Exhibit 10.5
GRANT OF STOCK OPTION
AGREEMENT
THE SPECIFIC TERMS OF YOUR STOCK
OPTION ARE FOUND IN THE PAGES RELATING TO THE GRANT OF STOCK
OPTIONS FOUND ON MERRILL LYNCH BENEFITS WEBSITE (THE “
OPTION NOTICE ”) WHICH ACCOMPANIES THIS DOCUMENT. THE
TERMS OF THE OPTION NOTICE ARE INCORPORATED INTO THIS GRANT OF
STOCK OPTIONS.
On the Grant Date, specified in the
Option Notice, Amgen Inc., a Delaware corporation (the “
Company ”), has granted to you, the grantee named in
the Option Notice, under the plan specified in the Option Notice
(the “ Plan ”), an option to purchase the number
of shares of the $.0001 par value common stock of the Company (the
“ Common Stock ”) specified in the Option
Notice, pursuant to the terms set forth in this Stock Option
Agreement, any special terms and conditions for your country set
forth in the attached Appendix A and the Option Notice (together,
the “ Agreement ”). This option is not intended
to qualify and will not be treated as an “incentive stock
option” within the meaning of Section 422 of the U.S.
Internal Revenue Code of 1986, as amended (together with the
regulations and other official guidance promulgated thereunder, the
“ Code ”).
The provisions of your option are as
follows:
I. Subject to the terms and
conditions of the Plan and this Agreement, on each Vesting Date the
number of shares of Common Stock indicated on the Vesting Schedule
shall vest, provided that you have remained continuously and
actively employed with the Company or an Affiliate of the Company
(as defined in the Plan) through each applicable Vesting Date,
unless your employment has terminated due to your Voluntary
Termination (as defined in Section IV(5)) or as otherwise
determined by the Company in the exercise of its discretion as
provided in Section IV(6). This option may only be exercised for
whole shares of the Common Stock, and the Company shall be under no
obligation to issue any fractional shares of Common Stock to you.
Subject to the limitations contained herein, this option shall be
exercisable with respect to each installment on or after the
applicable Vesting Date. Notwithstanding anything herein to the
contrary, the Vesting Schedule may be accelerated (by notice in
writing) by the Company in its sole discretion at any time during
the term of this option. In addition, if permitted by local law,
vesting may be suspended by the Company in its sole discretion
during a leave of absence as provided from time to time according
to Company policies and practices.
II. (1) The
per share exercise price of this option is the Grant Price as
defined in the Option Notice, being not less than the fair market
value of the Common Stock on the date of grant of this
option.
(2) To the extent permitted by
applicable statutes and regulations, payment of the exercise price
per share is due in full upon exercise of all or any part of each
installment which has become exercisable by you by means of
(i) cash or a check, (ii) any cashless exercise procedure
through the use of a brokerage arrangement approved by the Company,
or (iii) any other form of legal consideration that may be
acceptable to the Board or the Committee in their
discretion.
(3) If at the time of exercise, the
Company’s Common Stock is publicly traded and quoted
regularly in the Wall Street Journal , payment of the
exercise price may be made by delivery of already-owned shares of
Common Stock of a value equal to the exercise price of the shares
of
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Common Stock for which this option is being
exercised. The already-owned shares must have been owned by you for
the period required to avoid adverse accounting treatment and owned
free and clear of any liens, claims, encumbrances or security
interests. Payment may also be made by a combination of cash and
already-owned Common Stock.
Notwithstanding the foregoing, the
Company reserves the right to restrict the methods of payment of
the exercise price if necessary or advisable to comply with
applicable law or regulation, as determined by the Company in its
sole discretion.
III. Notwithstanding anything to the
contrary contained herein, this option may not be exercised unless
the shares issuable upon exercise of this option are then
registered under the U.S. Securities Act of 1933, as amended (the
“ Act ”), or, if such shares are not then so
registered, the Company has determined that such exercise and
issuance would be exempt from the registration requirements of the
Act.
IV. The term of this option
commences on the Grant Date and, unless sooner terminated as set
forth below or in the Plan, terminates on the seventh
(7th) anniversary of the date of this option (the “
Expiration Date ”). This option shall terminate prior
to the Expiration Date as follows: three (3) months after the
termination of your employment with the Company or an Affiliate of
the Company (as defined in the Plan) for any reason or for no
reason, including if your employment is terminated by the Company
or an Affiliate without cause, or in the event of any other
termination of your employment caused directly or indirectly by the
Company or an Affiliate, unless:
(1) such termination of your
employment is due to your Permanent and Total Disability (as
defined below), in which case the option shall terminate on the
earlier of the Expiration Date or five (5) years after
termination of your employment and the Vesting Schedule of the
unvested portions of the option will be accelerated to vest,
subject to your execution of a general release and waiver in a form
provided by the Company, as of the day preceding such termination
of your employment with respect to the option, except that if the
option was granted in the calendar year in which such termination
occurs, the option will be accelerated to vest with respect to a
number of shares equal to the number of shares subject to the
option multiplied by a fraction, the numerator of which is the
number of complete months you remained continuously and actively
employed during such calendar year, and the denominator of which is
twelve (12);
(2) such termination of your
employment is due to your death, in which case the option shall
terminate on the earlier of the Expiration Date or five
(5) years after your death and the Vesting Schedule of the
unvested portion of the option will be accelerated to vest as of
the day preceding your death with respect to the option, except
that if the option was granted in the calendar year in which your
death occurs the option will be accelerated to vest with respect to
a number of shares equal to the number of shares subject to the
option multiplied by a fraction, the numerator of which is the
number of complete months you remained continuously and actively
employed during such calendar year, and the denominator of which is
twelve (12);
(3) during any part of such three
(3) month period, this option is not exercisable solely
because of the condition set forth in Section III above, in which
event this option shall not terminate until the earlier of the
Expiration Date or until it shall have been exercisable for
an
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aggregate period of three (3) months after
the termination of your employment;
(4) exercise of this option within
three (3) months after termination of your employment with the
Company or with an Affiliate would result in liability under
Section 16(b) of the U.S. Securities Exchange Act of 1934, as
amended (the “ Exchange Act ”), in which case
this option will terminate on the earlier of: (i) the tenth
(10th) day after the last date upon which exercise would
result in such liability; (ii) six (6) months and ten
(10) days after the termination of your employment with the
Company or an Affiliate; or (iii) Expiration Date;
(5) such termination of your
employment is due to your voluntary termination (and such voluntary
termination is not the result of Permanent and Total Disability (as
defined below)) after you are at least sixty five (65) years
of age, or after you are at least fifty-five (55) years of age
and have been an employee of the Company and/or an Affiliate of the
Company for at least ten (10) consecutive years (“
Voluntary Termination ”), in which case this option
shall terminate on the earlier of the Expiration Date or five
(5) years after termination of your employment and the
unvested portions of this option will become exercisable pursuant
to the Vesting Schedule without regard to your Voluntary
Termination of your employment prior to the Vesting Date, subject
to your execution of a general release and waiver in a form
provided by the Company, with respect to the option, except that if
the option was granted in the calendar year in which your Voluntary
Termination occurs, the option will become exercisable pursuant to
the Vesting Schedule only with respect to a number of shares equal
to the number of shares subject to the option multiplied by a
fraction, the numerator of which is the number of complete months
you remained continuously and actively employed during such
calendar year, and the denominator of which is twelve (12);
or
(6) the Company determines, in its
sole discretion at any time during the term of this option, in
writing, to otherwise extend the period of time during which this
option will vest and may be exercised after termination of your
employment.
However, in any and all
circumstances and except to the extent the Vesting Schedule has
been accelerated by the Company in its sole discretion during the
term of this option or as a result of your Permanent and Total
Disability or death as provided in Sections IV(1) or IV(2) above,
respectively, as a result of your Voluntary Termination as provided
in Section IV(5) above or as otherwise determined by the Company in
the exercise of its discretion as provided in Section IV(6) above,
this option may be exercised following termination of your
employment only as to that number of shares as to which it was
exercisable on the date of termination of your employment under the
provisions of Section I of this option. For purposes of this
option, (i) “ termination of your employment
” shall mean the last date you are either an active employee
of the Company or an Affiliate or actively engaged as a consultant
or director to the Company or an Affiliate, and (ii) “
Permanent and Total Disability ” shall have the
meaning ascribed to such term under Section 22(e)(3) of the
Code and with such permanent and total disability being certified
prior to termination of your employment by (i) the Social
Security Administration, (ii) the comparable governmental
authority applicable to an Affiliate of the Company,
(iii) such other body having the relevant decision-making
power applicable to an Affiliate of the Company, or (iv) an
independent medical advisor appointed by the Company in its sole
discretion, as applicable, in any such case.
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V. (1) To the
extent specified above, this option may be exercised by delivering
a Notice of Exercise of Stock Option form in person, by mail, via
electronic mail or facsimile or by other authorized method,
together with the exercise price to the Secretary of the Company,
or to such other person as the Company may designate, during
regular business hours, together with such additional documents as
the Company may then require pursuant to sub-section 5(f) of the
Plan.
(2) Regardless of any action the
Company or your actual employer (the “ Employer
”) takes with respect to any or all income tax, social
insurance, payroll tax, payment on account or other tax-related
items related to your participation in the Plan and legally
applicable to you (“ Tax Obligations ”), you
acknowledge that the ultimate liability for all Tax Obligations is
and remains your responsibility and may exceed the amount actually
withheld by the Company and/or your Employer. You further
acknowledge that the Company and/or your Employer: (a) make no
representations or undertakings regarding the treatment of any Tax
Obligations in connection with any aspect of the option grant,
including, but not limited to, the grant, vesting or exercise of
the option, the subsequent sale of shares of Common Stock acquired
pursuant to such exercise and the receipt of any dividends; and
(b) do not commit to and are under no obligation to structure
the terms of the grant or any aspect of the option to reduce or
eliminate your liability for Tax Obligations or achieve any
particular tax result. Furthermore, if you become subject to tax in
more than one jurisdiction between the Grant Date and the date of
any relevant taxable event, you acknowledge that the Company and/or
your Employer (or former employer, as applicable) may be required
to withhold or account for Tax Obligations in more than one
jurisdiction.
Prior to any relevant taxable or tax
withholding event, as applicable, you shall pay or make adequate
arrangements satisfactory to the Company and/or your Employer to
satisfy all Tax Obligations. In this regard, you authorize the
Company and/or your Employer, or their respective agents, at their
discretion, to satisfy all applicable Tax Obligations by one or a
combination of the following:
(a) withholding from your wages or
other cash compensation paid to you by the Company and/or your
Employer; or
(b) withholding from proceeds of the
sale of shares of Common Stock acquired upon exercise of the option
either through a voluntary sale or through a mandatory sale
arranged by the Company (on your behalf pursuant to this
authorization).
To avoid adverse accounting
treatment, the Company may withhold or account for Tax Obligations
not to exceed the applicable minimum statutory withholding rates or
other applicable withholding rates.
Finally, you shall pay to the
Company or your Employer any amount of Tax Obligations that the
Company or your Employer may be required to withhold or account for
as a result of your participation in the Plan that cannot be
satisfied by the means previously described. You agree to take any
further actions and execute any additional documents as may be
necessary to effectuate the provisions of this Section V.
Notwithstanding anything to the contrary contained herein, the
Company may refuse to issue or deliver the shares or the proceeds
of the sale of shares of Common Stock if you fail to comply with
your obligations in connection with the Tax Obligations.
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VI. This option is not transferable,
except by will or the laws of descent and distribution, and is
exercisable during your life only by you except if you have named a
Trust (as defined in the Plan) as beneficiary of this option, this
option may be exercised by the Trust after your death.
VII. Any notices provided for in
this option or the Plan shall be given in writing and shall be
deemed effectively given upon receipt or, in the case of notices
delivered by the Company to you, five (5) days after deposit
in the United States mail, postage prepaid, addressed to you at the
address specified above or at such other address as you hereafter
designate by written notice to the Secretary of the
Company.
VIII. This option is subject to all
the provisions of the Plan and its provisions are hereby made a
part of this option, including without limitation the provisions of
Section 5 of the Plan relating to option provisions, and is
further subject to all interpretations, amendments, rules and
regulations which may from time to time be promulgated and adopted
pursuant to the Plan. In the event of any conflict between the
provisions of this option and those of the Plan, the provisions of
the Plan shall control.
IX. You hereby explicitly and
unambiguously consent to the collection, use and transfer, in
electronic or other form, of your personal data as described in
this option by and among, as applicable, your Employer, the
Company, or Affiliates of the Company for the exclusive purpose of
implementing, administering and managing your participation in the
Plan.
You understand that the Company and
your Employer may hold certain personal information about you,
including, but not limited to, your name, home address and
telephone number, date of birth, social insurance number (to the
extent permitted under applicable local law) or other
identification number, salary, nationality, job title, residency
status, any shares of stock or directorships held in the Company,
details of all equity compensation or any other entitlement to
shares awarded, canceled, vested, unvested or outstanding in your
favor, for the purpose of implementing, administering and managing
the Plan (“ Data ”). You understand that Data
may be transferred to Merrill Lynch Bank & Trust Co., FSB,
or any third parties assisting in the implementation,
administration and management of the Plan, that these recipients
may be located in your country or elsewhere including outside the
European Economic Area, and that the recipient’s country
(e.g., the United States) may have different data privacy laws and
protections than your country. You understand that you may request
a list with the names and addresses of any potential recipients of
the Data by contacting your local human resources representative.
You authorize your Employer, the Company, Affiliates of the
Company, Merrill Lynch Bank & Trust Co., FSB, and any
other possible recipients which may assist the Company (presently
or in the future) with implementing, administering, and managing
your participation in the Plan to receive, possess, use, retain and
transfer the Data, in electronic or other form, for the sole
purposes of implementing, administering and managing your
participation in the Plan, including any requisite transfer of such
Data as may be required to any other broker, escrow agent or other
third party with whom the shares received upon exercise of this
option may be deposited. You understand that Data will be held only
as long as is necessary to implement, administer and manage your
participation in the Plan. You understand that you may, at any
time, view Data, request additional information about the storage
and processing of Data, require any necessary amendments to Data or
refuse or withdraw the consents herein, in any case without cost,
by contacting in writing your local human resources representative.
You understand that refusal or withdrawal of consent may affect
your ability to participate in the Plan. For more information on
the consequences of your refusal to consent or withdrawal of
consent, you understand that you may contact your local human
resources representative.
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X. The terms of this option shall be
governed by the laws of the State of Delaware without giving effect
to principles of conflicts of laws. For purposes of litigating any
dispute that arises hereunder, the parties hereby submit to and
consent to the jurisdiction of the State of Delaware, and agree
that such litigation shall be conducted in the courts of the State
of Delaware, or the federal courts for the United States for the
federal district located in the State of Delaware, and no other
courts, where this option is made and/or to be
performed.
XI. Notwithstanding any provision of
this option to the contrary, if you are employed outside the United
States by the Company or an Affiliate, are subject to the laws of
any foreign jurisdiction, or relocate to one of the countries
included in the attached Appendix A (which constitutes a part of
this Agreement), the option granted hereunder shall be subject to
any special terms and conditions for your country set forth in
Appendix A and the following additional terms and
conditions:
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a.
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the terms and
conditions of this option, including Appendix A, are deemed
modified to the extent necessary or advisable to comply with
applicable foreign laws or facilitate the administration to the
Plan;
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b.
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if applicable,
the effectiveness of this option is conditioned upon its compliance
with any applicable foreign laws, regulations, rules or local
governmental regulatory exemption and subject to receipt of any
required foreign regulatory approvals; and
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c.
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the Company may
take any other action before or after the date of this option that
it deems advisable to obtain approval or comply with any necessary
local governmental regulatory exemptions or approvals.
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Notwithstanding the foregoing, the
Company may not take any actions hereunder, that would violate the
Act, the Exchange Act, the Code, or any other securities or tax or
other applicable law or regulation. Notwithstanding anything to the
contrary contained herein, the shares issuable upon exercise of
this option shall not be issued unless such shares are then
registered under the Act, or, if such shares are not then so
registered, the Company has determined that such exercise and
issuance would be exempt from the registration requirements of the
Act.
XII. In accepting this option, you
acknowledge that:
(1) the Plan is established
voluntarily by the Company, it is discretionary in nature and may
be modified, amended, suspended or terminated by the Company at any
time, as provided in the Plan;
(2) the grant of this option is
voluntary and occasional and does not create any contractual or
other right to receive future awards of options, or benefits in
lieu of options even if options have been awarded repeatedly in the
past;
(3) all decisions with respect to
future awards, if any, will be at the sole discretion of the
Company;
(4) your participation in the Plan
is voluntary;
(5) for labor law purposes, options
are an extraordinary item that do not constitute compensation of
any kind for services of any kind rendered to the Company or to
your Employer, and the grant of this option is outside the scope of
your employment contract, if any;
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(6) for labor law purposes, the
grant of options and the underlying shares of Common Stock are not
part of normal or expected compensation or salary for any purposes,
including, but not limited to, calculation of any severance,
resignation, termination, redundancy, dismissal, end of service
payments, bonuses, holiday pay, long-service awards, pension or
retirement benefits or similar payment and in no event shall be
considered as compensation for, or relating in any way to, past
services for the Company or any Affiliate of the
Company;
(7) the grant of options and the
underlying shares of Common Stock are not intended to replace any
pension rights or compensation;
(8) neither the grant of options nor
any provision of this option, the Plan or the policies adopted
pursuant to the Plan confer upon you any right with respect to
employment or continuation of current employment and shall not be
interpreted to form an employment contract or relationship with the
Company or any Affiliate of the Company;
(9) in the event that you are not an
employee of the Company or any Affiliate of the Company, options
shall not be interpreted to form an employment contract or
relationship with the Company or any Affiliate of the
Company;
(10) the future value of the
underlying shares is unknown and cannot be predicted with
certainty;
(11) if the underlying shares of
Common Stock do not increase in value, this option will have no
value; if you exercise this option and obtain shares of Common
Stock, the value of those shares acquired upon exercise may
increase or decrease in value, even below the Grant Price per
share;
(12) in consideration of the grant
of this option, no claim or entitlement to compensation or damages
arises from forfeiture of options resulting from termination of
your employment by the Company or an Affiliate of the Company (for
any reason whatsoever and whether or not in breach of local labor
laws) and you irrevocably release the Company and your Employer
from any such claim that may arise; if, notwithstanding the
foregoing, any such claim is found by a court of competent
jurisdiction to have arisen, you shall be deemed irrevocably to
have waived your entitlement to pursue such claim;
(13) in the event of termination of
your employment (whether or not in breach of local labor laws),
your right to receive options and vest under the Plan, if any, will
terminate effective as of the date that you are no longer actively
employed and will not be extended by any notice period mandated
under local law (e.g., active employment would not include a period
of “garden leave” or similar period pursuant to local
law). Your right, if any, to exercise the options after termination
of employment will be measured by the date of termination of your
active employment and will not be extended by any notice period
mandated under local law; the Committee shall have the exclusive
discretion to determine when you are no longer employed for
purposes of your option grant;
(14) the Company is not providing
any tax, legal or financial advice, nor is the Company making any
recommendations regarding your participation in the Plan, or your
acquisition or sale of the underlying shares of Common Stock;
and
(15) you are hereby advised to
consult with your own personal tax, legal and financial advisors
regarding your participation in the Plan before taking any action
related to the Plan.
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XIII. If one or more of the
provisions of this option shall be held invalid, illegal or
unenforceable in any respect, the validity, legality and
enforceability of the remaining provisions shall not in any way be
affected or impaired thereby and the invalid, illegal or
unenforceable provisions shall be deemed null and void; however, to
the extent permissible by law, any provisions which could be deemed
null and void shall first be construed, interpreted or revised
retroactively to permit this option to be construed so as to foster
the intent of this option and the Plan.
XIV. If you have received this
option 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.
XV. This option is not intended to
constitute “nonqualified deferred compensation” within
the meaning of Code Section 409A, but rather is intended to be
exempt from the application of Code Section 409A. To the
extent that this option is nevertheless deemed to be subject to
Code Section 409A for any reason, this option shall be
interpreted in accordance with Code Section 409A and
Department of Treasury regulations and other interpretive guidance
issued thereunder, including without limitation any such
regulations or other guidance that may be issued after the Grant
Date. Notwithstanding any provision herein to the contrary, in the
event that following the Grant Date, the Committee (as defined in
the Plan) determines that this option may be or become subject to
Code Section 409A, the Committee may adopt such amendments to
the Plan and/or this option or adopt other policies and procedures
(including amendments, policies and procedures with retroactive
effect), or take any other actions, that the Committee determines
are necessary or appropriate to (a) exempt the Plan and/or
this option from the application of Code Section 409A and/or
preserve the intended tax treatment of the benefits provided with
respect to this option, or (b) comply with the requirements of
Code Section 409A.
XVI. By electing to accept this
option, you acknowledge receipt of this option and hereby confirm
your understanding that the terms set forth in this option
constitute, subject to the terms of the Plan, which terms shall
control in the event of any conflict between the Plan and this
option, the entire agreement and understanding of the parties with
respect to the matters contained herein and supersede any and all
prior agreements, arrangements and understandings, both oral and
written, between the parties concerning the subject matter of this
option. The Company may, in its sole discretion, decide to deliver
any documents related to options awarded under the Plan or future
option that may be awarded under the Plan by electronic means or
request your consent to participate in the Plan by electronic
means. You hereby consent to receive such documents by electronic
delivery and agree to participate in the Plan through an on-line or
electronic system established and maintained by the Company or
another third party designated by the Company.
XVII. The Company reserves the right
to impose other requirements on your participation in the Plan, on
this option and on any shares of Common Stock acquired under the
Plan, to the extent the Company determines it is necessary or
advisable in order to comply with local law or facilitate the
administration of the Plan, and to require you to sign any
additional agreements or undertakings that may be necessary to
accomplish the foregoing.
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Very truly
yours,
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AMGEN INC.
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By
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Duly authorized
on behalf of the Board of Directors
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9
RESTRICTED STOCK UNIT
AGREEMENT
THE SPECIFIC TERMS OF YOUR GRANT
OF RESTRICTED STOCK UNITS ARE FOUND IN THE PAGES RELATING TO THE
GRANT OF RESTRICTED STOCK UNITS FOUND ON MERRILL LYNCH BENEFITS
WEBSITE (THE “ RSU NOTICE ”) WHICH ACCOMPANIES
THIS DOCUMENT. THE TERMS OF THE RSU NOTICE ARE INCORPORATED INTO
THIS RESTRICTED STOCK UNIT AGREEMENT.
On the Grant Date specified in the
RSU Notice, Amgen Inc., a Delaware corporation (the “
Company ”), has granted to you, the grantee named in
the RSU Notice, under the plan specified in the RSU Notice (the
“ Plan ”), the Number of Units with respect to
the number of shares of the $.0001 par value common stock of the
Company (the “ Common Stock ”) specified in the
RSU Notice, on the terms and conditions set forth in this
Restricted Stock Unit Agreement, any special terms and conditions
for your country set forth in the attached Appendix A and the RSU
Notice (together, the “ Agreement ”). The Units
shall constitute stock bonuses under Sections 7 and 10(d) of the
Plan, which is incorporated herein by reference. Capitalized terms
not defined herein shall have the meanings assigned to such terms
in the Plan.
I. Vesting Schedule and
Termination of Units .
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a.
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General. Subject to the terms and conditions of this
Agreement, on each Vesting Date, the Number of Units indicated on
the Vesting Schedule shall vest, provided that you have remained
continuously and actively employed with the Company or an Affiliate
of the Company (as defined in the Plan) through each applicable
Vesting Date, unless your employment has terminated due to your
Voluntary Termination (as defined in paragraph (d) of this
Section I below) or as otherwise determined by the Company in the
exercise of its discretion as provided in paragraph (e) of
this Section I. The Units represent an unfunded, unsecured promise
by the Company to deliver shares of Common Stock. Only whole shares
of Common Stock shall be issued upon vesting of the Units, and the
Company shall be under no obligation to issue any fractional shares
of Common Stock to you. If your employment with the Company or an
Affiliate of the Company is terminated for any reason or for no
reason, including if your active employment is terminated by the
Company or an Affiliate without cause, or in the event of any other
termination of your active employment caused directly or indirectly
by the Company or an Affiliate, except as otherwise provided in
paragraphs (b), (c), (d) or (e) of this Section I below,
your unvested Units shall automatically expire and terminate on the
date of termination of your employment. Notwithstanding anything
herein to the contrary, the Vesting Schedule may be accelerated (by
notice in writing) by the Company in its sole discretion at any
time during the term of the Unit. In addition, if permitted under
local law, vesting may be suspended by the Company in its sole
discretion during a leave of absence as provided from time to time
according to Company policies and practices.
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b.
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Permanent and Total
Disability. Notwithstanding the provisions in paragraph
(a) above, if your employment with the Company or an Affiliate
of the Company terminates due to your Permanent and Total
Disability (as defined below), then the vesting schedule of
unvested portions of Units granted under this Agreement will be
accelerated, subject to your execution of a general release and
waiver in a form provided by the Company, to vest as of the day
preceding such termination of your employment with respect to all
Units granted hereunder, except that if the Units were granted in
the calendar year in which such termination occurs, the Units will
be accelerated to vest with respect to a number of Units equal to
the number of Units subject to this Agreement multiplied by a
fraction, the numerator of which is the
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number of complete months you
remained continuously and actively employed during such calendar
year, and the denominator of which is twelve (12).
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c.
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Death . Notwithstanding the provisions in paragraph
(a) above, if your employment with the Company or an Affiliate
of the Company terminates due to your death, then the vesting
schedule of unvested portions of Units granted under this Agreement
will be accelerated to vest as of the day preceding your death with
respect to all Units granted hereunder, except that if the Units
were granted in the calendar year in which your death occurs the
Units will be accelerated to vest with respect to a number of Units
equal to the number of Units subject to this Agreement multiplied
by a fraction, the numerator of which is the number of complete
months you remained continuously and actively employed during such
calendar year, and the denominator of which is twelve
(12).
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d.
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Retirement . Notwithstanding the provisions in paragraph
(a) above, if you terminate your employment with the Company
or an Affiliate of the Company due to your voluntary termination
(and such voluntary termination is not the result of Permanent and
Total Disability (as defined below)) after you are at least
sixty-five (65) years of age, or after you are at least
fifty-five (55) years of age and have been an employee of the
Company and/or an Affiliate of the Company for at least ten
(10) consecutive years (“ Voluntary Termination
”), then the Units will vest pursuant to the Vesting Schedule
without regard to the termination of employment prior to the
Vesting Date, subject to your execution of a general release and
waiver in a form provided by the Company, with respect to all Units
granted hereunder, except that if the Units were granted in the
calendar year in which such termination occurs, the Units will vest
pursuant to the Vesting Schedule provided in the RSU Notice only
with respect to a number of Units equal to the number of Units
subject to this Agreement multiplied by a fraction, the numerator
of which is the number of complete months you remained continuously
and actively employed during such calendar year, and the
denominator of which is twelve (12).
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e.
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Continued
Vesting . Notwithstanding
the provisions in paragraph (a) above, the Company may in its
sole discretion at any time during the term of this Agreement, in
writing, otherwise provide that the Units will vest pursuant to the
Vesting Schedule without regard to the termination of employment
prior to the Vesting Date, subject to any terms and conditions that
the Company may determine.
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For purposes of this Agreement,
(i) “ termination of your employment ”
shall mean the last date that you are either an active employee of
the Company or an Affiliate or actively engaged as a consultant or
director of the Company or an Affiliate, and (ii) “
Permanent and Total Disability ” shall have the
meaning ascribed to such term under Section 22(e)(3) of the
Internal Revenue Code of 1986, as amended (together with the
regulations and other official guidance promulgated thereunder, the
“ Code ”) and with such permanent and total
disability being certified prior to termination of your employment
by (i) the Social Security Administration, (ii) the
comparable governmental authority applicable to an Affiliate of the
Company, (iii) such other body having the relevant
decision-making power applicable to an Affiliate of the Company, or
(iv) an independent medical advisor appointed by the Company
in its sole discretion, as applicable, in any such case. Units that
remain unvested as of the date of termination of your employment
shall expire and terminate on the date of termination of your
employment.
II. Form and Timing of
Payment . Subject to satisfaction of tax or similar obligations
as provided for in Section III, any vested Units shall be paid by
the Company in shares of Common Stock (on a one-to-one basis) on,
or as soon as practicable after, the applicable Vesting Date
(which, for purposes of this Section II, includes the date of any
accelerated vesting under Sections I(b), (c), (d) or
(e) above); provided , however , that in no
event shall the payment be made after the close of your
taxable
11
year which includes
the applicable Vesting Date or, if later, after the 15
th
day of the third
calendar month following the applicable Vesting Date. Shares of
Common Stock issued in respect of a Unit shall be deemed to be
issued in consideration of past services actually rendered by you
to the Company or an Affiliate or for its benefit for which you
have not previously been compensated or for future services to be
rendered, as the case may be, which the Company deems to have a
value at least equal to the aggregate par value thereof.
III. Tax Withholding; Issuance of
Certificates . Regardless of any action the Company or your
actual employer (the “ Employer ”) takes with
respect to any or all income tax (including federal, state and
local taxes), social insurance, payroll tax, payment on account or
other tax-related items related to your participation in the Plan
and legally applicable to you (“ Tax Obligations
”), you acknowledge that the ultimate liability for all Tax
Obligations is and remains your responsibility and may exceed the
amount actually withheld by the Company and/or your Employer. You
further acknowledge that the Company and/or your Employer
(i) make no representations or undertakings regarding the
treatment of any Tax Obligations in connection with any aspect of
the Units, including the grant of the Units, the vesting of Units,
the conversion of the Units into shares or the receipt of an
equivalent cash payment, the subsequent sale of any shares acquired
at vesting and the receipt of any dividends; and (ii) do not
commit to and are under no obligation to structure the terms of the
grant or any aspect of the Units to reduce or eliminate your
liability for Tax Obligations or achieve any particular tax result.
Furthermore, if you become subject to tax in more than one
jurisdiction between the Grant Date and the date of any relevant
taxable event, you acknowledge that the Company and/or your
Employer (or former employer, as applicable) may be required to
withhold or account for Tax Obligations in more than one
jurisdiction.
Prior to any relevant taxable or tax
withholding event,