Exhibit No.
(10)n
KIMBERLY-CLARK
CORPORATION
NONQUALIFIED
STOCK OPTION
AWARD
AGREEMENT
(effective
April 29, 2009)
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 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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Number of
Shares Optioned; Option Price . The
Corporation grants to the Participant 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 of grant 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
Code.
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2.
Exercise of Option .
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Limitations on
Exercise . This
option shall be subject to forfeiture until the Participant becomes
vested in such options according to the schedule set forth
below. This option shall not be exercisable until at
least one year has expired after the granting of this option,
during which time the Participant 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,
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the
Participant 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 Participant will
have become entitled to purchase all shares subject to this option;
provided, however, that if the Participant'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 Participant'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.
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A termination
of employment shall not be deemed to have occurred while a
Participant 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 Participant 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
Participant will return to perform services for the Corporation or
an Affiliate. If the period of leave exceeds six months
and the Participant 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
Participant 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. A Participant 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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Exercise after
Death, Retirement, or Disability . If
the Participant 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
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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 a Participant who
dies, this option may be exercised by the person or persons to whom
the Participant'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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Notwithstanding
this Section 2(b), if the Corporation receives an opinion of
counsel that there has been a legal judgment and/or legal
development in the Participant’s jurisdiction that would
likely result in the favorable Retirement treatment that applies to
the option under this Section 2(b) being deemed unlawful and/or
discriminatory, then the Corporation will not apply the favorable
Retirement treatment and options will be treated as they would
under the rules that apply if the Participant’s employment
with the Corporation or an Affiliate ends for any other reason, as
applicable.
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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 a check payable
to the Corporation as set forth in the terms and conditions of
exercise. The Participant may also pay the option
price with previously owned shares of the Corporation's Common
Stock as set forth in the terms and conditions of exercise,
provided the Participant is located in the U.S. at the time 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 Participant shall have none of the
rights of a stockholder with respect to shares covered by such
options until the Participant becomes record holder of such
shares.
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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 as
provided in the Committee Rules, either the Participant, 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 pursuant to the
Committee Rules, 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
Committee Rules.
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Nontransferability
. Except
as may otherwise be provided by the Committee Rules, this option
shall be transferable only by will or by the laws of descent and
distribution, and during the Participant's lifetime shall be
exercisable only by him.
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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 opinion of counsel to the effect that the issuance and sale of
such shares by the Corporation to the Participant will not
constitute a violation of the Securities Act of 1933, as
amended. As a condition of exercise, the Participant
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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No Right of
Continued Employment . The
granting of this option does not confer upon the Participant 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 Participant 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 Participant under
this option.
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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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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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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 Participant.
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Delaware Law
to Govern . The
Plan is governed by and subject to the laws of the United States of
America. All questions pertaining to the construction,
interpretation, regulation, validity and effect of the provisions
of this option and any rights under the Plan shall be determined in
accordance with the laws of the State of Delaware.
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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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Notices
. Any
notice to be given to the Corporation under this option shall be
addressed to the Corporation in care of its Director of
Compensation located at the World Headquarters, and any notice to
be given to the Participant 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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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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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 Participant (or the Participant'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 Participant's rights and obligations under any other
plan maintained by the Corporation or an Affiliate on behalf of
employees.
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Discretionary
Nature of Award . 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 the Corporation,
including, but not limited to, the timing of any grant, the number
of options and vesting provisions. The value of the
option is an extraordinary item of compensation outside the scope
of the Participant’s 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 or retirement benefits or similar
payments.
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Data
Privacy . The
Participant hereby authorizes the Participant’s employer to
furnish the Corporation (and any agent of the Corporation
administering the Plan or providing Plan recordkeeping services)
with such information and data as it shall request in order to
facilitate the grant of options and administration of the Plan and
the Participant waives any data privacy rights such Participant
might otherwise have with respect to such information.
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Conflict with
Plan . This
option is awarded pursuant to and subject to the
Plan. This Agreement is intended to supplement and carry
out the terms of the Plan. It is subject to all terms
and provisions of the Plan and, in the event of a conflict, the
Plan shall prevail.
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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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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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For U.S.
Participants Only . A
U.S. Participant 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
Participant. If the U.S. Participant 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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Acceptance of
Option Terms and Conditions . A
Participant has until the end of the one hundred twenty (120) day
period beginning from the date of grant of this option to accept
this Award Agreement. If the Participant does not accept
this Award 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 the Plan:
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The Plan is
established voluntarily by the Corporation, it is discretionary in
nature and the Corporation may modify, amend, suspend, 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, even if options have been granted repeatedly in the
past. Future grants, if any, will be at the sole
discretion of the Corporation, 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. Participation
in the Plan will not create a right to further employment with the
Participant’s actual employer (the “Employer”)
and shall not interfere with the ability of the Employer to
terminate my employment relationship at any
time. Further, the option and my participation in the
Plan will not be interpreted to form an employment contract or
relationship with the Corporation or any Affiliate.
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The value of
the option is an extraordinary item outside the scope of my
employment contract, if any, and is not intended to replace any
pension rights or compensation. As such, the option is
not part of normal or expected compensation for purposes of
calculating any severance, resignation, termination, redundancy,
dismissal, 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
Employer.
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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 options will have no value.
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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 the vesting and
exercisability period 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); the Committee shall have the exclusive
discretion to determine when I am no longer actively employed for
purposes of 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 my right
to exercise the 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
accepting this Award Agreement, I shall be deemed irrevocably to
have waived any 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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The option and
benefits under the Plan, if any, will not automatically transfer to
another company in the case of a merger, take-over or transfer of
liability.
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Regardless of
any action the Corporation or 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 my participation in
the Plan and legally applicable to me, or deemed by the Corporation
or the Employer to be an appropriate charge to me even if
technically due by the Corporation or the Employer
(“Tax-Related Items”), I acknowledge that the ultimate
liability for all Tax-Related Items is and remains my
responsibility and may exceed the amount actually withheld by the
Corporation or the Employer. I further acknowledge 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 and are
under no obligation to structure the terms of the grant or any
aspect of this option to reduce or eliminate my liability for
Tax-Related Items or achieve any particular tax
result. Further, if I have become subject to tax in more
than one jurisdiction between the date of grant and the date of any
relevant taxable or tax withholding event, as applicable, I
acknowledge that the Corporation and/or the Employer (or former
employer, as applicable) may be required to withhold or account for
Tax-Related Items in more than one jurisdiction.
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Prior to the
relevant taxable or tax withholding event, as applicable, 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,
or their respective agents, at their discretion, to satisfy the
obligations with regard to all Tax-Related Items by one or a
combination of the following:
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withholding from
my wages or other cash compensation paid to me by the
Corporation and/or the Employer; or
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withholding
from proceeds of the sale of shares acquired upon exercise either
through a voluntary sale or through a mandatory sale arranged by
the Corporation (on my behalf, pursuant to this authorization);
or
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withholding
in shares to be issued upon exercise.
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To avoid
negative accounting treatment, the Corporation may withhold or
account for Tax-Related Items by considering applicable minimum
statutory withholding amounts or other applicable withholding
rates. If the obligation for Tax-Related Items is
satisfied by withholding in shares, for tax purposes, I am deemed
to have been issued the full number of shares subject to the
option exercise, notwithstanding that a number of shares
are held back solely for the purpose of paying the Tax-Related
Items due as a result of any aspect of my participation in the
Plan.
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Finally, 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 or account for as a result of my participation
in the Plan that cannot be satisfied by the means previously
described. The Corporation may refuse to honor the
exercise or deliver shares or the proceeds of the sale of shares to
me if I fail to comply with my obligations in connection with the
Tax-Related Items.
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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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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 Award Agreement and any other option grant
materials by and among, as applicable, my Employer, the Corporation
and its Affiliates for the purpose of implementing, administering
and managing my participation in the Plan.
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I understand
that the Corporation and my 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 Common 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 purpose of
implementing, administering and managing the Plan
(“Data”).
I understand that
Data may be transferred to any third parties assisting in the
implementation, administration and management of the Plan, that
these recipients may be located in my country, or elsewhere,
and that my country 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 recipients to receive,
possess, use, retain and transfer the Data, in electronic or other
form, for the purposes of implementing, administering and managing
my participation in the Plan, including any requisite transfer of
such Data as may be required to a broker, escrow agent or other
third party with whom the shares received upon vesting of the PRSUs
may be deposited. 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 that refusal or withdrawal
of 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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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 Award 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, and no other courts.
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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. Neither the Corporation nor its Affiliates
will be responsible for obtaining such approvals, licenses or
permits, or for making any such notices, nor will the Corporation
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 one or more
of the provisions of this Award Agreement 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 Award Agreement to be construed so as
to foster the intent of this Award Agreement and the
Plan.
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If I have
received this Award 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.
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Notwithstanding
any provisions in this Award Agreement, the option shall be subject
to any special terms and conditions set forth in Appendix A to this
Award Agreement for my country. Moreover, if I relocate
to one of the countries included in Appendix A, the special terms
and conditions for such country will apply to me, to the extent the
Corporation determines that the application of such terms and
conditions is necessary or advisable in order to comply with local
law or facilitate the administration of the
Plan. Appendix A constitutes part of this Award
Agreement.
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The provisions
of this Award 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
the Corporation, including but not limited to, upon termination of
the Plan or upon severance of my employment.
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The
Corporation reserves the right to impose other requirements on my
participation in the Plan, on the option and on any shares acquired
under the Plan, to the extent the Corporation determines it is
necessary or advisable in order to comply with local law or
facilitate the administration of the Plan, and to require me to
sign any additional agreements or undertakings that may be
necessary to accomplish the foregoing.
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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 Plan the provisions of the applicable Award
Agreement and all other applicable documents (including any
country-specific terms applicable to any grant). I
hereby authorize my Employer to furnish the Corporation (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.
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 Participant under the Plan if the Participant
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.
This Appendix
A also includes information regarding exchange controls and certain
other issues of which the Participant should be aware with respect
to the Participant’s participation in the
Plan. The information is based on the securities,
exchange control and other laws in effect in the respective
countries as of February 2009. Such laws are often
complex and change frequently. As a result, the
Corporation strongly recommends that the Participant not rely on
the information noted herein as the only source of information
relating to the consequences of the Participant’s
participation in the Plan because the information may be out of
date at vesting of the options or the subsequent sale of the
shares.
In
addition, the information is general in nature and may not apply to
the Participant’s particular situation, and the Corporation
is not in a position to assure the Participant of any particular
result. Accordingly, the Participant is advised to seek
appropriate professional advice as to how the relevant laws in the
Participant’s country may apply to the Participant’s
situation.
Finally,
if the Participant is a citizen or resident of a country other than
the one in which the Participant is currently working, the
information contained herein may not be applicable to the
Participant.
AUSTRALIA
Securities Law
Notice
If the
Participant acquires shares of the Corporation’s Common Stock
pursuant to this option and the Participant 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
Participant 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
Participant 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.
Securities
Law Notice
The
Participant 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 the New York Stock
Exchange.
For
Participants in Quebec: 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.
Authorization
to Release and Transfer Necessary Personal
Information
The
Participant hereby authorizes the Corporation and the
Corporation’s representatives to discuss with and obtain all
relevant information from all personnel, professional or not,
involved in the administration and operation of the
Plan. The Participant further authorizes the
Corporation, any parent, subsidiary or Affiliate and the plan
administrators to disclose and discuss the Plan with their
advisors. The Participant further authorizes the
Corporation and any parent, subsidiary or Affiliate to record such
information and to keep such information in the Participant’s
employee file.
Consent
to Receive Information in English
By
accepting the Award Agreement providing for the terms and
conditions
of
the Participant’s option grant, the Participant confirms
having read and understood the documents relating to this grant
(the Plan and this Award Agreement) which were provided in English
language. The Participant accepts the terms of those
documents accordingly.
En acceptant
le Contrat d'Attribution décrivant les termes et conditions
de l’attribution d’options, le participant confirme
ainsi avoir lu et compris les documents relatifs à cette
attribution (le Plan U.S. et ce Contrat d'Attribution) qui ont
été communiqués en langue anglaise. Le
participant accepte les termes en connaissance de
cause.
HONG
KONG
Securities
Law Notice
The
offer of the option and the shares to be issued upon exercise of
the option is available only to eligible employees of the
Corporation or its Affiliates participating in the Plan and is not
a public offer of securities. The Participant should be
aware that the contents of this Award Agreement have not been
reviewed by any regulatory authority in Hong
Kong.
The
Participant is advised to exercise caution in relation to the
offer. If the Participant is in any doubt about any of
the contents of the Award Agreement or the Plan, the Participant
should obtain independent professional advice.
Sale
of Shares
In
the event the option vests within six months of the date of grant,
the Participant agrees that he or she will not exercise the option
and sell the shares acquired prior to the six-month anniversary of
the date of grant.
Occupational
Retirement Schemes Ordinance Alert
The
Corporation specifically intends that neither the option nor the
Plan will be an occupational retirement scheme for purposes of the
Occupational Retirement Schemes Ordinance
(“ORSO”).
INDIA
Fringe Benefit
Tax
By accepting
this option and participating in the Plan, the Participant consents
and agrees to assume any and all liability for fringe benefit tax
that may be payable by the Participant or the Employer in
connection with the Plan upon request of the Corporation and
at the Corporation’s sole discretion. The
Participant 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
Participant agrees that the Corporation and/or the Employer may
collect fringe benefit tax from the Participant 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 Participant 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
requirements in Italy , the Participant must exercise this
option using the cashless exercise method. To complete a
full cashless exercise, the Participant 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 Participant. If
the Participant does not complete this procedure, the Corporation
may refuse to allow the Participant to exercise this
option. The Corporation reserves the right to provide
the Participant with additional methods of exercise depending on
local developments.
Data Privacy
Notice and Consent.
This provision
replaces in its entirety the data privacy section in the Award
Agreement:
The
Participant 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 Participant’s
participation in the Plan.
The
Participant understands that the Employer, the Corporation and any
Affiliate hold certain personal information about him or her,
including, but not limited to, the Participant’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 Participant’s favor, for the
exclusive purpose of implementing, managing and administering the
Plan (“Data”).
The
Participant 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 Participant’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
Participant 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 Participant understands that Data may also be
transferred to the Corporation’s independent registered
public accounting firm. The Participant 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 Participant’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 Participant may elect to deposit any shares of
Common Stock acquired under the Plan. Such recipients
may receive, possess, use, retain, and transfer Data in electronic
or other form, for the purposes of implementing, administering, and
managing the Participant’s participation in the
Plan. The Participant 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
Participant 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 Participant’s consent thereto as the processing
is necessary to performance of contractual obligations related to
implementation, administration, and management of the
Plan. The Participant 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 Participant 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 Participant’s local human
resources representative.
Plan Document
Acknowledgment
In accepting
the grant of this option, the Participant 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
Participant 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.
MALAYSIA
Insider
Trading Notification
The
Participant should be aware of the Malaysian insider trading rules,
which may impact the Participant’s acquisition or disposal of
shares acquired under the Plan. Under Malaysian insider
trading rules, the Participant is prohibited from acquiring or
selling shares or rights to shares ( e.g. , an option) when
in possession of information that is not generally available and
that the Participant knows or should know will have a material
effect on the price of shares once such information is generally
available.
Director
Notification Obligation
If the
Participant is a director of the Corporation’s Malaysian
Affiliate, the Participant is subject to certain notification
requirements under the Malaysian Companies Act. Among
these requirements is an obligation to notify the Malaysian
Affiliate in writing when the Participant receives or disposes of
an interest ( e.g. , an option or shares) in the Corporation
or any related company. Such notifications must be made
within 14 days of receiving or disposing of any interest in the
Corporation or any related company.
MEXICO
Labor Law
Policy and Acknowledgment
In accepting
the grant of this option, the Participant 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
Participant’s participation in the
Plan and
acquisition of shares of Common Stock do not constitute an
employment relationship between the Participant and the Corporation
since the Participant 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
Participant 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 Participant 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 Participant’s
employment.
The
Participant 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
Participant’s participation at any time without any liability
to the Participant.
Finally, the
Participant 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 Participant 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
Corporation , sus afiliadas, subsidiarias, oficinas de
representación, sus accionistas, funcionarios, agentes o
representantes legales en relación con cualquier demanda que
pudiera surgir.
NETHERLANDS
Consent
to Comply with Dutch Securities Law
The
Participant has been granted options under the Plan, pursuant to
which the Participant may acquire shares. Participants
who are residents of the Netherlands should be aware of the Dutch
insider trading rules, which may impact the sale of such
shares. In particular, the Participant may be prohibited
from effecting certain share transactions if the Participant has
insider information regarding the
Corporation.
Below
is a discussion of the applicable restrictions. The
Participant is advised to read the discussion carefully to
determine whether the insider rules apply to the
Participant. If it is uncertain whether the insider
rules apply, the Corporation recommends that the Participant
consult with his or her personal legal advisor. Please
note that the Corporation cannot be held liable if the Participant
violates the Dutch insider rules. The Participant is
responsible for ensuring compliance with these
rules.
By
entering into the Award Agreement and participating in the Plan,
the Participant acknowledges having read and understood the
notification below and acknowledges that it is his or her own
responsibility to comply with the Dutch insider trading rules, as
discussed herein.
Prohibition
Against Insider Trading
Dutch
securities laws prohibit insider trading. Under Article
46 of the Act on the Supervision of the Securities Trade 1995,
anyone who has “inside information” related to the
Corporation is prohibited from effectuating a transaction in
securities in or from the Netherlands. “Inside
information” is knowledge of a detail concerning the issuer
to which the securities relate that is not public and which, if
published, would reasonably be expected to affect the share price,
regardless of the actual effect on the price. The
insider could be any employee of the Corporation or its Dutch
Affiliate who has inside information as described above.
Given
the broad scope of the definition of inside information, certain
employees of the Corporation working at its Dutch Affiliate may
have inside information and thus, would be prohibited from
effectuating a transaction in securities in the Netherlands at a
time when he or she had such inside information.
NEW
ZEALAND
Securities Law
Notice
The
Participant will receive the following documents (in addition to
this Appendix A) in connection with this option from the
Corporation:
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an Award
Agreement which sets forth the terms and conditions of the option
grant;
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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
Participant to make informed decisions concerning this option;
and
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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 Participant request copies of
the documents incorporated by reference into the Description, the
Corporation will provide the Participant 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 Participant 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 Participant is not permitted to
sell the Corporation’s shares directly to other Russian
individuals and the Participant is not permitted to bring share
certificates into Russia. All shares acquired upon
exercise of the option will be maintained on the
Participant’s behalf in the United States.
SAUDI
ARABIA
Securities Law
Notice
This document
may not be distributed in the Kingdom except to such persons as
are permitted under the Offers of Securities Regulations
issued by the Capital Market Authority.
The Capital
Market Authority does not make any representation as to the
accuracy or completeness of this document, and expressly
disclaims any liability whatsoever for any loss arising from,
or incurred in reliance upon, any part of this
document. Prospective purchasers of the securities offered
hereby should conduct their own due diligence on the accuracy
of the information relating to the securities. If you do
not understand the contents of this document you should
consult an authorized financial adviser.
SOUTH
AFRICA
Tax
Acknowledgment
By accepting
this option, the Participant agrees to notify the Employer of the
amount of any gain realized upon exercise of this
option. If the Participant fails to advise the Employer
of the gain realized upon exercise, the Participant may be liable
for a fine. The Participant will be responsible for
paying any difference between the actual tax liability and the
amount withheld.
If the
Participant uses cash to exercise this option and purchase shares,
rather than a cashless exercise method, the Participant must first
obtain a “Tax Clearance Certificate (in Respect of Foreign
Investment)” from the South African Reserve
Service. The Participant 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 Participant’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 Participant 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
Participant 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 Participant 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 Participant 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 Participant understands
that this grant would not be made but for the assumptions and
conditions referred to above; thus, the Participant
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.
UKRAINE
Method
of Exercise
Notwithstanding
anything to the contrary in the Award Agreement, due to regulatory
requirements in Ukraine, the Participant must
exercise this option using the cashless exercise
method. To complete a full cashless exercise, the
Participant 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 Participant. If the Participant
does not complete this procedure, the Corporation may refuse to
allow the Participant to exercise this option. The
Corporation reserves the right to provide the Participant with
additional methods of exercise depending on local
developments.
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 Participant to the Employer, effective on the Due
Date. The Participant 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
Participant is an officer or executive director (as within the
meaning of Section 13(k) of the U.S. Securities and Exchange Act of
1934, as amended), the terms of this provision will not apply to
the Participant. In the event that the Participant is an
officer or director, as defined above, and Tax-Related Items are
not collected from or paid by the Participant by the Due Date, the
amount of any uncollected Tax-Related Items may constitute a
benefit to the Participant on which additional income tax and
National Insurance Contributions may be
payable. The Participant 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 Participant authorizes the Corporation to
withhold the transfer of any shares unless and until the loan is
repaid in full.
KIMBERLY-CLARK
CORPORATION
PERFORMANCE
RESTRICTED STOCK UNIT
AWARD
AGREEMENT
(effective
February 26, 2009)
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 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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Number of
Share Units Granted . The
Corporation hereby grants to the Participant 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 Participant at the end of the
Restricted Period may range from 0 to 200% of the Target
Level.
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2.
Transferability Restrictions .
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Restricted
Period . During
the Restricted Period, the Participant may not sell, assign,
transfer, or otherwise dispose of, or mortgage, pledge or otherwise
encumber the Award. Except as provided under this
paragraph 2, the Award, including any accrued dividend equivalents,
shall be subject to forfeiture until the end of the Restricted
Period three years after the date of this
grant. Participant 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 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.
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During each
year in the Restricted Period, the Participant will not be paid
dividend equivalents on the unvested PRSUs but the Participant will
receive a credit equal to dividends declared on the
Corporation’s Common Stock which will be reinvested in
additional PRSUs at the then fair market value of the
Corporation’s Common Stock on the date dividends are paid,
and the additional PRSUs will be accumulated and paid if and when
the PRSUs vest, based on the actual number of PRSUs that
vest. 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.
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Termination of
Employment . Participant
shall forfeit any unvested Award, including any accrued dividend
equivalents, 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 a Participant
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 Participant 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 Participant will return to perform
services for the Corporation or an Affiliate. If the
period of leave exceeds six months and the Participant 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 Participant 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. A
Participant 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 to be a termination of employment for
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purposes of
the Plan if it is anticipated that the level of bona fide services
the Participant 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 Participant has been providing such services less
than 36 months).
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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
Participant’s termination of employment is due to death or
Total and Permanent Disability, it shall result in pro rata vesting
in the number of PRSUs earned. This pro rata
vesting shall be determined based on the Target Level of
PRSUs (including any accrued dividend equivalents accumulated
pursuant to Section 2(a)) (1) prorated for the number of full
months of employment during the Restricted Period prior to the
Participant’s termination of employment, multiplied by (2)
the Performance Goal percentage as approved and authorized by the
Committee at the end of the Restricted Period. Any
fractional share of the Corporation resulting from such a prorated
award shall be rounded to the nearest whole share 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 Participant’s termination of employment is
due to Retirement it shall result in 100% vesting 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, and such Award shall be paid within 70 days following
the end of the Restricted Period.
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Notwithstanding
this Section 2(c), if the Corporation receives an opinion of
counsel that there has been a legal judgment and/or legal
development in the Participant’s jurisdiction that would
likely result in the favorable Retirement treatment that applies to
the PRSUs under this Section 2(c) being deemed unlawful and/or
discriminatory, then the Corporation will not apply the favorable
Retirement treatment and PRSUs will be treated as they would under
the rules that apply if the Participant’s employment with the
Corporation or an Affiliate ends for any other reason, as
applicable.
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Shutdown or
Divestiture . In
the event that more than six months after the date of grant the
Participant’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 PRSUs earned. This pro rata vesting shall
be determined based on the Target Level of PRSUs (including
any accrued dividend equivalents accumulated pursuant to Section
2(a)) (1) prorated for the number of full years of employment
during the Restricted Period prior to the Participant’s
termination of employment, multiplied by (2) the Performance Goal
percentage as approved and authorized by the Committee at the end
of the Restricted Period. Any fractional share of the Corporation
resulting from such a prorated award shall be rounded to the
nearest whole share and shall be paid within 70 days following the
end of the Restricted Period.
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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
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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 Participant 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 Participant 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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Payment of
Awards . The
payment of the Award shall be made in shares of Common Stock except
that any accrued dividend equivalents accumulated pursuant to
Section 2(a) shall be paid in cash. 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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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 Participant 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
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