(b) In the event the Grantees employment or service is
terminated by the Company without Cause (other than due to death or Disability or in connection with a Change in Control), (i) if such termination occurs (A) prior to the first anniversary of the Grant Date, twenty-five percent (25%) of then
unvested Shares shall be eligible to vest, (B) on or following the first anniversary of the Grant Date but prior to the second anniversary of the Grant Date, fifty percent (50%) of then unvested Shares shall be eligible to vest, (C) on or
following the second anniversary of the Grant Date but prior to the third anniversary of the Grant Date, seventy-five percent (75%) of then unvested Shares shall be eligible to vest, and (D) on or following the third anniversary of the Grant
Date but prior to the fourth anniversary of the Grant Date, one hundred percent (100%) of then unvested Shares shall be eligible to vest, and (ii) any Earned Shares that have not been distributed as of such termination date shall be distributed
within sixty (60) days of such termination date.
(c) If the termination of the Grantees employment or
service is for any reason other than as set forth in Section 5(a) or 5(b), the then unvested portion of the Award shall be immediately forfeited without consideration and the Grantee shall have no further rights to
such unvested portion of the Award hereunder. The Grantees status as an employee or other service-provider shall not be considered terminated in the case of a leave of absence agreed to in writing by the Company (including, but not limited to,
military and sick leave); provided, that, such leave is for a period of not more than three (3) months or re-employment or re-engagement upon expiration of such
leave is guaranteed by contract or statute.
(d) Notwithstanding any other provision of this Agreement or the Plan to
the contrary:
(i) If it is determined by the Committee that the Grantee engaged (or is engaging in) any activity
that is harmful to the business or reputation of the Company (or any parent or subsidiary), including, without limitation, any Competitive Activity (as defined below) or conduct prejudicial to or in conflict with the Company (or
any parent or subsidiary) or any material breach of a contractual obligation to the Company (or any parent or subsidiary) (collectively, Prohibited Acts), then, upon such determination by the Committee, the unvested portion of the
Award and any Earned Shares that have not yet been distributed shall be forfeited without consideration.
(ii) If it
is determined by the Committee that the Grantee engaged in (or is engaging in) any Prohibited Act where such Prohibited Act occurred or is occurring within the one (1) year period immediately following the Distribution Date, the Grantee agrees
that he/she will repay to the Company any gain realized on the vesting of the Award (such gain to be valued as of the Distribution Date based on the fair market value of the Shares on the Distribution Date). Such repayment obligation will be
effective as of the date specified by the Committee. Any repayment obligation must be satisfied in cash or, if permitted in the sole discretion of the Committee, in Shares having a fair market value equal to the gain realized upon vesting of the
Award. The Company is specifically authorized to off-set and deduct from any other payments, if any, including, without limitation, wages, salary or bonus, that it may owe the Grantee to secure the repayment
obligations herein contained.
The determination of whether the Grantee has engaged in a Prohibited Act shall be determined by the
Committee in good faith and in its sole discretion.
For purposes of this Agreement, the term Competitive Activity shall
mean the Grantee, without the prior written permission of the Committee, anywhere in the world where the Company (or any parent or subsidiary) engages in business, directly or indirectly, (i) entering into the employ of or rendering any
services to any person, entity or organization engaged in a business which is directly or indirectly related to the businesses of the Company or any parent or subsidiary (Competitive Business) or (ii) becoming associated with
or interested in any Competitive Business as an individual, partner, shareholder, creditor, director, officer, principal, agent, employee, trustee, consultant, advisor or in any other relationship or capacity other than ownership of passive
investments not exceeding one percent (1%) of the vote or value of such Competitive Business.
(e) The term
Company as used in this Agreement with reference to the employment or service of the Grantee shall include the Company and its parent and subsidiaries, as appropriate.
6. Change in Control.
(a) In the event of a Change in Control, any Earned Shares that have not yet been distributed shall be distributed within
sixty (60) days following such Change in Control.
(b) In the event of a Change in Control in which the
surviving entity (together with its affiliates, the Surviving Entity) assumes the unvested portion of the Award, if any, or substitutes a similar award under the Surviving Entitys equity compensation plan for the unvested
portion of the Award, if any, on the same terms and conditions as the original Award, the Award that is assumed or substituted shall not vest solely as a result of the occurrence of the Change in Control. In the event that within twelve
(12) months following the occurrence of a Change in Control of the Company, the Grantees employment or service relationship with the Company is terminated by the Company without Cause, then the Award, as assumed or substituted by the
Surviving Entity, that remains unvested at such time shall be deemed to vest and become Earned Shares and be distributed to the Grantee within sixty (60) days.
2