Exhibit 10.17(H)
[OCF
Version]
YAHOO! INC.
1995 STOCK PLAN
(AS AMENDED AND RESTATED APRIL
24, 2007)
PERFORMANCE RESTRICTED STOCK UNIT
AWARD AGREEMENT
THIS PERFORMANCE RESTRICTED STOCK
UNIT AWARD AGREEMENT (the “Agreement”), dated as of
February 25, 2009 (the “Date of Grant”), is made
by and between Yahoo! Inc., a Delaware corporation (the
“Company”), and Carol Bartz (the
“Grantee”).
WHEREAS, the Company has adopted the
Yahoo! Inc. 1995 Stock Plan, as amended (the “Plan”),
pursuant to which the Company may grant Restricted Stock Units that
are subject to performance-based vesting conditions;
WHEREAS, the Company desires to
grant to the Grantee the number of Restricted Stock Units provided
for herein;
NOW, THEREFORE, in consideration of
the recitals and the mutual agreements herein contained, the
parties hereto agree as follows:
Section 1. Grant of
Restricted Stock Unit Award
(a) Grant of Restricted Stock
Units. The Company hereby grants to the Grantee 162,070
Restricted Stock Units (such total number, the “Target
Number” of Restricted Stock Units; and one-third of Target
Number being the “Annual Target Number” of Restricted
Stock Units for each of 2009, 2010 and 2011) on the terms and
conditions set forth in this Agreement and as otherwise provided in
the Plan (the “Award”).
(b) Incorporation of Plan;
Capitalized Terms. The provisions of the Plan are hereby
incorporated herein by reference. Except as otherwise expressly set
forth herein, this Agreement shall be construed in accordance with
the provisions of the Plan and any capitalized terms not otherwise
defined in this Agreement shall have the definitions set forth in
the Plan. The Administrator shall have final authority to interpret
and construe the Plan and this Agreement and to make any and all
determinations thereunder, and its decision shall be binding and
conclusive upon the Grantee and his/her legal representative in
respect of any questions arising under the Plan or this
Agreement.
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Section 2. Terms and Conditions of
Award
The grant of Restricted Stock Units
provided in Section 1(a) shall be subject to the following
terms, conditions and restrictions:
(a) Limitations on Rights
Associated with Units. The Restricted Stock Units are
bookkeeping entries only. The Grantee shall have no rights as a
stockholder of the Company, no dividend rights and no voting rights
with respect to the Restricted Stock Units.
(b) Restrictions. Restricted
Stock Units and any interest therein, may not be sold, assigned,
transferred, pledged, hypothecated or otherwise disposed of, except
by will or the laws of descent and distribution. Any attempt to
dispose of any Restricted Stock Units in contravention of the above
restriction shall be null and void and without effect.
(c) Lapse of Restrictions .
Subject to Sections 2(e) through 2(g) below, the Restricted Stock
Units credited to the Grantee for each Performance Year (as defined
in Exhibit A) pursuant to the performance-based vesting
provisions set forth in Exhibit A attached hereto shall vest
and become non-forfeitable upon the third anniversary of the Date
of Grant; provided, however, that if a Change in Control (as
defined in Section 2(g)) occurs prior to the third anniversary
of the Date of Grant, the performance-based vesting requirements
referred to in this Section 2(c) shall not apply with respect
to the year in which such Change in Control occurs or any
subsequent Performance Year, and the following provisions shall
apply: the number of Restricted Stock Units that shall vest upon
the third anniversary of the Date of Grant shall equal the sum of
(i) the number of Restricted Stock Units (if any) credited (or
to be credited) to the Grantee in accordance with Exhibit A
with respect to Performance Year(s) ended prior to the year in
which the Change in Control occurs (“Credited Restricted
Stock Units”), plus (ii) the Annual Target Number of
Restricted Stock Units for the Performance Year in which the Change
in Control occurs and any subsequent Performance Year(s) (the
“Remaining Uncredited Restricted Stock Units”). Any
Restricted Stock Units that do not vest in accordance with the
foregoing provisions of this Section 2(c) or pursuant to the
provisions of Sections 2(e) through 2(g) below shall terminate as
of the third anniversary of the Date of Grant.
(d) Timing and Manner of Payment
of Restricted Stock Units. As soon as practicable after (and in
no case more than seventy-four days after) the date any Restricted
Stock Units subject to the Award become non-forfeitable (the
“Payment Date”), such Restricted Stock Units shall be
paid by the Company delivering to the Grantee, a number of Shares
equal to the number of Restricted Stock Units that become
non-forfeitable upon that Payment Date. The Company shall issue the
Shares either (i) in certificate form or (ii) in book
entry form, registered in the name of the Grantee. Delivery of any
certificates will be made to the Grantee’s last address
reflected on the books of the Company and its Subsidiaries unless
the Company is otherwise instructed in writing. Neither the Grantee
nor any of the Grantee’s successors, heirs, assigns or
personal representatives shall have any further rights or interests
in any Restricted Stock Units that are so paid. Notwithstanding
anything herein to the contrary, the Company shall have no
obligation to issue Shares in payment of the Restricted Stock Units
unless such issuance and such payment shall comply with all
relevant provisions of law and the requirements of any Stock
Exchange.
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(e) Termination of
Employment. The following provisions shall apply in the event
of the termination of the Grantee’s employment or service
with the Company, Parent or any Subsidiary:
(i) Except as expressly provided
below in Sections 2(e)(ii) or Section 2(g), in the event of
the termination of the Grantee’s employment or service with
the Company, Parent or any Subsidiary for any reason prior to the
lapsing of the restrictions in accordance with Section 2(c)
hereof with respect to any of the Restricted Stock Units granted
hereunder, such portion of the Restricted Stock Units held by
Grantee shall be automatically forfeited by the Grantee as of the
date of termination. Neither the Grantee nor any of the
Grantee’s successors, heirs, assigns or personal
representatives shall have any rights or interests in any
Restricted Stock Units that are so forfeited.
(ii) Notwithstanding the foregoing
clause (i) but subject to Section 2(g) below, in the
event the Grantee’s employment or service with the Company,
Parent or any Subsidiary is terminated (A) as a result of the
Grantee’s death or Disability, (B) by the Company,
Parent or any Subsidiary without Cause or (C) by the Grantee
with Good Reason (a “Qualifying Termination”), the
Restricted Stock Units shall vest as set forth below:
(A) If a Qualifying Termination
occurs prior to any Change in Control (as defined in
Section 2(g)), upon the date of the Grantee’s
termination, any Restricted Stock Units credited (or to be
credited) to the Grantee in accordance with Exhibit A with
respect to Company performance for any Performance Year ended prior
to the year in which such termination occurs, to the extent then
not vested, shall vest and become non-forfeitable. In addition,
(A) upon December 31 of the Performance Year in which the
Grantee’s Qualifying Termination occurs, any Restricted Stock
Units credited (or to be credited) to the Grantee in accordance
with Exhibit A with respect to Company performance for such
Performance Year (assuming no termination of employment had
occurred), shall vest and become non-forfeitable and (B) upon
December 31 of any Performance Year following the Performance
Year in which the Grantee’s Qualifying Termination occurs,
the Restricted Stock Units shall be subject to pro-rata vesting
such that the number of Restricted Stock Units that shall become
vested and non-forfeitable shall equal (x) any Restricted
Stock Units credited (or to be credited) to the Grantee in
accordance with Exhibit A with respect to Company performance for
such Performance Year (assuming no termination of employment had
occurred), multiplied by (y) a fraction (not greater than 1),
the numerator of which is the number of full months the Grantee was
employed or rendering services in the Performance Year in which the
Grantee’s Qualifying Termination occurs (such numerator, the
“Number of Additional Months”) and the denominator of
which is twelve (12). Any Restricted Stock Units that do not vest
in accordance with the two preceding sentences shall terminate and
be forfeited effective as of December 31 of the applicable
Performance Year.
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Notwithstanding the foregoing, if a
Change in Control occurs after a Qualifying Termination and prior
to the third anniversary of the Date of Grant, upon the date of the
Change in Control, the Restricted Stock Units that shall become
vested and non-forfeitable shall equal the sum of: (i) the
number of Credited Restricted Stock Units, plus either (A) if
the Change in Control occurs in the Performance Year in which the
Grantee’s Qualifying Termination occurs, the number of
Remaining Uncredited Restricted Stock Units multiplied by
(x) a fraction (not greater than 1), the numerator of which is
twelve (12) plus the Number of Additional Months, and the
denominator of which is the number of whole months between
January 1 of the year in which the Change in Control occurs
and December 31 of the third Performance Year or (B) if
the Change in Control occurs in any Performance Year following the
Performance Year in which the Grantee’s Qualifying
Termination occurs, the number of Remaining Uncredited Restricted
Stock Units multiplied by (y) a fraction (not greater than 1),
the numerator of which is the Number of Additional Months, and the
denominator of which is the number of whole months between
January 1 of the year in which the Change in Control occurs
and December 31 of the third Performance Year. Any Restricted
Stock Units that do not vest upon the date of the Change in Control
shall terminate and be forfeited as of the date of the Change in
Control.
(B) If a Change in Control occurs
prior to the third anniversary of the Date of Grant and a
Qualifying Termination occurs after such Change in Control, then
upon the date of the Grantee’s termination, the Restricted
Stock Units that shall become vested and non-forfeitable shall
equal the sum of: (i) the number of Credited Restricted Stock
Units, plus (ii) the number of Remaining Uncredited Restricted
Stock Units multiplied by (y) a fraction (not greater than 1),
the numerator of which is the number of whole months between
January 1 of the year in which the Change in Control occurs
and the date of such termination of employment plus twelve (12),
and the denominator of which is the number of whole months between
January 1 of the year in which the Change in Control occurs
and December 31 of the third Performance Year; and any
Restricted Stock Units that do not vest in accordance with the
foregoing provisions of this clause (B) shall terminate and be
forfeited as of the date of termination.
(iii) For purposes of this
Agreement, “Disability,” “Cause,” and
“Good Reason” shall have the same meanings as in the
Grantee’s employment agreement with the Company entered into
on January 13, 2009 (the “Employment
Agreement”).
(f) Corporate Transactions.
Subject to any better treatment provided for in Section 2(g)
below, the following provisions shall apply to the corporate
transactions described below:
(i) In the event of a proposed
dissolution or liquidation of the Company, the Award will terminate
and be forfeited immediately prior to the consummation of such
proposed transaction, unless otherwise provided by the
Administrator.
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(ii) In the event of a proposed sale
of all or substantially all of the assets of the Company, or the
merger of the Company with or
