Exhibit 10.2


 


MONSTER WORLDWIDE, INC.

RESTRICTED STOCK UNIT AGREEMENT


 


This agreement (together with Appendices, the “Agreement”)
made as of the        day of             ,
2      by and between MONSTER WORLDWIDE,
INC., a Delaware corporation (the “Company”), and                              
(the “Participant”).


 


W I  T  N  E
S  S  E  T  H:


 


WHEREAS, pursuant to the Company’s 1999 Long Term Incentive
Plan, as amended (the “Plan”), the Committee (as defined in the Plan) desires
to award to the Participant and the Participant desires to accept a grant of
RSUs (as defined below) upon the terms and conditions set forth in this
Agreement; and


 


WHEREAS, the parties wish to provide for certain other
matters, including, without limitation, agreements as to nonsolicitation,
confidentiality and arbitration of claims, in accordance with the terms and
conditions set forth in this Agreement.


 


NOW, THEREFORE, the parties hereto agree as follows:


 


1.             Grant
of RSUs. Subject to the terms and conditions of this Agreement, the Committee
hereby grants to the Participant        
RSUs. The number of RSUs that are the subject of this Agreement are expressly
conditioned on satisfaction of certain performance-based goals outlined in Appendix A hereto and are also subject to
reduction in accordance with Appendix A
hereto.


 


2.             Vesting.


 


(a)           The
RSUs to which the Participant is entitled under Section 1 hereof (after giving effect to any reductions
contemplated by Appendix A hereto and provided
that the applicable performance-based conditions set forth in Appendix A hereto have been satisfied), shall, subject to
the first sentence of Section 2(c),
vest in incremental installments on the dates specified below (the “Vesting
Dates”), provided  that the Participant is continuously employed
by the Company or any of its Affiliates (as defined below) on each applicable
Vesting Date:


 


	
  Date

  	
   

  	
  Incremental Percentage

  of Award Being Vested

  	
   

  
	
   

  	
   

  	
  —

  	
  %

  
	
   

  	
   

  	
  —

  	
  %

  
	
   

  	
   

  	
  —

  	
  %

  
	
  ____________

  	
   

  	
  ___—

  	
  %

  



 


Any fractional
RSUs resulting from the strict application of the incremental percentages set
forth above will be disregarded and the actual number of RSUs becoming vested
on any specific Vesting Date will cover only the full number of RSUs determined
by applying the relevant incremental percentage.


 


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(b)           Notwithstanding
anything to the contrary in Section 2(a)
of this Agreement, and provided that the RSUs have not otherwise been
terminated pursuant to Appendix A
or otherwise, in the event that during the Participant’s employment with the
Company or one of its Affiliates:


 


(i)                                                              the
Participant dies,


 


(ii)                                                           there
occurs a Change in Control (as defined below), or


 


(iii)                                                        the
Participant incurs a Disability (as defined below),


 


(such 3 events are collectively referred to as “Acceleration
Events”) all outstanding unvested RSUs shall, subject to Section 2(c) below, immediately vest as of
the date of the applicable Acceleration Event. In the event an Acceleration
Event occurs on or prior to                           ,
the                                                           
(as defined in Appendix A) shall
automatically be deemed to have been attained for purposes of this Agreement
and in the event the Acceleration Event occurs after                            ,
the acceleration contemplated by the foregoing provisions of this Section 2(b) shall apply to the number of
RSUs, if any, to which the Participant would be entitled under Section 1 of this Agreement after the
application of the provisions of Appendix A.


 


(c)           In
the event that any calendar date on which vesting is purportedly scheduled
pursuant to the terms of Sections 2(a) or
2(b) above is not a Business Day (as defined below), the vesting
shall automatically be delayed until the first Business Day following that
calendar date. On or as soon as reasonably practicable following the applicable
Vesting Date, the Company shall distribute one share of Common Stock with
respect to each RSU that vests on such date, subject to the provisions of Section 3 below. Upon such delivery, all
obligations of the Company with respect to each such RSU shall be deemed
satisfied in full.


 


3.             Certain
Changes.


 


(a)           The
number and class of shares of Common Stock which are distributable to the
Participant with respect to any RSU covered by this Agreement shall be adjusted
proportionately or as otherwise appropriate to reflect any increase or decrease
in the number of issued shares of Common Stock resulting from a split-up or
consolidation of shares or any like capital adjustment, or the payment of any
stock dividend, and/or to reflect a change in the character or class of shares
covered by the Plan arising from a readjustment or recapitalization of the
Company’s capital stock, in each case as determined by the Committee. Cash
dividends paid with respect to a share of Common Stock shall be credited to a
dividend book entry account with respect to each RSU held by the Participant. The
right of the Participant to actually receive any such dividend, payment,
adjustment or change shall be subject to the same restrictions (including,
without limitation, vesting conditions) as the RSU to which the dividend,
payment, adjustment or change relates.


 


(b)           In
the event of any adjustment in the number of RSUs or shares of Common Stock
covered by this Agreement pursuant to any of the provisions of this Agreement,
any fractional shares resulting from such adjustment will be disregarded, and
the RSUs or shares of Common Stock, as adjusted, will cover only the number of
full shares resulting from the adjustment.


 


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4.             Certain
Definitions.


 


(a)           “Affiliate”
means an affiliate of the Company within the meaning of Rule 405 under the
Securities Act of 1933, as amended (the “Securities Act”).


 


(b)           “Business
Day” means a date on which commercial banks in New York, New York are open for
general business.


 


(c)           “Change
in Control” means and shall be deemed to occur if (1) there shall be
consummated (A) any consolidation, merger or reorganization involving the
Company, unless such consolidation, merger or reorganization is a “Non-Control
Transaction” (as defined below) or (B) any sale, lease, exchange or other
transfer (in one transaction or a series of related transactions) of all, or
substantially all, of the assets of the Company, or (2) the stockholders of the
Company shall approve any plan or proposal for liquidation or dissolution of
the Company, or (3) any person (as such term is used in Section 13(d) and
14(d)(2) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”)),
shall become the beneficial owner (within the meaning of Rule 13d-3 under the
Exchange Act) of more than 50% of the combined voting power of the Company’s
then outstanding voting securities other than (a) a person who owns or owned
shares of Class B Common Stock of the Company, (b) pursuant to a plan or
arrangement entered into by such person and the Company, or (c) pursuant to
receipt of such shares from a stockholder of the Company pursuant to such
stockholder’s will or the laws of descent and distribution. A “Non-Control
Transaction” shall mean a consolidation, merger or reorganization of the
Company where (1) the stockholders of the Company immediately before such
consolidation, merger or reorganization own, directly or indirectly, at least a
majority of the combined voting power of the outstanding voting securities of
the corporation resulting from such consolidation, merger or reorganization
(the “Surviving Corporation”), (2) the individuals who were members of the
Board of Directors of the Company immediately prior to the execution of the
agreement providing for such consolidation, merger or reorganization constitute
at least 50% of the members of the Board of Directors of the Surviving
Corporation, or a corporation directly or indirectly beneficially owning a
majority of the voting securities of the Surviving Corporation and (3) no
person (other than (a) the Company, (b) any subsidiary of the Company, (c) any
employee benefit plan (or any trust forming a part thereof) maintained by the
Company, the Surviving Corporation or any subsidiary, or (d) any person who,
immediately prior to such consolidation, merger or reorganization, beneficially
owned more than 50% of the combined voting power of the Company’s then
outstanding voting securities) beneficially owns more than 50% of the combined
voting power of the Surviving Corporation’s then outstanding voting securities.


 


(d)           “Common
Stock” means a share of common stock, $.001 par value, of the Company.


 


(e)           “Disability”
means, notwithstanding any definition in the Plan, that, in the determination
of the Committee, the Participant is both (i) unable to engage in any
substantial gainful activity by reason of any medically determinable physical
or mental impairment which can be expected to result in death or can be expected
to last for a continuous period of not less than 12 months and (ii) (x) in case
the Participant is eligible for the long term disability program offered to
United States-based employees by the Company or its Affiliates, the Participant
has actually received long term disability benefits for no less than 9 months
or (y) in case the Participant is not eligible for such long term disability
program solely by virtue of not having being based in the United States, the
Participant would have been eligible to receive long term


 


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disability benefits for no less than 9 months but for the Participant
not being based in the United States. For purposes of Section 2(b) above, it is understood that
the Disability shall be deemed to be incurred on the last day of the 9-month
period contemplated in clause (ii) of the immediately preceding sentence. In
the event the Participant has met the condition set forth in clause (i) of the
first sentence of this definition but does not satisfy the condition set forth
in clause (ii) of this definition solely by reason of the Participant’s death,
then the provisions of such clause (ii) shall be deemed to have been satisfied
and for purposes of Section 2(b)
above the Disability shall be deemed to be incurred on the date of such death.


 


(f)            “RSU”
means a restricted stock unit, which is a unit of measurement equivalent to one
share of Common Stock but with none of the attendant rights of a stockholder of
a share of Common Stock, including the right to vote (if any), except and only
to the extent otherwise provided in Section 3
above.


 


5.             No
Employment Rights; Termination of Employment. Nothing in this Agreement,
including but not limited to the provisions of the Appendices, shall give the Participant
any right to continue in the employment of the Company or any Affiliate of the
Company, or interfere in any way with the right of the Company or any Affiliate
of the Company to terminate the employment of the Participant. Except as
otherwise expressly provided in Section 2(b)
hereof, RSUs that are not vested as of the date the Participant’s employment
with the Company and its Affiliates terminates or ceases for any reason or no
reason, whether voluntary or involuntary (including, without limitation, termination or cessation of employment
with or without cause or arising out of or in connection with a reduction in
force, sale or shutdown of certain operations, or otherwise), shall
immediately and automatically terminate and be forfeited in their entirety, provided,
however, that only for purposes of this Agreement the Participant’s
employment shall not be deemed terminated solely by virtue of the Participant’s
voluntary cessation of employment in circumstances that the Committee
determines are reasonably likely to result in a Disability for so long as the
Committee determines that the Participant continues to satisfy the conditions
that would ultimately lead to the Committee’s determination that the
Participant has incurred a Disability.


 


6.             Plan
Provisions. The provisions of the Plan shall govern if and to the extent
that there are inconsistencies between those provisions and the provisions
hereof. The Participant acknowledges receipt of a copy of the Plan prior to the
execution of this Agreement. Without limited the foregoing, in no event shall
the Participant be entitled to any shares of Common Stock hereunder to the
extent that the issuance or grant of such shares would be in violation of the
limitations specified in Section 4(b) of the Plan.


 


7.             Administration.
The Committee will have full power and authority to interpret and apply the
provisions of this Agreement and act on behalf of the Company and the Board of
Directors of the Company in connection with this Agreement, and the decision of
the Committee as to any matter arising under this Agreement shall be final,
binding and conclusive. Such power and authority may be delegated, to the
extent not prohibited by the Plan, to one or more members of the Committee or
any other person or persons designated by the Committee.


 


8.             Withholding;
Resale Restriction. In the event that prior to any applicable Vesting Date
hereunder the Participant has not provided the Company with written notice (the
“Payment Notice”) at least five (5) Business Days prior to that Vesting Date to
the effect that the Participant will provide the Company payment of the amount,
if any, deemed necessary by the Company in its reasonable discretion to enable
the Company and its Affiliates to satisfy the


 


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minimum federal, foreign or other tax withholding or similar
obligations of the Company and its Affiliates with respect to the shares of
Common Stock (and/or any other items which may be distributable to the
Participant on the Vesting Date pursuant to Section
3 hereof), or in the event the Participant provides the Payment
Notice but does not deliver payment of the appropriate amount to the Company on
the Vesting Date, then the Company shall satisfy the minimum federal, foreign
or other tax withholding or similar obligation of the Company and its
Affiliates with respect to such vesting by withholding the number of shares of
Common Stock (and/or other items which may be distributable to the Participant
on the Vesting Date pursuant to Section 3
hereof) sufficient to satisfy such minimum withholding and other obligations. [The Participant agrees that until the earliest of (i) the
Participant’s last day of employment with the Company, (ii) the Participant’s
death or incurrence of a Disability (determined in accordance with Section 2(b)  above), or
(iii) the occurrence of a Change in Control, the Participant shall retain 25%
of the gross number of shares of Common Stock distributed to the Participant
with respect to any and all RSUs covered by this Agreement (the “Specified
Shares”), and that the Participant shall not directly or indirectly sell,
assign, transfer, pledge, create a security interest in or lien upon, encumber
or dispose of any of the Specified Shares prior to the earliest of the events
specified in clauses (i) through (iii) above without the approval of the
Committee. It is further understood that the Company may, at its discretion,
(i) require certificates issued with respect to the Specified Shares to be
endorsed with a legend noting, among other things, the existence of the
foregoing restriction, and (ii) instruct its transfer agent to impose transfer
restrictions on the Specified Shares to enforce the foregoing provisions. For
purposes of clarity, it is understood that the gross number of shares of Common
Stock distributed to the Participant with respect to any and all RSUs covered
by this Agreement shall be determined before giving effect to the
withholding of any shares of Common Stock as permitted by the preceding
provisions of this Section 8. ] [The foregoing italicized language shall be in the RSU Agreements
of certain of RSU recipients]


 


9.             Notices.
All notices or other communications to be given or delivered in connection with
this Agreement shall be in writing and shall be deemed to have been properly
served if delivered personally, by courier, or by certified or registered mail,
return receipt requested and first class postage prepaid, in the case of
notices to the Company, to the attention of Myron Olesnyckyj, Senior Vice President
and General Counsel, at the Company’s headquarters at 622 Third Avenue, New
York, NY 10017 and in the case of notices to the Participant, to the
Participant’s last known address (as noted in the Participant’s personnel file)
or such other addresses as the recipient party has specified by prior written
notice to the sending party. All such notices and communications shall be
deemed received upon the actual delivery thereof in accordance with the
foregoing.


 


10.           Binding
Effect; Headings; Status. This Agreement shall be binding upon and shall
inure to the benefit of the parties hereto and their respective successors and
permitted assigns. The subject headings of Sections and Appendices are included
for the purpose of convenience only and shall not affect the construction or
interpretation of any of the provisions of this Agreement. The Participant’s
rights under this Agreement, including, without limitation, rights to RSUs,
shall at all times that such rights exist represent a general obligation of the
Company. The Participant shall be a general creditor of the Company with
respect thereto and shall not have a secured or preferred position with respect
thereto. Nothing in this Agreement or the Plan shall be deemed to create an
escrow, trust, custodial account or fiduciary relationship of any kind.


 


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11.           Non-Assignability,
Etc. The Participant’s rights under this Agreement, including, without
limitation, rights to RSUs, are not assignable or transferable except upon the
Participant’s death to a beneficiary designated by the Participant in a written
beneficiary designation filed with the Company or, if no duly designated
beneficiary shall survive the Participant, pursuant to the Participant’s will
and/or by the laws of descent and distribution. Any and all such rights shall
not be subject to anticipation, alienation, sale, transfer, encumbrance except
as otherwise expressly permitted herein.


 


12.           Securities
Laws; Insider Trading. The Committee may from time to time impose any
conditions on the RSUs and shares of Common Stock as it deems necessary or
advisable to ensure that the Plan, this Agreement and the issuance and resale
or any securities comply with all applicable securities laws, including without
limitation Rule 16b-3 under the Exchange Act and the Securities Act. Such
conditions may include, among other things, the requirement that certificates
for shares of Common Stock to be issued to the Participant hereunder contain a
restrictive legend in such form and substance as may be determined by the
Committee. Without limiting the foregoing, it is understood that Affiliates of
the Company may resell Common Stock only pursuant to an effective registration
statement under the Securities Act, pursuant to Rule 144 under the Securities
Act, or pursuant to another exemption from registration under the Securities
Act. The Participant understands and agrees that any and all transactions
involving shares of Common Stock or other securities of the Company must comply
with applicable laws, rules, regulations and policies, including but not
limited to the Company’s policy regarding insider trading, which policy, among
other things, prohibits transactions involving shares of Common Stock or other
securities of the Company by individuals who have material non-public
information relating to the Company.


 


13.           Applicable
Law. Except with respect to the provisions of Appendix C hereto, this Agreement shall be governed by and
construed in accordance with the laws of the State of New York (other than the
conflict of laws provisions thereof). This Agreement constitutes the entire
agreement between the parties with respect to the subject matter hereof and
controls and supersedes any prior understandings, agreements or representations
by or between the parties, written or oral with respect to its subject matter,
including but not limited to the provisions of any and all employment
agreements and offer letters (such as terms providing for acceleration or other
enhancement to restricted stock or other equity interests in the event of the
occurrence of specified events), except
and only to the extent of any obligations of the Company or its Affiliates
relating to Section 280G of the Internal Revenue Code, and may not be
modified except by written instrument executed by the parties. The Participant
has not relied on any representation not set forth in this Agreement.


 


14.           Section
409A. This Agreement is intended to comply with the short-term deferral
rules under Section 409A of the Internal Revenue Code (and the regulations
thereunder) and shall be limited, construed and interpreted in a manner so as
to comply therewith. Notwithstanding anything herein to the contrary, any
provision in this Agreement that is inconsistent with the short-term deferral
rules under Section 409A of the Internal Revenue Code (and the regulations
thereunder) shall be deemed to be amended to comply with Section 409A (and the
regulations thereunder) and to the extent such provision cannot be amended to
comply therewith, such provision shall be null and void.


 


15.           Appendices.
It is understood and agreed that the Appendices hereto form an integral part of
this Agreement. The Participant agrees to comply with the provisions of the
Appendices, including, but not limited to, the provisions of Appendix B and Appendix C.


 


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The Participant acknowledges that the
Participant (1) has been advised to consult with an attorney prior to executing
this Agreement, (2) has read this Agreement (including the Appendices)
carefully and understands all of its terms, including but not limited to (x)
the provisions of Appendix B relating to confidentiality and non-solicitation
and (y) the provisions of Appendix C requiring mandatory arbitration of
controversies or claims whether or not related to the RSUs granted hereunder,
and (3) understands that the Participant is giving up valuable rights,
including a right to a jury trial.


 


IN WITNESS WHEREOF, this
Agreement has been executed as of the date first above written.


 


	
   

  	
  MONSTER WORLDWIDE, INC.

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Participant – Signature

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Participant – Print Name

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Participant – Global ID/SSN

  
							



 


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APPENDIX A


 


Notwithstanding anything to the contrary in this
Agreement, the Participant shall not be entitled to any RSUs under this
Agreement unless and until the Committee determines that the                                              
were attained. Capitalized terms not defined elsewhere in this Agreement shall
have the meanings set forth in this Appendix
A.


 


1.             In
the event the Committee determines that the                                                      were attained, then this Agreement
shall apply to the full number of RSUs specified in Section 1 above.


 


2.             In
the event that the Committee determines that the                                                     
equal or exceed the                                                     
but are less than the                                     ,
the number of RSUs to which this Agreement applies shall automatically be
reduced as follows:


 


a.             In
the event that the Committee determines that                                        
equal or exceed the                                 
but are less than           %
of the                                     ,
the number of RSUs reflected in Section 1
hereof shall automatically be reduced to                 .


 


b.             In
the event that the Committee determines that the                                         
equal or exceed            %
of the                                
but are less than         %
of the                                 ,
the number of RSUs reflected in Section 1
hereof shall automatically be reduced to                 .


 


c.             In
the event that the Committee determines that the                                 
equal or exceed          %
of the                                 
but are less than           %
of the                                             ,
the number of RSUs reflected in Section 1
hereof shall automatically be reduced to           .


 


d.             In
the event that the Committee determines that the                                              
equal or exceed          %
of the                                    
but are less than                %
of the                             ,
the number of RSUs reflected in Section 1
hereof shall automatically be reduced to               .


 


e.             In
the event that the Committee determines that the                                    
equal or exceed        %
of the                                        
but are less than the                                         ,
the number of RSUs reflected in Section 1
hereof shall automatically be reduced to            .


 


All determinations by the Committee referred to in
this Appendix A shall be (i) made
on or after                             but
on or prior to                                          ,
(ii) made in the Committee’s sole and absolute discretion, (iii) to the extent
applicable, made in accordance with the requirements of Section 162(m) of the
Internal Revenue Code (and the regulations thereunder) and (iv) final and
binding for all purposes.


 


Notwithstanding anything in this Agreement to the
contrary, no fractional RSUs shall be issued under this Agreement and in the
event of any fractions the actual number of RSUs shall in each event be rounded
down to the nearest whole number of RSUs. The adjustments to the


 


8

















 


number of RSUs
contemplated by this Appendix A
are automatic and shall be effective without any further action by the parties.


 


For purposes of clarity, it is understood and agreed
that in the event the Committee determines, in its sole and absolute
discretion, that the                                                     
were not attained, then no RSUs shall vest or be deliverable to the Participant
under the terms of this Agreement. In the event the Committee, in its sole and
absolute discretion, determines that the                                                     
were attained, the terms and conditions of this Agreement, including but not
limited to the vesting terms, shall be applicable; provided, however, that the
foregoing terms are not intended and shall not be construed or interpreted to
give the Committee the power to increase the shares or amount otherwise due
under RSUs granted to a “covered employee” within the meaning of Section
162(m)(3) of the Internal Revenue Code.


 


Certain Definitions:


 


[Applicable defined terms to be included]


 


[This entire Appendix A will
vary depending on the nature and details of applicable performance goals]


 


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APPENDIX B


 


NONSOLICITATION; CONFIDENTIALITY


 


As a material inducement to the Company to grant the
RSUs contemplated by the terms of this Agreement and to enter into this
Agreement, the Participant hereby expressly agrees to be bound by the following
covenants, terms and conditions.


 


(a)           During
the course of the Participant’s relationship with the Company or any of its
Affiliates, the Participant has had, and will have, access to trade secrets,
proprietary and confidential information relating to the Company and its
Affiliates and their respective clients, including but not limited to, marketing
data, financial information, client lists (including without limitation,
Rolodex type or computer based compilations maintained by the Company or its
Affiliates or the Participant), and details of programs and methods, pricing
policies, strategies, profit margins and software, in each case of the Company,
its Affiliates and/or their respective clients. During the term of the
Participant’s employment with one or more of the Company and its Affiliates and
thereafter, the Participant agrees to keep secret and retain in strictest
confidence all of such trade secret, proprietary and confidential information,
and will not disclose, disseminate or use such information for the
Participant’s own advantage or for the advantage of any other person or entity.
In the event disclosure of any such trade secret, proprietary and confidential
information is required or purportedly required by law, the Participant will
provide the Company with prompt notice of any such requirement so that the
Company may seek an appropriate protective order.


 


(b)           Through
the date which is one year after the last day of the Participant’s employment
with the Company or any of its Affiliates (such last day is sometimes referred
to herein as the “Termination Date”), except prior to the Termination Date on
behalf of the Company and its Affiliates in accordance with the terms of the
Participant’s employment, the Participant will not, directly or indirectly,
solicit or perform Business (as defined below) related services for, or
interfere with or endeavor to entice away from the Company or any of its
Affiliates, any client to whom the Company or any of its Affiliates provided
services at any time during the 12 months preceding the Termination Date, or any prospective client to whom the Company or any of its
Affiliates had made a formal presentation at any time during the 12 months
preceding the Termination Date, and the Participant will not, directly or
indirectly, hire, attempt to hire, solicit for employment or encourage the
departure of any employee of the Company or any of its Affiliates or any
individual who was employed by the Company or any of its Affiliates at any time
during the 12 months preceding the Termination Date. As used herein, the term
“Business” means any and all businesses in which the Company and/or any of its
Affiliates is currently involved or becomes engaged at any time prior to the
Termination Date, including, but not limited to, the recruitment
advertising business (which includes, without limitation, the placement
of recruitment-related advertising) and the Monster businesses (which include, without
limitation, the operation of an online careers website, online job board,
website providing access to job listings, resumes and/or career related tools
or content, and the businesses provided by the Company or any of its Affiliates
through tickle.com, military.com, fastweb.com and monstertrak.com.


 


(c)           The
Participant acknowledges that in the event the Participant violates any
provisions of this Appendix B, in
addition to its other rights and remedies, the Company shall be entitled to
injunctive relief without the necessity of proving actual damages. The
Participant


 


10

















 


acknowledges
that if any provision of this Appendix B is
held to be unenforceable, the court making such holding shall have the power to
modify such provision and in its modified form such provision shall be
enforced.


(d)           The
Participant acknowledges and agrees that the provisions of this Appendix B are in addition to, and not in lieu of,
any non-solicitation, confidentiality, non-competition, nonraid and/or similar
obligations which the Participant may have with respect to the Company and/or
its Affiliates, whether by agreement, fiduciary obligation or otherwise and
that the grant and vesting of the RSUs contemplated by this Agreement are
expressly made contingent on the Participant’s compliance with the provisions
of this Appendix B.  Without in any way
limiting the provisions of this Appendix B, the
Participant further acknowledges and agrees that the provisions of this Appendix B shall remain applicable in accordance with their
terms after the Participant’s Termination Date, regardless of whether (i) the
Participant’s termination or cessation of employment is voluntary or
involuntary or (ii) the RSUs have not vested or will not vest.acknowledges and
agrees that the provisions of this Appendix B
shall remain applicable in accordance with their terms after the Participant’s
Termination Date, regardless of whether (i) the Participant’s termination or
cessation of employment is voluntary or involuntary or (ii) the RSUs have not
vested or will not vest.


 


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APPENDIX C



AGREEMENTS TO ARBITRATE CLAIMS


 


1.             Agreement
to Arbitrate Claims (Employment and Termination of Employment).


 


(a)           Any
controversy or claim (contract, tort, or statutory) under federal, state, or
local law between the Company or any of its Affiliates (or any of their
respective benefit plans, benefit plan sponsors, fiduciaries, administrators,
successors and assigns) and the Participant arising out of or in connection
with the Participant’s employment with the Company or any of its Affiliates, or
the termination of that employment (with the exception of any workers’
compensation or unemployment compensation claims, claims for employee benefits
where the applicable benefit plan or pension plan expressly specifies that its
claims procedure shall culminate in an arbitration procedure different from the
one described in this Appendix C, Section 1
or any claim for equitable or injunctive relief contemplated by or referred to
in Appendix B of this Agreement),
including without limitation the construction or application of any of
the terms, provisions or conditions of this Agreement, shall be submitted to
final and binding arbitration in accordance with this Appendix C, Section 1. With respect to
individuals who at the date of this Agreement or thereafter are, were or at any
time hereafter become employed by the Company or any of its Affiliates in, or
are, were or become residents or citizens of, the United States (“US
Employees”), such arbitration shall be compelled and enforced according to the
Federal Arbitration Act and shall be conducted according to the then-current National
Rules for the Resolution of Employment Disputes of the American Arbitration
Association except as otherwise provided herein. With respect to all
individuals who are, were or become employees of the Company or any of its
Affiliates who do not qualify as US Employees under the foregoing definition,
such arbitration shall be compelled, enforced and conducted according to such
rules as the parties may agree at the time of commencement of the arbitration
and, in the absence of any such agreement, in accordance with the Federal
Arbitration Act and the then-current National Rules for the Resolution of
Employment Disputes of the American Arbitration Association except as otherwise
provided herein. The current National Rules, and other information about the American
Arbitration Association, can be accessed via the Internet at www.adr.org or can be obtained from the Company by a request
directed to its VP-Human Resources. The arbitrator shall be appointed by
agreement of the parties hereto or, if no agreement can be reached, by the
American Arbitration Association pursuant to its rules. The arbitrator shall
apply the substantive law (and the law of remedies, if applicable) of the state
or other jurisdiction in which the claim arose, or federal law, or both, as applicable
to the claim(s) asserted. Without limiting the arbitrator’s power and
authority, it is understood that (i) the arbitrator shall have exclusive
authority to resolve any dispute relating to the interpretation, applicability
or formation of this Agreement, including but not limited to the provisions of
this Appendix C, Section 1, and
any claim that all or any part of this Agreement is void or voidable and (ii)
the arbitrator shall have the authority to entertain motions to dismiss and
motions for summary judgment by any party and shall apply the standards
governing such motions under the Federal Rules of Civil Procedure (unless
otherwise agreed to by the parties in connection with disputes involving a
non-US Employee).


 


(b)           Without
in any way limiting the breadth of the controversies or claims intended to be
covered by the arbitration agreement set forth in this Appendix C, Section 1, it is understood and
agreed that this agreement to arbitrate shall include without limitation
any and all controversies, claims or allegations arising out of or in
connection with the Age Discrimination 


 


12

















 


in Employment Act,
the Americans with Disabilities Act, Title VII of the Civil Rights Act, the
Family and Medical Leave Act, the Fair Labor Standards Act, the Rehabilitation
Act, the Employee Retirement Income Security Act, the Equal Pay Act, the
Uniformed Services Employment and Reemployment Rights Act, the Worker
Adjustment and Retraining Notification Act, any federal, state or local statute
prohibiting discrimination or harassment (on the basis of sex, race, color,
national origin, ancestry, religion, age, marital status, veteran status,
pregnancy, sexual orientation, medical condition, handicap, disability or
otherwise), any alleged wrongful employment practice, any alleged wrongful
termination, and any allegation concerning the failure to pay wages, bonuses,
compensation or benefits.


 


(c)           The
aggrieved party must initiate arbitration by sending written notice of an intention
to arbitrate by registered or certified mail or by courier to the other party.
The notice to the Company or one of its Affiliates shall be sent to the
Company’s VP-Human Resources. The notice to the Participant shall be sent to
the Participant’s last known address (as noted in the Participant’s personnel
file). This notice must contain a description of the dispute and the remedy
sought. The arbitrator shall be impartial and experienced in employment
matters. Judgment on the award the arbitrator renders may be entered in any
court having jurisdiction over the parties. The arbitration shall be conducted
in the county or within 75 miles of the county where the Participant is
employed or was last employed by the Company or one of its Affiliates. Each
party may be represented by an attorney or other representative selected by the
party. Each party shall have the right to take the deposition of one individual
and any expert witness proposed to be utilized by another party and to make
requests for production of documents; additional discovery may be had only
where the arbitrator selected pursuant to this Appendix C, Section 1 so orders, upon showing of substantial
need. Each party shall have the right to subpoena witnesses and documents for
the arbitration. At least 30 days before the arbitration, each party must
provide to the other lists of witnesses, including any expert, and copies of
all exhibits intended to be used at arbitration.


 


(d)           Each
party to the arbitration shall equally share the fees and costs of the
arbitrator. Each party will deposit funds or post other appropriate security
for its share of the arbitrator’s fees, in an amount and manner determined by
the arbitrator, 10 days before the first day of hearing. If the Participant
cannot pay the Participant’s share of arbitrator fees and other related costs
due to financial hardship, the Participant can make a request to the arbitrator
for financial relief. If the arbitrator agrees that the Participant cannot pay
and grants the Participant’s request, the other party to the arbitration (or
the Company) shall advance the Participant’s share of the fee and other related
costs, or any portion thereof so ordered by the arbitrator. If this occurs, the
Participant understands that the arbitrator is required to address the
Participant’s share of the arbitrator’s fee and other related costs, and the
Participant’s potential obligation to reimburse the other party to the
arbitration (or the Company) for that fee and those costs, in the arbitrator’s
decision. Each party to the arbitration shall pay for its own costs and
attorneys’ fees, if any, incurred in pursuing or defending the claim submitted
to arbitration. However, if any party prevails on a statutory claim which
affords the prevailing party attorneys’ fees, or if there is a written
agreement providing for attorneys’ fees, the arbitrator may award reasonable
attorneys’ fees to the prevailing party. The arbitrator may also award costs,
including the cost of the arbitrator’s fees, to the prevailing party.


 


(e)           This
agreement to arbitrate shall survive the expiration or termination of this
Agreement and termination of the Participant’s employment for any reason. This
arbitration procedure, which substitutes an arbitral forum for a judicial
forum, is intended to be the 


 


13

















 


exclusive method
of resolving any claim arising out of or in connection with the Participant’s
employment with the Company or any of its Affiliates, or the termination of
that employment, with the exception of any workers’ compensation claim or
unemployment compensation claim, any claim for employee benefits where the
applicable benefit plan or pension plan expressly specifies that its claims
procedure shall culminate in an arbitration procedure different from the one
described in this Appendix C, Section 1
or any claim for equitable or injunctive relief contemplated by or referred to
in Appendix B of this Agreement.
If any part of this agreement to arbitrate is found to be void as a matter of
law or public policy, the remainder of the agreement to arbitrate will continue
to be in full force and effect to the maximum extent permissible.


 


(f)            No
claim may be brought under this arbitration procedure on behalf of any other
person or entity. The Company and its Affiliates (and any of their respective
benefit plans, benefit plan sponsors, fiduciaries, administrators, successors
or assigns) reserve the right to sever or consolidate claims in each instance
at its option in order to facilitate case processing and to lower costs.


 


2.             Agreement
to Arbitrate Claims (Non-Employment Matters).


 


(a)           Any
controversy or claim (contract, tort, or statutory) under federal, state, or
local law between the Company or any of its Affiliates (or any of their
respective benefit plans, benefit plan sponsors, fiduciaries, administrators,
successors and assigns) and the Participant that is not covered by the
provisions of Appendix C, Section 1
above, including but not limited to those arising out of or in connection with
the Participant’s services for the Company or any of its Affiliates in a
capacity other than as an employee, or the termination of those services (with
the exception of any workers’ compensation claim or unemployment compensation
claim, any claim for employee benefits where the applicable benefit plan or
pension plan expressly specifies that its claims procedure shall culminate in
an arbitration procedure different from the one described in Appendix C, Section 1 above or any claim
for equitable or injunctive relief contemplated by or referred to in Appendix B of this Agreement), including without
limitation the construction or application of any of the terms, provisions
or conditions of this Agreement (in the event the provisions of Appendix C, Section 1 are inapplicable to
the construction or application of the terms, provisions or conditions of this
Agreement), shall be submitted to final and binding arbitration in accordance
with this Appendix C, Section 2.
With respect to (i) individuals who at any time provide or provided any
services to the Company in the United States, or are, were or become residents
or citizens of, the United States, or (ii) any controversy or claim relating to
any issue arising in the United States (the items described in (i) and (ii) are
collectively referred to as “US Claims”), the arbitration contemplated by this Appendix C, Section 2 shall be compelled
and enforced according to the Federal Arbitration Act and shall be conducted
according to the then-current Commercial Arbitration Rules of the American
Arbitration Association except as otherwise provided herein. With respect to
any other arbitration contemplated by this Appendix
C, Section 2 that is not dealt with in the preceding sentence, such
arbitration shall be compelled, enforced and conducted according to such rules
as the parties may agree at the time of commencement of the arbitration and, in
the absence of any such agreement, in accordance with the Federal Arbitration
Act and the then-current Commercial Arbitration Rules of the American
Arbitration Association except as otherwise provided herein. The current
Commercial Arbitration Rules, and other information about the American
Arbitration Association, can be accessed via the Internet at www.adr.org or can be obtained from the Company by a request
directed to its Vice-President, Human Resources. The arbitrator shall be
appointed by agreement 


 


14

















 


of the parties
hereto or, if no agreement can be reached, by the American Arbitration Association
pursuant to its rules. The arbitrator shall apply the substantive law (and the
law of remedies, if applicable) of the state or other jurisdiction in which the
claim arose, or federal law, or both, as applicable to the claim(s) asserted.
Without limiting the arbitrator’s power and authority, it is understood that
(i) the arbitrator shall have exclusive authority to resolve any dispute
relating to the interpretation, applicability or formation of this Agreement,
including but not limited to the provisions of this Appendix C, Section 2, and any claim that all or any part of
this Agreement is void or voidable and (ii) the arbitrator shall have the
authority to entertain motions to dismiss and motions for summary judgment by
any party and shall apply the standards governing such motions under the
Federal Rules of Civil Procedure (unless otherwise agreed to by the parties in
connection with disputes involving a non-US Claim).


 


(b)           The
aggrieved party must initiate arbitration by sending written notice of an intention
to arbitrate by registered or certified mail or by courier to the other party.
The notice to the Company or one of its Affiliates shall be sent to the
Company’s VP-Human Resources. The notice to the Participant shall be sent to
the Participant’s last known address (as noted in the records of the Company or
an Affiliate of the Company). This notice must contain a description of the
dispute and the remedy sought. The arbitrator shall be impartial and
experienced in commercial matters. Judgment on the award the arbitrator renders
may be entered in any court having jurisdiction over the parties. The
arbitration shall be conducted in the county or within 75 miles of the county
(x) where the Participant provides services to, or last provided services to, the
Company or one of its Affiliates in a capacity other than as an employee or, if
no services are or were provided by the Participant in any such capacity, (y)
where the issue arose. Each party may be represented by an attorney or other
representative selected by the party. Each party shall have the right to take
the deposition of one individual and any expert witness proposed to be utilized
by another party and to make requests for production of documents; additional
discovery may be had only where the arbitrator selected pursuant to this Appendix C, Section 2 so orders, upon
showing of substantial need. Each party shall have the right to subpoena
witnesses and documents for the arbitration. At least 30 days before the
arbitration, each party must provide to the other lists of witnesses, including
any expert, and copies of all exhibits intended to be used at arbitration.


 


(c)           Each
party to the arbitration shall equally share the fees and costs of the
arbitrator. Each party will deposit funds or post other appropriate security
for its share of the arbitrator’s fees, in an amount and manner determined by
the arbitrator, 10 days before the first day of hearing. Each party to the
arbitration shall pay for its own costs and attorneys’ fees, if any, incurred
in pursuing or defending the claim submitted to arbitration. However, if any
party prevails on a statutory claim which affords the prevailing party
attorneys’ fees, or if there is a written agreement providing for attorney’s
fees, the arbitrator may award reasonable attorneys’ fees to the prevailing
party. The arbitrator may also award costs, including the cost of the
arbitrator’s fees, to the prevailing party.


 


(d)           This
agreement to arbitrate shall survive the expiration or termination of this
Agreement and termination of the Participant’s relationship with the Company or
any of its Affiliates for any reason. This arbitration procedure, which
substitutes an arbitral forum for a judicial forum, is intended to be the
exclusive method of resolving any claim or controversy that is not covered by
the provisions of Appendix C, Section 1
above, including but not limited any claim or controversy arising out of or in
connection with the Participant’s services for the Company or any of its
Affiliates in a capacity other than as an employee, or the termination of 


 


15

















 


those services,
but this arbitration procedure does not apply to any workers’ compensation
claim or unemployment compensation claim, any claim for employee benefits where
the applicable benefit plan or pension plan specifies that its claim procedure
shall culminate in an arbitration procedure different from the one described in
Appendix C, Section 1 above, or to
any claim for equitable or injunctive relief contemplated by or referred to in Appendix B of this Agreement. If any part
of this agreement to arbitrate is found to be void as a matter of law or public
policy, the remainder of the agreement to arbitrate will continue to be in full
force and effect to the maximum extent permissible.


 


(e)           No
claim may be brought under this arbitration procedure on behalf of any other
person or entity. The Company and its Affiliates (and any of their respective
benefit plans, benefit plan sponsors, fiduciaries, administrators, successors
or assigns) reserve the right to sever or consolidate claims in each instance
at its option in order to facilitate case processing and to lower costs.


 


16