Exhibit 10(d)
PERRIGO COMPANY
2009 RESTRICTED STOCK UNIT AWARD
AGREEMENT
(PERFORMANCE-BASED)
(Under the Perrigo Company 2008
Long-Term Incentive Plan)
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TO:
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RE:
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Notice of
Restricted Stock Unit Award (Performance-Based)
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This is to notify you that Perrigo
Company (the “Company”) has granted you an Award under
the Perrigo Company 2008 Long-Term Incentive Plan (the
“Plan”), effective as of
(the “Grant Date”). This Award consists of
performance-based restricted stock units. The terms and conditions
of this incentive are set forth in the remainder of this agreement
(the “Agreement”). The capitalized terms that are not
otherwise defined in this Agreement shall have the meanings
ascribed to such terms under the Plan.
SECTION 1
Restricted Stock Units –
Performance-Based Vesting
1.1 Grant . As of the Grant
Date, the Company grants to you
restricted stock units (“Performance Restricted Stock
Units” or “PRSUs”), subject to the terms and
conditions set forth in this Agreement. The number of Performance
Restricted Stock Units awarded in this Section 1.1 is referred
to as the “Target Award.” The Target Award may be
increased or decreased depending on the level of attainment of
Performance Goals for designated Performance Measures as described
in Section 1.2. Each Performance Restricted Stock Unit shall
entitle you to one share of Common Stock on the PRSU Vesting Date
set forth in Section 1.2, provided the applicable Performance
Goals for each Performance Measure are satisfied.
1.2 Vesting . The number of
Performance Restricted Stock Units awarded in Section 1.1
vesting, if any, shall be determined as of the PRSU Vesting Date.
That number will be determined based on the average level of
attainment of annual Performance Measure(s) for each fiscal year in
the Performance Period, in accordance with the schedule determined
by the Committee at the time the Performance Measures and
applicable Performance Goals are established by the
Committee.
The Committee shall establish
annually one or more Performance Measures and the Performance Goals
with respect to each Performance Measure that must be attained for
Threshold, Target and Maximum performance for a fiscal year. The
Performance Measure and Performance Goals for each fiscal year will
be provided to you.
Following the end of each fiscal
year in the Performance Period, the Committee will determine the
percentage of Target Award PRSUs that would be payable for such
fiscal year, based on the attainment of the Performance Goals for
each Performance Measure(s) established by the Committee for that
fiscal year. The percentage of the Target Award that would be
payable under the schedule shall be adjusted, pro rata, to reflect
attained performance between Threshold and Target, and Target and
Maximum.
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At the end of the Performance Period, the
percentage payout for each fiscal year in the Performance Period
will be averaged to determine the actual percentage of Target Award
PRSUs that will vest and be payable on the PRSU Vesting Date. In no
event will the calculation of a positive payout percentage for any
fiscal year be construed to guarantee that any PRSUs will vest on
the PRSU Vesting Date. Payout percentages for the individual fiscal
years are determined solely for purposes of determining the average
annual payout percentage for the three-year Performance
Period.
Except as provided in
Section 1.4, the PRSUs will be permanently forfeited if your
Termination Date occurs prior to the PRSU Vesting Date. If the
average annual performance payout for the Performance Period is
less than the Threshold performance level established by the
Committee, all PRSUs that have not previously been forfeited shall
be forfeited as of the PRSU Vesting Date. If the average annual
performance payout for the Performance Period exceeds the Maximum
performance level established by the Committee, in no event will
the number of PRSUs vesting exceed 200% of the Target
Award.
1.3 Definitions . The
following terms shall have the following meanings under this
Section 1.
(a) “Performance Goal”
means the level of performance that must be attained with respect
to a Performance Measure for a fiscal year for Minimum, Target and
Maximum payout.
(b) “Performance
Measure” for any fiscal year means one or more financial
measures, as determined by the Committee. The Committee shall
provide how the Performance Measure will be adjusted, if at all, as
a result of extraordinary events or circumstances, as determined by
the Committee, or to exclude the effects of extraordinary, unusual,
or non-recurring items; changes in applicable laws, regulations, or
accounting principles; currency fluctuations; discontinued
operations; non-cash items, such as amortization, depreciation, or
reserves; asset impairment; or any recapitalization, restructuring,
reorganization, merger, acquisition, divestiture, consolidation,
spin-off, split-up, combination, liquidation, dissolution, sale of
assets, or other similar corporation transaction.
(c) “Performance Period”
means a period of three consecutive fiscal years of the Company,
beginning with the first day of the fiscal year of the Company in
which the Grant Date occurs and ending on the last day of the third
fiscal year in the 3-year period.
(d) “PRSU Vesting Date”
means the last day of the Performance Period.
1.4 Special Vesting Rules .
Notwithstanding Section 1.2 above, in the event of a Change in
Control of the Company while you are employed by or otherwise
providing service to the Company, all of the Performance Restricted
Stock Units awarded under Section 1.1 that have not previously
been forfeited shall become fully vested as if Target performance
had been obtained for the Performance Period effective as of the
date of any such event. If your Termination Date occurs because of
death, Disability, or
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Retirement, the Performance Restricted Stock
Units shall vest or be forfeited as of the PRSU Vesting Date set
forth in Section 1.2, based on the attainment of the
performance goals. If your Termination Date occurs because of
Involuntary Termination for Economic Reasons, the Company’s
Chief Executive Officer (or the Committee, if you are subject to
Section 16 of the Exchange Act), in his or her sole and
absolute discretion, may permit all or part of the Performance
Restricted Stock Units awarded hereunder to remain outstanding and
vest or be forfeited as of the date set forth in Section 1.2,
depending on the attainment of Performance Goals. To the extent
that the Chief Executive Officer (or Committee, if applicable) does
not exercise discretionary authority to allow Performance
Restricted Stock Units to remain outstanding on the date of your
Involuntary Termination for Economic Reasons, such Restricted Stock
Units shall be permanently forfeited.
1.5 Settlement of Performance
Restricted Stock Units . As soon as practicable following the
date of the Committee’s first regularly scheduled meeting
following the last day of the Performance Period at which the
Committee certifies the average payout for each of the three years
in the Performance Period, the Company shall transfer to you one
share of Common Stock for each Performance Restricted Stock Unit,
if any, that becomes vested pursuant to Section 1.2 or 1.4 of
this Agreement; provided, however, the Company may settle
Restricted Stock Units in cash, based on the fair market value of
the shares on the settlement date, to the extent necessary to
satisfy tax withholding pursuant to Section 2.6. The income
attributable to the vesting of PRSUs and the amount of any required
tax withholding will be determined based on the value of the shares
on the settlement date. Performance Restricted Stock Units are not
eligible for dividend equivalents.
SECTION 2
General Terms and
Conditions
2.1 Nontransferability . The
Award under this Agreement shall not be transferable other than by
will or by the laws of descent and distribution.
2.2 No Rights as a
Stockholder . You shall not have any rights as a stockholder
with respect to any shares of Common Stock subject to the PRSU
awarded under this Agreement prior to the date of issuance to you
of a certificate or certificates for such shares.
2.3 Cause Termination . If
your Termination Date occurs for reasons of Cause, all of your
rights under this Agreement, whether or not vested, shall terminate
immediately.
2.4 Award Subject to Plan .
The granting of the Award under this Agreement is being made
pursuant to the Plan and the Award shall be payable only in
accordance with the applicable terms of the Plan. The Plan contains
certain definitions, restrictions, limitations and other terms and
conditions all of which shall be applicable to this Agreement.
ALL THE PROVISIONS OF THE PLAN ARE INCORPORATED HEREIN BY
REFERENCE AND ARE MADE A PART OF THIS AGREEMENT IN THE SAME MANNER
AS IF EACH AND EVERY SUCH PROVISION WERE FULLY WRITTEN INTO THIS
AGREEMENT . Should the Plan become void or unenforceable by
operation of law or judicial decision, this Agreement shall have no
force or effect. Nothing set forth in this Agreement is intended,
nor shall any of its provisions be construed, to limit or exclude
any definition,
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restriction, limitation or other term or
condition of the Plan as is relevant to this Agreement and as may
be specifically applied to it by the Committee. In the event of a
conflict in the provisions of this Agreement and the Plan, as a
rule of construction the terms of the Plan shall be deemed superior
and apply.
2.5 Adjustments in Event of
Change in Common Stock . In the event of a stock split, stock
dividend, recapitalization, reclassification or combination of
shares, merger, sale of assets or similar event, the number and
kind of shares subject to Award under this Agreement will be
appropriately adjusted in an equitable manner to prevent dilution
or enlargement of the rights granted to or available for
you.
2.6 Withholding . This Award
is subject to the withholding of all applicable taxes. The Company
may withhold, or permit you to remit to the Company, any Federal,
state or local taxes applicable to the grant, vesting or other
event giving rise to tax liability with respect to this Award. If
you have not remitted the full amount of applicable withholding
taxes to the Company by the date the Company is required to pay
such withholding to the appropriate taxing authority (or such
earlier date that the Company may specify to assist it in timely
meeting its withholding obligations), the Company shall have the
unilateral right to withhold Common Stock relating to this
Award in the amount it determines is sufficient to
satisfy the minimum tax withholding required by law. State taxes
will be withheld at the appropriate rate set by the state in which
you are employed or were last employed by the Company. You may
elect to surrender previously acquired Common Stock or to have the
Company withhold Common Stock relating to this Award in an amount
sufficient to satisfy all or a portion of the minimum tax
withholding required by law.
2.7 Compliance with Applicable
Law . Notwithstanding any other provision of this Agreement,
the Company shall have no obligation to issue any shares of Common
Stock under this Agreement if such issuance would violate any
applicable law or any applicable regulation or requirement of any
securities exchange or similar entity.
2.8 Short Term
Deferral . Performance Restricted Stock Units payable under
this Agreement are intended to be exempt from Code
Section 409A under the exemption for short-term deferrals.
Accordingly, Performance Restricted Stock Units will be settled no
later than the 15 th day of the third month following
the later of (i) the end of the Employee’s taxable year
in which the PRSU Vesting Date occurs, or (ii) the end of the
fiscal year of the Company in which the PRSU Vesting Date
occurs.
2.9 Data Privacy . By
entering into this Agreement and accepting this Award, you
(a) explicitly and unambiguously consent to the collection,
use and transfer, in electronic or other form, of any of your
personal data that is necessary to facilitate the implementation,
administration and management of the Award and the Plan,
(b) understand that the Company may, for the purpose of
implementing, administering and managing the Plan, hold certain
personal information about you, including, but not limited to, your
name, home address and telephone number, date of birth, social
insurance number or other identification number, salary,
nationality, job title, and details of all awards or entitlements
to Shares granted to you under the Plan or otherwise
(“Data”), (c) understand that Data may be
transferred to any third parties assisting in the implementation,
administration and management of the Plan, including any broker
with whom the Shares issued upon vesting of the Award may be
deposited, and that these recipients may be located in
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your country or elsewhere, and that the
recipient’s country may have different data privacy laws and
protections than your country; (d) waive any data privacy
rights you may have with respect to the data; and
(e) authorize the Company, its subsidiaries and its agents, to
store and transmit such information in electronic form.
2.10 Successors and Assigns .
This Agreement shall be binding upon any or all successors and
assigns of the Company.
2.11 Applicable Law . This
Agreement shall be governed by and construed and enforced in
accordance with the internal laws of the State of Michigan without
regard to principals of conflict of laws. Any proceeding related to
or arising out of this Agreement shall be commenced, prosecuted or
continued in the Circuit Court in Kent County, Michigan located in
Grand Rapids, Michigan or in the United Stated District Court for
the Western District of Michigan, and in any appellate court
thereof.
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We look forward to your continuing
contribution to the growth of the Company. Please acknowledge your
receipt of the Plan and this Award.
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Very truly
yours,
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Judy L.
Brown
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Executive Vice
President & Chief Financial Officer
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ACKNOWLEDGMENT OF
RECEIPT
I acknowledge receipt of the Perrigo
Company 2008 Long-Term Incentive Plan (the “Plan”). I
further acknowledge receipt of this Agreement and agree to the
terms and conditions expressed herein and in the Plan. I further
agree that all decisions and determinations of the Committee (or
Chief Executive Officer, if applicable) shall be final and
binding.
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PERRIGO COMPANY
2009 RESTRICTED STOCK UNIT AWARD
AGREEMENT
(PERFORMANCE
BASED)
FOR APPROVED SECTION 102 AWARDS
(Under the Perrigo Company 2008 Long-Term
Incentive Plan)
TO:
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RE:
|
Notice of
Restricted Stock Unit Award (Performance-Based)
|
This is to notify you that Perrigo
Company (the “ Company ”) has granted you an
Award under the Perrigo Company 2008 Long-Term Incentive Plan (the
“ Plan ”) and the Section 102 Program
established under Section 15(n) of the Plan, effective as of
(the “ Grant Date ”). This Award consists of
performance-based restricted stock units. The terms and conditions
of this incentive are set forth in the remainder of this agreement
(the “ Agreement ”). The capitalized terms that
are not otherwise defined in this Agreement shall have the meanings
ascribed to such terms under the Plan and/or Section 102
Program.
SECTION 1
Restricted Stock Units –
Performance-Based Vesting
1.1 Grant . As of the Grant
Date, the Company grants to the Employee
restricted stock units (“ Performance Restricted Stock
Units ” or “ PRSUs ”), subject to the
terms and conditions set forth in this Agreement. The number of
Performance Restricted Stock Units awarded in this Section 1.1
is referred to as the “ Target Award .” The
Target Award may be increased or decreased depending on the level
of attainment of Performance Goals for designated Performance
Measures as described in Section 1.2. Each Performance
Restricted Stock Unit shall entitle you to one share of Common
Stock on the PRSU Vesting Date set forth in Section 1.2,
provided the applicable Performance Goals for each Performance
Measure are satisfied.
1.2 Vesting . The number of
Performance Restricted Stock Units awarded in Section 1.1
vesting, if any, shall be determined as of the PRSU Vesting Date.
That number will be determined based on the average level of
attainment of annual Performance Measure(s) for each fiscal year in
the Performance Period, in accordance with the schedule determined
by the Committee at the time the Performance Measures and
applicable Performance Goals are established by the
Committee.
The Committee shall establish
annually one or more Performance Measures and the Performance Goals
with respect to each Performance Measure that must be attained for
Threshold, Target and Maximum performance for a fiscal year. The
Performance Measure and Performance Goals will be for each fiscal
year will be provided to you.
Following the end of each fiscal
year in the Performance Period, the Committee will determine the
percentage of Target Award PRSUs that would be payable for such
fiscal year, based on the attainment of the Performance Goals for
each Performance
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Measure(s) established by the Committee for that
fiscal year. The percentage of the Target Award that would be
payable under the schedule shall be adjusted, pro rata, to reflect
attained performance between Threshold and Target, and Target and
Maximum.
At the end of the Performance
Period, the percentage payout for each fiscal year in the
Performance Period will be averaged to determine the actual
percentage of Target Award PRSUs that will vest and be payable on
the PRSU Vesting Date. In no event will the calculation of a
positive payout percentage for any fiscal year be construed to
guarantee that any PRSUs will vest on the PRSU Vesting Date. Payout
percentages for the individual fiscal years are determined solely
for purposes of determining the average annual payout percentage
for the three-year Performance Period.
Except as provided in
Section 1.4, the PRSUs will be permanently forfeited if your
Termination Date occurs prior to the PRSU Vesting Date. If the
average annual performance payout for the Performance Period is
less than the Threshold performance level established by the
Committee, all PRSUs that have not previously been forfeited shall
be forfeited as of the PRSU Vesting Date. If the average annual
performance payout for the Performance Period exceeds the Maximum
performance level established by the Committee, in no event will
the number of PRSUs vesting exceed 200% of the Target
Award.
1.3 Definitions . The
following terms shall have the following meanings under this
Section 1.
(a) “ Performance Goal
” means the level of performance that must be attained with
respect to a Performance Measure for a fiscal year for Minimum,
Target and Maximum payout.
(b) “ Performance
Measure ” for any fiscal year means one or more financial
measures as determined by the Committee. The Committee shall
provide how the Performance Measure will be adjusted, if at all, as
a result of extraordinary events or circumstances, as determined by
the Committee, or to exclude the effects of extraordinary, unusual,
or non-recurring items; changes in applicable laws, regulations, or
accounting principles; currency fluctuations; discontinued
operations; non-cash items, such as amortization, depreciation, or
reserves; asset impairment; or any recapitalization, restructuring,
reorganization, merger, acquisition, divestiture, consolidation,
spin-off, split-up, combination, liquidation, dissolution, sale of
assets, or other similar corporation transaction.
(c) “ Performance
Period ” means a period of three consecutive fiscal years
of the Company, beginning with the first day of the fiscal year of
the Company in which the Grant Date occurs and ending on the last
day of the third fiscal year in the 3-year period.
(d) “ PRSU Vesting Date
” means the last day of the Performance Period.
1.4 Special Vesting Rules .
Notwithstanding Section 1.2 above, in the event of a Change in
Control of the Company while you are employed by or otherwise
providing service to the Company, all of the Performance Restricted
Stock Units awarded under Section 1.1 that have not previously
been forfeited shall become fully vested as if Target performance
had been obtained for the
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Performance Period effective as of the date of
any such event. If the Employee’s Termination Date occurs
because of death, Disability, or Retirement, the Performance
Restricted Stock Units shall vest or be forfeited as of the PRSU
Vesting Date set forth in Section 3.2, based on the attainment
of the Performance Goals. If the Employee’s Termination Date
occurs because of Involuntary Termination for Economic Reasons, the
Company’s Chief Executive Officer (or the Committee, if the
Employee is subject to Section 16 of the Exchange Act), in his
or her sole and absolute discretion, may permit all or part of the
Performance Restricted Stock Units awarded hereunder to remain
outstanding and vest or be forfeited as of the date set forth in
Section 1.2, depending on the attainment of Performance Goals.
To the extent that the Chief Executive Office (or Committee, if
applicable) does not exercise discretionary authority to allow
Performance Restricted Stock Units to remain outstanding on the
date of the Employee’s Involuntary Termination for Economic
Reasons, such Restricted Stock Units shall be permanently
forfeited.
1.5 Settlement of Performance
Restricted Stock Units . As soon as practicable following the
date of the Committee’s first regularly scheduled meeting
following the last day of the Performance Period at which the
Committee certifies the average payout for each of the three years
in the Performance Period, the Company shall transfer to the
Employee one share of Common Stock for each Performance Restricted
Stock Unit, if any, that becomes vested pursuant to
Section 1.2 or 1.4 of this Agreement; provided, however, the
Company may settle Restricted Stock Units in cash, based on the
fair market value of the shares on the settlement date, to the
extent necessary to satisfy any tax withholding pursuant to
Section 3.6. The income attributable to the vesting of PRSUs
and the amount of any required tax withholding will be determined
based on the value of the shares on the settlement date.
Performance Restricted Stock Units awarded under Section 1 are
not eligible for dividend equivalents.
1.6 Application of
Section 102 Program . The Company, in its discretion and
after consultation with its tax advisors, may provide that the
Performance Restricted Stock Units awarded under this Agreement
shall be subject to the provisions of the Section 102 Program,
in which case the provisions of Section 2 of this Agreement
shall also apply to the Performance Restricted Stock Units awarded
under Section 1.1.
SECTION 2
Section 102 Plan and
Trust
The Company has established a Plan
and Trust (the “ Section 102 Program ”) that is
intended to provide the Employee with the ability to obtain certain
tax treatment under Section 102 of the Israeli Tax Ordinance
(New Version), 1961 as amended from time to time and the rules and
regulation promulgated thereunder (“ Section 102
”) with respect to the Performance Restricted Stock Units
awarded under this Agreement. If the Company determines that this
Award may qualify as an Approved 102 Award, it shall be designated
as a Capital Gain Award within the meaning of the
Section 102 Program. The following additional rules shall
apply to the Award:
(a) The shares underlying the Award
will be deposited in a Trust. Tamir Fishman 2004 Ltd., or its duly
appointed successor, shall be the Trustee of the Trust. All fees
and commissions relating to the sale, transfer or release of shares
from the Trust shall be paid by the Employee.
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(b) To obtain Section 102 tax
treatment, the Employee shall not sell or release from the Trust
any shares subject to the Award until the lapse of the minimum
required holding period under Section 102 (“ Holding
Period ”). If any such sale or release occurs during the
Holding Period, the sanctions under Section 102 and under any
rules or regulation or orders or procedures promulgated thereunder
shall apply to and shall be borne by such Employee.
(c) Prior to any distribution or
release of shares from the Trust, the Employee shall be required to
remit to the Trustee funds sufficient to cover applicable
withholding taxes, plus any commissions and fees relating to the
sale or release of shares. Alternatively, the Employee may request
that the Trustee sell sufficient shares to cover applicable
withholding taxes, plus any commissions and fees relating to the
sale or release. The Employee may request that shares in excess of
any shares sold to cover withholding taxes, fees and commissions be
transferred to the Employee, or the Employee may advise the
Truste