Exhibit No. (10)n
KIMBERLY-CLARK
CORPORATION
NONQUALIFIED STOCK
OPTION
AWARD AGREEMENT
This Award, granted on the date
approved by the Committee or the Chief Executive Officer, as the
case may be, and as reflected on the Merrill Lynch Benefits OnLine
site, or any successor system, via the Grant Summary screen as the
Grant Date, by Kimberly-Clark Corporation, a Delaware corporation
(hereinafter called the “Corporation”), is subject to
the terms and conditions of the 2001 Equity Participation Plan (the
“Plan”) and this Award Agreement, including any
country-specific terms and conditions contained in Appendix A to
this Award Agreement.
W I T N E S
S E T H :
WHEREAS, the Corporation has adopted
the 2001 Equity Participation Plan (the “Plan”) to
encourage those employees who materially contribute, by managerial,
scientific or other innovative means, to the success of the
Corporation or of an Affiliate, to acquire an ownership interest in
the Corporation, thereby increasing their motivation for and
interest in the Corporation’s or the Affiliate’s
long-term success;
NOW, THEREFORE, it is agreed as
follows:
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1.
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Number of
Shares Optioned; Option Price . The Corporation grants to the Employee the
right and option to purchase in his own name, on the terms and
conditions hereinafter set forth, all or any part of an aggregate
of the number of shares of the $1.25 par value common stock of the
Corporation, and at the purchase price per share, as granted on the
date set forth above and as reflected on the Merrill Lynch Benefits
OnLine site, or any successor system, via the Grant Summary screen
as the Options Granted and the Grant Price. This option shall not
be an incentive stock option within the meaning of Section 422
of the Internal Revenue Code of 1986, as amended (the
“Code”).
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(a)
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Limitations on
Exercise . This option
shall be subject to forfeiture until the Employee becomes vested in
such Awards according to the schedule set forth
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in the Award Agreement. This
option shall not be exercisable until at least one year has expired
after the granting of this option, during which time the Employee
shall have been in the continuous employ of the Corporation or an
Affiliate; provided, however, that the option shall become
exercisable immediately in the event of a Qualified Termination of
Employment of a Participant, without regard to the limitations set
forth below in this subsection. At any time during the period of
this option after the end of the first year, the Employee may
purchase up to 30 percent of the shares covered by this option;
after the end of the second year, an additional 30 percent; and
after the end of the third year, the remaining 40 percent of the
total number of shares covered by the option, so that, upon the
expiration of the third year, the Employee will have become
entitled to purchase all shares subject to this option; provided,
however, that if the Employee’s employment is terminated for
any reason other than death, Retirement, or Total and Permanent
Disability, this option shall only be exercisable for three months
following such termination and only for the number of shares which
were exercisable on the date of such termination. In no event,
however, may this option be exercised more than ten (10) years
after the date of its grant.
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The above provisions of
Section 2(a) notwithstanding, to the extent provided by rules
of the Committee referred to in the Plan (hereinafter referred to
as the “Committee”), this option is not exercisable
during any period during which the Employee’s right to make
deposits to the Kimberly-Clark Corporation Salaried Employees
Incentive Investment Plan is suspended pursuant to a provision of
such plan or rules adopted thereunder to comply with regulations
regarding hardship withdrawals promulgated by the Internal Revenue
Service.
A termination of employment shall
not be deemed to have occurred while an Employee is on military
leave or other bona fide leave of absence if the period of such
leave does not exceed six months, or if longer, so long as the
Employee retains a right to reemployment with the Corporation or an
Affiliate under an applicable statute or by contract. For purposes
of this subparagraph, a leave of absence constitutes a bona fide
leave of absence only if there is a reasonable expectation that the
Employee will return to perform services for the Corporation or an
Affiliate. If the period of leave exceeds six months and the
Employee does not retain a right to reemployment under an
applicable statute or by contract, the employment relationship is
deemed to terminate on the first date immediately following such
six-month period. Notwithstanding the foregoing sentence, where a
leave of absence is due to any medically determinable physical or
mental impairment that can be expected to result in death or can be
expected to last for a continuous period of not less than six
months, where such impairment causes the Employee to be unable to
perform the duties of his or her position of employment or any
substantially similar position of employment, a 29-month period of
absence is substituted for such six-month period in determining
whether a termination of employment shall be deemed to have
occurred. A termination of employment with the Corporation or an
Affiliate to accept immediate reemployment with the Corporation or
an Affiliate likewise shall not be deemed to be a termination of
employment for
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purposes of the Plan. An Employee
who is classified as an intermittent employee shall be deemed to
have a termination of employment for purposes of the
Plan.
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(b)
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Exercise
after Death, Retirement, or Disability . If the Employee dies, Retires or becomes
Totally and Permanently Disabled without having exercised this
option in full, the remaining portion of this option, determined
without regard to the limitations in subsection 2(a), may be
exercised within the earlier of (i) three years from the date
of death or Total and Permanent Disability or five years from the
date of Retirement, as the case may be, or (ii) the remaining
period of this option. In the case of an Employee who dies, this
option may be exercised by the person or persons to whom the
Employee’s rights under this option shall pass by will or by
applicable law or, if no such person has such rights, by his
executor or administrator.
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(c)
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Method of
Exercise . This option
shall be exercised by delivering to Merrill Lynch, or other
authorized agent of the Corporation, as set forth in their terms
and conditions of exercise, written notice of the number of shares
with respect to which option rights are being exercised and by
paying in full the option price of the shares at the time being
acquired. Payment may be made in cash or in shares of the
Corporation’s common stock as set forth in the terms and
conditions of exercise. The date of exercise shall be deemed to be
the date of receipt of the written notice and payment for the
shares being purchased. The Employee shall have none of the rights
of a stockholder with respect to shares covered by such options
until the Employee becomes record holder of such shares.
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(d)
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Payment of
Withholding Taxes . No
shares of common stock may be purchased under this option, unless
prior to or simultaneously with such purchase, (i) the
Participant, (ii) in the event of his death, the person
succeeding to his rights hereunder or, (iii) in the event of a
transfer of an option under Section 8 hereof, either the
Participant, the Immediate Family Members or the entity succeeding
to his rights hereunder, shall pay to the Corporation such amount
as the Corporation advises is required under applicable federal,
state or local laws to withhold and pay over to governmental taxing
authorities by reason of the purchase of such shares of common
stock pursuant to this option. Other than a purchase of shares
pursuant to an option which had previously been transferred under
Section 8 hereof, payment of required withholding taxes may be
made with shares of the Corporation’s common stock which
otherwise would be distributable upon exercise of the option,
pursuant to the rules of the Committee.
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3.
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Nontransferability . Except as may otherwise be provided by the
Committee, this option shall be transferable only by will or by the
laws of descent and distribution, and during the Employee’s
lifetime shall be exercisable only by him.
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4.
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Compliance with Law
. No shares of common stock may be
purchased under this option, unless prior to the purchase thereof,
the Corporation shall have received an
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opinion of counsel to the effect
that the issuance and sale of such shares by the Corporation to the
Employee will not constitute a violation of the Securities Act of
1933, as amended. As a condition of exercise, the Employee shall,
if requested by the Corporation, submit a written statement in form
satisfactory to counsel for the Corporation, to the effect that any
shares of common stock purchased upon exercise of this option will
be purchased for investment and not with a view to the distribution
thereof within the meaning of the Securities Act of 1933, as
amended, and the Corporation shall have the right, in its
discretion, to cause the certificates representing shares of common
stock purchased hereunder to be appropriately legended to refer to
such undertaking or to any legal restrictions imposed upon the
transferability thereof by reason of such undertaking.
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The option granted hereby is subject
to the condition that if the listing, registration or qualification
of the shares subject hereto on any securities exchange or under
any state or federal law, or if the consent or approval of any
regulatory body shall be necessary as a condition of, or in
connection with, the granting of the option or the delivery or
purchase of shares thereunder, such option may not be exercised in
whole or in part unless and until such listing, registration,
qualification, consent or approval shall have been effected or
obtained. The Corporation agrees to use its best efforts to obtain
any such requisite listing, registration, qualification, consent or
approval.
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5.
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No Right of
Continued Employment .
The granting of this option does not confer upon the Employee any
legal right to be continued in the employ of the Corporation or its
Affiliates, and the Corporation and its Affiliates reserve the
right to discharge the Employee whenever the interest of the
Corporation or its Affiliates may so require without liability to
the Corporation or its Affiliates, the Board of Directors of the
Corporation or its Affiliates, or the Committee, except as to any
rights which may be expressly conferred on the Employee under this
option.
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6.
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Discretion
of the Corporation, Board of Directors and the Committee
. Any decision made or action taken
by the Corporation or by the Board of Directors of the Corporation
or by the Committee arising out of or in connection with the
construction, administration, interpretation and effect of this
option shall be within the absolute discretion of the Corporation,
the Board of Directors of the Corporation or the Committee, as the
case may be, and shall be conclusive and binding upon all
persons.
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7.
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Amendments . The Committee may at any time alter or amend
this option to the extent (1) permitted by law,
(2) permitted by the rules of any stock exchange on which the
common stock or any other security of the Corporation is listed,
(3) permitted under applicable provisions of the Securities
Act of 1933, as amended, the Securities Exchange Act of 1934, as
amended (including rule 16b-3 thereof), and (4) that such
action would not result in the disallowance of a deduction to the
Corporation under section 162(m) of the Code or any successor
section (including the rules and regulations promulgated
thereunder). Notwithstanding anything to the contrary contained
herein, the Committee may not take any action that would result in
any amount payable under this option qualifying as
“applicable employee remuneration” as so defined for
purposes of section 162(m) of the Code.
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8.
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Inalienability of Benefits and
Interest . This option
and the rights and privileges conferred hereby shall not be subject
in any manner to anticipation, alienation, sale, transfer,
assignment, pledge, encumbrance or charge, and any such attempted
action shall be void and no such benefit or interest shall be in
any manner liable for or subject to debts, contracts, liabilities,
engagements, or torts of the Employee.
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9.
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Delaware Law
to Govern . All questions
pertaining to the construction, interpretation, regulation,
validity and effect of the provisions of this option shall be
determined in accordance with the laws of the State of
Delaware.
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10.
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Purchase of
Common Stock . The
Corporation and its Affiliates may, but shall not be required to,
purchase shares of common stock of the Corporation for purposes of
satisfying the requirements of this option. The Corporation and its
Affiliates shall have no obligation to retain and shall have the
unlimited right to sell or otherwise deal with for their own
account, any shares of common stock of the Corporation purchased
for satisfying the requirements of this option.
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11.
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Notices . Any notice to be given to the Corporation
under this option shall be addressed to the Corporation in care of
its Treasurer located at the World Headquarters, and any notice to
be given to the Employee under the terms of this option may be
addressed to him at his address as it appears on the
Corporation’s records, or at such other address as either
party may hereafter designate in writing to the other. Any such
notice shall be deemed to have been duly given if and when enclosed
in a properly sealed envelope or wrapper addressed as aforesaid,
registered and deposited, postage and registry fee prepaid, in a
post office or branch post office regularly maintained by the
United States Government.
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12.
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Changes in
Capitalization . In the
event there are any changes in the common stock or the
capitalization of the Corporation through a corporate transaction,
such as any merger, any acquisition through the issuance of capital
stock of the Corporation, any consolidation, any separation of the
Corporation (including a spin-off or other distribution of stock of
the Corporation), any reorganization of the Corporation (whether or
not such reorganization comes within the definition of such term in
section 368 of the Code), or any partial or complete liquidation by
the Corporation, recapitalization, stock dividend, stock split or
other change in the corporate structure, appropriate adjustments
and changes shall be made by the Committee in (a) the number
of shares and the option price per share of stock subject to this
option, and (b) such other provisions of this option as may be
necessary and equitable to carry out the foregoing purposes,
provided, however that no such adjustment or change may be made to
the extent that such adjustment or change will result in the
disallowance of a deduction to the Corporation under section 162(m)
of the Code or any successor section.
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13.
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Effect on
Other Plans . All
benefits under this option shall constitute special compensation
and shall not affect the level of benefits provided to or received
by the Employee (or the Employee’s estate or beneficiaries)
as part of any employee benefit plan of the Corporation or an
Affiliate. This option shall not be construed to affect in any way
the Employee’s rights and obligations under any other plan
maintained by the Corporation or an Affiliate on behalf of
employees.
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14.
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Successors . This option shall be binding upon and inure to
the benefit of any successor or successors of the
Corporation.
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15.
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Defined
Terms . Terms which are
capitalized are defined herein or in the Plan and have the same
meaning set forth in the Plan, unless the context indicates
otherwise.
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16.
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For U.S.
Employee’s Only . A
U.S. Employee who has not previously signed a noncompete agreement
has until the end of the one hundred twenty (120) day period
beginning from the date of grant of this option to sign and return
the Noncompete Agreement provided to such Employee. If the U.S.
Employee does not sign and return the provided Noncompete Agreement
on or before the end of such one hundred twenty (120) day
period then the grant of the right and option to purchase the
shares of common stock of the Corporation, as set forth in
Section 1, shall not be binding on and shall be voidable by
the Corporation, in which case it shall have no further force or
effect.
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17.
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Acceptance
of Option terms and conditions . An Employee has until the end of the one
hundred twenty (120) day period beginning from the date of
grant of this option to accept this Option Agreement. If the
Employee does not accept this Option Agreement on or before the end
of such one hundred twenty (120) day period then the grant of
the right and option to purchase the shares of common stock of the
Corporation, as set forth in Section 1, shall not be binding
on and shall be voidable by the Corporation, in which case it shall
have no further force or effect.
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Acknowledgment of
Conditions
I understand and acknowledge the
following conditions with respect to the award granted to me under
Kimberly-Clark Corporation’s 2001 Equity Participation
Plan:
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The 2001 Equity Participation
Plan (the “Plan”) is discretionary in nature and
Kimberly-Clark may cancel or terminate it at any time. The grant of
an option is a one-time benefit and does not create any contractual
or other right to receive a grant of options or benefits in lieu of
options in the future. Future grants, if any, will be at the sole
discretion of Kimberly-Clark, including, but not limited to, the
timing of any grant, the number of option shares, vesting
provisions and the exercise price.
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My participation in the Plan is
voluntary. The value of the option is an extraordinary item of
compensation outside the scope of my employment contract, if any.
As such, the option is not part of normal or expected compensation
for purposes of calculating any severance, resignation, redundancy,
end of service payments, bonuses, long-service awards, pension,
retirement or welfare benefits or similar payments and in no event
shall be considered as compensation for, or relating in any way to,
past services for the Corporation or my actual employer (the
“Employer”).
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Vesting of any option shares
ceases upon termination of active employment for any reason except
as may otherwise be explicitly provided in the Plan document and
this Award Agreement, and will not be extended by any notice period
mandated under local
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law ( e.g., active employment
would not include a period of “garden leave” or similar
period pursuant to local law); the Committee shall have the
exclusive discretion to determine when I am no longer actively
employed for purposes of my this option.
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In consideration of the grant of
this option, no claim or entitlement to compensation or damages
shall arise from termination of this option or diminution in value
of this option resulting from termination of my employment by the
Corporation or the Employer (for any reason whatsoever and whether
or not in breach of local labor laws) and I irrevocably release the
Corporation and the 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, then, by signing
this Award Agreement, I shall be deemed irrevocably to have waived
my entitlement to pursue such claim.
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The future value of the
underlying shares is unknown and cannot be predicted with
certainty. If the underlying shares do not increase in value, the
option will have no value. If I exercise this option and obtain
shares, the value of those shares acquired upon exercise may
increase or decrease in value, even below the option
price.
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Regardless of any action the
Corporation or the Employer take with respect to any or all income
tax, social insurance, payroll tax, payment on account or other
tax-related withholding (“Tax-Related Items”), I
acknowledge that the ultimate liability for all Tax-Related Items
legally due by me is and remains my responsibility and that the
Corporation and/or the Employer (1) make no representations or
undertakings regarding the treatment of any Tax-Related Items in
connection with any aspect of this option, including, but not
limited to, the grant, vesting or exercise of this option, the
subsequent sale of shares acquired pursuant to such exercise and
the receipt of any dividends; and (2) do not commit to
structure the terms of the grant or any aspect of this option to
reduce or eliminate my liability for Tax-Related Items.
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Prior to the relevant taxable
event, I shall pay or make adequate arrangements satisfactory to
the Corporation and/or the Employer to satisfy or account for all
Tax-Related Items. In this regard, I authorize the Corporation or
the Employer to withhold all applicable Tax-Related Items legally
payable by me from my wages or other cash compensation payable to
me by the Corporation or the Employer or from any equivalent cash
payment received pursuant to the option. Alternatively, or in
addition, if permissible under local law, the Corporation or the
Employer may, in their sole discretion, (i) sell or arrange
for the sale of shares to be issued upon exercise to satisfy
Tax-Related Items, and/or (ii) withhold in shares, provided
that the Corporation and the Employer shall withhold only the
amount of shares necessary to satisfy the minimum withholding
amount or any such amount as described by the Corporation not to
result in adverse accounting consequences. If the obligation for
Tax-Related Items is satisfied by withholding in shares, I am
deemed to have been issued the full number of shares subject to the
option, notwithstanding that a number of shares is held back solely
for the purpose of paying Tax-Related Items. I shall pay to the
Corporation or to the Employer any amount of Tax-Related Items that
the Corporation or the Employer may be required to withhold as a
result of my exercise of the option, the vesting of the option, the
receipt of an equivalent cash payment, or the sale of shares that
cannot be satisfied by the means previously described. The
Corporation may refuse to honor the exercise or deliver shares to
me if I fail to comply with my obligation in connection with the
Tax-Related Items as described herein.
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The Corporation is not providing
any tax, legal or financial advice, nor is the Corporation making
any recommendations regarding my participation in the Plan, or my
acquisition or sale of the underlying shares. I am hereby advised
to consult with my own personal tax, legal and financial advisors
regarding my participation in the Plan before taking any action
related to the Plan.
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Data
Privacy . I
hereby explicitly and unambiguously consent to the collection, use
and transfer, in electronic or other form, of my personal data as
described in this Agreement and any other this option grant
materials by and among, as applicable, the Employer, the
Corporation and its subsidiaries and Affiliates for the exclusive
purpose of implementing, administering and managing my
participation in the Plan.
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I understand that the
Corporation and the Employer may hold certain personal information
about me, including, but not limited to, my name, home address and
telephone number, date of birth, social insurance number or other
identification number, salary, nationality, job title, any shares
of stock or directorships held in the Corporation, details of all
options or any other entitlement to shares of common stock awarded,
canceled, exercised, vested, unvested or outstanding in my favor,
for the exclusive purpose of implementing, administering and
managing the Plan (“Data”).
I understand that Data will be
transferred to a broker, or such other stock plan service provider
as may be selected by the Corporation in the future, which is
assisting the Corporation with the implementation, administration
and management of the Plan. I understand that the recipients of the
Data may be located in the United States or elsewhere, and that the
recipients’ country (e.g., the United States) may have
different data privacy laws and protections than my country. I
understand that I may request a list with the names and addresses
of any potential recipients of the Data by contacting my local
human resources representative. I authorize the Company, the broker
and any other possible recipients which may assist the Corporation
(presently or in the future) with implementing, administering and
managing the Plan to receive, possess, use, retain and transfer the
Data, in electronic or other form, for the sole purpose of
implementing, administering and managing my participation in the
Plan. I understand that Data will be held only as long as is
necessary to implement, administer and manage my participation in
the Plan. I understand that I 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
my local human resources representative. I understand, however,
that refusing or withdrawing my consent may affect my ability to
participate in the Plan. For more information on the consequences
of my refusal to consent or withdrawal of consent, I understand
that I may contact my local human resources
representative.
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My option may not be assigned,
sold, encumbered, or in any way transferred or
alienated.
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The Plan is governed by and
subject to U.S. law. Interpretation of the Plan and my rights under
the Plan will be governed by provisions of U.S. law. For purposes
of litigating any dispute that arises under this grant or the
Agreement, the parties hereby submit to and consent to the
jurisdiction of the State of Delaware, U.S.A. and agree that such
litigation shall be conducted in the federal courts for the United
States for the Northern District of Texas, where this grant is made
and/or to be performed.
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I understand that I am solely
responsible for obtaining/providing whatever exchange control
approvals, permits, licenses or notices, which may be necessary for
me to exercise my option, acquire the shares or to hold or sell the
shares subject to the option or restricted share unit award.
Neither Kimberly-Clark nor its Affiliates will be responsible for
obtaining such approvals, licenses or permits, or for making any
such notices, nor will Kimberly-Clark or its Affiliates be liable
for any fines or penalties I may incur for failure to obtain any
required approvals, permits or licenses or to make any required
notices.
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If I have received this Agreement
or any other document related to the Plan translated into a
language other than English and if the translated version is
different than the English version, the English version will
control, unless otherwise prescribed by local law.
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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, the
remaining provisions shall nevertheless be binding and
enforceable.
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I recognize that the grant of
this option is not an element of my normal or expected compensation
and I acknowledge that I have no future rights to option grants
under this or any other plans offered by Kimberly-Clark, including
but not limited to, upon termination of the Plan or upon severance
of my employment.
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Conclusion and
Acceptance
I accept this grant via electronic
signature by clicking the “Accept” icon and
certify that I have read, understand and agree to the terms and
conditions of the 2001 Equity Participation Plan (the
“Plan”), the provisions of the applicable agreements
and all other applicable documents (including any
country-specific terms for my
country of residence). I hereby authorize
my employer to furnish Kimberly-Clark (and any agent administering
the Plan or providing recordkeeping services) with such information
and data as it shall request in order to facilitate the grant of
options and enable administration of the Plan and
I understand that such information shall be used
only as long and to the extent necessary to administer my
participation in the Plan. I agree that my participation
in the Plan and the awards granted to me under
the Plan will be governed solely by provisions of
U.S. law.
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KIMBERLY-CLARK
CORPORATION
NONQUALIFIED STOCK
OPTION
AWARD AGREEMENT
APPENDIX A
This Appendix A includes additional
terms and conditions that govern this option granted to the
Employee under the Plan if the Employee resides in one of the
countries listed below. Certain capitalized terms used but not
defined in this Appendix A have the meanings set forth in the Plan
and/or the Award Agreement.
AUSTRALIA
Securities Law
Notice
If the Employee acquires shares of
the Corporation’s common stock pursuant to this option and
the Employee offers his or her shares of the Corporation’s
common stock for sale to a person or entity resident in Australia,
the offer may be subject to disclosure requirements under
Australian law. The Employee should obtain legal advice on his
or her disclosure obligations prior to making any such
offer.
CANADA
Form of Payment
Notwithstanding anything in the Plan
or the Award Agreement to the contrary, the Employee is prohibited
from surrendering shares of common stock that he or she already
owns or attesting to the ownership of shares to pay the option
price or any Tax-Related Items in connection with this
option.
Language Consent
The parties acknowledge that it is
their express wish that the Award Agreement, as well as all
documents, notices and legal proceedings entered into, given or
instituted pursuant hereto or relating directly or indirectly
hereto, be drawn up in English.
Les parties reconnaissent avoir
exigé la rédaction en anglais de la convention, ainsi
que de tous documents exécutés, avis donnés et
procédures judiciaries intentées, directement ou
indirectement, relativement à ou suite à la
présente convention.
Securities Law
Notice
The Employee is permitted to sell
shares acquired through the Plan through the designated broker
appointed under the Plan, if any, provided the resale of shares
acquired under the Plan takes place outside of Canada through the
facilities of a stock exchange on which the shares are listed. The
Corporation’s shares are currently listed on New York Stock
Exchange.
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CHINA
Method of Exercise
Notwithstanding anything to the
contrary in the Award Agreement, due to regulatory requirements in
China , the Employee must exercise this option using the
cashless exercise method. To complete a full cashless exercise, the
Employee should notify a licensed securities broker acceptable to
the Corporation to: (i) sell all of the shares upon exercise;
(ii) use the proceeds to pay the option price, brokerage fees
and any applicable Tax-Related Items; and (iii) remit the
balance in cash to the Employee. If the Employee does not complete
this procedure, the Corporation may refuse to allow the Employee to
exercise this option. The Corporation reserves the right to provide
the Employee with additional methods of exercise depending on local
developments.
Repatriation Acknowledgment and
Consent
The Employee understands and agrees
that due to exchange control laws in China, the Employee will be
required to immediately repatriate the cash proceeds from the sale
of shares to China. The Employee further understand that such
repatriation of the cash proceeds may need to be effected through a
special exchange control account established by the Corporation or
a parent, subsidiary or Affiliate, and the Employee hereby consents
and agrees that the cash proceeds may be transferred to such
special account prior to being delivered to the
Employee.
INDIA
Fringe Benefit Tax
By accepting this option and
participating in the Plan, the Employee consents and agrees to
assume any and all liability for fringe benefit tax that may be
payable by the Employee or the Employer in connection with the Plan
upon request of the Corporation and at the Corporation’s sole
discretion. The Employee understands that the grant of this option
and participation in the Plan is contingent upon his or her
agreement to assume liability for fringe benefit tax payable on the
shares of common stock acquired under the Plan if the Corporation
so requests.
Further, by accepting this option
and participating in the Plan, the Employee agrees that the
Corporation and/or the Employer may collect fringe benefit tax from
the Employee by any of the means set forth in the Acknowledgment
of Conditions section of the Award Agreement or any other
reasonable method established by the Corporation. The Employee also
agrees to execute any other consents or elections required to
accomplish the foregoing, promptly upon request of the
Corporation.
ITALY
Method of Exercise
Notwithstanding anything to the
contrary in the Award Agreement, due to regulatory
Page 11 of 17
requirements in Italy , the Employee must
exercise this option using the cashless exercise method. To
complete a full cashless exercise, the Employee should notify a
licensed securities broker acceptable to the Corporation to:
(i) sell all of the shares upon exercise; (ii) use the
proceeds to pay the option price, brokerage fees and any applicable
Tax-Related Items; and (iii) remit the balance in cash to the
Employee. If the Employee does not complete this procedure, the
Corporation may refuse to allow the Employee to exercise this
option. The Corporation reserves the right to provide the Employee
with additional methods of exercise depending on local
developments.
Data Privacy Notice and
Consent.
This provision replaces in its
entirety the data privacy in the Award Agreement:
The Employee hereby explicitly
and unambiguously consents to the collection, use, processing and
transfer, in electronic or other form, of his or her personal data
as described in this section of this Appendix A by and among, as
applicable, the Employer, the Corporation and any Affiliate for the
exclusive purpose of implementing, administering, and managing the
Employee’s participation in the Plan.
The Employee understands that
the Employer, the Corporation and any Affiliate hold certain
personal information about him or her, including, but not limited
to, the Employee’s name, home address and telephone number,
date of birth, social insurance or other identification number,
salary, nationality, job title, any shares of common stock or
directorships held in the Corporation or any Affiliate, details of
all options, or any other entitlement to shares of common stock
awarded, canceled, exercised, vested, unvested or outstanding in
the Employee’s favor, for the exclusive purpose of
implementing, managing and administering the Plan
(“Data”).
The Employee also understands
that providing the Corporation with Data is necessary for the
performance of the Plan and that his or her refusal to provide such
Data would make it impossible for the Corporation to perform its
contractual obligations and may affect the Employee’s ability
to participate in the Plan. The Controller of personal data
processing is Kimberly-Clark Corporation with registered offices at
351 Phelps Drive, Irving, Texas 75038, United States of America,
and, pursuant to Legislative Decree no. 196/2003, its
representative in Italy is Kimberly-Clark s.r.l. at Via Della
Rocca, 49, Torino, Italy.
The Employee understands that
Data will not be publicized, but it may be transferred to banks,
other financial institutions, or brokers involved in the management
and administration of the Plan. The Employee understands that Data
may also be transferred to the Corporation’s independent
registered public accounting firm. The Employee further understand
that the Corporation and/or any Affiliate will transfer Data among
themselves as necessary for the purpose of implementing,
administering and managing the Employee’s participation in
the Plan, and that the Corporation and/or any Affiliate may each
further transfer Data to third parties assisting the Corporation in
the implementation, administration, and management of the Plan,
including any requisite transfer of Data to a broker or other third
party with whom the Employee may elect to deposit any shares of
common stock acquired under the Plan. Such
recipients
Page 12 of 17
may receive, possess, use, retain, and transfer
Data in electronic or other form, for the purposes of implementing,
administering, and managing the Employee’s participation in
the Plan. The Employee understands that these recipients may be
located in or outside the European Economic Area, such as in the
United States or elsewhere. Should the Corporation exercise its
discretion in suspending all necessary legal obligations connected
with the management and administration of the Plan, it will delete
Data as soon as it has completed all the necessary legal
obligations connected with the management and administration of the
Plan.
The Employee understands that
Data processing related to the purposes specified above shall take
place under automated or non-automated conditions, anonymously when
possible, that comply with the purposes for which Data is collected
and with confidentiality and security provisions as set forth by
applicable laws and regulations, with specific reference to
Legislative Decree no. 196/2003.
The processing activity,
including communication, the transfer of Data abroad, including
outside of the European Economic Area, as herein specified and
pursuant to applicable laws and regulations, does not require the
Employee’s consent thereto as the processing is necessary to
performance of contractual obligations related to implementation,
administration, and management of the Plan. The Employee
understands that, pursuant to Section 7 of the Legislative
Decree no. 196/2003, he or she has the right to, including but not
limited to, access, delete, update, correct, or terminate, for
legitimate reason, the Data processing. Furthermore, the Employee
is aware that Data will not be used for direct marketing purposes.
In addition, Data provided can be reviewed and questions or
complaints can be addressed by contacting the Employee’s
local human resources representative.
Plan Document
Acknowledgment
In accepting the grant of this
option, the Employee acknowledges that he or she has received a
copy of the Plan and the Award Agreement and has reviewed the Plan
and the Award Agreement, including this Appendix A, in their
entirety and fully understands and accepts all provisions of the
Plan and the Award Agreement, including this Appendix A.
The Employee acknowledges that he or
she has read and specifically and expressly approves the following
sections of the Award Agreement: Section 2(d) on Payment of
Withholding Taxes; Section 5 on No Right of Continued
Employment; Section 9 on Delaware Law to Govern; the section
on Acknowledgment of Conditions; and the Data Privacy Notice and
Consent section included in this Appendix A.
MEXICO
Labor Law Policy and
Acknowledgment
In accepting the grant of this
option, the Employee expressly recognizes that Kimberly-Clark
Corporation, with registered offices at 351 Phelps Drive, Irving,
Texas 75038, United States of America, is solely responsible for
the administration of the Plan and that the Employee’s
participation in the Plan and acquisition of shares of common stock
do not constitute an
Page 13 of 17
employment relationship between the Employee and
the Corporation since the Employee is participating in the Plan on
a wholly commercial basis and his or her sole Employer is
Kimberly-Clark de Mexico, S.A. de C.V. Based on the foregoing, the
Employee expressly recognizes that the Plan and the benefits that
he or she may derive from participating in the Plan do not
establish any rights between the Employee and the Employer,
Kimberly-Clark de Mexico, S.A. de C.V. and do not form part of the
employment conditions and/or benefits provided by Kimberly-Clark de
Mexico, S.A. de C.V., and any modification of the Plan or its
termination shall not constitute a change or impairment of the
terms and conditions of the Employee’s employment.
The Employee further understands
that his or her participation in the Plan is as a result of a
unilateral and discretionary decision of the Corporation;
therefore, Kimberly-Clark Corporation reserves the absolute right
to amend and/or discontinue the Employee’s participation at
any time without any liability to the Employee.
Finally, the Employee hereby
declares that he or she does not reserve to him- or herself any
action or right to bring any claim against Kimberly-Clark
Corporation for any compensation or damages regarding any provision
of the Plan or the benefits derived under the Plan, and the
Employee therefore grants a full and broad release to the
Corporation, its Affiliates, branches, representation offices, its
shareholders, officers, agents, or legal representatives with
respect to any claim that may arise.
Política Laboral y
Reconocimiento/Aceptación
Al aceptar el otorgamiento de la
Opción de Compra de Acciones y/o Acciones Diferidas, el
Empleado expresamente reconoce que Kimberly-Clark Corporation con
oficinas registradas en 351 Phelps Drive, Irving, Texas 75038,
U.S.A., es la única responsable por la administración
del Plan y que la participación del Empleado en el Plan y en
su caso la adquisición de las Opciones de Compra de Acciones
o Acciones no constituyen ni podrán interpretarse como una
relación de trabajo entre el Empleado y Kimberly-Clark
Corporation, ya que el Empleado participa en el Plan en un marco
totalmente comercial y su único Patrón lo es
Kimberly-Clark de Mexico, S.A. de C.V. con domicilio en
Kimberly-Clark de Mexico, S.A. de C.V. Mexico. Derivado de lo
anterior, el Empleado expresamente reconoce que el Plan y los
beneficios que pudieran derivar de la participación en el
Plan no establecen derecho alguno entre el Empleado y el
Patrón, Kimberly-Clark de Mexico, S.A. de C.V. y no forma
parte de las condiciones de trabajo y/o las prestaciones otorgadas
por Kimberly-Clark de Mexico, S.A. de C.V. y que cualquier
modificación al Plan o su terminación no constituye
un cambio o impedimento de los términos y condiciones de la
relación de trabajo del Empleado.
Asimismo, el Empleado reconoce
que su participación en el Plan es resultado de una
decisión unilateral y discrecional de Kimberly-Clark
Corporation por lo tanto, Kimberly-Clark Corporation se reserva el
absoluto derecho de modificar y/o terminar la participación
del Empleado en cualquier momento y sin responsabilidad alguna
frente el Empleado.
Finalmente, el Empleado por este
medio declara que no se reserva derecho o acción alguna que
ejercitar en contra de Kimberly-Clark Corporation por cualquier
compensación o daño en relación con las
disposiciones del Plan o de los beneficios derivados del Plan y por
lo tanto, el Empleado otorga el más amplio finiquito que en
derecho proceda a Kimberly-Clark
Page 14 of 17
Corporation, sus afiliadas, subsidiarias,
oficinas de representación, sus accionistas, funcionarios,
agentes o representantes legales en relación con cualquier
demanda que pudiera surgir.
NEW ZEALAND
Securities Law
Notice
The Employee will receive the
following documents (in addition to this Appendix A) in connection
with this option from the Corporation:
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1.
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an Award
Agreement which sets forth the terms and conditions of the option
grant;
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2.
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a copy of the
Corporations’ most recent annual report and most recent
financial reports have been made available to enable the Employee
to make informed decisions concerning this option; and
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3.
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a copy of the
description of the Kimberly-Clark Corporation 2001 Equity
Participation Plan (“Description”) ( i.e ., the
Corporation’s Form S-8 Plan Prospectus under the U.S.
Securities Act of 1933, as amended), and the Corporation will
provide any attachments or documents incorporated by reference into
the Description upon written request. The documents incorporated by
reference into the Description are updated periodically. Should the
Employee request copies of the documents incorporated by reference
into the Description, the Corporation will provide the Employee
with the most recent documents incorporated by
reference.
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RUSSIA
Securities Law
Notice
This Award Agreement, the Plan and
all other materials the Employee may receive regarding
participation in the Plan do not constitute advertising or an
offering of securities in Russia. The issuance of shares of common
stock under the Plan has not and will not be registered in Russia
and hence the shares described in any Plan-related documents may
not be offered or placed in public circulation in
Russia.
Please note that, under the Russian
law, the Employee is not permitted to sell the Corporation’s
shares directly to other Russian individuals and the Employee is
not permitted to bring share certificates into Russia.
SOUTH AFRICA
Tax Acknowledgment
By accepting this Option, the
Employee agrees to notify the Employer of the amount of any gain
realized upon exercise of this Option. If the Employee fails to
advise the Employer of the gain realized upon exercise, the
Employee may be liable for a fine. The Employee will be responsible
for paying any difference between the actual tax liability and the
amount withheld.
If the Employee uses cash to
exercise this Option and purchase shares, rather than a
Page 15 of 17
cashless exercise method, the Employee must
first obtain a “Tax Clearance Certificate (in Respect of
Foreign Investment)” from the South African Reserve Service.
The Employee must also complete a transfer of funds application
form to transfer the funds. The Tax Clearance Certificate should be
presented to a dealer of the Exchange Control Department of the
South Africa Reserve Bank (it is likely that the Employee’s
bank will qualify as such a dealer), together with a completed
application form to transfer funds. No transfer of funds may be
completed unless the original Tax Clearance Certificate bears the
official stamp and signature of the Office of Receiver of Revenue
of the South African Reserve Service.
SPAIN
Labor Law
Acknowledgment
By accepting this Option, the
Employee acknowledges that he or she understands and agrees to
participation in the Plan and that he or she has received a copy of
the Plan.
The Employee understands that the
Corporation has unilaterally, gratuitously and discretionally
decided to grant Options under the Plan to individuals who may be
employees of the Corporation or its Affiliates throughout the
world. The decision is a limited decision that is entered into upon
the express assumption and condition that any grant will not
economically or otherwise bind the Corporation or any of its
Affiliates on an ongoing basis. Consequently, the Employee
understands that any grant is given on the assumption and condition
that it shall not become a part of any employment contract (either
with the Corporation or any of its Affiliates) and shall not be
considered a mandatory benefit, salary for any purposes (including
severance compensation) or any other right whatsoever. Further, the
Employee understands and freely accepts that there is no guarantee
that any benefit whatsoever shall arise from any gratuitous and
discretionary grant since the future value of this Option and the
underlying shares is unknown and unpredictable. In addition, the
Employee understands that this grant would not be made but for the
assumptions and conditions referred to above; thus, the Employee
understands, acknowledges and freely accepts that should any or all
of the assumptions be mistaken or should any of the conditions not
be met for any reason, then this Option shall be null and
void.
UNITED KINGDOM
Tax Acknowledgment
The following information
supplements the information regarding Tax-Related Items in the
Acknowledgment of Conditions section of the Award
Agreement:
If payment or withholding of the
income tax due is not made within 90 days of the event giving rise
to the Tax-Related Items or such other period specified in section
222(1)(c) of the U.K. Income Tax (Earnings and Pensions) Act 2003
(the “Due Date”), the amount of any uncollected
Tax-Related Items shall constitute a loan owed by the Employee to
the Employer, effective on the Due Date. The Employee agrees that
the loan will bear interest at the then-current Her Majesty’s
Revenue and Customs (“HMRC”) official rate; it will be
immediately due and repayable. Notwithstanding the foregoing, if
the Employee is an officer or executive director (as within the
meaning of Section 13(k) of the U.S. Securities and Exchange
Act of
Page 16 of 17
1934, as amended), the terms of this provision
will not apply to the Employee. In the event that the Employee is
an officer or director, as defined above, and Tax-Related Items are
not collected from or paid by the Employee by the Due Date, the
amount of any uncollected Tax-Related Items may constitute a
benefit to the Employee on which additional income tax and National
Insurance Contributions may be payable. The Employee acknowledges
the Corporation or the Employer may recover it at any time
thereafter by any of the means referred to in the Award Agreement.
The Employee authorizes the Corporation to withhold the transfer of
any shares unless and until the loan is repaid in full.
VIETNAM
Method of Exercise
Notwithstanding anything to the
contrary in the Award Agreement, due to regulatory requirements in
Vietnam , the Employee must exercise this Option using the
cashless exercise method. To complete a full cashless exercise, the
Employee should notify a licensed securities broker acceptable to
the Corporation to: (i) sell all of the shares upon exercise;
(ii) use the proceeds to pay the option price, brokerage fees
and any applicable Tax-Related Items; and (iii) remit the
balance in cash to the Employee. If the Employee does not complete
this procedure, the Corporation may refuse to allow the Employee to
exercise this Option. The Corporation reserves the right to provide
the Employee with additional methods of exercise depending on local
developments.
Repatriation Acknowledgment and
Consent
The Employee understands and agrees
that due to exchange control laws in Vietnam, the Employee will be
required to immediately repatriate the cash proceeds from the sale
of shares to Vietnam. The Employee further understand that such
repatriation of the cash proceeds may need to be effected through a
special exchange control account established by the Corporation or
a parent, subsidiary or Affiliate, and the Employee hereby consents
and agrees that the cash proceeds may be transferred to such
special account prior to being delivered to the
Employee.
Page 17 of 17
KIMBERLY-CLARK
CORPORATION
PERFORMANCE RESTRICTED STOCK
UNIT
AWARD AGREEMENT
This Award, granted on the date
approved by the Committee or the Chief Executive Officer, as the
case may be, and as reflected on the Merrill Lynch Benefits OnLine
site, or any successor system, via the Grant Summary screen as the
Grant Date, by Kimberly-Clark Corporation, a Delaware corporation
(hereinafter called the “Corporation”), is subject to
the terms and conditions of the 2001 Equity Participation Plan (the
“Plan”) and the Award Agreement, including any
country-specific terms contained in Appendix A to this Award
Agreement.
W I T N E S
S E T H :
WHEREAS, the Corporation has adopted
the 2001 Equity Participation Plan (the “Plan”) to
encourage those employees who materially contribute, by managerial,
scientific or other innovative means, to the success of the
Corporation or of an Affiliate, to acquire an ownership interest in
the Corporation, thereby increasing their motivation for and
interest in the Corporation’s or the Affiliate’s
long-term success;
NOW, THEREFORE, it is agreed as
follows:
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1.
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Number of
Share Units Granted . The
Corporation hereby grants to the Employee Performance Restricted
Stock Units (“PRSUs”) at the target level approved on
the date of grant and as reflected on the Merrill Lynch Benefits
OnLine site, or any successor system, via the Grant Summary screen
as the Units Granted (the “Target Level”), subject to
the terms, conditions and restrictions set forth herein and in the
Plan, and the Corporation’s attainment of the Performance
Goals established by the Committee as set forth on Appendix A-1.
The actual number of PRSUs earned by the Employee at the end of the
Restricted Period may range from 0 to 150% of the Target
Level.
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2.
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Transferability Restrictions
.
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(a)
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Restricted
Period . During the
Restricted Period, the Employee may not sell, assign, transfer, or
otherwise dispose of, or mortgage, pledge or otherwise encumber the
Award. Except as provided under paragraph 2, the Award shall be
subject to forfeiture until the end of the Restricted Period three
years after the date of this grant. Employee becomes 100% vested in
the number of PRSUs earned based on attainment of the Performance
Goal at the end of the Restricted Period as approved and authorized
by the Committee.
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The Restricted Period shall begin on
the date of the granting of this Award, and shall end three years
after the date of this grant. Holders of Awards shall have none of
the rights of a shareholder with respect to such shares including,
but
Page 1 of 17
not limited to, any right to receive
dividends in cash or other property or other distribution or rights
in respect of such shares except as otherwise provided in this
Agreement, nor to vote such shares as the record owner
thereof.
During each year in the Restricted
Period, the Employee will be paid in cash an amount equal to any
dividends and other distributions which would have been paid on
shares of Common Stock, based on the Target Level of PRSUs granted
under this Award. The amount equal to any dividends and other
distributions on the Award shall be paid to the Employee if
dividends are declared and paid by the Corporation with respect to
its outstanding shares of Common Stock. In the case of dividends
paid in property other than cash, the amount of the dividend shall
be deemed to be the fair market value of the property at the time
of the payment of the dividend, as determined in good faith by the
Corporation. The Corporation shall not be required to segregate any
cash or other property of the Corporation. Any amounts which become
payable to an Employee shall be paid from the general assets of the
Corporation.
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(b)
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Termination of
Employment . Employee
shall forfeit any unvested Award upon termination of employment
unless such termination (i) is due to a Qualified Termination
of Employment, or (ii) if more than six months after the date
of grant, due to death, Retirement, Total and Permanent Disability,
or the shutdown or divestiture of a business unit. A termination of
employment shall not be deemed to have occurred while an Employee
is on military leave or other bona fide leave of absence if the
period of such leave does not exceed six months, or if longer, so
long as the Employee retains a right to reemployment with the
Corporation or an Affiliate under an applicable statute or by
contract. For purposes of this subparagraph, a leave of absence
constitutes a bona fide leave of absence only if there is a
reasonable expectation that the Employee will return to perform
services for the Corporation or an Affiliate. If the period of
leave exceeds six months and the Employee does not retain a right
to reemployment under an applicable statute or by contract, the
employment relationship is deemed to terminate on the first date
immediately following such six-month period. Notwithstanding the
foregoing sentence, where a leave of absence is due to any
medically determinable physical or mental impairment that can be
expected to result in death or can be expected to last for a
continuous period of not less than six months, where such
impairment causes the Employee to be unable to perform the duties
of his or her position of employment or any substantially similar
position of employment, a 29-month period of absence is substituted
for such six-month period in determining whether a termination of
employment shall be deemed to have occurred. A termination of
employment with the Corporation or an Affiliate to accept immediate
reemployment with the Corporation or an Affiliate likewise shall
not be deemed to be a termination of employment for purposes of the
Plan. An Employee who is classified as an intermittent employee
shall be deemed to have a termination of employment for purposes of
the Plan. Notwithstanding anything in this Plan to the contrary, a
termination of employment with respect to any Restricted Share
Units that are required to meet the requirements of
Section 409A of the Code and the regulations thereunder shall
not be deemed
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Page 2 of 17
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to be a termination of employment
for purposes of the Plan if it is anticipated that the level of
bona fide services the Employee would perform after such date would
continue at a rate equal to more than 20 percent of the average
level of bona fide services performed over the immediately
preceding 36-month period (or the full period of services to the
Corporation or an Affiliate if the Employee has been providing such
services less than 36 months).
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(c)
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Death,
Retirement, or Total and Permanent Disability
. In the event that more than six
months after the date of grant the Employee’s termination of
employment is due to death or Total and Permanent Disability, it
shall result in pro rata vesting in the number of Restricted Share
Units earned based on attainment of the Performance Goal at the end
of the Restricted Period as approved and authorized by the
Committee, prorated for the number of full months of employment
during the Restricted Period prior to the Participant’s
termination of employment, and shall be paid within 70 days
following the end of the Restricted Period. In the event that more
than six months after the date of grant the Employee’s
termination of employment is due to Retirement it shall result in
100% vesting in the number of Restricted Share Units earned based
on attainment of the Performance Goal at the end of the Restricted
Period as approved and authorized by the Committee, and such Award
shall be paid within 70 days following the end of the Restricted
Period.
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(d)
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Shutdown or
Divestiture . In the
event that more than six months after the date of grant the
Employee’s termination of employment is due to the shutdown
or divestiture of the Corporation’s or its Affiliate’s
business it shall result in pro rata vesting in the number of
Restricted Share Units earned based on attainment of the
Performance Goal at the end of the Restricted Period as approved
and authorized by the Committee, prorated for the number of full
years of employment during the Restricted Period prior to the
Participant’s termination of employment, and shall be paid
within 70 days following the end of the Restricted
Period.
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(e)
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Qualified
Termination of Employment . In the event of a Qualified Termination of
Employment all restrictions will lapse and the shares will become
fully vested and the number of shares that shall be considered to
vest shall be the greater of the Target Level or the number of
shares which would have vested based on the attainment of the
Performance Goal as of the end of the prior calendar year and shall
be paid within 10 days following the last day of employment of the
Employee with the Corporation. Notwithstanding anything in this
Agreement to the contrary, the payment of an Award to a Key
Employee who has separated from service due to a Qualified
Termination of Employment shall be made at the earlier of the first
day of the seventh month following the date of separation from
service or the end of the Restricted Period. A Key Employee is any
Employee who meets the definition of a specified employee as
defined in Section 409A(a)(2)(B)(i) of the Code and the
regulations promulgated thereunder.
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Page 3 of 17
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(f)
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Payment of
Awards . The payment of
the Award shall be made in shares of Common Stock. Except as may
otherwise be provided in subparagraph 2(e), the payment of an Award
shall be made within 70 days following the end of the Restricted
Period.
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(g)
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Payment of
Withholding Taxes . No
shares of Common Stock, nor any cash payment, may be delivered
under this Award, unless prior to or simultaneously with such
issuance, the Employee or, in the event of his death, the person
succeeding to his rights hereunder, shall pay to the Corporation
such amount as the Corporation advises is required under applicable
federal, state or local laws to withhold and pay over to
governmental taxing authorities by reason of the delivery of such
shares of Common Stock and any cash payment pursuant to this Award.
The Corporation may, in its discretion, withhold payment of
required withholding taxes with cash or shares of Common Stock
which otherwise would be delivered following the date of vesting of
the Award under this paragraph 2.
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3.
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Nontransferability . Neither the Award nor the Employee’s
right to receive payment for vested Awards may be assigned or
transferred except upon the death of the Employee (i) by will,
(ii) by the laws of descent and distribution or
(iii) pursuant to a designation by the Employee of a
beneficiary or beneficiaries, provided that no such designation
shall be effective unless filed with the Committee prior to the
death of such Employee.
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