Perfomance Share Agreement – Gap
Award No.
THE GAP, INC.
PERFORMANCE SHARE AGREEMENT
The Gap, Inc. (the “Company”) hereby grants to (the “Employee”), an
award (the “Award”) of Performance Shares, which represent the right to receive
shares of the Company153s common stock, $0.05 par value (the “Shares”) subject to
the fulfillment of performance and vesting conditions and the other conditions
set forth in the attached Appendix A and Appendix B. This Award is granted
pursuant to The Gap, Inc. 2011 Long-Term Incentive Plan (the “Plan”) and is
subject to all of the terms and conditions contained in this Performance Share
Agreement including the terms and conditions contained in the attached Appendix
A and Appendix B (collectively, the “Agreement”). The date of this Agreement is
(“Date of Grant”). Subject to the provisions of Appendix A, Appendix B
and of the Plan, the principal features of this Award are as follows:
| Number of Performance Shares at Threshold Performance: |
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| Number of Performance Shares at Target Performance: |
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| Maximum Number of Performance Shares: | ||||
| Date(s) Performance Shares |
if Performance Goals are met |
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| Scheduled to Vest: | ||||
Performance Goals: The actual number of Shares to be earned
under this Award will be determined based on (1) attainment of annual, or other
period, division or corporate earnings goals over 3 years, and (2) achievement
of Company cumulative earnings goals for the same 3 years. In both cases, the
earnings goals and the extent to which they have been achieved will be
determined by the Compensation and Management Development Committee (the
“Committee”) of the Board of Directors, in its sole discretion. In addition, the
number of Shares earned under this Award may be further reduced at the
Committee153s discretion.
Date(s) Performance Shares Scheduled to Vest: To the extent
that the Performance Goals described above are achieved and Shares are earned,
as determined and certified by the Committee, then (1) 50% of the earned Shares
shall be paid on the date in that the Committee certifies attainment
(the “Certification Date”), and (2) the remaining 50% of the earned Shares shall
vest on the one year anniversary of the Certification Date. Notwithstanding the
foregoing, if the Employee is demoted to a lower Company salary grade before the
end of fiscal year , Employee shall forfeit his or her
Award.
As provided in the Plan and in this Agreement, this Award may terminate
before the scheduled vest date(s) of the Performance Shares. For example, if
Employee153s Termination of Service occurs before the date this Award vests, this
Award will terminate at the same time as such termination. Important additional
information on vesting and forfeiture of the Performance Shares covered by this
Award including those due to changes in employment is contained in paragraphs 3
through 6 of Appendix A.
IN WITNESS WHEREOF, the Company and the Employee have executed this
Agreement, in duplicate, to be effective as of the date first above written.
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THE GAP, INC. |
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Dated: |
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My signature below indicates that I understand that this Award is 1) subject
to all of the terms and conditions of this Agreement (including the attached
Appendix A and Appendix B) and of the Plan, 2) not considered salary, nor
is it a promise for future grants of Performance Shares, 3) not a term or
condition of my employment with the Company (or one of its Affiliates), and 4)
made at the sole discretion of the Company.
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EMPLOYEE |
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Dated: |
Signature: |
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Address: |
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APPENDIX A
TERMS AND CONDITIONS OF PERFORMANCE SHARES
1. Grant of Performance Shares. The Company hereby grants to the
Employee as a separate incentive that is not in lieu of any salary or other
compensation for his or her services, an Award with respect to the number of
Performance Shares set forth on page 1 of this Agreement, subject to all the
terms and conditions in this Agreement and the Plan. Employee understands and
agrees that this Award does not guarantee any future Performance Share grants
and that grants are made at the sole discretion of the Company.
2. Company153s Obligation to Pay. Unless and until a Performance Share
has vested in accordance with the vesting schedule set forth on the first page
of this Agreement, the Employee will have no right to payment of a Share with
respect to the Performance Share. Prior to actual payment of any Shares pursuant
to vested Performance Shares, each Performance Share represents an unsecured
obligation of the Company, payable (if at all) only from the general assets of
the Company. No Shares shall be issued until after the Performance Shares have
vested in accordance with the terms hereof and shall be issued in accordance
with the settlement terms hereof.
3. Vesting of Performance Shares and Issuance of Shares.
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(a) |
Subject to paragraphs 4, 5 and 6, the Performance Shares subject to this |
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(b) |
Subject to earlier issuance pursuant to paragraph 4 or 5, upon each Vesting |
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(c) |
If the Committee, in its discretion, accelerates the vesting of the balance, |
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(d) |
Notwithstanding the foregoing, if the Committee, in its discretion, |
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(e) |
It is the intent of this Agreement to comply with the requirements of Section |
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(f) |
No fractional Shares shall be issued under this Agreement. |
4. Death. In the event of the Employee153s death after the end of the
applicable performance period, the remaining Performance Shares shall
automatically and with no exercise of discretion by the Committee become fully
vested, and shall be settled, on the date of death to the extent that the
Performance Goals have been achieved as of the date of death.
5. Retirement.
(a) Except as would result in taxation under Section 409A, a portion of the
remaining Performance Shares automatically and with no exercise of discretion by
the Committee shall become fully vested, and shall be settled, and applicable
taxes shall be withheld by the Company or its designated Affiliate in accordance
with paragraph 7 at the following time: (i) if the Performance Goals have been
achieved before the Employee becomes eligible for Retirement (as defined below),
on the later of the date the Employee becomes eligible for Retirement or
November 15th of the year in which Employee becomes eligible for
Retirement; or (ii) if Employee becomes eligible for Retirement before the
Performance Goals are achieved, on the later of the date the Performance Goals
are achieved or November 15th of the year in which the Performance
Goals are achieved. The portion of the remaining Performance Shares that vests
and is settled in accordance with the preceding sentence shall have an aggregate
market value sufficient to pay any taxes required to be withheld by the Company
(or an Affiliate) solely as a result of (a) the Employee153s becoming eligible to
receive shares of common stock upon Retirement pursuant to paragraph 5(b), and
(b) the vesting and settlement of such portion of the remaining Performance
Shares.
(b) In the event of Employee153s Retirement (as defined below) after the end of
the applicable performance period that, in the case of U.S. taxpayers, qualifies
as a “separation from service” within the meaning of Section 409A, the remaining
Performance Shares automatically and with no exercise of discretion by the
Committee shall become fully vested, and shall be settled, on the date of
Retirement, to the extent that the Performance Goals have been achieved on or
before the date of Retirement. If (i) Employee is subject to U.S. income tax,
and (ii) Employee is a “specified employee” within the meaning of Section 409A
at the time of Employee153s Retirement then the payment of such accelerated
Performance Shares will not be made until the date six (6) months and one (1)
day following the date of Employee153s Retirement, unless the Employee dies
following such Retirement prior to such time, in which case, the Performance
Shares will be paid to the Employee153s estate upon his or her death, subject to
paragraph 7.
For purposes of this Agreement, “Retirement” shall mean Employee153s
Termination of Service for any reason (other than due to Employee153s misconduct
as determined by the Company in its sole discretion) after Employee has attained
age 60 and completed at least five (5) years of continuous service as an
Employee of the Company or an Affiliate.
6. Termination of Service. Notwithstanding any contrary provision of
this Agreement, the balance of Performance Shares that have not vested pursuant
to paragraphs 3, 4 or 5 will be forfeited and cancelled automatically at the
time of the Employee153s Termination of Service. For purposes of this Agreement,
Termination of Service shall have the meaning set forth in the Plan and be
determined by reference to Employee153s active service without reference to any
other agreement, written or oral, including Employee153s contract of employment
(if any). Thus, in the event of Employee153s Termination of Service (whether or
not in breach of local labor laws), unless otherwise expressly provided for
under this Agreement, Employee153s right to vest in the Performance Shares under
the Plan, if any, will terminate effective on Employee153s Termination of Service
and will not be extended by any notice period mandated under local law
(e.g., active employment would not include a period of “garden leave”
or similar period pursuant to local law); the Committee shall have the exclusive
discretion to determine when the Employee has incurred a Termination of Service.
7. Withholding Taxes. Regardless of any action the Company or
Employee153s employer (the “Employer”) takes with respect to any or all income
tax, social insurance, payroll tax, or other tax-related items related to the
Employee153s participation in the Plan and legally applicable to the Employee
(“Tax-Related Items”), the Employee acknowledges and agrees that the ultimate
liability for all Tax-Related Items legally due by the Employee is and remains
the Employee153s responsibility and may exceed the amount actually withheld by the
Company or the Employer. Employee further acknowledges that the Company and/or
the Employer (a) makes no representations or undertakings regarding the
treatment of any Tax-Related Items in connection with any aspect of the
Performance Shares, including the grant or vesting of the Performance Shares,
the subsequent sale of Shares acquired under the Plan and the receipt of
dividends, if any; and (b) does not commit to and is under no obligation to
structure the terms of the Performance Shares or any aspect of the Performance
Shares to reduce or eliminate the Employee153s liability for Tax-Related Items, or
achieve any particular tax result. Further, if Employee has become subject to
tax in more than one jurisdiction between the date of grant and the date of any
relevant taxable event, Employee acknowledges that the Company 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.
No payment will be made to the Employee (or his or her estate) for the
Performance Shares unless and until satisfactory arrangements (as determined by
the Committee) have been made by the Employee with respect to the payment of any
Tax-Related Items obligations of the Company and/or the Employer with respect to
the Performance Shares. In this regard, the Employee authorizes the Company
and/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:
(a) withholding from Employee153s wages or other cash compensation paid to
Employee by the Company or the Employer; or
(b) withholding from proceeds of the sale of Shares acquired upon vesting of
the Performance Shares, either through a voluntary sale or through a mandatory
sale arranged by the Company (on Employee153s behalf pursuant to this
authorization); or
(c) withholding in Shares to be issued upon vesting of the Performance
Shares; or
(d) surrendering already-owned Shares having a Fair Market Value equal to the
Tax-Related Items that have been held for such period of time to avoid adverse
accounting consequences.
If the obligation for Tax-Related Items is satisfied by withholding Shares,
for tax purposes, the Employee is deemed to have been issued the full number of
Shares subject to the Performance Shares, notwithstanding that a number of the
Shares is held back solely for the purpose of paying the Tax-Related Items due
as a result of the Employee153s participation in the Plan. The Employee shall pay
to the Company or Employer any amount of Tax-Related Items that the Company may
be required to withhold or account for as a result of the Employee153s
participation in the Plan that cannot be satisfied by one or more of the means
previously described in this paragraph 7. The Employee acknowledges and agrees
that the Company may refuse to issue or deliver the Shares or the proceeds of
the sale of Shares if Employee fails to comply with his or her obligations in
connection with the Tax-Related Items.
It is the Company153s current practice to withhold a portion of the Shares
scheduled to be issued pursuant to vested Performance Shares that have an
aggregate market value sufficient to pay the Tax-Related Items. The Company will
only withhold whole Shares and therefore the Employee also authorizes deduction
without notice from salary or other amounts payable to the Employee of cash in
an amount sufficient to satisfy the Employer153s remaining tax withholding
obligation. Notwithstanding the previous two sentences, the Employee, if the
Company in its sole discretion so agrees, may elect to furnish to the Company
written notice, no more than 30 days and no less than 5 days in advance of a
scheduled Vesting Date (or other required withholding event), of his or her
intent to satisfy the tax withholding requirement by remitting the full amount
of the tax withholding to the Company on the scheduled Vesting Date (or other
required withholding event). In the event that Employee provides such written
notice and fails to satisfy the amounts required for the Tax-Related Items by
the Vesting Date (or other required withholding event), the Company shall
satisfy the tax withholding requirement pursuant to the first two sentences of
this paragraph. However, the Company reserves the right to withhold for
Tax-Related Items pursuant to any means set forth in this paragraph.
8. Vesting/ Foreign Taxes Due. If Employee is subject to tax in a
country outside the U.S. (“Foreign Country”) and if pursuant to the tax rules in
such Foreign Country, Employee will be subject to tax prior to the date that
Employee is issued Shares pursuant to this Agreement, the Committee, in its
discretion, may accelerate vesting and settlement of a portion of the
Performance Shares to the extent necessary to pay the foreign taxes due (and any
applicable U.S. income taxes due as a result of the acceleration of vesting and
settlement) but only if such acceleration does not result in taxation under
Section 409A (as permitted under Treasury Regulation Section
1.409A-3(j)(4)(xi)).
9. Beneficiary Designation. Any distribution or delivery to be made to
the Employee under this Agreement will, if the Employee is then deceased, be
made to the Employee153s designated beneficiary to the extent such designation is
valid under applicable law, or if no such beneficiary survives the Employee or
no beneficiary is designated, the person or persons entitled to such
distribution or delivery under the Employee153s will or, to the executor of his or
her estate. In order to be effective, a beneficiary designation must be made by
the Employee in a form and manner acceptable to the Company and permitted by the
Company. Any transferee must furnish the Company with (a) written notice of his
or her status as transferee, and (b) evidence satisfactory to the Company to
establish the validity of the transfer and compliance with any laws or
regulations pertaining to said transfer.
10. Conditions to Issuance of Shares. The Shares deliverable to the
Employee on the Vesting Date(s) may be either previously authorized but unissued
Shares or issued Shares that have been reacquired by the Company. The Company
shall not be required to issue any Shares hereunder so long as the Company
reasonably anticipates that such issuance will violate Federal securities law,
foreign securities law or other applicable law; provided however, that in such
event the Company shall issue such Shares at the earliest possible date at which
the Company
reasonably anticipates that the issuance of the shares will not cause such
violation. For purposes of the previous sentence, any issuance of Shares that
would cause inclusion in gross income or the application of any penalty
provision or other provision of the Internal Revenue Code or foreign tax law
shall not be treated as a violation of applicable law.
11. Rights as Stockholder. Neither the Employee nor any person
claiming under or through the Employee will have any of the rights or privileges
of a stockholder of the Company in respect of any Performance Share unless and
until Shares have been issued in accordance with paragraph 3, 4 or 5, recorded
on the records of the Company or its transfer agents or registrars, and
delivered to the Employee. Except as provided in paragraph 12, after such
issuance, recordation, and delivery, the Employee will have all the rights of a
stockholder of the Company with respect to voting such Shares and receipt of
dividends and distributions on such Shares.
12. Adjustments. The Award is subject to adjustment in accordance with
Section 4.3 of the Plan.
13. Nature of Grant. In accepting the grant of Performance Shares, the
Employee acknowledges that:
(a) the grant of the Performance Shares is voluntary and occasional and does
not create any contractual or other right to receive future grants of
Performance Shares, or benefits in lieu of Performance Shares, even if
Performance Shares have been granted repeatedly in the past;
(b) all decisions with respect to future Performance Share grants, if any,
will be at the sole discretion of the Company;
(c) the Employee153s participation in the Plan shall not create a right to
further employment with the Employer and shall not interfere with the ability of
the Employer to terminate his or her employment relationship at any time;
(d) the Employee is voluntarily participating in the Plan;
(e) the Performance Shares are an extraordinary item that do not constitute
compensation of any kind for services of any kind rendered to the Company or the
Employer, and which are outside the scope of the Employee153s employment contract,
if any;
(f) the Performance Shares and the Shares subject to the Performance Shares
are not intended to replace any pension rights or compensation;
(g) the Performance Shares are not part of normal or expected compensation or
salary for any purposes, including, but not limited to, calculating any
severance, resignation, termination, redundancy, dismissal, end of service
payments, bonuses, long-service awards, pension or retirement or welfare
benefits or similar payments and in no event should be considered as
compensation for, or relating in any way to, past services for the Company or
the Employer;
(h) the Performance Shares grant and the Employee153s participation in the Plan
will not be interpreted to form an employment contract or relationship with the
Company or any Affiliate;
(i) the future value of the Shares is unknown and cannot be predicted with
certainty; further, neither the Company, nor any Affiliate is responsible for
any foreign exchange fluctuation between local currency and the United States
Dollar that may affect the value of the Performance Shares;
(j) in consideration of the grant of the Performance Shares, no claim or
entitlement to compensation or damages shall arise from forfeiture of the
Performance Shares resulting from Employee153s Termination of Service with the
Employer (for any reason whatsoever and whether or not in breach of local labor
laws) and the Employee irrevocably releases 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, the Employee shall be deemed
irrevocably to have waived his or her entitlement to pursue such claim; and
(k) the Performance Shares and the 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.
14. No Advice Regarding Grant. The Company is not providing any tax,
legal or financial advice, nor is the Company making any recommendations
regarding the Employee153s participation in the Plan, or his or her acquisition or
sale of the underlying Shares. The Employee is hereby advised to consult with
his or her own personal tax, legal and financial advisors regarding the
Employee153s participation in the Plan before taking any action related to the
Plan.
15. Data Privacy. The Employee hereby explicitly and
unambiguously consents to the collection, use and transfer, in electronic or
other form, of the Employee153s personal data as described in this Agreement by
and among, as applicable, the Company and its Affiliates for the exclusive
purpose of implementing, administering and managing the Employee153s participation
in the Plan.
The Employee understands that the Company and its Affiliates may
hold certain personal information about the Employee, including, but not limited
to, the Employee153s name, home address and telephone number, date of birth,
social insurance number or other identification number, salary, nationality, job
title, any Shares or directorships held in the Company or any Affiliate, details
of all Performance Shares or any other entitlement to Shares awarded, canceled,
exercised, vested, unvested or outstanding in the Employee153s favor, for the
exclusive purpose of implementing, administering and managing the Plan
(“Personal Data”).
The Employee understands that Personal 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 the United States, the
Employee153s country, or elsewhere, and that the recipient153s country may have
different data privacy laws and protections than the Employee153s country. The
Employee understands that he or she may request a list with the names and
addresses of any potential recipients of the Personal Data by contacting the
Employee153s local human resources representative. The Employee authorizes the
recipients to receive, possess, use, retain and transfer the Personal Data, in
electronic or other form, for the purposes of implementing, administering and
managing the Employee153s participation in the Plan, including any requisite
transfer of such Personal Data as may be required to a broker or other third
party with whom the Employee may elect to deposit any Shares received upon
vesting of the Performance Shares. The Employee understands that Personal Data
will be held only as long as is necessary to implement, administer and manage
the Employee153s participation in the Plan. The Employee understands that he or
she may, at any time, view Personal Data, request additional information about
the storage and processing of Personal Data, require any necessary amendments to
Personal Data or refuse or withdraw the consents herein, without cost, by
contacting in writing the Employee153s local human resources representative. The
Employee understands that refusal or withdrawal of consent may affect the
Employee153s ability to participate in the Plan or to realize benefits from the
Performance Shares. For more information on the consequences of the Employee153s
refusal to consent or withdrawal of consent, the Employee understands that he or
she may contact his or her local human resources representative.
16. Plan Governs. This Agreement is subject to all the terms and
provisions of the Plan. In the event of a conflict between one or more
provisions of this Agreement and one or more provisions of the Plan, the
provisions of the Plan will govern. Terms used in this Agreement that are not
defined in this Agreement will have the meaning set forth in the Plan.
17. Committee Authority. The Committee will have the power to
interpret the Plan and this Agreement and to adopt such rules for the
administration, interpretation and application of the Plan as are consistent
therewith and to interpret or revoke any such rules (including, but not limited
to, the determination of whether or not any portion of the Performance Share has
vested). All actions taken and all interpretations and determinations made by
the Committee in good faith will be final and binding upon the Employee, the
Company and all other interested persons. No member of the Committee will be
personally liable for any action, determination or interpretation made in good
faith with respect to the Plan or this Agreement.
18. No Modification of At-Will Status. Employee understands and agrees
that this Agreement does not impact in any way the right of the Employer to
terminate or change the terms of the employment of Employee at any time for any
reason whatsoever, with or without good cause provided in accordance with
applicable local law. Employee understands and agrees that unless contrary to
applicable local law or there is an employment contract in place providing
otherwise, his or her employment is “at-will” and that either the Employer or
Employee may terminate Employee153s employment at any time and for any reason
subject to applicable local law. Employee also understands and agrees that his
or her “at-will” status (if applicable) can only be changed by an express
written contract signed by an authorized officer of the Company and Employee if
the Employee153s employer is the Company.
19. Non-Transferability of Award. Except as otherwise herein provided,
the Performance Shares herein granted and the rights and privileges conferred
hereby will not be transferred, assigned, pledged or hypothecated in any way
(whether by operation of law or otherwise) and will not be subject to sale under
execution, attachment or similar process. Upon any attempt to transfer, assign,
pledge, hypothecate or otherwise dispose of such Performance Share, or of any
right or privilege conferred hereby, contrary to the provisions hereof, or upon
any attempted sale under any execution, attachment or similar process upon the
rights and privileges conferred hereby, such Performance Share and the rights
and privileges conferred hereby will immediately become null and void.
20. Binding Agreement. Subject to the limitation on the
transferability of the Performance Share contained herein, this Agreement shall
be binding upon and inure to the benefit of the heirs, legatees, legal
representatives, successors and assigns of the Employee and the Company.
21. Addresses for Notices. Any notice to be given to the Company under
the terms of this Agreement will be addressed to the Company, in care of its
Legal Department, at The Gap, Inc., Two Folsom, San Francisco, California 94105,
or at such other address as the Company may hereafter designate in writing. Any
notice to be given to the Employee will be addressed to the Employee at the
address set forth on the records of the Company. Any such notice will be deemed
to have been duly given if and when enclosed in a properly sealed envelope,
addressed as aforesaid, and deposited, postage prepaid, in a United States post
office or generally recognized international courier such as DHL or Federal
Express.
22. Captions. Captions provided herein are for convenience only and
are not to serve as a basis for interpretation or construction of this
Agreement.
23. Agreement Severable. In the event that any provision in this
Agreement will be held invalid or unenforceable, such provision will be
severable from, and such invalidity or unenforceability will not be construed to
have any effect on, the remaining provisions of this Agreement.
24. Modifications to the Agreement. This Agreement constitutes the
entire understanding of the parties on the subjects covered. The Employee
expressly warrants that he or she is not accepting this Agreement in reliance on
any promises, representations, or inducements other than those contained herein.
Modifications to this Agreement or the Plan can be made only in an express
written agreement executed by a duly authorized officer of the Company.
25. Amendment, Suspension or Termination of the Plan. By accepting
this Award, the Employee expressly warrants that he or she has received a right
to an equity based award under the Plan, and has received, read, and understood
a description of the Plan. The Employee understands that the Plan is
discretionary in nature and may be modified, suspended, or terminated by the
Company at any time.
26. Notice of Governing Law and Venue. This Agreement shall be
governed by, and construed in accordance with, the laws of the State of
California without regard to principles of conflict of laws. For purposes of
litigating any dispute that arises directly or indirectly from the relationship
of the parties evidenced by this grant or the Agreement, the parties hereby
submit to and consent to the exclusive jurisdiction of the State of California
and agree that such litigation shall be conducted only in the courts of San
Francisco County, California, or the federal courts for the United States for
the Northern District of California and no other courts, where this grant is
made and/or to be performed.
27. Electronic Delivery. The Company may, in its sole discretion,
decide to deliver any documents related to current or future participation in
the Plan by electronic means. The Employee hereby consents to receive such
documents by electronic delivery and agrees to participate in the Plan through
an on-line or electronic system established and maintained by the Company or
another third party designated by the Company.
28. Language. If the Employee has received this Agreement, including
Appendices, or any other document related to the Plan translated into a language
other than English, and the meaning of the translated version is different than
the English version, the English version will control.
29. Appendix B. Notwithstanding any provisions in this Agreement, the
Performance Shares shall be subject to any special terms and conditions set
forth in any Appendix to this Agreement for Employee153s country. Moreover, if the
Employee relocates to one of the countries included in Appendix B, the special
terms and conditions for such country will apply to the Employee, to the extent
Company 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. As stated above, Appendix B constitutes part of this
Agreement.
30. Imposition of Other Requirements. The Company reserves the right
to impose other requirements on Employee153s participation in the Plan, on the
Performance Shares and on any Shares acquired under the Plan, to the extent the
Company determines it is necessary or advisable in order to comply with local
law or facilitate the administration of the Plan, and to require the Employee to
sign any additional agreements or undertakings that may be necessary to
accomplish the foregoing.
* * *
APPENDIX B
ADDITIONAL TERMS AND CONDITIONS OF THE GAP, INC.
PERFORMANCE SHARE AGREEMENT
NON-U.S. EMPLOYEES
Terms and Conditions
This Appendix B includes special terms and conditions applicable to Employee
if Employee resides in one of the countries listed below. These terms and
conditions are in addition to or, if so indicated, in place of, the terms and
conditions set forth in the Agreement. Unless otherwise provided below,
capitalized terms used but not defined herein shall have the same meanings
assigned to them in the Plan and the Agreement.
Notifications
This Appendix also includes country-specific information of which Employee
should be aware with respect to his or her participation in the Plan. The
information is based on the securities, exchange control and other laws in
effect in the respective countries as of May 2011. Such laws are often complex
and change frequently. As a result, the Company strongly recommends that
Employee does not rely on the information noted herein as the only source of
information relating to the consequences of Employee153s participation in the Plan
because the information may be out of date at the time that Employee vests in
Performance Shares or sells Shares acquired under the Plan.
In addition, the information is general in nature and may not apply to
Employee153s particular situation, and the Company is not in a position to assure
Employee of any particular result. Accordingly, Employee is advised to seek
appropriate professional advice as to how the relevant laws in his or her
country may apply to his or her situation. Finally, please note that if Employee
is a citizen or resident of a country other than the country in which he or she
is currently working, or transfers employment after grant, the information
contained in this Appendix may not be applicable to Employee.
CANADA
Settlement of Performance Shares. Notwithstanding any
discretion or anything to the contrary in the Plan, the grant of the Performance
Shares does not provide any right for Employee to receive a cash payment and the
Performance Shares will be settled in Shares only.
The following provisions will apply to Employees who are residents of
Quebec:
Language Consent. The parties acknowledge that it is their
express wish that this 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 exig la redaction en anglais de cette
convention (“Agreement”), ainsi que de tous documents ex cut s, avis
donn s et procedures judiciaries intent es, directement ou indirectement,
relativement la pr sente convention.
Authorization to Release and Transfer Necessary Personal Information.
This provision supplements paragraph 15 of Appendix A of the Agreement:
Employee hereby authorizes the Company and the Company153s representatives to
discuss with and obtain all relevant information from all personnel,
professional or not, involved in the administration and operation of the Plan.
Employee further authorizes the Company, its Affiliates and the Committee, which
administers the Plan, to disclose and discuss the Plan with their advisors.
Employee further authorizes the Company and any Affiliate to record such
information and to keep such information in Employee153s employee file.
FRANCE
Taxation of Award. This Award is not intended to be French
tax-qualified.
Language Consent. In accepting the grant of the Performance
Shares and the Agreement which provides for the terms and conditions of the
Performance Shares, Employee confirms that he or she has read and understood the
documents relating to the Performance Shares (the Plan and the Agreement), which
were provided in the English language. Employee accepts the terms of these
documents accordingly.
Consentement Relatif la Langue Utilis e. En
acceptant cette attribution gratuite d153actions et ce contrat qui contient les
termes et conditions de cette attribution gratuite d153actions, l153employ confirme
ainsi avoir lu et compris les documents relatifs cette attribution (le Plan et
le Contrat d153Attribution) qui lui ont t communiqu s en langue anglaise. ,
L153employ en accepte les termes en connaissance de cause.
Exchange Control Information. Employee may hold Shares
acquired under the Plan outside of France provided he or she declares all
foreign accounts, whether open, current, or closed, in his or her income tax
return. Furthermore, Employee must declare to the customs and excise authorities
any cash or bearer securities he or she imports or exports without the use of a
financial institution when the value of the cash or securities is equal to or
exceeds 10,000 (for 2011).
HONG KONG
Securities Law Notice. The Performance Shares and Shares
issued upon vesting (if any) do not constitute a public offering of securities
under Hong Kong law and are available only to Employees of the Company and its
Affiliates. The Agreement, including this Appendix B, the Plan and other
incidental communication materials have not been prepared in accordance with and
are not intended to constitute a “prospectus” for a public offering of
securities under the applicable securities legislation in Hong Kong. Nor have
the documents been reviewed by any regulatory authority in Hong Kong. The Award
is intended only for the personal use of each eligible Employee of the Company
or its Affiliates and may not be distributed to any other person. If Employee is
in any doubt about any of the contents of the Agreement, including this Appendix
B, or the Plan, Employee should obtain independent professional advice.
Vesting of Performance Shares and Sale of Shares. In the
event the Employee153s Performance Shares vest and Shares are issued to the
Employee within six months of the date of grant, the Employee agrees that he or
she will not dispose of any of such Shares prior to the six-month anniversary of
the date of grant.
INDIA
Tax Information. The amount subject to tax at vesting may be
dependent upon a valuation of Shares from a Merchant Banker in India. The
Company has no responsibility or obligation to obtain the most favorable
valuation possible nor obtain valuations more frequently than required under
Indian tax law.
Exchange Control Obligations. Employee understands that he
or she must repatriate any proceeds from the sale of Shares acquired under the
Plan and any dividends received in relation to the Shares to India and convert
the proceeds into local currency within ninety (90) days of receipt. Employee
will receive a foreign inward remittance certificate (“FIRC”) from the bank
where he or she deposits the foreign currency. Employee should maintain the FIRC
as evidence of the repatriation of fund in the event the Reserve Bank of India
or the Employer requests proof of repatriation.
INDONESIA
Exchange Control Information. If Employee remits proceeds
from the sale of Shares into Indonesia, the Indonesian Bank through which the
transaction is made will submit a report on the transaction to the Bank of
Indonesia for statistical reporting purposes. For transactions of US$10,000 or
more, a description of the transaction must be included in the report. Although
the bank through which the transaction is made is required to make the report,
Employee must complete a “Transfer Report Form.” The Transfer Report Form should
be provided to Employee by the bank through which the transaction is made.
KOREA
Exchange Control Information. Exchange control laws require
Korean residents who realize US$500,000 or more from the sale of Shares to
repatriate the proceeds to Korea within 18 months of the sale.
PEOPLE153S REPUBLIC OF CHINA
Mandatory Sale of Shares Upon Vesting. By accepting the
Performance Shares, the Employee acknowledges and agrees that the immediate sale
of the Shares issued upon the vesting of Performance Shares is required unless
the Company, in its sole discretion, determines otherwise. Such Shares will be
transferred to a brokerage firm designated by the Company (the “Brokerage
Firm”). The Brokerage Firm, on the Employee153s behalf, may thereafter immediately
sell the Shares at the prevailing market price pursuant to any process for the
sale set forth by the Company, and deliver the proceeds less the Tax-Related
Items and any broker fees, to the Company or its designee, which would then
remit the net proceeds to the Employee through the Company153s or Affiliate153s
special purpose bank account in China. As a result of the immediate sale of
Shares as set forth in this Appendix B, no Shares would be delivered to the
Employee, and the Employee would not have any resulting rights as a shareholder
of the Company.
Special Administration in China. The Employee153s ability to
be issued Shares at vesting shall be contingent upon the Company or its
Affiliate obtaining approval from the State Administration of Foreign Exchange
(“SAFE”) for Employee153s participation in the Plan (to the extent required as
determined by the Company in its sole discretion) and the establishment of a
SAFE-approved bank account. If at the time of vesting, SAFE approval has not
been obtained, the Company may cancel this award of Performance Shares with no
liability, compensation or benefits in lieu of compensation due to Employee.
Employee understands and agrees that he or she will be required to immediately
repatriate the proceeds from the vesting/ immediate sale of Shares to China.
Employee further understands that such repatriation of proceeds may need to be
effected through a special foreign exchange account established by the Company
or Affiliate and Employee hereby consents and agrees that the proceeds from the
vesting/ immediate sale of Shares may be transferred to such special account
prior to being delivered to Employee153s personal account. Furthermore, Employee
understands that due to SAFE approval requirements, there may be delays in
delivering the proceeds to Employee, Employee will bear any exchange rate risk
during the period between vesting and when the proceeds are delivered to him or
her, Employee may be required to open a U.S. dollar bank account to receive the
proceeds and also Employee may be required to pay the Company or an Affiliate
the taxes due at vesting prior to receiving the proceeds from vesting/ immediate
sale of Shares.
Please note that these special administration procedures will not apply to
non Chinese Nationals.
The provisions above pursuant to which Employee agrees to sell all Shares
issued to him or her immediately when the Shares are issued to him or her upon
vesting at the then current market price is intended to be a plan pursuant to
Rule 10b5-1 of the U.S. Securities Exchange Act of 1934 to the extent Employee
is subject to this Act. By signing the Agreement, Employee represents that he or
she is not aware of any material non-public information about the Company at the
time he or she is signing the Agreement.
SINGAPORE
Securities Law Notice. The grant
of the Award is made in reliance on section 273(1)(f) of the Securities and
Futures Act (Cap. 289) (“SFA”) for which it is exempt from the prospectus and
registration requirements under the SFA.
Director Notification Obligation. If Employee is a director,
associate director or shadow director (i.e., a non-director who has sufficient
control so that the directors act in accordance with the directions and
instructions of this individual) of the Company153s local entity in Singapore, he
or she is subject to notification requirements under the Singapore Companies
Act. Some of these notification requirements will be triggered by Employee153s
participation in the Plan. Specifically, Employee is required to notify the
local Singapore company when he or she acquires or disposes an interest in the
Company, including when Employee receives Shares upon vesting of this Award and
when Employee sells these Shares. The notification must be in writing and must
be made within two days of acquiring or disposing of any interest in the Company
(or within two days of initially becoming a director, associate director or
shadow director of the Company153s local entity in Singapore). If Employee is
unclear as to whether he or she is a director, associate director or shadow
director of the
Company153s local entity in Singapore or the form of the notification, he or
she should consult with his or her personal legal advisor.
UNITED KINGDOM
Settlement of Performance Shares. Notwithstanding any
discretion or anything to the contrary in the Plan, the grant of the Performance
Shares does not provide any right for Employee to receive a cash payment and the
Performance Shares will be settled in Shares only.
Tax and National Insurance Contributions Acknowledgment.
The following provision supplements paragraph 10 of the Agreement:
Employee agrees that if Employee does not pay or the Employer or the Company
does not withhold from Employee the full amount of Tax-Related Items that
Employee owes in connection with the vesting of the Award and/or the acquisition
of Shares pursuant to the vesting of the Award, or the release or assignment of
the Award for consideration, or the receipt of any other benefit in connection
with the Award (the “Taxable Event“) within ninety (90) days after the
Taxable Event, or such other period specified in Section 222(1)(c) of the U.K.
Income Tax (Earnings and Pensions) Act 2003, then the amount that should have
been withheld shall constitute a loan owed by Employee to the Employer,
effective ninety (90) days after the Taxable Event. Employee agrees that the
loan will bear interest at the official rate of HM Revenue and Customs (“HMRC”)
and will be immediately due and repayable by Employee, and the Company and/or
the Employer may recover it at any time thereafter by withholding the funds from
salary, bonus or any other funds due to Employee by the Employer, by withholding
in Shares issued upon vesting of the Award or from the cash proceeds from the
sale of such Shares or by demanding cash or a cheque from Employee. Employee
also authorizes the Company to withhold the transfer of any Shares unless and
until the loan is repaid in full.
Notwithstanding the foregoing, if Employee 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 the immediately foregoing
provision will not apply. In the event that Employee is an officer or executive
director and Tax-Related Items are not collected from or paid by Employee within
ninety (90) days of the Taxable Event, the amount of any uncollected Tax-Related
Items may constitute a benefit to Employee on which additional income tax and
National Insurance contributions may be payable. Employee will be responsible
for reporting any income tax and National Insurance contributions due on this
additional benefit directly to HMRC under the self-assessment regime.
* * *
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