Performance-based RSU Award Agreement – Symantec
SYMANTEC CORPORATIONPERFORMANCE BASED RESTRICTED
STOCK UNITAWARD
AGREEMENTRECITALS
A. The Board has adopted the Plan for the purpose of providing incentives to
attract, retain and motivate eligible persons whose present and potential
contributions are important to the success of Symantec Corporation (the
“Company”) and its Subsidiaries and Affiliates. B. The Participant is to render
valuable services to the Company and/or its Subsidiaries and Affiliates, and
this Performance Based Restricted Stock Unit Agreement is executed pursuant to,
and is intended to carry out the purposes of, the Plan in connection with the
Company153s issuance of rights in respect of Common Stock in the form of
Performance Based Restricted Stock Units (each, a “PRU”). C. All capitalized
terms in this Agreement shall have the meaning assigned to them in Appendix A or
B attached hereto. All undefined terms shall have the meaning assigned to them
in the Plan. NOW, THEREFORE, it is hereby agreed as follows: 1.
Grant of Performance Based Restricted Stock Units. The
Company hereby awards to the Participant PRUs under the Plan. Each PRU
represents the right to receive one share of Common Stock on vesting based on
achievement of the performance objectives set forth in Appendix B (each, a
“Share”), subject to the provisions of this Agreement (including any Appendices
hereto). The number of shares of Common Stock subject to this Award, the
applicable vesting schedule for the PRUs and the Shares, the dates on which
those vested Shares shall be issued to Participant and the remaining terms and
conditions governing this Award shall be as set forth in this Agreement
(including any Appendices hereto). AWARD SUMMARY
| Award Date and Number of Shares Subject to Award: |
As set forth in the Notice of Grant of Award (the “Notice of Grant”). |
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| Vesting Schedule: |
The Shares shall vest pursuant to the schedule set forth on Appendix B |
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Subject to the provisions of Appendix B hereto, the Shares that may be earned |
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| Issuance Schedule |
The Shares in which the Participant vests shall be issuable as set forth in |
2. Limited Transferability. This Award, and any
interest therein, shall not be transferable or assignable by the Participant,
and may not be made subject to execution, attachment or similar process,
otherwise than by will or by the laws of descent and distribution or as
consistent with this Agreement and the Plan. 3. Cessation of
Service. Subject to the provisions of Appendix B hereto, should the
Participant153s service as an employee, director, consultant, independent
contractor or advisor to the Company or a Parent, Subsidiary or an Affiliate of
the Company be Terminated for any reason (whether or not in breach of local
labor laws) prior to vesting in one or more Shares subject to this Award, then
the PRUs covering such unvested Shares will be immediately thereafter cancelled,
the Participant shall cease to have any right or entitlement to receive any
Shares under those cancelled PRUs and the Participant153s right to receive PRUs
and vest under the Plan, if any, will terminate effective as of the date that
the Participant is no longer actively providing service; in no event will the
Participant153s service be extended by any notice period mandated under local law
(e.g., active service would not include a period of “garden leave” or
similar period pursuant to local law). For purposes of service, transfer of
employment between the Company and any Subsidiary or Affiliate shall not
constitute Termination of Service. The Committee shall have the exclusive
discretion to determine when the Participant is no longer actively providing
service for purposes of the Plan. 4. Corporate
Transaction. Subject to the provisions of Appendix B hereto: a. In
the event of a Corporate Transaction, any or all outstanding PRUs subject to
this Agreement may be assumed, converted or replaced by the successor
corporation (if any), which assumption, conversion or replacement will be
binding on the Participant, or the successor corporation may substitute an
equivalent award or provide substantially similar consideration to the
Participant as was provided to stockholders (after taking into account the
existing provisions of the PRUs). b. In the event such successor corporation (if
any) fails to assume this Award or substitute an equivalent award (as provided
in Paragraph 4(a) above) pursuant to a Corporate Transaction, this Award will
expire on such transaction at such time and on such conditions as the Board
shall determine. c. Any action taken pursuant to clauses (a) or (b) above must
either (i) preserve the exemption of these PRUs from Section 409A of the Code or
(ii) comply with Section 409A of the Code. d. This Agreement shall not in any
way affect the right of the Company to adjust, reclassify, reorganize or
otherwise change its capital or business structure or to merge, consolidate,
dissolve, liquidate or sell or transfer all or any part of its business or
assets. 5. Adjustment in Shares. Should any change be
made to the Common Stock by reason of any stock dividend, recapitalization,
stock split, reverse stock split, subdivision, combination, reclassification or
similar change in the capital structure of the Company without consideration or
if there is a change in the corporate structure, then appropriate adjustments
shall be made to the total number and/or class of securities issuable pursuant
to this Award in order to reflect such change and thereby preclude a dilution or
enlargement of benefits hereunder.
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6. Issuance of Shares of Common Stock. a. As soon as
practicable following the applicable vesting date of any portion of the PRU
(including the date (if any) on which vesting of any portion of this PRU
accelerates), the Company shall issue to or on behalf of the Participant a
certificate (which may be in electronic form) for the applicable number of
underlying shares of Common Stock that so vested, subject, however, to the
provisions of Paragraph 7 pursuant to which the applicable withholding taxes are
to be collected. In no event shall the date of settlement (meaning the date that
shares of Common Stock are issued) be later than two and one half
(21/2) months after the later of (i) the end of the Company153s fiscal
year in which the applicable vesting date occurs or (ii) the end of the calendar
year in which the applicable vesting date occurs. b. If the Company determines
that the Participant is a “specified employee,” as defined in the regulations
under Section 409A of the Code, at the time of the Participant153s “separation
from service,” as defined in those regulations, then any units that otherwise
would have been settled during the first six months following the Participant153s
separation from service will instead be settled during the seventh month
following the Participant153s separation from service, unless the settlement of
those units is exempt from Section 409A of the Code. c. In no event shall
fractional Shares be issued. d. The holder of this Award shall not have any
stockholder rights, including voting rights, with respect to the Shares subject
to the PRUs until the Award holder becomes the record holder of those Shares
following their actual issuance and after the satisfaction of the Tax
Obligations (as defined below). 7. Tax
Obligations. The Participant hereby agrees to make
adequate provision for any sums required to satisfy the applicable federal,
state, local and foreign employment, social insurance, payroll, income and other
tax withholding obligations of the Company or any Affiliate (the “Tax
Obligations”) that arise in connection with this Award. The satisfaction of the
Tax Obligations shall occur at the time the Participant receives a distribution
of Common Stock or other property pursuant to this Award, or at any time prior
to such time or thereafter as reasonably requested by the Company and/or any
Affiliate in accordance with applicable law. The Participant hereby authorizes
the Company, at its sole discretion and subject to any limitations under
applicable law, to satisfy any such Tax Obligations by any of the following
methods: (1) in the event the PRU is to be settled in part in cash rather than
settled in full in Shares, withholding from the cash to be distributed to the
Participant in settlement of this Award, (2) permitting the Participant to enter
into a “same day sale” commitment with a broker-dealer that is a member of the
National Association of Securities Dealers (an “NASD Dealer”) whereby the
Participant irrevocably elects to sell a portion of the Shares to be delivered
under the Award to satisfy the applicable Tax Obligations and whereby the NASD
Dealer irrevocably commits upon receipt of such Shares to forward the proceeds
necessary to satisfy the Tax Obligations directly to the Company and/or its
Affiliates, and (3) withholding Shares that are otherwise to be issued and
delivered to the Participant under this Award in satisfaction of the Tax
Obligations; provided, however, that the amount of the
Shares so withheld pursuant to alternative (3) shall not exceed the amount
necessary to satisfy the required Tax Obligations using the minimum statutory
withholding rates that are applicable to this kind of income. In addition, to
the extent this Award is not settled in cash, the Company is authorized to
satisfy any Tax Obligations by withholding for the Tax Obligations from wages
and other cash compensation payable to the Participant or by causing the
Participant to tender a cash payment to the Company if the Committee determines
in good faith at the time the Tax Obligations arises that withholding pursuant
to the foregoing alternatives (2) and (3) above are not in the best interest of
the Company or the Participant. In the event
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the Tax Obligations arises prior to the delivery to the Participant of Common
Stock or it is determined after the delivery of Shares or other property that
the amount of the Tax Obligations was greater than the amount withheld by the
Company and/or any Affiliate, the Participant shall indemnify and hold the
Company and its Affiliates harmless from any failure by the Company and/or any
Affiliate to withhold the proper amount. The Company may refuse to deliver the
Shares if the Participant fails to comply with the Participant153s obligations in
connection with the Tax Obligations as described in this Paragraph 7. 8.
Compliance with Laws and Regulations. a. The issuance of
shares of Common Stock pursuant to the PRU shall be subject to compliance by the
Company and the Participant with all applicable requirements of law relating
thereto and with all applicable regulations of any stock exchange (or an
established market, if applicable) on which the Common Stock may be listed for
trading at the time of such issuance. b. The inability of the Company to obtain
approval from any regulatory body having authority deemed by the Company to be
necessary to the lawful issuance of any Common Stock hereby shall relieve the
Company of any liability with respect to the non-issuance of the Common Stock as
to which such approval shall not have been obtained. The Company, however, shall
use its best efforts to obtain all such approvals. 9. Successors and
Assigns. Except to the extent otherwise provided in this Agreement,
the provisions of this Agreement shall inure to the benefit of, and be binding
upon, the Company and its successors and assigns and Participant, Participant153s
assigns, the legal representatives, heirs and legatees of Participant153s estate
and any beneficiaries designated by Participant. 10.
Notices. Any notice required to be given or delivered to
the Company under the terms of this Agreement shall be in writing and addressed
to the Company at its principal corporate offices. Any notice required to be
given or delivered to Participant shall be in writing and addressed to
Participant at the address indicated below Participant153s signature line on this
Agreement (as may be updated from time to time by written notice from the
Participant). All notices shall be deemed effective upon personal delivery or
upon deposit in the U.S. mail, postage prepaid and properly addressed to the
party to be notified. 11. Construction. This Agreement
and the Notice of Grant evidenced hereby are made and granted pursuant to the
Plan and are in all respects limited by and subject to the terms of the Plan. In
the event of any conflict between the terms of this Agreement and the Plan, the
terms of the Plan shall apply. All decisions of the Committee with respect to
any question or issue arising under the Plan or this Agreement shall be
conclusive and binding on all persons having an interest in the PRU. 12.
Governing Law. The interpretation, performance and
enforcement of this Agreement shall be governed by the laws of the State of
California without resort to that State153s conflict-of-laws rules. 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 Santa Clara 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. 13. Excess
Shares. If the Shares covered by this Agreement exceed, as of the
date the PRU is granted, the number of shares of Common Stock which may without
stockholder approval be issued under the Plan, then the Award shall be void with
respect to those excess Shares, unless stockholder approval of an
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amendment sufficiently increasing the number of shares of Common Stock
issuable under the Plan is obtained in accordance with the provisions of the
Plan. 14. Employment at Will. Nothing in this Agreement
or in the Plan shall confer upon Participant any right to continue in the
employment of the Company for any period of specific duration or interfere with
or otherwise restrict in any way the rights of the Company (or any Parent or
Subsidiary employing or retaining Participant) or of Participant, which rights
are hereby expressly reserved by each, to terminate Participant153s service with
the Company at any time for any reason, with or without cause. 15.
Severability. The provisions of this
Agreement are severable and if any one or more provisions are determined to be
illegal or otherwise unenforceable, in whole or in part, the remaining
provisions shall nevertheless be binding and enforceable. 16.
Electronic Delivery. The Company may, in its sole
discretion, decide to deliver any documents related to participation in the
Plan, PRUs granted under the Plan or future PRUs that may be granted under the
Plan (including, without limitation, disclosures that may be required by the
Securities and Exchange Commission) by electronic means or to request
Participant153s consent to participate in the Plan by electronic means.
Participant hereby consents to receive such documents by electronic delivery
and, if requested, to agree to participate in the Plan through an on-line or
electronic system established and maintained by the Company or another third
party designated by the Company. 17. Imposition of Other
Requirements. The Company reserves the right to impose other
requirements on Participant153s participation in the Plan, on the Award 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 me to sign any additional agreements
or undertakings that may be necessary to accomplish the foregoing.
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IN WITNESS WHEREOF
, the parties have executed this Agreement on this ____ date of ____________,
201_.
| SYMANTEC CORPORATION | ||||||
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By: |
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Title: |
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Address: |
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| PARTICIPANT | ||||||
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Signature: |
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Address: |
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APPENDIX ADEFINITIONS
The following definitions shall be in effect under the Agreement: 1.
Agreement shall mean this Performance Based Restricted
Stock Unit Award Agreement. 2. Award shall mean the
award of PRUs made to the Participant pursuant to the terms of this Agreement.
3. Award Date shall mean the date the PRUs are granted
to Participant pursuant to the Agreement and shall be the date indicated in the
Notice of Grant. 4. Code shall mean the Internal Revenue
Code of 1986, as amended. 5. Committee shall mean the
Compensation Committee of the Company Board of Directors. 6.
Corporate Transaction shall mean
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(a) |
a dissolution or liquidation of the Company, |
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(b) |
a merger or consolidation in which the Company is not the surviving |
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(c) |
a merger in which the Company is the surviving corporation but after which |
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(d) |
the sale of substantially all of the assets of the Company, or |
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(e) |
any other transaction which qualifies as a “corporate transaction” under |
7. Common Stock shall mean shares of the Company153s
common stock, par value $0.01 per share. 8. Notice of
Grant shall mean such notice as provided by the Stock
Administration Department of the Company, or such other applicable department of
the Company, providing Participant with notice of the issuance of a PRU award
pursuant to the Plan and terms of this Agreement.
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9. Participant shall mean the person named in the
Notice of Grant relating to the PRUs covered by this Agreement. 10.
Plan shall mean the Company153s 2004 Equity Incentive
Plan, as the same may be amended from time to time.
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APPENDIX BPERFORMANCE SCHEDULE (2012-2014
GRANT)
The number of PRUs that will be earned shall be based on the metrics set
forth below. Terms not otherwise defined in Appendix A or B shall have the
meaning ascribed to them in the Plan. 1. Grant of Performance Based Restricted
Stock Units. Subject to the terms and conditions of Agreement, the Notice of
Grant and of the Plan, the Company hereby grants to the Employee a number of
PRUs set forth in the Notice of Grant, subject to reduction and vesting as set
forth below. 2. Primary Metric. The Employee can earn the PRUs based on the
Company153s performance in (a) achieving annual EPS, and (b) achieving TSR over a
three-year period, with EPS being measured at the end of the first year of the
Performance Period (as defined below) against the Annual Target Long Term
Incentive Grant and TSR being measured at the end of year two and year three
(with such measurements being years one and two for the second year TSR
measurement period and years one through three for the third year TSR
measurement period, with such three-year period described as the Vesting
Schedule in the Notice of Grant and hereafter referred to as the “Performance
Period”). For purposes of clarity, no PRUs will be earned until the end of the
three-year performance period, subject to the provisions of Sections 4 and 5
below. The goals (including the associated threshold, target and maximum levels
with respect thereto) associated with this PRU are established by the Committee
and will be communicated by the Company. The number of PRUs determined at the at
end of the first year of the Performance Period will range from 0% to 133% of
the Annual Target Long Term Incentive Grant as determined by the Committee after
the end of the first year of the Performance Period based upon the Company153s
achievement of the EPS goal, as follows: 0% if performance is below the
threshold level, 50% if performance is at the threshold level, 100% if
performance is at target and 133% if performance is at or above the maximum
level. For EPS performance between the threshold level and the maximum level, a
proportionate fraction of the Annual Target Long Term Incentive Grant between
50% and 133% will be applied based on performance between threshold and maximum
levels. The number of PRUs credited to the Employee at the end of the first year
of the Performance Period is the “Conditional PRU Award.” 3. TSR Modifier. At
the end of the second year of the Performance Period and the end of the third
year of the Performance Period, the TSR modifier will be applied to the
Reference Amount (as defined below), as set forth in Section 3 below, in each
case as reviewed and approved by the Committee. No PRUs are awarded if at the
end of the first year of the Performance Period the Company153s achievement of the
EPS goal is less than the threshold level determined by the Committee. Subject
to the provisions of Sections 4 and 5 below, no PRUs shall become earned unless
the employee is employed by the Company on the last day of the 3 year
Performance Period. Application of Modifier:
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(a) Following the completion of the applicable Performance Period, the
Conditional PRU Award will be adjusted by the TSR modifier to be determined by
the Committee based on the performance criteria set forth below. A Participant153s
earned PRU award (if any) shall be equal to the Reference Amount multiplied by
the TSR modifier for the applicable Performance Period after completion thereof,
as reviewed and approved by the Committee. The TSR modifier will be as follows
based on the Company153s two and three year performance (with TSR measurements
being made at the end of the second year Performance Period measuring years one
and two, and at the end of the third year of the Performance Period, measuring
years one through three) as measured against the two-year and three-year
performance of the companies comprising the S&P 500 over the same period
(with the S&P 500 being comprised of those companies that make up the
S&P 500 index at the end of the applicable Performance Period): 50% if
performance is at or below the threshold level, 100% if performance is at target
and 150% if performance is at or above the maximum level. For performance
between the threshold level and target level, a proportionate fraction of the
TSR modifier between 50% and 100% will be applied, and for performance between
the target level and the maximum level, a proportionate fraction of the TSR
modifier between 100% and 150% will be applied. TSR performance versus the
S&P 500 will be calculated as the 30-day average of the Company153s stock
price as calculated at the beginning of the applicable Performance Period and
end of the applicable Performance Period. In no event shall more than the number
of PRUs set forth in the Notice of Grant be eligible to be earned pursuant to
this Agreement and the Notice of Grant. 4. Change of Control. In the event of a
Change of Control of the Company (as defined in the Executive Retention Plan (as
defined below)) before the end of the first year of the Performance Period, then
the Annual Target Long Term Incentive Grant shall be subject, to the extent
applicable, to the acceleration provisions of Section 1 of the Executive
Retention Plan (as well as all other provisions of such plan, including Section
3 thereof). In the event of a Change of Control of the Company (as defined in
the Executive Retention Plan) after the end of the first year of the Performance
Period but prior to the end of the third year of the Performance Period, then
the Conditional PRU Award shall be subject, as applicable, to the acceleration
provisions of Section 1 of the Executive Retention Plan (as well as all other
provisions of such plan, including Section 3 thereof). 5. Death, Disability and
Involuntary Termination. If a Participant153s employment with the Company (or any
majority or greater owned subsidiary) terminates by reason of death, total and
permanent disability or an involuntary termination other than for Cause (as
defined below) after the end of the first year of the Performance Period but
prior to the end of the third year of the Performance Period, then the
Participant shall be entitled to payment of a prorated number of PRUs, as
follows:
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(1) |
If the Participant153s termination occurs after the end of the first year of |
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(2) |
If the Participant153s termination occurs after the end of the second year of |
Any prorated PRU amounts pursuant to this Section 5 shall be earned by the
Participant on his or her termination date and settled as soon as
administratively practicable thereafter, but in no event later than the
fifteenth (15th) day of the third (3rd) calendar month following such
termination date. In no event, however, will any prorated number of PRUs be
earned by the Participant if (i) achievement of the EPS goal is below the
threshold level (i.e., if the Conditional PRU Award is zero), (ii) if the
Participant153s service to the Company (or any of its majority or greater owned
subsidiaries) terminates for any reason prior to the end of the first year of
the Performance Period, or (iii) if the Participant voluntarily leaves the
employ of the Company (or any of its majority or greater owned subsidiaries)
prior to the end of the third year of the Performance Period. 6. Restatement of
Financial Results If the Company153s financial statements are the subject of a
restatement due to error or misconduct, to the extent permitted by governing
law, in all appropriate cases, the Company will seek reimbursement of excess
PRUs (as defined below), if any, earned by the Participant hereunder. For
purposes of this Agreement, “excess PRUs” means the positive difference, if any,
between (i) the number of PRUs earned by the Participant and (ii) the number of
PRUs that would have been earned by that Participant had achievement of the EPS
goal been determined based on the Company153s financial statements as restated.
The Company shall not award any Participant any additional PRUs should the
restated financial statements result in a higher PRU award. 7.
Definitions (a) Annual Target Long Term Incentive
Grant shall mean the number of shares of Common Stock associated
with the annual PRU grant as determined by the Committee. (b)
Cause shall mean the dismissal or discharge of a
Participant from employment for one or more of the following reasons or actions:
(i) gross negligence or willful misconduct in the performance of duties to the
Company (other than as a result of a disability) that has resulted or is likely
to result in substantial and material damage to the Company, after a demand for
substantial performance is delivered by the Company which specifically
identifies the manner in which it believes the individual has not substantially
performed his/her duties and provides the individual with a reasonable
opportunity to cure any alleged gross negligence or willful misconduct; (ii)
commission of any act of fraud with respect to the Company or its affiliates; or
(iii) conviction of a felony or a crime involving moral turpitude causing
material harm to the business and affairs of the Company. (c)
EPS shall mean the diluted net income per share
attributable to Symantec Corporation stockholders reflected in the Company153s
condensed consolidated statements of income as adjusted for the following items:
business combination accounting entries, stock-based compensation expense,
restructuring charges, charges related to the amortization of intangible assets
and acquired product rights, impairments of assets and certain other items. For
this purpose, EPS shall be computed in the manner consistent with the annual
financial plan presented
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to and approved by the Board of Directors, as well as the quarterly financial
results presented to the Audit Committee of the Board of Directors. (d)
Executive Retention Plan shall
mean the Symantec Executive Retention Plan as in effect on the date of this
Agreement and as hereafter amended from time to time. (e) Proration
Factor shall mean a quotient, the numerator of which is the number
of calendar months rounded up to the next whole month) the Participant was in
the employ of the Company (or any majority or greater owned subsidiary) during
the period commencing with the start of the three-year Performance Period and
ending with his or her termination date, and the denominator of which is
thirty-six (36) months. (f) Reference Amount shall mean
fifty percent (50%) of the Conditional PRU Award; provided, however, that if the
TSR performance at the end of the second year of the Performance Period is not
equal to or greater than the target level established by the Committee for the
two-year Performance Period, then the Reference Amount for the three-year
Performance Period shall be equal to the sum of (i) fifty percent (50%) of the
Conditional PRU Award, plus (ii) the difference between the number of PRUs
earned or awarded at the end of the second year of the Performance Period and
fifty percent (50%) of the Conditional PRU Award. (g)
TSR shall mean the change in stock price over the
performance period (measured using a 30-day average stock price at the beginning
and end of the respective Performance Period) plus the value of dividends
provided in the respective period. The TSR results shall be expressed as an
annualized return, or compound annual growth rate (CAGR).
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APPENDIX CADDITIONAL
PROVISIONS1. Nature of the
Grant
. In signing this Agreement, the Participant acknowledges that: a. the Plan
is established voluntarily by the Company, it is discretionary in nature and may
be modified, amended, suspended or terminated by the Company at any time, unless
otherwise provided in the Plan and this Agreement; b. the grant of PRUs is
voluntary and occasional and does not create any contractual or other right to
receive future awards of PRUs, or benefits in lieu of PRUs even if PRUs have
been awarded repeatedly in the past; c. all decisions with respect to future
grants of PRUs, if any, will be at the sole discretion of the Company; d. the
Participant153s participation in the Plan is voluntary; e. the Participant153s
participation in the Plan will not create a right to further employment with the
Company or the Participant153s actual employer (the “Employer”) and shall not
interfere with the ability of the Employer to terminate Participant153s service at
any time with or without cause; f. PRUs are an extraordinary item that do not
constitute compensation of any kind for services of any kind rendered to the
Company or to the Employer, and PRUs are outside the scope of the Participant153s
employment contract, if any; g. PRUs are not part of normal or expected
compensation or salary for any purpose, including, but not limited to,
calculation of any severance, resignation, termination, redundancy, end of
service payments, bonuses, long-service awards, pension or retirement benefits
or similar payments; h. in the event that Participant is not an employee of the
Company, the grant of PRUs will not be interpreted to form an employment
contract or relationship with the Company; and furthermore, the grant of PRUs
will not be interpreted to form an employment contract with the Employer or any
Subsidiary or Affiliate of the Company; i. the future value of the underlying
Shares is unknown and cannot be predicted with certainty; j. if the Participant
receives Shares upon vesting, the value of such Shares acquired on vesting of
PRUs may increase or decrease in value; and k. in consideration of the grant of
PRUs, no claim or entitlement to compensation or damages arises from termination
of the PRUs or diminution in value of the PRUs or Shares received upon vesting
of PRUs resulting from Termination of the Participant153s service by the Company
or the Employer (for any reason whatsoever and whether or not in breach of local
labor laws) and the Participant
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irrevocably releases the Company and the Employer from any such claim that
may arise; if, notwithstanding the foregoing, any such claim is found by a court
of competent jurisdiction to have arisen, then, by signing this Agreement, the
Participant shall be deemed irrevocably to have waived his or her entitlement to
pursue such claim. 2. Data Privacy Notice and
Consent. a. The Participant
hereby explicitly and unambiguously consents to the collection, use and
transfer, in electronic or other form, of his or her personal data as described
in this Agreement by and among, as applicable, the Employer, the Company, its
Parent, its Subsidiaries and its Affiliates for the exclusive purpose of
implementing, administering and managing the Participant153s participation in the
Plan. b. The Participant understands that the Company
and the Employer may hold certain personal information about the Participant,
including, but not limited to, the Participant153s name, home address and
telephone number, date of birth, social insurance number or other identification
number, salary, nationality, job title, any shares of stock or directorships
held in the Company, details of all PRUs or any other entitlement to shares of
Common Stock awarded, canceled, vested, unvested or outstanding in the
Participant153s favor, for the purpose of implementing, administering and managing
the Plan (“Data”). c. The Participant understands 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 the Participant153s country, or elsewhere, and that the recipient153s country may
have different data privacy laws and protections than the Participant153s country.
The Participant understands that he or she may request a list with the names and
addresses of any potential recipients of the Data by contacting his or her local
human resources representative. The Participant authorizes the recipients to
receive, possess, use, retain and transfer the Data, in electronic or other
form, for the purposes of implementing, administering and managing the
Participant153s 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 PRUs may be deposited. The
Participant understands that Data will be held only as long as is necessary to
implement, administer and manage his or her participation in the Plan. The
Participant understands that he or she 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 his or her local human resources
representative. The Participant understands, however, that refusal or withdrawal
of consent may affect his or her ability to participate in the Plan. For more
information on the consequences of his or her refusal to consent or withdrawal
of consent, the Participant understands that he or she may contact his or her
local human resources representative. 3.
Language. If the Participant has received this
Agreement or any other document related to the Plan translated into a language
other than English and if the translated version is different than the English
version, the English version will control.
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