tax Amount
|
|
Tax (Expense) or Benefit
|
|
Net-of-Tax Amount
|
||||||
|
Foreign currency translation adjustments
(a)
|
$
|
4,846
|
|
|
$
|
—
|
|
|
$
|
4,846
|
|
|
Unrealized gain on derivative instruments:
|
|
|
|
|
|
||||||
|
Unrealized gains arising during period
|
305
|
|
|
(112
|
)
|
|
193
|
|
|||
|
Less: reclassification adjustment for gains realized in net income
|
(68
|
)
|
|
25
|
|
|
(43
|
)
|
|||
|
Net unrealized gains
|
237
|
|
|
(87
|
)
|
|
150
|
|
|||
|
Other comprehensive income
|
$
|
5,083
|
|
|
$
|
(87
|
)
|
|
$
|
4,996
|
|
|
|
Three Months Ended March 31,
|
||||||
|
|
2017
|
|
2016
|
||||
|
Net realized foreign currency (loss) gain
|
$
|
(670
|
)
|
|
$
|
2,870
|
|
|
Net unrealized foreign currency (loss) gain
|
(2,707
|
)
|
|
(7,774
|
)
|
||
|
Other, net
|
(80
|
)
|
|
(213
|
)
|
||
|
Total other (expense) income, net
|
$
|
(3,457
|
)
|
|
$
|
(5,117
|
)
|
|
Fiscal Year
|
Operating Leases
|
||
|
2017 (remaining 9 months)
|
$
|
15,765
|
|
|
2018
|
17,860
|
|
|
|
2019
|
15,076
|
|
|
|
2020
|
11,793
|
|
|
|
2021
|
10,396
|
|
|
|
2022 and thereafter
|
58,844
|
|
|
|
Total minimum payments
|
$
|
129,734
|
|
|
|
Balance Sheet Classification
|
|
March 31, 2017
|
|
December 31, 2016
|
||||
|
Interest rate swaps - current
|
Prepaid expenses and other current assets
|
|
$
|
808
|
|
|
$
|
461
|
|
|
Interest rate swaps - non-current
|
Other long-term assets
|
|
$
|
1,600
|
|
|
$
|
1,717
|
|
|
|
Employee Severance Costs, Including Executive Transition Costs
|
|
Facility Closure and Lease Costs
|
|
Other Costs
|
|
Total
|
||||||||
|
Balance at December 31, 2016
|
$
|
4,695
|
|
|
$
|
3,817
|
|
|
$
|
80
|
|
|
$
|
8,592
|
|
|
Restructuring charges incurred
(a)
|
352
|
|
|
722
|
|
|
527
|
|
|
1,601
|
|
||||
|
Cash payments made
|
(1,658
|
)
|
|
(974
|
)
|
|
(562
|
)
|
|
(3,194
|
)
|
||||
|
Balance at March 31, 2017
|
$
|
3,389
|
|
|
$
|
3,565
|
|
|
$
|
45
|
|
|
$
|
6,999
|
|
|
|
Three Months Ended March 31,
|
||||||
|
|
2017
|
|
2016
|
||||
|
Numerator:
|
|
|
|
||||
|
Net income
|
$
|
21,187
|
|
|
$
|
17,405
|
|
|
Denominator:
|
|
|
|
||||
|
Basic weighted average common shares outstanding
|
54,015
|
|
|
53,955
|
|
||
|
Effect of dilutive securities:
|
|
|
|
||||
|
Stock options and other awards under deferred share-based compensation programs
|
1,108
|
|
|
1,907
|
|
||
|
Diluted weighted average common shares outstanding
|
55,123
|
|
|
55,862
|
|
||
|
Earnings per share:
|
|
|
|
||||
|
Basic
|
$
|
0.39
|
|
|
$
|
0.32
|
|
|
Diluted
|
$
|
0.38
|
|
|
$
|
0.31
|
|
|
|
Three Months Ended March 31,
|
||||
|
|
2017
|
|
2016
|
||
|
Antidilutive stock options and other awards
|
908
|
|
|
881
|
|
|
|
Number of Shares
|
|
Weighted Average
Grant Date Fair Value |
|||
|
Non-vested at December 31, 2016
|
708,695
|
|
|
|
||
|
Granted
|
473,949
|
|
|
$
|
51.55
|
|
|
Vested
|
(62,795
|
)
|
|
|
||
|
Forfeited
|
(8,451
|
)
|
|
|
||
|
Non-vested at March 31, 2017
|
1,111,398
|
|
|
|
||
|
|
Three Months Ended March 31,
|
||||||
|
Income Statement Classification
|
2017
|
|
2016
|
||||
|
Direct costs
|
$
|
2,713
|
|
|
$
|
1,259
|
|
|
Selling, general, and administrative expenses
|
3,106
|
|
|
1,557
|
|
||
|
Total share-based compensation expense
|
$
|
5,819
|
|
|
$
|
2,816
|
|
|
|
Three Months Ended March 31,
|
||||||
|
|
2017
|
|
2016
|
||||
|
Revenue:
|
|
|
|
||||
|
Clinical Development Services
|
$
|
249,727
|
|
|
$
|
245,973
|
|
|
Phase I Services
|
2,351
|
|
|
3,024
|
|
||
|
Segment revenue
|
252,078
|
|
|
248,997
|
|
||
|
Reimbursable out-of-pocket expenses not allocated to segments
|
129,840
|
|
|
164,090
|
|
||
|
Total revenue
|
$
|
381,918
|
|
|
$
|
413,087
|
|
|
Direct costs:
|
|
|
|
||||
|
Clinical Development Services
|
$
|
152,620
|
|
|
$
|
149,314
|
|
|
Phase I Services
|
2,215
|
|
|
2,744
|
|
||
|
Segment direct costs
|
154,835
|
|
|
152,058
|
|
||
|
Reimbursable out-of-pocket expenses not allocated to segments
|
129,840
|
|
|
164,090
|
|
||
|
Direct costs and reimbursable out-of-pocket expenses
|
$
|
284,675
|
|
|
$
|
316,148
|
|
|
Segment contribution margin:
|
|
|
|
||||
|
Clinical Development Services
|
$
|
97,107
|
|
|
$
|
96,659
|
|
|
Phase I Services
|
136
|
|
|
280
|
|
||
|
Segment contribution margin
|
97,243
|
|
|
96,939
|
|
||
|
Less expenses not allocated to segments:
|
|
|
|
||||
|
Selling, general, and administrative
|
44,934
|
|
|
43,479
|
|
||
|
Restructuring, CEO transition and other costs
|
1,927
|
|
|
6,038
|
|
||
|
Transaction expenses
|
2
|
|
|
561
|
|
||
|
Depreciation and amortization
|
15,628
|
|
|
14,353
|
|
||
|
Consolidated income from operations
|
$
|
34,752
|
|
|
$
|
32,508
|
|
|
|
Three Months Ended March 31,
|
||||||
|
|
2017
|
|
2016
|
||||
|
Revenue:
|
|
|
|
||||
|
North America
(a)
|
$
|
184,287
|
|
|
$
|
185,714
|
|
|
Europe, Middle East and Africa
|
57,262
|
|
|
56,898
|
|
||
|
Asia-Pacific
|
10,529
|
|
|
6,372
|
|
||
|
Latin America
|
—
|
|
|
13
|
|
||
|
Total net service revenue
|
252,078
|
|
|
248,997
|
|
||
|
Reimbursable-out-of-pocket expenses
|
129,840
|
|
|
164,090
|
|
||
|
Total revenue
|
$
|
381,918
|
|
|
$
|
413,087
|
|
|
|
March 31, 2017
|
|
December 31, 2016
|
||||
|
Property and equipment, net:
|
|
|
|
||||
|
North America
(a)
|
$
|
37,871
|
|
|
$
|
41,057
|
|
|
Europe, Middle East and Africa
|
11,975
|
|
|
11,235
|
|
||
|
Asia-Pacific
|
6,755
|
|
|
5,101
|
|
||
|
Latin America
|
884
|
|
|
913
|
|
||
|
Total property and equipment, net
|
$
|
57,485
|
|
|
$
|
58,306
|
|
|
|
Three Months Ended
|
|
|
|
|
|||||||||
|
|
March 31, 2017
|
|
March 31, 2016
|
|
Change
|
|||||||||
|
Net service revenue
|
$
|
252,078
|
|
|
$
|
248,997
|
|
|
$
|
3,081
|
|
|
1.2
|
%
|
|
Reimbursable out-of-pocket expenses
|
129,840
|
|
|
164,090
|
|
|
(34,250
|
)
|
|
(20.9
|
)%
|
|||
|
Total revenue
|
381,918
|
|
|
413,087
|
|
|
(31,169
|
)
|
|
(7.5
|
)%
|
|||
|
Costs and operating expenses:
|
|
|
|
|
|
|
|
|
|
|
|
|||
|
Direct costs (exclusive of depreciation and amortization)
|
154,835
|
|
|
152,058
|
|
|
2,777
|
|
|
1.8
|
%
|
|||
|
Reimbursable out-of-pocket expenses
|
129,840
|
|
|
164,090
|
|
|
(34,250
|
)
|
|
(20.9
|
)%
|
|||
|
Selling, general, and administrative
|
44,934
|
|
|
43,479
|
|
|
1,455
|
|
|
3.3
|
%
|
|||
|
Restructuring, CEO transition, and other costs
|
1,927
|
|
|
6,038
|
|
|
(4,111
|
)
|
|
(68.1
|
)%
|
|||
|
Transaction expenses
|
2
|
|
|
561
|
|
|
(559
|
)
|
|
(99.6
|
)%
|
|||
|
Depreciation and amortization
|
15,628
|
|
|
14,353
|
|
|
1,275
|
|
|
8.9
|
%
|
|||
|
Total operating expenses
|
347,166
|
|
|
380,579
|
|
|
(33,413
|
)
|
|
(8.8
|
)%
|
|||
|
Income from operations
|
34,752
|
|
|
32,508
|
|
|
2,244
|
|
|
6.9
|
%
|
|||
|
Total other (expense) income, net
|
(6,445
|
)
|
|
(8,087
|
)
|
|
1,642
|
|
|
20.3
|
%
|
|||
|
Income before provision for income taxes
|
28,307
|
|
|
24,421
|
|
|
3,886
|
|
|
15.9
|
%
|
|||
|
Income tax expense
|
(7,120
|
)
|
|
(7,016
|
)
|
|
(104
|
)
|
|
(1.5
|
)%
|
|||
|
Net income
|
$
|
21,187
|
|
|
$
|
17,405
|
|
|
$
|
3,782
|
|
|
21.7
|
%
|
|
|
Three Months Ended
|
|
|
|
|
|||||||||
|
|
March 31, 2017
|
|
March 31, 2016
|
|
Change
|
|||||||||
|
Net service revenue
|
$
|
252,078
|
|
|
$
|
248,997
|
|
|
$
|
3,081
|
|
|
1.2
|
%
|
|
Reimbursable out-of-pocket expenses
|
129,840
|
|
|
164,090
|
|
|
(34,250
|
)
|
|
(20.9
|
)%
|
|||
|
Total revenue
|
$
|
381,918
|
|
|
$
|
413,087
|
|
|
$
|
(31,169
|
)
|
|
(7.5
|
)%
|
|
|
Three Months Ended
|
|
|
|
|
|||||||||
|
|
March 31, 2017
|
|
March 31, 2016
|
|
Change
|
|||||||||
|
Direct costs (exclusive of depreciation and amortization)
|
$
|
154,835
|
|
|
$
|
152,058
|
|
|
$
|
2,777
|
|
|
1.8
|
%
|
|
Reimbursable out-of-pocket expenses
|
129,840
|
|
|
164,090
|
|
|
(34,250
|
)
|
|
(20.9
|
)%
|
|||
|
Total direct costs and reimbursable out-of-pocket expenses
|
$
|
284,675
|
|
|
$
|
316,148
|
|
|
$
|
(31,473
|
)
|
|
(10.0
|
)%
|
|
Change in:
|
Three Months Ended March 31,
2017 to 2016 |
||
|
Salaries, benefits, and incentive compensation
|
$
|
8,908
|
|
|
Contract labor
|
(7,491
|
)
|
|
|
Other
|
1,360
|
|
|
|
Total
|
$
|
2,777
|
|
|
|
Three Months Ended
|
|
|
|
|
|||||||||
|
|
March 31, 2017
|
|
March 31, 2016
|
|
Change
|
|||||||||
|
Selling, general, and administrative
|
$
|
44,934
|
|
|
$
|
43,479
|
|
|
$
|
1,455
|
|
|
3.3
|
%
|
|
Percentage of net service revenue
|
17.8
|
%
|
|
17.5
|
%
|
|
|
|
|
|||||
|
Change in:
|
Three Months Ended March 31,
2017 to 2016 |
||
|
Salaries, benefits, and incentive compensation
|
$
|
2,801
|
|
|
Other expenses
|
(1,346
|
)
|
|
|
Total
|
$
|
1,455
|
|
|
|
Three Months Ended
|
|
|
|
|
|||||||||
|
|
March 31, 2017
|
|
March 31, 2016
|
|
Change
|
|||||||||
|
Interest income
|
$
|
112
|
|
|
$
|
34
|
|
|
$
|
78
|
|
|
229.4
|
%
|
|
Interest expense
|
(3,100
|
)
|
|
(3,004
|
)
|
|
(96
|
)
|
|
(3.2
|
)%
|
|||
|
Other (expense) income, net
|
(3,457
|
)
|
|
(5,117
|
)
|
|
1,660
|
|
|
32.4
|
%
|
|||
|
Total other (expense) income, net
|
$
|
(6,445
|
)
|
|
$
|
(8,087
|
)
|
|
$
|
1,642
|
|
|
20.3
|
%
|
|
|
March 31, 2017
|
|
December 31, 2016
|
||||
|
Balance sheet statistics:
|
|
|
|
||||
|
Cash and cash equivalents
(1)
|
$
|
164,405
|
|
|
$
|
102,471
|
|
|
Working capital (excluding restricted cash)
|
80,264
|
|
|
55,295
|
|
||
|
|
Three Months Ended
|
|
|
||||||||
|
|
March 31, 2017
|
|
March 31, 2016
|
|
Change
|
||||||
|
Net cash provided by (used in) operating activities
|
$
|
75,698
|
|
|
$
|
(646
|
)
|
|
$
|
76,344
|
|
|
Net cash used in investing activities
|
(10,571
|
)
|
|
(4,774
|
)
|
|
(5,797
|
)
|
|||
|
Net cash used in financing activities
|
(6,020
|
)
|
|
(26,452
|
)
|
|
20,432
|
|
|||
|
|
Payment Due by Period
|
||||||||||||||||||
|
|
Total
|
|
2017 (remaining 9 months)
|
|
2018 to 2019
|
|
2020 to 2021
|
|
2022 and thereafter
|
||||||||||
|
Long-term debt
|
$
|
490,000
|
|
|
$
|
11,875
|
|
|
$
|
65,313
|
|
|
$
|
412,812
|
|
|
$
|
—
|
|
|
Interest on long-term debt
|
50,364
|
|
|
9,643
|
|
|
23,766
|
|
|
16,955
|
|
|
—
|
|
|||||
|
Noncancellable purchase commitments
|
61,653
|
|
|
18,069
|
|
|
42,413
|
|
|
1,171
|
|
|
—
|
|
|||||
|
Operating leases
|
129,734
|
|
|
15,765
|
|
|
32,936
|
|
|
22,189
|
|
|
58,844
|
|
|||||
|
Executive transition costs
|
$
|
2,102
|
|
|
$
|
1,871
|
|
|
$
|
231
|
|
|
$
|
—
|
|
|
$
|
—
|
|
|
Total
|
$
|
733,853
|
|
|
$
|
57,223
|
|
|
$
|
164,659
|
|
|
$
|
453,127
|
|
|
$
|
58,844
|
|
|
|
|
|
Incorporated by Reference (Unless Otherwise Indicated)
|
|||
|
Exhibit Number
|
|
Exhibit Description
|
Form
|
File No.
|
Exhibit
|
Filing Date
|
|
10.1
|
|
Form of Global Restricted Stock Unit Award Agreement for Participants under INC Research Holdings, Inc. 2014 Equity Incentive Plan, as Amended and Restated.
|
—
|
—
|
—
|
Filed herewith
|
|
10.2
|
|
Form of Global Performance Restricted Stock Unit Award Agreement for Executives under INC Research Holdings, Inc. 2014 Equity Incentive Plan, as Amended and Restated.
|
—
|
—
|
—
|
Filed herewith
|
|
10.3
|
|
Form of Restricted Stock Unit Award Agreement for Non-Employee Directors under INC Research Holdings, Inc. 2014 Equity Incentive Plan, as Amended and Restated.
|
—
|
—
|
—
|
Filed herewith
|
|
31.1
|
|
Certification of Chief Executive Officer pursuant to Section 302 of the Sarbanes-Oxley Act of 2002.
|
—
|
—
|
—
|
Filed herewith
|
|
31.2
|
|
Certification of Executive Vice President and Chief Financial Officer pursuant to Section 302 of the Sarbanes-Oxley Act of 2002.
|
—
|
—
|
—
|
Filed herewith
|
|
32.1
|
|
Certification of Chief Executive Officer pursuant to Section 906 of the Sarbanes-Oxley Act of 2002.
|
—
|
—
|
—
|
Furnished herewith
|
|
32.2
|
|
Certification of Executive Vice President and Chief Financial Officer pursuant to Section 906 of the Sarbanes-Oxley Act of 2002.
|
—
|
—
|
—
|
Furnished herewith
|
|
101.INS
|
|
XBRL Instance Document.
|
—
|
—
|
—
|
Filed herewith
|
|
101.SCH
|
|
XBRL Taxonomy Extension Schema Document.
|
—
|
—
|
—
|
Filed herewith
|
|
101.CAL
|
|
XBRL Taxonomy Extension Calculation Linkbase Document.
|
—
|
—
|
—
|
Filed herewith
|
|
101.DEF
|
|
XBRL Taxonomy Extension Definition Linkbase Document.
|
—
|
—
|
—
|
Filed herewith
|
|
101.LAB
|
|
XBRL Taxonomy Extension Label Linkbase Document.
|
—
|
—
|
—
|
Filed herewith
|
|
101.PRE
|
|
Taxonomy Extension Presentation Linkbase Document.
|
—
|
—
|
—
|
Filed herewith
|
|
|
|
|
|
|
|
INC RESEARCH HOLDINGS INC.
|
|
|
|
|
|
Date: May 10, 2017
|
|
/s/ Gregory S. Rush
|
|
|
|
Gregory S. Rush
|
|
|
|
Executive Vice President and Chief Financial Officer (Principal Financial and Accounting Officer)
|
|
|
|
|
Incorporated by Reference (Unless Otherwise Indicated)
|
|||
|
Exhibit Number
|
|
Exhibit Description
|
Form
|
File No.
|
Exhibit
|
Filing Date
|
|
10.1
|
|
Form of Global Restricted Stock Unit Award Agreement for Participants under INC Research Holdings, Inc. 2014 Equity Incentive Plan, as Amended and Restated.
|
—
|
—
|
—
|
Filed herewith
|
|
10.2
|
|
Form of Global Performance Restricted Stock Unit Award Agreement for Executives under INC Research Holdings, Inc. 2014 Equity Incentive Plan, as Amended and Restated.
|
—
|
—
|
—
|
Filed herewith
|
|
10.3
|
|
Form of Restricted Stock Unit Award Agreement for Non-Employee Directors under INC Research Holdings, Inc. 2014 Equity Incentive Plan, as Amended and Restated.
|
—
|
—
|
—
|
Filed herewith
|
|
31.1
|
|
Certification of Chief Executive Officer pursuant to Section 302 of the Sarbanes-Oxley Act of 2002.
|
—
|
—
|
—
|
Filed herewith
|
|
31.2
|
|
Certification of Executive Vice President and Chief Financial Officer pursuant to Section 302 of the Sarbanes-Oxley Act of 2002.
|
—
|
—
|
—
|
Filed herewith
|
|
32.1
|
|
Certification of Chief Executive Officer pursuant to Section 906 of the Sarbanes-Oxley Act of 2002.
|
—
|
—
|
—
|
Furnished herewith
|
|
32.2
|
|
Certification of Executive Vice President and Chief Financial Officer pursuant to Section 906 of the Sarbanes-Oxley Act of 2002.
|
—
|
—
|
—
|
Furnished herewith
|
|
101.INS
|
|
XBRL Instance Document.
|
—
|
—
|
—
|
Filed herewith
|
|
101.SCH
|
|
XBRL Taxonomy Extension Schema Document.
|
—
|
—
|
—
|
Filed herewith
|
|
101.CAL
|
|
XBRL Taxonomy Extension Calculation Linkbase Document.
|
—
|
—
|
—
|
Filed herewith
|
|
101.DEF
|
|
XBRL Taxonomy Extension Definition Linkbase Document.
|
—
|
—
|
—
|
Filed herewith
|
|
101.LAB
|
|
XBRL Taxonomy Extension Label Linkbase Document.
|
—
|
—
|
—
|
Filed herewith
|
|
101.PRE
|
|
Taxonomy Extension Presentation Linkbase Document.
|
—
|
—
|
—
|
Filed herewith
|
|
1.
|
Grant of Restricted Stock Units
. The Company has granted to the Participant, effective as of the Date of Grant, [●] Restricted Stock Units, on the terms and conditions set forth in the Plan and this Agreement, subject to adjustment as set forth in the Plan (the “
RSUs
”).
|
|
2.
|
Vesting of RSUs
. Subject to the terms and conditions set forth in the Plan and this Agreement, the RSUs will vest as follows:
|
|
(a)
|
General
. Except as otherwise provided in Sections 2(b) and 4 and, if applicable, in Appendix C, the RSUs will vest in equal annual installments of 25% of the Shares over a four-year period on each anniversary of the Date of Grant, subject to the Participant’s continued Service through each applicable vesting date.
|
|
(b)
|
Change in Control
. The RSUs will become fully vested immediately upon the Participant’s termination of Service in the event that the Participant’s Service is terminated by the Company without Cause (as defined in the Plan) or if the Participant resigns for Good Reason at the time of, or within 6 months following, the consummation of a Change in Control occurring after the Date of Grant.
|
|
3.
|
Settlement of RSUs Upon Vesting
.
|
|
(a)
|
Settlement in Stock
. RSUs vested as described in Section 2 above will be settled by delivering to the Participant a number of Shares equal to the number of vested RSUs on the date on which the RSUs vest, subject to the terms of this Agreement and payment of any Tax-Related Items.
|
|
(b)
|
Book-Entry Registration of the Shares; Delivery of Shares
. As soon as practical after the RSUs vest pursuant to Section 2, the Company will issue the Shares payable pursuant to this Agreement by registering such Shares with the Company’s transfer agent (or another custodian selected by the Company) in book-entry form in the Participant’s name. In any case, the Company may provide a reasonable delay in the issuance or delivery of the Shares to address Tax-Related Items, withholding, and other administrative matters. Neither the Company nor the Committee will be liable to the Participant or any other Person for damages relating to any delays in issuing the Shares or any mistakes or errors in the issuance of the Shares.
|
|
(c)
|
Shareholder Rights
. The Participant will not have any rights of a stockholder with respect to the Shares subject to the RSUs, including voting and dividend rights, unless and until the Shares are delivered as described in Section 3(b) above.
|
|
(d)
|
Responsibility for Taxes
. The Participant acknowledges that, regardless of any action taken by the Company or, if different, the Subsidiary employing or retaining the Participant (the “
Employer
”), the ultimate liability for all Tax-Related Items is and remains the Participant’s responsibility and may exceed the amount actually withheld by the Company or the Employer. The Participant further acknowledges that the Company and/or the Employer (1) make no representations or undertakings regarding the treatment of any Tax-Related Items in connection with any aspect of the RSUs, including, but not limited to, the grant or vesting of the RSUs, the subsequent sale of Shares acquired pursuant to such vesting and the receipt of any dividends and/or dividend equivalents; and (2) do not commit to and are under no obligation to structure the terms of the grant or any aspect of the RSUs to reduce or eliminate the Participant’s liability for Tax-Related Items or achieve any particular tax result. Further, if the Participant is subject to Tax-Related Items in more than one jurisdiction, the Participant acknowledges that the Company and/or the Employer (or former Employer, as applicable) may be required to withhold or account for Tax-Related Items in more than one jurisdiction.
|
|
(e)
|
Withholding Requirements
. Prior to any relevant taxable or tax withholding event, as applicable, the Participant agrees to make adequate arrangements satisfactory to the Company and/or the Employer to satisfy all Tax-Related Items. In this regard, the Participant authorizes the Company and/or the Employer, or their respective agents, at the Company’s and/or the Employer’s discretion, to satisfy the obligations with regard to all Tax-Related Items by one or a combination of the following: (1) cash payment by the Participant to the Company prior to the day of vesting of an amount that the Company will apply to the required withholding; (2) withholding from the Participant’s wages or other cash compensation paid to the Participant by the Company and/or the Employer; (3) withholding from proceeds of the sale of Shares acquired upon vesting/settlement of the RSUs either through a voluntary sale or through a mandatory sale arranged by the Company
(on the Participant’s behalf pursuant to this authorization); or (4) withholding in Shares to be issued upon settlement of the RSUs. For the purposes of alternative (4) above, any Shares withheld shall be credited for purposes of the withholding requirements at the Fair Market Value of the Shares on the date that the tax withholding is determined. Until such time as the Company provides notice to the contrary, it will collect withholding for Tax-Related Items pursuant to alternative (3) above; provided, however, that if such method (A) cannot be processed by the broker or (B) the Participant is subject to the Company’s Policy on Insider Trading and Communications with the Public (the “Insider Trading Policy”), the sale of Shares pursuant to alternative (3) is prohibited under the Insider Trading Policy Public and the Participant has not entered in to an arrangement that is intended to comply with the requirements of Rule 10b5-1(c)(1) of the Exchange Act and that provides for the sale of all of the Shares subject to this Agreement, the Company will instead collect withholding for Tax-Related Items pursuant to alternative (4).
|
|
4.
|
Forfeiture
. Notwithstanding the Change in Control vesting as stated in Section 2(b) above, any unvested RSUs will be forfeited immediately, automatically and without consideration upon a termination of the Participant’s Service (regardless of the reason for such termination and whether or not later to be found invalid or in breach of employment laws in the jurisdiction where the Participant is employed or the terms of the Participant’s employment agreement, if any), including a Participant’s change in status from employee to consultant or other personal service provider. Without limiting the generality of the foregoing, the RSUs and the Shares (and any resulting proceeds) will continue to be subject to Section 13 of the Plan.
|
|
5.
|
Adjustment to RSUs
. In the event of any change with respect to the outstanding Shares contemplated by Section 4.5 of the Plan, the RSUs may be adjusted in accordance with Section 4.5 of the Plan.
|
|
6.
|
Nature of Grant
. In accepting the RSUs, the Participant acknowledges, understands and agrees that:
|
|
(a)
|
the Plan is established voluntarily by the Company, it is discretionary in nature and it may be modified, amended, suspended or terminated by the Company at any time, to the extent permitted by the Plan;
|
|
(b)
|
the grant of the RSUs is exceptional, voluntary and occasional and does not create any contractual or other right to receive future grants of RSUs, or benefits in lieu of RSUs, even if RSUs have been granted in the past;
|
|
(c)
|
all decisions with respect to future RSUs or other grants, if any, will be at the sole discretion of the Company;
|
|
(d)
|
the RSUs and the Participant’s participation in the Plan shall not create a right to employment or be interpreted as forming an employment or services contract with the Company or any Subsidiary;
|
|
(e)
|
the Participant is voluntarily participating in the Plan;
|
|
(f)
|
the RSUs and the Shares subject to the RSUs are not intended to replace any pension rights or compensation;
|
|
(g)
|
the RSUs and the Shares subject to the RSUs, and the income and value of same, are not part of normal or expected compensation for purposes of calculating any severance, resignation, termination, redundancy, dismissal, end-of-service payments, bonuses, holiday pay, long-service awards, pension or retirement or welfare benefits or similar payments;
|
|
(h)
|
unless otherwise agreed with the Company, the RSUs and the Shares subject to the RSUs, and the income and value of same, are not granted as consideration for, or in connection with, the service the Participant may provide as a director of a Subsidiary;
|
|
(i)
|
the future value of the underlying Shares is unknown, indeterminable and cannot be predicted with certainty;
|
|
(j)
|
no claim or entitlement to compensation or damages shall arise from forfeiture of the RSUs resulting from the termination of the Participant’s Service (for any reason whatsoever whether or not later found to be invalid or in breach of employment laws in the jurisdiction where the Participant is employed or the terms of the Participant’s employment agreement, if any);
|
|
(k)
|
the following provision shall not apply to Participants in the state of California: In consideration of the grant of the RSUs to which the Participant is otherwise not entitled, the Participant irrevocably agrees never to institute any claim against the Company or any of its Subsidiaries, waives his or her ability, if any, to bring any such claim, and releases the Company and its Subsidiaries from any such claim; if, notwithstanding the foregoing, any such claim is allowed by a court of competent jurisdiction, then, by participating in the Plan, the Participant shall be deemed irrevocably to have agreed not to pursue such claim and agrees to execute any and all documents necessary to request dismissal or withdrawal of such claim; and
|
|
(l)
|
The following provision applies if the Participant is providing services outside the United States: neither the Company nor any Subsidiary shall be liable for any foreign exchange rate fluctuation between the Participant’s local currency and the United States Dollar that may affect the value of the RSUs or of any amounts due to the Participant pursuant to the settlement of the RSUs or the subsequent sale of any Shares acquired upon settlement.
|
|
7.
|
No Advice Regarding Grant
. The Company is not providing any tax, legal or financial advice, nor is the Company making any recommendations regarding the Participant’s participation in the Plan, or the Participant’s acquisition or sale of the underlying Shares. The Participant is hereby advised to consult with the Participant’s own personal tax, legal and financial advisors regarding the Participant’s participation in the Plan before taking any action related to the Plan.
|
|
8.
|
Restrictive Covenants
. The Participant acknowledges and recognizes the highly competitive nature of the businesses of the Company and its Affiliates and accordingly agrees to the provisions of
Appendix A
to this Agreement (the “Restrictive Covenants”). For the avoidance of doubt, the Restrictive Covenants contained in this Agreement are in addition to, and not in lieu of, any other restrictive covenants or similar covenants between the Participant and the Company or any of its Affiliates.
|
|
9.
|
Data Privacy
. The Participant hereby explicitly and unambiguously consents to the collection, use and transfer, in electronic or other form, of the Participant’s personal data as described in this Agreement and any other RSU grant materials by and among, as applicable, the Employer, the Company and its Subsidiaries for the purpose of implementing, administering and managing the Participant’s participation in the Plan.
|
|
10.
|
Language
. If the Participant has received this Agreement or any other document related to the Plan translated into a language other than English and if the meaning of the translated version is different than the English version, the English version will control.
|
|
11.
|
Electronic Delivery and Acceptance
. The Company may, in its sole discretion, decide to deliver any documents related to current or future participation in the Plan by electronic means. The Participant hereby consents to receive such documents by electronic delivery and agrees to participate in the Plan through an on-line or electronic system established and maintained by the Company or a third party designated by the Company.
|
|
12.
|
Imposition of Other Requirements
. The Company reserves the right to impose any other requirements on the Participant’s participation in the Plan, on the RSUs and on any Shares acquired under the Plan, to the extent the Company determines it is necessary or advisable for legal or administrative reasons, and to require the Participant to sign any additional agreements or undertakings that may be necessary to accomplish the foregoing.
|
|
13.
|
Appendix
. Notwithstanding any provisions in this Agreement, the RSUs shall be subject to any special terms and conditions set forth in the
Appendix B
for the Participant’s country. The Appendix B constitutes part of this Restricted Stock Unit Agreement.
|
|
14.
|
Insider Trading Restrictions/Market Abuse Laws
. The Participant acknowledges that, depending on his or her country, the Participant may be subject to insider trading restrictions and/or market abuse laws in applicable jurisdictions, which may affect his or her ability to, directly or indirectly, acquire, sell, or attempt to sell Shares or rights to Shares (
e.g
., RSUs) under the Plan during such times as the Participant is considered to have “inside information” regarding the Company (as defined by the laws in the applicable jurisdictions or in the Participant’s country). Any restrictions under these laws or regulations are separate from and in addition to any restrictions that may be imposed under any applicable Company insider trading policy. The Participant is responsible for ensuring compliance with any applicable restrictions and is advised to consult his or her personal legal advisor on this matter.
|
|
15.
|
Foreign Asset/Account Reporting; Exchange Controls
. The Participant’s country may have certain foreign asset and/or account reporting requirements and/or exchange controls which may affect the Participant’s ability to acquire or hold Shares under the Plan or cash received from participating in the Plan (including from any dividends received or sale proceeds arising from the sale of Shares) in a brokerage or bank account outside the Participant’s country. The Participant may be required to report such accounts, assets or transactions to the tax or other authorities in his or her country. The Participant also may be required to repatriate sale proceeds or other funds received as a result of the Participant’s participation in the Plan to his or her country through a designated bank or broker and/or within a certain time after receipt. The Participant acknowledges that it is his or her responsibility to be compliant with such regulations, and the Participant is advised to consult his or her personal legal advisor for any details.
|
|
16.
|
Miscellaneous Provisions
.
|
|
(a)
|
Securities or Exchange Control Laws Requirements
. No Shares will be issued or transferred pursuant to this Agreement unless and until all then applicable requirements imposed by federal and state securities and other securities or exchange control laws, rules and regulations and by any regulatory agencies having jurisdiction, and by any exchanges upon which the Shares may be listed, have been fully met. As a condition precedent to the issuance of Shares pursuant to this Agreement, the Company may require the Participant to take any reasonable action to meet those requirements. The Committee may impose such conditions on any Shares issuable pursuant to this Agreement as it may deem advisable, including, without limitation, restrictions under the Securities Act of 1933, as amended, under the requirements of any exchange upon which shares of the same class are then listed and under any blue sky or other securities laws applicable to those Shares.
|
|
(b)
|
Non-Transferability
. The RSUs and the rights and privileges conferred thereby shall be non-transferrable except as provided by Section 15.3 of the Plan. Any Shares delivered hereunder will be subject to such stop transfer orders and other restrictions as the Committee may deem advisable under the Plan or the rules, regulations and other requirements of the Securities and Exchange Commission, any stock exchange upon which such shares are listed, any applicable federal, state or local laws and any agreement with, or policy of, the Company or the Committee to which the Participant is a party or subject, and the Committee may cause orders or designations to be placed upon any certificate(s) or other document(s) delivered to the Participant, or on the books and records of the Company’s transfer agent, to make appropriate reference to such restrictions.
|
|
(c)
|
No Right to Continued Service
. Nothing in this Agreement or the Plan confers upon the Participant any right to continue in Service for any period of specific duration or interfere with or otherwise restrict in any way the rights of the Company (or any Subsidiary employing or retaining the Participant) or of the Participant, which rights are hereby expressly reserved by each, to terminate his or her Service at any time and for any reason, with or without Cause.
|
|
(d)
|
Notification
. Any notification required by the terms of this Agreement will be given by the Participant (i) in a writing addressed to the Company at its principal executive office and will be deemed effective upon actual receipt when delivered by personal delivery or by registered or certified mail, with postage and fees prepaid, or (ii) by electronic transmission to the Company’s e-mail address of the Company’s General Counsel and will be deemed effective upon actual receipt. Any notification required by the terms of this Agreement will be given by the Company (x) in a writing addressed to the address that the Participant most recently provided to the Company and will be deemed effective upon personal delivery or within three (3) days of deposit with the United States Postal Service, by registered or certified mail, with postage and fees prepaid, or (y) by facsimile or electronic transmission to the Participant’s primary work fax number or e-mail address (as applicable) and will be deemed effective upon confirmation of receipt by the sender of such transmission.
|
|
(e)
|
Entire Agreement
. This Agreement and the Plan constitute the entire agreement between the parties hereto with regard to the subject matter of this Agreement. This Agreement and the Plan supersede any other agreements, representations or understandings (whether oral or written and whether express or implied) that relate to the subject matter of this Agreement.
|
|
(f)
|
Waiver
. No waiver of any breach or condition of this Agreement by the Participant or any other Participant will be deemed to be a waiver of any other or subsequent breach or condition whether of like or different nature.
|
|
(g)
|
Successors and Assigns
. The provisions of this Agreement will inure to the benefit of, and be binding upon, the Company and its successors and assigns and upon the Participant, the Participant’s executor, personal representative(s), distributees, administrator, permitted transferees, permitted assignees, beneficiaries, and legatee(s), as applicable, whether or not any such person will have become a party to this Agreement and have agreed in writing to be joined herein and be bound by the terms hereof.
|
|
(h)
|
Severability
. The provisions of this Agreement are severable, and if any one or more provisions are determined to be illegal or otherwise unenforceable, in whole or in part, then the remaining provisions will nevertheless be binding and enforceable.
|
|
(i)
|
Amendment
. Except as otherwise provided in the Plan, this Agreement will not be amended unless the amendment is agreed to in writing by both the Participant and the Company.
|
|
(j)
|
Choice of Law; Jurisdiction
. This Agreement and all claims, causes of action or proceedings (whether in contract, in tort, at law or otherwise) that may be based upon, arise out of or relate to this Agreement will be governed by the internal laws of the State of Delaware, excluding any conflicts or choice-of-law rule or principle that might otherwise refer construction or interpretation of this
|
|
(k)
|
Signature in Counterparts
. This Agreement may be signed in counterparts, manually or electronically, each of which will be an original, with the same effect as if the signatures to each were upon the same instrument.
|
|
(l)
|
IRC Section 409A
. This Section 16(l) applies only to Participants who are U.S. taxpayers.
|
|
(m)
|
Acceptance
. The Participant hereby acknowledges receipt of a copy of the Plan and this Agreement. The Participant has read and understands the terms and
|
|
1.
|
Involuntary Termination in connection with Change in Control
.
|
|
(i)
|
The RSUs will become fully vested immediately upon the Eligible Executive’s termination of Service in the event that (A) the Eligible Executive’s Service is terminated by the Company for any reason other than Cause, death or Disability or (B) the Eligible Executive resigns for Good Reason, in each case, at the time of, or during the period commencing on the date three (3) months prior to a Change in Control and ending twenty-four (24) months following such Change in Control.
|
|
(ii)
|
As used in this Agreement, “
Cause
,” “
Change in Control
,” and “
Good Reason
” shall have the meanings ascribed to such terms in the INC Research Holdings, Inc. Executive Severance Plan (the “Severance Plan”).
|
|
(iii)
|
This Section 2(b) shall be interpreted consistently with the provisions of the Severance Plan to give effect to the benefits intended to be provided under the Severance Plan. Further, the vesting acceleration benefits provided under this Section 2(b) shall be subject to the conditions set forth in the Severance Plan.
|
|
(iv)
|
Any vesting acceleration provisions contemplated under this Section 2(b) shall be subject to the limitations provided in Section 5.5 of the Plan.
|
|
2.
|
Restrictive Covenants
|
|
1.
|
Grant of Performance Restricted Stock Units
. The Company has granted to the Participant, effective as of the Date of Grant,
Number of PRSUs Granted
(“Total Award”) Performance Restricted Stock Units, on the terms and conditions set forth in the Plan and this Agreement, subject to adjustment as set forth in the Plan (the “
PRSUs
”).
|
|
2.
|
Vesting Eligibility of PRSUs
. Subject to the terms and conditions set forth in the Plan and this Agreement, the PRSUs will be eligible for vesting as follows:
|
|
(a)
|
General
. Except as otherwise provided in Section 2(b), the PRSUs will be eligible for vesting based on the attainment of certain Performance Goals during the Performance Periods as set forth on
Appendix A
. The Committee will, promptly after the filing of the Company’s Form 10-K (or other report publicly furnished to the U.S. Securities and Exchange Commission (“
SEC
”)) for each of the Performance Periods, review the applicable financial data as reported in the Form 10-K (or such other report referenced above) and determine whether and to what extent the Performance Goals for each Performance Period set forth in
|
|
(b)
|
Effect of Involuntary Termination in connection with Change in Control
. Any portion of the Total Award not previously forfeited will become fully vested immediately upon the Participant’s termination of Service in the event that (A) the Participant’s Service is terminated by the Company or a Subsidiary for any reason other than Cause, death or Disability or (B) the Participant resigns for Good Reason, in each case, at the time of, or during the period commencing on the date three (3) months prior to a Change in Control and ending twenty-four (24) months following such Change in Control. (either of such events of termination within such period, a “
CIC Termination
”).
|
|
(i)
|
For purposes of this Agreement, “
Cause
,” “
Change in Control
,” and “
Good Reason
” shall have the meanings ascribed to such terms in the INC Research Holdings, Inc. Executive Severance Plan (the “
Severance Plan
”).
|
|
(ii)
|
This Section 2(b) shall be interpreted consistently with the provisions of the Severance Plan to give effect to the benefits intended to be provided under the Severance Plan, without regard to whether the Participant is an Eligible Executive under the Severance Plan. Further, the vesting acceleration benefits provided under this Section 2(b) shall be subject to the conditions set forth in the Severance Plan.
|
|
(iii)
|
Any vesting acceleration provisions contemplated under this Section 2(b) shall be subject to the limitations provided in Section 5.5 of the Plan.
|
|
(iv)
|
Any PRSUs that vest pursuant to this Section 2(b) shall also be subject to the additional settlement provisions and subject to the conditions set forth in the Severance Plan.
|
|
(v)
|
The provisions in this Section 2(b) shall apply without regard to whether the Participant is an Eligible Executive under the Severance Plan.
|
|
3.
|
Settlement of PRSUs.
|
|
(a)
|
Settlement in Stock
. PRSUs eligible for vesting as described in Section 2 above will be settled by delivering to Participant a number of Shares equal to the number of PRSUs that are eligible to vest on the Vesting Date (as hereafter defined). For purposes of this Agreement, the “
Vesting Date
” will be the earlier of (x) the date on which the Committee approves the achievement of the Performance Goals after the filing of the Form 10-K for the year ending December 31, 2019 (or such other report referenced in Section 2(a) above), provided that the Participant must remain in Service through such date, or (y) the date on which a CIC Termination occurs, in each case subject to the provisions of Section 14(l) of this Agreement and any additional restrictions on settlement and subject to the conditions set forth in the Severance Plan.
|
|
(b)
|
Book-Entry Registration of the Shares; Delivery of Shares
. The Company shall issue the Shares payable pursuant to this Agreement within the settlement period set forth in Section 3(b) by registering such Shares with the Company’s transfer agent (or another custodian selected by the Company) in book-entry form in the Participant’s name. In any case, the Company may provide a reasonable delay in the issuance or delivery of the Shares to address Tax-Related Items, withholding, and other administrative matters provided that any such delay does not result in a violation of Section 409A of the Code (to the extent the Participant is a U.S. taxpayer). Neither the Company nor the Committee will be liable to the Participant or any other Person for damages relating to any delays in issuing the Shares or any mistakes or errors in the issuance of the Shares.
|
|
(c)
|
Shareholder Rights
. The Participant will not have any rights of a stockholder with respect to the Shares subject to the PRSUs, including voting and dividend rights, unless and until the Shares are delivered as described in Section 3(b) above.
|
|
(d)
|
Responsibility for Taxes
. The Participant acknowledges that, regardless of any action taken by the Company or, if different, the Subsidiary employing or retaining the Participant (the “
Employer
”), the ultimate liability for all Tax-Related Items is and remains the Participant’s responsibility and may exceed the amount actually withheld by the Company or the Employer. The Participant further acknowledges that the Company and/or the Employer (1) make no representations or undertakings regarding the treatment of any Tax-Related Items in connection with any aspect of the PRSUs, including, but not limited to, the grant or vesting of the PRSUs, the delivery of Shares following the Vesting Date, the subsequent sale of Shares acquired pursuant to such vesting/delivery and the
|
|
(e)
|
Withholding Requirements
. Prior to any relevant taxable or tax withholding event, as applicable, the Participant agrees to make adequate arrangements satisfactory to the Company and/or the Employer to satisfy all Tax-Related Items. In this regard, the Participant authorizes the Company and/or the Employer, or their respective agents, at the Company’s and/or the Employer’s discretion, to satisfy the obligations with regard to all Tax-Related Items by one or a combination of the following: (1) cash payment by the Participant to the Company prior to the day of vesting of an amount that the Company will apply to the required withholding; (2) withholding from the Participant’s wages or other cash compensation paid to the Participant by the Company and/or the Employer; (3) withholding from proceeds of the sale of Shares acquired upon vesting/settlement of the PRSUs either through a voluntary sale or through a mandatory sale arranged by the Company (on the Participant’s behalf pursuant to this authorization); or (4) withholding in Shares to be issued upon settlement of the PRSUs. For purposes of alternative (4) above, any Shares withheld shall be credited for purposes of the withholding requirements at the Fair Market Value of the Shares on the date that the tax withholding is determined. Until such time as the Company provides notice to the contrary, it will collect withholding for Tax-Related Items pursuant to alternative (3) above; provided, however, that if such method (A) cannot be processed by the broker or (B) the Participant is subject to the Company’s Policy on Insider Trading and Communications with the Public (the “Insider Trading Policy”), the sale of Shares pursuant to alternative (3) is prohibited under the Insider Trading Policy and the Participant has not entered into an arrangement that is intended to comply with the requirements of Rule 10b5-1(c)(1) of the Exchange Act and that provides for the sale of all of the Shares subject to this Agreement, the Company will instead collect withholding for Tax-Related Items pursuant to alternative (4).
|
|
4.
|
Forfeiture
. Except as provided in Section 2(b) above relating to certain terminations of Service occurring in connection with a Change in Control, all PRSUs (whether eligible for vesting or not) will be forfeited immediately, automatically and without consideration upon a termination of the Participant’s Service for any reason (whether or not later to be found invalid or in breach of employment laws in the jurisdiction where the Participant is employed or the terms of the Participant’s employment agreement, if any), including a Participant’s change in status from employee to consultant or other personal service provider, prior to the Vesting Date. In addition, any PRSUs for a given Performance Period which are not eligible for vesting after determination of the attainment of the Performance Goals for such Performance Period will be forfeited as of the date of certification by the Committee and will not carry over to subsequent Performance Periods. Without limiting the generality of the foregoing, the PRSUs and the Shares (and any resulting proceeds) will continue to be subject to Section 13 of the Plan.
|
|
5.
|
Adjustment to PRSUs
. In the event of any change with respect to the outstanding Shares contemplated by Section 4.5 of the Plan, the PRSUs may be adjusted in accordance with Section 4.5 of the Plan.
|
|
6.
|
Nature of Grant
. In accepting the PRSUs, the Participant acknowledges, understands and agrees that:
|
|
(a)
|
the Plan is established voluntarily by the Company, it is discretionary in nature and it may be modified, amended, suspended or terminated by the Company at any time, to the extent permitted by the Plan;
|
|
(b)
|
the grant of the PRSUs is exceptional, voluntary and occasional and does not create any contractual or other right to receive future grants of PRSUs, or benefits in lieu of PRSUs, even if PRSUs have been granted in the past;
|
|
(c)
|
all decisions with respect to future PRSUs or other grants, if any, will be at the sole discretion of the Company;
|
|
(d)
|
the PRSUs and the Participant’s participation in the Plan shall not create a right to employment or be interpreted as forming an employment or services contract with the Company or any Subsidiary;
|
|
(e)
|
the Participant is voluntarily participating in the Plan;
|
|
(f)
|
the PRSUs and the Shares subject to the PRSUs are not intended to replace any pension rights or compensation;
|
|
(g)
|
the PRSUs and the Shares subject to the PRSUs, and the income and value of same, are not part of normal or expected compensation for purposes of calculating any severance, resignation, termination, redundancy, dismissal, end-of-service payments, bonuses, holiday pay, long-service awards, pension or retirement or welfare benefits or similar payments;
|
|
(h)
|
unless otherwise agreed with the Company, the PRSUs and the Shares subject to the PRSUs, and the income and value of same, are not granted as consideration for, or in connection with, the service that the Participant may provide as a director of a Subsidiary;
|
|
(i)
|
the future value of the underlying Shares is unknown, indeterminable and cannot be predicted with certainty;
|
|
(j)
|
no claim or entitlement to compensation or damages shall arise from forfeiture of the PRSUs resulting from the termination of the Participant’s Service (for any reason whatsoever whether or not later found to be invalid or in breach of employment laws in the jurisdiction where the Participant is employed or the terms of the Participant’s employment agreement, if any);
|
|
(k)
|
the following provision shall not apply to Participants in the state of California: In consideration of the grant of the PRSUs to which the Participant is otherwise not entitled, the Participant irrevocably agrees never to institute any claim against the Company or any of its Subsidiaries, waives his or her ability, if any, to bring any such claim, and releases the Company and its Subsidiaries from any such claim; if, notwithstanding the foregoing, any such claim is allowed by a court of competent jurisdiction, then, by participating in the Plan, the Participant shall be deemed irrevocably to have agreed not to pursue such claim and agrees to execute any and all documents necessary to request dismissal or withdrawal of such claim;
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(l)
|
The following provision applies if the Participant is providing services outside the United States: neither the Company nor any Subsidiary shall be liable for any foreign exchange rate fluctuation between the Participant’s local currency and the United States Dollar that may affect the value of the PRSUs or of any amounts due to the Participant pursuant to the settlement of the PRSUs or the subsequent sale of any Shares acquired upon settlement.
|
|
7.
|
No Advice Regarding Grant
. The Company is not providing any tax, legal or financial advice, nor is the Company making any recommendations regarding the Participant’s participation in the Plan, or the Participant’s acquisition or sale of the underlying Shares. The Participant is hereby advised to consult with the Participant’s own personal tax, legal and financial advisors regarding the Participant’s participation in the Plan before taking any action related to the Plan.
|
|
8.
|
Data Privacy
. The Participant hereby explicitly and unambiguously consents to the collection, use and transfer, in electronic or other form, of the Participant’s personal data as described in this Agreement and any other PRSU grant materials by and among, as applicable, the Employer, the Company and its Subsidiaries for the purpose of implementing, administering and managing the Participant’s participation in the Plan.
|
|
9.
|
Language
. If the Participant has received this Agreement or any other document related to the Plan translated into a language other than English and if the meaning of the translated version is different than the English version, the English version will control.
|
|
10.
|
Electronic Delivery and Acceptance
. The Company may, in its sole discretion, decide to deliver any documents related to current or future participation in the Plan by electronic means. The Participant hereby consents to receive such documents by electronic delivery and agrees to participate in the Plan through an on-line or electronic system established and maintained by the Company or a third party designated by the Company.
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11.
|
Imposition of Other Requirements
. The Company reserves the right to impose any other requirements on the Participant’s participation in the Plan, on the PRSUs and on any Shares acquired under the Plan, to the extent the Company determines it is necessary or advisable for legal or administrative reasons, and to require the Participant to sign any additional agreements or undertakings that may be necessary to accomplish the foregoing.
|
|
12.
|
Appendix B
. Notwithstanding any provisions in this Agreement, the PRSUs shall be subject to any special terms and conditions set forth in Appendix B for the Participant’s country. Appendix B constitutes part of this Performance Restricted Stock Unit Agreement.
|
|
13.
|
Insider Trading Restrictions/Market Abuse Laws
. The Participant acknowledges that, depending on his or her country, the Participant may be subject to insider trading restrictions and/or market abuse laws in applicable jurisdictions, which may affect his or her ability to, directly or indirectly, acquire, sell, or attempt to sell Shares or rights to Shares (
e.g
., PRSUs) under the Plan during such times as the Participant is considered to have “inside information” regarding the Company (as defined by the laws in the applicable jurisdictions or in the Participant’s country). Any restrictions under these laws or regulations are separate from and in addition to any restrictions that may be imposed under any applicable Company insider trading policy. The Participant is responsible for ensuring compliance with any applicable restrictions and is advised to consult his or her personal legal advisor on this matter.
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14.
|
Miscellaneous Provisions
|
|
(a)
|
Securities or Exchange Control Laws Requirements
. No Shares will be issued or transferred pursuant to this Agreement unless and until all then applicable requirements imposed by federal and state securities and other securities or exchange control laws, rules and regulations and by any regulatory agencies having jurisdiction, and by any exchanges upon which the Shares may be listed, have been fully met. As a condition precedent to the issuance of Shares pursuant to this Agreement, the Company may require the Participant to take any reasonable action to meet those requirements. The Committee may impose such
|
|
(b)
|
Non-Transferability
. The PRSUs and the rights and privileges conferred thereby shall be non-transferrable except as provided by Section 15.3 of the Plan. Any Shares delivered hereunder will be subject to such stop transfer orders and other restrictions as the Committee may deem advisable under the Plan or the rules, regulations and other requirements of the Securities and Exchange Commission, any stock exchange upon which such shares are listed, any applicable federal, state or local laws and any agreement with, or policy of, the Company or the Committee to which the Participant is a party or subject, and the Committee may cause orders or designations to be placed upon any certificate(s) or other document(s) delivered to the Participant, or on the books and records of the Company’s transfer agent, to make appropriate reference to such restrictions.
|
|
(c)
|
No Right to Continued Service
. Nothing in this Agreement or the Plan confers upon the Participant any right to continue in Service for any period of specific duration or interfere with or otherwise restrict in any way the rights of the Company (or any Subsidiary employing or retaining the Participant) or of the Participant, which rights are hereby expressly reserved by each, to terminate his or her Service at any time and for any reason, with or without Cause.
|
|
(d)
|
Notification
. Any notification required by the terms of this Agreement will be given by the Participant (i) in a writing addressed to the Company at its principal executive office and will be deemed effective upon actual receipt when delivered by personal delivery or by registered or certified mail, with postage and fees prepaid, or (ii) by electronic transmission to the Company’s e-mail address of the Company’s General Counsel and will be deemed effective upon actual receipt. Any notification required by the terms of this Agreement will be given by the Company (x) in a writing addressed to the address that the Participant most recently provided to the Company and will be deemed effective upon personal delivery or within three (3) days of deposit with the United States Postal Service, by registered or certified mail, with postage and fees prepaid, or (y) by facsimile or electronic transmission to the Participant’s primary work fax number or e-mail address (as applicable) and will be deemed effective upon confirmation of receipt by the sender of such transmission.
|
|
(e)
|
Entire Agreement
. This Agreement and the Plan constitute the entire agreement between the parties hereto with regard to the subject matter of this Agreement. This Agreement and the Plan supersede any other agreements, representations or understandings (whether oral or written and whether express or implied) that relate to the subject matter of this Agreement.
|
|
(f)
|
Waiver
. No waiver of any breach or condition of this Agreement by the Participant or any other Participant will be deemed to be a waiver of any other or subsequent breach or condition whether of like or different nature.
|
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(g)
|
Successors and Assigns
. The provisions of this Agreement will inure to the benefit of, and be binding upon, the Company and its successors and assigns and upon the Participant, the Participant’s executor, personal representative(s), distributees, administrator, permitted transferees, permitted assignees, beneficiaries, and legatee(s), as applicable, whether or not any such person will have become a party to this Agreement and have agreed in writing to be joined herein and be bound by the terms hereof.
|
|
(h)
|
Severability
. The provisions of this Agreement are severable, and if any one or more provisions are determined to be illegal or otherwise unenforceable, in whole or in part, then the remaining provisions will nevertheless be binding and enforceable.
|
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(i)
|
Amendment
. Except as otherwise provided in the Plan, this Agreement will not be amended unless the amendment is agreed to in writing by both the Participant and the Company.
|
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(j)
|
Choice of Law; Jurisdiction
. This Agreement and all claims, causes of action or proceedings (whether in contract, in tort, at law or otherwise) that may be based upon, arise out of or relate to this Agreement will be governed by the internal laws of the State of Delaware, excluding any conflicts or choice-of-law rule or principle that might otherwise refer construction or interpretation of this Agreement to the substantive law of another jurisdiction. The Participant and each party to this Agreement agrees that it will bring all claims, causes of action and proceedings (whether in contract, in tort, at law or otherwise) that may be based upon, arise out of or be related to the Plan and this Agreement exclusively in the Delaware Court of Chancery or, in the event (but only in the event) that such court does not have subject matter jurisdiction over such claim, cause of action or proceeding, exclusively in the United States District Court for the District of Delaware (the “
Chosen Court
”), and hereby (i) irrevocably submits to the exclusive jurisdiction of the Chosen Court, (ii) waives any objection to laying venue in any such proceeding in the Chosen Court, (iii) waives any objection that the Chosen Court is an inconvenient forum or does not have jurisdiction over any party and (iv) agrees that service of process upon such party in any such claim or cause of action will be effective if notice is given in accordance with this Agreement.
|
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(k)
|
Signature in Counterparts
. This Agreement may be signed in counterparts, manually or electronically, each of which will be an original, with the same effect as if the signatures to each were upon the same instrument.
|
|
(l)
|
IRC Section 409A
. This Section 14(l) applies only to Participants who are U.S. taxpayers.
|
|
(m)
|
Acceptance
. The Participant hereby acknowledges receipt of a copy of the Plan and this Agreement. The Participant has read and understands the terms and provisions of the Plan and this Agreement, and accepts the PRSUs subject to all of the terms and conditions of the Plan and this Agreement. In the event of a conflict between any term or provision contained in this Agreement and a term or provision of the Plan, the applicable term and provision of the Plan will govern and prevail.
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|
Performance
Period
|
Performance Goal
|
Dates
|
Units Subject to the Performance Goal
|
|
1
|
2017 EPS
|
January 1, 2017 to December 31, 2017
|
One-third of Total Award
|
|
2
|
2018 EPS
|
January 1, 2018 to December 31, 2018
|
One-third of Total Award
|
|
3
|
2019 EPS
|
January 1, 2019 to December 31, 2019
|
One-third of Total Award
|
|
1.
|
Grant of Restricted Stock Units
. The Company has granted to the Participant, effective as of the Date of Grant, XXXX Restricted Stock Units, on the terms and conditions set forth in the Plan and this Agreement, subject to adjustment as set forth in the Plan (the “
RSUs
”).
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|
2.
|
Vesting of RSUs
. Subject to the terms and conditions set forth in the Plan and this Agreement, the RSUs will vest as follows:
|
|
(a)
|
General
. Except as otherwise provided in Sections 2(b) and 4, 100% of the Shares subject to the RSUs will vest on the first anniversary of the Date of Grant,
or, if earlier, the date of the next subsequent annual meeting following the Date of Grant but only to the extent the Participant is not re-elected as a Non-Employee Director at such annual meeting, in each case, subject to the Participant’s continued Service through the applicable vesting date.
|
|
3.
|
Settlement of RSUs Upon Vesting.
|
|
(a)
|
Settlement in Stock
. RSUs vested as described in Section 2 above will be settled by delivering to Participant a number of Shares equal to the number of vested RSUs on the date on which the RSUs vest, subject to the terms of this Agreement.
|
|
(b)
|
Book-Entry Registration of the Shares; Delivery of Shares
. As soon as practical after the applicable vesting date, the Company will, at its election, either: (i) issue a certificate representing the Shares payable pursuant to this Agreement; or (ii) not issue any certificate representing the Shares payable pursuant to this Agreement and instead document the Participant’s interest in the Shares by registering such Shares with the Company’s transfer agent (or another custodian selected by the Company) in book-entry form in the Participant’s name. In any case, the Company may provide a reasonable delay in the issuance or delivery of the Shares to address any applicable Tax-Related Items, withholding, and other administrative matters. Neither the Company nor the Committee will be liable to the Participant or any other Person for damages relating to any delays in issuing the Shares or any mistakes or errors in the issuance of the Shares.
|
|
(c)
|
Shareholder Rights
. The Participant will not have any rights of a stockholder with respect to the Shares subject to the RSUs, including voting and dividend rights, unless and until the Shares are delivered as described in Section 3(b) above.
|
|
(d)
|
Withholding Requirements
. The Participant acknowledges that the Participant will consult with his or her personal tax advisor regarding the Tax-Related Items that arise in connection with this Agreement. The Participant is relying solely on such advisor and is not relying in any part on any statement or representation of the Company or any of its agents. The Company shall not be responsible for withholding any Tax-Related Items, unless required by applicable law. The Company may take such action as it deems appropriate to ensure that all Tax-Related Items, which are the Participant’s sole and absolute responsibility, are withheld or collected from the Participant, if and to the extent required by applicable law. In this regard, the Company will have the power and the right to require the Participant to remit to the Company, the amount necessary to satisfy federal, state and local taxes, domestic or foreign, required by law or regulation to be withheld with respect to any taxable event arising as a result of this Agreement (collectively, "
Withheld Taxes
"). Notwithstanding the foregoing, unless otherwise determined by the Committee, any obligations to pay Withheld Taxes will be met by having the Company withhold a number of Shares from the total number of Shares otherwise issuable to Participant pursuant to this Agreement having a Fair Market Value on the date the Withheld Taxes are to be determined equal to the minimum statutory total Withheld Taxes that could be imposed on the transaction as determined by the Company; provided, however, that to the extent permitted by U.S. generally accepted accounting principles, the number of
|
|
4.
|
Forfeiture
. Any unvested RSUs will be forfeited immediately, automatically and without consideration upon a termination of the Participant’s Service for any reason.
|
|
5.
|
Adjustment to RSUs
. In the event of any change with respect to the outstanding shares of Common Stock contemplated by Section 4.5 of the Plan, the RSUs will be subject to the adjustment provisions of Section 4.5 of the Plan.
|
|
6.
|
Miscellaneous Provisions
|
|
(a)
|
Securities Laws Requirements or Exchange Control Laws Requirements
. No Shares will be issued or transferred pursuant to this Agreement unless and until all then applicable requirements imposed by federal and state securities and other securities or exchange control laws, rules and regulations and by any regulatory agencies having jurisdiction, and by any exchanges upon which the Shares may be listed, have been fully met. As a condition precedent to the issuance of Shares pursuant to this Agreement, the Company may require the Participant to take any reasonable action to meet those requirements. The Committee may impose such conditions on any Shares issuable pursuant to this Agreement as it may deem advisable, including, without limitation, restrictions under the Securities Act of 1933, as amended, under the requirements of any exchange upon which shares of the same class are then listed and under any blue sky or other securities laws applicable to those Shares.
|
|
(b)
|
Non-Transferability
. The RSUs and the rights and privileges conferred thereby shall be non-transferrable except as provided by Section 15.3 of the Plan. Any shares of Common Stock delivered hereunder will be subject to such stop transfer orders and other restrictions as the Committee may deem advisable under the Plan or the rules, regulations and other requirements of the Securities and Exchange Commission, any stock exchange upon which such shares are listed, any applicable federal or state laws and any agreement with, or policy of, the Company or the Committee to which the Participant is a party or subject, and the Committee may cause orders or designations to be placed upon any certificate(s) or other document(s) delivered to the Participant, or on the books and records of the Company’s transfer agent, to make appropriate reference to such restrictions.
|
|
(c)
|
No Right to Continued Service
. Nothing in this Agreement or the Plan confers upon the Participant any right to continue in Service for any period of specific duration.
|
|
(d)
|
Notification
. Any notification required by the terms of this Agreement will be given by the Participant (i) in a writing addressed to the Company at its principal executive office and will be deemed effective upon actual receipt when delivered by personal delivery or by registered or certified mail, with postage and fees prepaid, or (ii) by electronic transmission to the Company’s e-mail address of the
|
|
(e)
|
Entire Agreement
. This Agreement and the Plan constitute the entire agreement between the parties hereto with regard to the subject matter of this Agreement. This Agreement and the Plan supersede any other agreements, representations or understandings (whether oral or written and whether express or implied) that relate to the subject matter of this Agreement.
|
|
(f)
|
Waiver
. No waiver of any breach or condition of this Agreement will be deemed to be a waiver of any other or subsequent breach or condition whether of like or different nature.
|
|
(g)
|
Successors and Assigns
. The provisions of this Agreement will inure to the benefit of, and be binding upon, the Company and its successors and assigns and upon the Participant, the Participant’s executor, personal representative(s), distributees, administrator, permitted transferees, permitted assignees, beneficiaries, and legatee(s), as applicable, whether or not any such person will have become a party to this Agreement and have agreed in writing to be joined herein and be bound by the terms hereof.
|
|
(h)
|
Severability
. The provisions of this Agreement are severable, and if any one or more provisions are determined to be illegal or otherwise unenforceable, in whole or in part, then the remaining provisions will nevertheless be binding and enforceable.
|
|
(i)
|
Amendment
. Except as otherwise provided in the Plan, this Agreement will not be amended unless the amendment is agreed to in writing by both the Participant and the Company.
|
|
(j)
|
Choice of Law; Jurisdiction
. This Agreement and all claims, causes of action or proceedings (whether in contract, in tort, at law or otherwise) that may be based upon, arise out of or relate to this Agreement will be governed by the internal laws of the State of Delaware, excluding any conflicts or choice-of-law rule or principle that might otherwise refer construction or interpretation of this Agreement to the substantive law of another jurisdiction. The Participant and each party to this Agreement agrees that it will bring all claims, causes of action and proceedings (whether in contract, in tort, at law or otherwise) that may be based upon, arise out of or be related to the Plan and this Agreement exclusively in the Delaware Court of Chancery or, in the event (but only in the event) that
|
|
(k)
|
Appendices For Non-U.S. Participants
. Notwithstanding any provisions in this Restricted Stock Unit Award Agreement, if the Participant resides and/or provides services outside the United States, the Participant shall be subject to the General Terms and Conditions for Non-U.S. Participants attached hereto as
Appendix A
and to any Country-Specific Terms and Conditions for the Participant’s country attached hereto as
Appendix B
. If the Participant relocates from the United States to another country, the General Terms and Conditions for Non-U.S. Participants and the applicable Country-Specific Terms and Conditions will apply to the Participant, to the extent the Company determines that the application of such terms and conditions is necessary or advisable for legal or administrative reasons. Moreover, if the Participant relocates between any of the countries included in the Country-Specific Terms and Conditions, the special terms and conditions for such country will apply to the Participant, to the extent the Company determines that the application of such terms and conditions is necessary or advisable for legal or administrative reasons. The General Terms and Conditions for Non-U.S. Participants and the Country-Specific Terms and Conditions constitute part of this Restricted Stock Unit Award Agreement.
|
|
(l)
|
Signature in Counterparts
. This Agreement may be signed in counterparts, manually or electronically, each of which will be an original, with the same effect as if the signatures to each were upon the same instrument.
|
|
(m)
|
Acceptance
. The Participant hereby acknowledges receipt of a copy of the Plan and this Agreement. The Participant has read and understands the terms and provisions of the Plan and this Agreement, and accepts the RSUs subject to all of the terms and conditions of the Plan and this Agreement. In the event of a conflict between any term or provision contained in this Agreement and a term or provision of the Plan, the applicable term and provision of the Plan will govern and prevail.
|
|
1.
|
Responsibility for Taxes
. The following provision supplements Section 3(d) of the Restricted Stock Unit Award Agreement for Directors.
|
|
2.
|
Nature of Grant
. In accepting the RSUs, the Participant acknowledges, understands and agrees that:
|
|
(a)
|
the Plan is established voluntarily by the Company, it is discretionary in nature and it may be modified, amended, suspended or terminated by the Company at any time, to the extent permitted by the Plan;
|
|
(b)
|
the grant of the RSUs is voluntary and occasional and does not create any contractual or other right to receive future grants of RSUs, or benefits in lieu of RSUs, even if RSUs have been granted in the past;
|
|
(c)
|
all decisions with respect to future RSUs or other grants, if any, will be at the sole discretion of the Company;
|
|
(d)
|
the RSUs and the Participant’s participation in the Plan shall not be interpreted as forming an employment or services contract with the Company or any Subsidiary;
|
|
(e)
|
the Participant is voluntarily participating in the Plan;
|
|
(f)
|
the RSUs and the Shares subject to the RSUs are not intended to replace any pension rights, Director fees or compensation;
|
|
(g)
|
the RSUs and the Shares subject to the RSUs, and the income and value of same, are not part of normal or expected compensation for any purpose, and do not confer on Participant any right to receive Director fees or other compensation in any specific amount;
|
|
(h)
|
unless otherwise agreed with the Company, the RSUs and the Shares subject to the RSUs, and the income and value of same, are not granted as consideration for, or in connection with, the service the Participant may provide as a director of a Subsidiary;
|
|
(i)
|
the future value of the underlying Shares is unknown, indeterminable and cannot be predicted with certainty;
|
|
(j)
|
no claim or entitlement to compensation or damages shall arise from forfeiture of the RSUs resulting from the termination of the Participant’s Service (for any reason whatsoever);
|
|
(k)
|
the Company shall not be liable for any foreign exchange rate fluctuation between the Participant’s local currency and the United States Dollar that may affect the value of the RSUs or of any amounts due to the Participant pursuant to the settlement of the RSUs or the subsequent sale of any Shares acquired upon settlement.
|
|
3.
|
No Advice Regarding Grant
. The Company is not providing any tax, legal or financial advice, nor is the Company making any recommendations regarding the Participant’s participation in the Plan, or the Participant’s acquisition or sale of the underlying Shares.
|
|
4.
|
Data Privacy
. The Participant hereby explicitly and unambiguously consents to the collection, use and transfer, in electronic or other form, of the Participant’s personal data as described in this Agreement and any other RSU grant materials by and among, as applicable, the Company and its Subsidiaries for the exclusive purpose of implementing, administering and managing the Participant’s participation in the Plan.
|
|
5.
|
Language
. If the Participant has received this Agreement or any other document related to the Plan translated into a language other than English and if the meaning of the translated version is different than the English version, the English version will control.
|
|
6.
|
Imposition of Other Requirements
. The Company reserves the right to impose any other requirements on the Participant’s participation in the Plan, on the RSUs and on any Shares acquired under the Plan, to the extent the Company determines it is necessary or advisable for legal or administrative reasons, and to require the Participant to sign any additional agreements or undertakings that may be necessary to accomplish the foregoing.
|
|
7.
|
Insider Trading Restrictions/Market Abuse Laws
. The Participant acknowledges that, depending on his or her country, the Participant may be subject to insider trading restrictions and/or market abuse laws, which may affect his or her ability to acquire or sell Shares or rights to Shares (
e.g
., RSUs) under the Plan during such times as the Participant is considered to have “inside information” regarding the Company (as defined by the laws in the Participant’s country). Any restrictions under these laws or regulations are separate from and in addition to any restrictions that may be imposed under any applicable Company insider trading policy. The Participant is responsible for ensuring compliance with any applicable restrictions and is advised to consult his or her personal legal advisor on this matter.
|
|
8.
|
Foreign Asset/Account Reporting; Exchange Controls
. The Participant’s country may have certain foreign asset and/or account reporting requirements and/or exchange controls which may affect the Participant’s ability to acquire or hold Shares under the Plan or cash received from participating in the Plan (including from any dividends received or sale proceeds arising from the sale of Shares) in a brokerage or bank account outside the Participant’s country. The Participant may be required to report such accounts, assets or transactions to the tax or other authorities in his or her country. The Participant also may be required to repatriate sale proceeds or other funds received as a result of the Participant’s participation in the Plan to his or her country through a designated bank or broker and/or within a certain time after receipt. The Participant acknowledges that it is his or her responsibility to be compliant with such regulations, and the Participant is advised to consult his or her personal legal advisor for any details.
|
|
|
|
/s/ Alistair Macdonald
|
|
Alistair Macdonald
|
|
Chief Executive Officer
|
|
(Principal Executive Officer)
|
|
|
|
/s/ Gregory S. Rush
|
|
Gregory S.Rush
|
|
Executive Vice President and Chief Financial Officer
|
|
(Principal Financial Officer)
|
|
|
|
/s/ Alistair Macdonald
|
|
Alistair Macdonald
|
|
Chief Executive Officer
|
|
(Principal Executive Officer)
|
|
|
|
/s/ Gregory S. Rush
|
|
Gregory S. Rush
|
|
Executive Vice President and Chief Financial Officer
|
|
(Principal Financial Officer)
|