VOYA 2015 Q1 10-Q EX 10.4






Exhibit 10.4
2015 Award Agreement
under the
Voya Financial, Inc.
2014 Omnibus Employee Incentive Plan


Grantee: 
Grant Date:
Restricted Stock Units Granted:
Performance Stock Units Granted:


Article 1 - General


		
	1.1 
	Capitalized terms used but not defined in this agreement (this “Agreement”) shall, unless the context otherwise requires, have the same definition as in the  Voya  Financial,  Inc.  2014 Omnibus Employee Incentive Plan (the “Plan”).  Unless otherwise stated or  the  context so requires, the singular shall be construed to mean the plural, and vice versa.




		
	1.2 
	This Award is subject to the terms and conditions of the Plan and as set  forth  below  in   this Agreement.  The provisions of this Agreement shall govern and prevail in  the  event  of any conflict with the Plan. Any conflicting or inconsistent term of this Agreement shall be interpreted and implemented by the Committee in a manner consistent with the Plan.




		
	1.3
	The Grantee has read the Plan, and accepts   and  agrees to  the  terms  and  conditions  thereof.




Article 2 - Awards


2.1     Award of RSUs.


		
	(a)
	Award. Grantee is hereby granted the number of restricted stock units  (“RSUs”,  and each an “RSU”) indicated above immediately adjacent to  the  caption  “Restricted Stock Units Granted”. Each RSU represents a conditional right  to   receive one share of Common Stock, subject to Article 3.1(a).  




		
	(b)
	Grant Date of Award. The grant date of this Award of RSUs is the date indicated above immediately adjacent to the caption “Grant Date” (the “Grant Date”).




		
	(c)
	Consideration. No consideration is payable by the  Grantee  in  respect  of  this   Award of RSUs.















2.2     Award of PSUs.


		
	(a)
	Award. Grantee is  hereby  granted  the  number  of  performance  share  units  (“PSUs”, and each a “PSU”) indicated above immediately adjacent to the caption “Performance Share Units Granted”.  Each PSU represents a conditional right to receive a number of shares of Common Stock subject, and determined according, to Section 3.1(b)(ii).




		
	(b)
	Grant Date of Award.  The grant date of this Award of PSUs is the Grant Date.




		
	(c)
	Consideration.  No consideration is payable by the Grantee  in  respect  of  this   Award of PSUs.




Article 3 - Vesting and Delivery of Award


3.1    Scheduled Vesting Dates.  


		
	(a)
	Vesting of Awards of RSUs. Subject to Articles 3.2 and 3.4 below, this Award of RSUs will vest one-third on the first anniversary of the Grant Date, one-third  on  the second anniversary of the Grant Date and one-third on the third anniversary of  the Grant Date (each, a “Vesting Date”),  provided  that  the  Grantee  is  still  Employed by the Company  on  each  of  the  respective  Vesting  Dates.  Any  fractional shares that would otherwise vest on a Vesting Date will vest on the last Vesting Date.  In the event there are any fractional shares  on  the  final  Vesting  Date, the number of RSUs that vest on that final Vesting Date will be rounded up  to the nearest whole share. As soon as practicable following  each  Vesting  Date  (but in any event no later than the end of the calendar year in which such Vesting Date occurs), one share of Common Stock shall be delivered to the Grantee  in  respect of each RSU vesting on such Vesting Date.




		
	(b)
	Vesting of Awards of PSUs. (i) Subject to Articles 3.3 and 3.4 below,  this  Award  of PSUs will vest one-third on the Vesting Date that is the first anniversary of the Grant Date, one-third on the Vesting Date that is the second anniversary  of  the  Grant Date and one-third on the Vesting Date that is the third anniversary of the Grant Date, provided that the Grantee is still Employed by the Company on  each  of the respective Vesting Dates.  Any fractional shares that would otherwise  vest  on a Vesting Date will vest on the last Vesting Date.  In the event there are any fractional shares on the final Vesting Date, the number of PSUs that vest on that  final Vesting Date will be rounded up to the nearest whole share.




		
	(ii)
	As soon as practicable following each Vesting Date (but in any event  no  later  than the end of the Calendar Year in which such Vesting Date occurs), a number of shares of Common Stock shall be delivered to the Grantee in respect of each                     PSU vesting on such date, equal to the number of such PSUs multiplied by a performance  factor  (a “Performance Factor”) applicable to the performance  period (each such period, a “Performance Period”) last ended as of such Vesting                            Date.  The beginning and ending dates of each Performance Period shall be as                                                                               



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set forth in Annex A. The Performance Factor for each Performance Period will be determined based on the level of achievement, over the course of such Performance Period, of one or more Company-wide or business-unit specific financial, operational or other goals, as set forth in Annex A hereto.  Grantee understands and acknowledges that the Performance Factor may be zero if applicable minimum goals are not met, and that the Performance Factor may not exceed the maximum amount set forth in Annex A.  To the extent set forth on Annex A, Performance Factors and performance goals with respect to certain Performance Periods applicable to this Award of PSUs may  be  communicated   to Grantee during the term of this Award Agreement and shall, when so communicated, be deemed to form a part of Annex A hereto as if incorporated herein.   


		
	3.2 
	Termination of Employment - RSUs.  




		
	(a)
	If Grantee’s Employment is terminated by the Company other than for Cause (as such term is defined in the Employment Agreement) or is terminated by Grantee   for Good Reason (as such  term  is  defined  in  the  Employment  Agreement),  then  any unvested RSUs shall continue to vest, and shares of Common  Stock  will  continue to be delivered, according to the schedule (and as otherwise) set forth in Section 3.1(a); provided, however, that if Section 3.2(c) or Section 3.2(d) of this Agreement shall also apply to the termination of Grantee’s Employment, such provisions shall supersede this Section 3.2(a) (and for the avoidance of doubt,  if  the Termination Date is within two years following a Change of  Control,  then  Section 3.4(a) of this Agreement and Section 3.6 of the Plan shall govern the  treatment of the Award evidenced by this Agreement, to the extent any  provision  of this Agreement is inconsistent with Section 3.4(a) of the Agreement or Section 3.6 of the Plan).




		
	(b)
	If Grantee’s Employment is terminated by Grantee other than  for  Good  Reason  (as such term is defined in the Employment Agreement), then:




		
	(i)
	If the Termination Date is on or before December 31, 2016, any unvested RSUs as of the Termination Date shall continue to vest, and shares of Common Stock will continue to be delivered, according to the schedule (and as otherwise)  set  forth in Section 3.1(a), provided, however, that on the second anniversary of the Termination Date, each RSU that was unvested as of the Termination Date and that has not vested as of the day immediately preceding the second anniversary   of the Termination Date shall expire and Grantee shall have no further rights thereunder (other than rights with respect to settlement and share delivery  of   vested awards); or




		
	(ii)
	If the Termination Date is on or after January 1, 2017, any unvested RSUs as of the Termination Date shall continue to vest, and shares of Common Stock will continue to be delivered, according to the schedule (and as otherwise) set  forth  in Section 3.1(a), provided, however, that the number of RSUs that will vest on each such Vesting Date will be equal to the product determined by multiplying                                    





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(x) the number of RSUs that otherwise would have been vested on such Vesting Date by (y) a fraction the numerator of which is the sum of (A) the number  of   full and partial months which have elapsed from  the  Grant  Date  to  the   Termination Date and (B) 24 months, and the denominator of which is the total number of months between the Grant Date and such Vesting Date (provided that such fraction shall not exceed 1); any unvested  RSUs  as  of  the  Termination  Date that would not vest on their respective Vesting Dates pursuant  to  the  foregoing formula shall, as of the Termination Date, expire and  Grantee  shall  have no further rights thereunder (other than rights with  respect  to  settlement  and share delivery of vested awards).


		
	(c)
	If Grantee’s Employment is terminated as a result of Grantee’s Disability (as such term is defined in the Employment Agreement), then any  unvested  RSUs  shall  vest as of the Termination Date  and  one  share  of  Common  Stock  shall  be  delivered to the Grantee in respect of each such vested RSU as soon as practicable following the Termination Date (but in any event no later than March 15 of the calendar year following the calendar year in which the Termination Date occurs);  or




		
	(d)
	If Grantee’s Employment is terminated as a result of Grantee’s death, then any unvested RSUs shall vest and one share of Common Stock shall be  delivered  to  the Grantee’s beneficiary or estate, as the case may be, in respect of each vested  RSU as soon as practicable following the date of death (but in any event no later than March 15 of the calendar year following the calendar year in which the death occurs).




		
	3.3
	Termination of Employment - PSUs.  


		
	(a)
	If Grantee’s Employment is terminated by the Company other than for Cause (as such term is defined in the Employment Agreement) or is terminated by  Grantee  for Good Reason (as such term is defined in the Employment  Agreement),  then  any unvested PSUs shall continue to vest, and shares of  Common  Stock will   continue to be delivered, according to the schedule (and as otherwise) set forth in Section 3.1(b), and the number of shares of Common Stock to be  delivered to   Grantee in respect of each such vesting PSU will be  determined  in  accordance  with Section 3.1(b)(ii); provided, however, that if Section 3.3(c) or Section 3.3(d) of this Agreement shall also apply to the termination of Grantee’s  Employment,  such provisions shall supersede  this  Section  3.3(a)  (and for the  avoidance of  doubt, if the Termination Date is within two years following a Change of Control, then Section 3.4(a) of this Agreement and Section 3.6 of the Plan shall govern the treatment of the Award evidenced by this Agreement, to the extent any  provision  of this Agreement is inconsistent with Section 3.4(a) of the Agreement or Section 3.6 of the Plan).




		
	(b)
	If Grantee’s Employment is terminated by Grantee other than for Good Reason              (as such term is defined in the Employment Agreement), then:





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	(i)
	If the Termination Date is on or before December 31, 2016, any unvested PSUs as of the Termination Date shall continue to vest, and shares of Common Stock will continue to be delivered, according to the schedule (and as otherwise)  set  forth in Section 3.1(b), and the number of shares of  Common  Stock  to  be   delivered to Grantee in respect of each such vesting PSU will be determined in accordance with Section 3.1(b)(ii), provided, however, that on the second anniversary of the Termination Date, each PSU that was unvested as of the Termination Date and that has not vested as of the day  immediately  preceding  the second anniversary of the Termination Date shall expire and Grantee  shall  have no further rights thereunder (other than rights with  respect  to  settlement  and share delivery of vested awards); or




		
	(ii)
	If the Termination Date is on or after January 1, 2017, any unvested PSUs as of the Termination Date shall continue to vest, and shares of Common Stock will continue to be delivered, according to the schedule (and as otherwise) set  forth  in Section 3.1(b), and the number of shares of Common Stock to be delivered to Grantee in respect of each such vesting PSU will be determined in accordance  with Section 3.1(b)(ii), provided, however, that the number of PSUs  that  will   vest on each such Vesting Date will be equal to the product determined by multiplying (x) the number of PSUs that otherwise would have been vested on such Vesting Date by (y) a fraction the numerator of which is the sum of (A) the number of full and partial months which have elapsed from the Grant  Date  to    the Termination Date and (B) 24 months, and the denominator of which is  the  total number of months between  the  Grant  Date  and  such   Vesting  Date  (provided that such fraction shall not exceed 1); any unvested PSUs as of the Termination Date that would not vest on their respective Vesting Dates pursuant to the foregoing formula shall, as of the Termination Date, expire and Grantee   shall have no further rights  thereunder  (other  than rights  with  respect  to  settlement and share delivery of vested awards).




		
	(c)
	If Grantee’s Employment is terminated as a result of Grantee’s Disability, then,  as of the Termination Date, all unvested PSUs shall vest and (A) with respect to  unvested PSUs that relate to a Performance Period that has not yet commenced        prior to the Termination Date (if any), a number of shares of Common Stock shall be delivered to Grantee in respect  of  each  such  PSU,  such  number  to  be  determined in accordance with Section  3.1(b)(ii)  using  a  Performance  Factor  equal to 100%     and (B) with respect to unvested PSUs that relate to a Performance Period that has commenced but for which the corresponding Vesting Date has not yet occurred as of the Termination Date (each, an “Open Performance Period”),  a number of shares of Common Stock shall be delivered to Grantee in respect of                     each such  PSU,  such  number  to  be  determined  in  accordance  with   Section  3.1(b)(ii) using a Performance Factor equal to (x) if the Committee shall have determined, prior to the Termination Date, a Performance Factor with respect to                                                      such Open Performance Period (including a Performance Factor calculated on an interim basis with respect to such Open Performance Period,  if  the  Committee  shall have made such a determination), the most recently determined Performance Factor for such Open Performance Period or (y) if no such Performance Factor                                                                 





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shall have been determined with respect to such Open Performance Period prior to the Termination Date, a Performance Factor of 100%;  the  shares  of  Common  Stock (if any) so calculated pursuant to clauses (A) and (B) of this paragraph shall be delivered to the Grantee as soon as practicable following the Termination Date (but in any event no later than March 15 of  the  calendar  year  following  the   calendar year in which the Termination Date occurs); or


		
	(d)
	If Grantee’s Employment is terminated as a result of Grantee’s death, then, as  of  the date of death, all unvested PSUs shall vest and (A) with respect to unvested   PSUs that relate to a Performance Period that has not yet commenced  as  of  the  date of death (if any), a number of shares of Common Stock shall be delivered to Grantee’s beneficiary or estate, as the case may be in respect of each such  PSU,  such number to be determined in accordance with Section 3.1(b)(ii) using a Performance Factor equal to 100% and (B) with respect to unvested  PSUs  that  relate to an Open Performance Period, a number of shares of Common Stock shall be delivered to Grantee’s beneficiary or estate, as the case may be, in respect  of  each such  PSU,  such  number  to  be  determined  in  accordance  with   Section  3.1(b)(ii) using (A) if the Committee shall have determined, prior to the date of  death, a Performance Factor with respect to such Open Performance Period (including a Performance  Factor calculated on an interim basis with  respect  to  such Open Performance Period, if the Committee shall have made such a determination), the most recently determined Performance Factor for such Open Performance Period or (B) if no such Performance Factor shall have  been  determined with respect to such  Open  Performance  Period prior to the date of  death, a Performance Factor of 100%; the shares of Common Stock (if any) so calculated pursuant to clauses (A) and (B) of this paragraph shall be delivered to  the Grantee’s beneficiary of  estate as soon  as  practicable following the date of                  death (but in any event no later than March 15 of the calendar year following the calendar year in which the death occurs).




		
	3.4 
	Termination of Employment - All Awards




		
	(a)
	In the event of a Change in Control, except as provided in Section 3.4(e) of this Agreement, the provisions of Section 3.6 of the Plan shall govern the treatment of this Award, which  provisions  shall supersede any provision of this  Agreement  (other than Section 3.4(e)) that is inconsistent with such Section 3.6.




		
	(b)
	If Grantee’s Employment is terminated for Cause (as such term is defined in the Employment Agreement), then this Award shall lapse immediately on the Termination Date and any unvested awards shall be forfeited.




		
	(c)
	Notwithstanding Articles 3.2 or 3.3, the Committee in its absolute discretion may consent to vest this Award in whole or in part to the extent it may determine and considers reasonable.



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	(d)
	Other than as set forth in Articles 3.2 and 3.3, any unvested RSUs or PSUs shall expire upon termination of  Employment  without  any  consideration  and  the  Grantee shall have no further rights thereto.




		
	(e)
	Notwithstanding  the terms of this  Agreement or the terms of Section 3.6 of the  Plan, Section 6(i) of the Employment Agreement shall govern the treatment of the Award evidenced by this Agreement, to the extent that such Section 6(i) provides for treatment of such Award that is  inconsistent with the terms of this Agreement  or Section 3.6 of the Plan.




		
	(f)
	The  vesting  of any  RSU or  PSU, and the  delivery of any shares of Common  Stock,  pursuant to  Sections 3.2(a), 3.2(b), 3.3(a) or 3.3(b) hereof shall be  conditioned on Grantee’s compliance with the conditions set forth in Section 6(g) of the  Employment  Agreement, and no  such RSUs or  PSUs shall vest, and no  such shares  of  Common  Stock shall be  delivered, if such conditions are not   satisfied.






Article 4 - Claw back and Hold back


4.1    Claw Back


		
	(a) 
	Notwithstanding the terms and conditions as specified in the Plan and this  Agreement, the Grantee expressly agrees that the Company shall have the right to reclaim any shares of Common  Stock that have been  delivered  to the Grantee    under the Plan in the event that he or she engages in conduct or performs acts that the Committee determines to be: 


    
		
	(i)
	malfeasance;




		
	(ii)
	fraud; or




		
	(iii)
	specific conduct, alone or in concert with others, which has led to the material restatement of the Company’s financial statements or significant harm to the Company.




		
	(b) 
	By signing this Agreement, the Grantee acknowledges that he or she understands and agrees that in the event the  Committee determines that Grantee has  engaged  in conduct or performed acts specified in  Section 4.1(a) and Grantee has sold all   or a portion of his or her shares of Common Stock after vesting, the Company has the right to claim from the Grantee an amount equal to the Fair Market Value of   such shares  at the  time of such  sale and the Grantee is  obliged  to  repay this  amount at first demand by the  Company, such payment to be made no later  than  30 days after the first demand.




		
	4.2
	Hold Back.  The Committee has the authority to adjust the number of RSUs and PSUs granted hereunder or to cancel this Award  if  the Grantee  engages in any conduct  or  



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performs any of the acts set forth in Section 4.1(a), above, as determined by the           Committee. 


Article 5 - Various


		
	5.1 
	Compliance  with  U.S.  Tax  Law.  The  Grantee understands  and   agrees  that  notwithstanding anything herein to the contrary, this Agreement, and the Award made  hereby, shall be administered in accordance with the applicable provisions of the U.S. Internal Revenue Code of 1986, as amended (the “Code”), including but not limited to, Section 409A of the Code. Notwithstanding anything in the Plan to the contrary, any adjustment of the Award granted hereby shall be made in compliance with Section  409A  of the Code. The Award granted hereby is intended to comply with Section 409A of the Code and will be administered and interpreted in accordance with that intent. In the event that the Grantee  is a  “specified  employee” (within  the  meaning of  the  Treasury   Regulations §1.409A‐1(i)) as of the date  of  the  Grantee’s  “separation from  service”  (within the  meaning  of  Treasury  Regulations  §1.409A‐1(h))  and  if, as  a  result,  any  shares  of Common  Stock cannot be  delivered, or this  Award cannot  be paid or  provided, in  either case in the manner  or  at  the  time  otherwise  provided in  Article 3,  without  subjecting the Grantee to “additional tax”, interest or penalties under Section 409A of the Code, then such shares shall be delivered, or this Award will be paid or provided, on the first day of the seventh month following the Grantee’s separation from service.




		
	5.2 
	Delivery of Common Stock or Sale of Common  Stock.  Except  as otherwise provided  above and notwithstanding anything in the Plan to the contrary, shares of Common Stock deliverable in respect of vested RSUs or PSUs, shall be  transferred  to  the  brokerage  account of the Grantee.  The Grantee shall provide instructions to the Company and to the administrator of the brokerage account  during  the designated period(s)  prior  to  the    relevant Vesting Date regarding the retention or sale of all or a portion of the delivered  shares of Common Stock, including in respect of tax withholding  obligations relating to  the vested RSUs or PSUs, in each case in accordance with the procedures established by the Company and the administrator of the brokerage account for the provision of such instructions.  If the Grantee fails to provide any such instructions during the designated period(s), the Grantee shall be deemed to have provided instructions to retain all of the delivered shares of Common Stock.  In all cases, however, the Company shall be entitled, at its sole option, to withhold or repurchase (at the market price of such shares at the time of delivery) Common Shares from Grantee in order to satisfy all or a portion of any tax withholding or similar obligations associated with the  vesting  or  delivery  of   such    Common Shares, and such withholding or  repurchase by the Company shall be  effected  in priority to any contrary default provision or instructions provided by Grantee.




		
	5.3 
	Dividend Equivalent  Rights.  The   Grantee  has, with respect to all  RSUs and  PSUs  granted hereby, a conditional right to receive amounts equal to the regular cash dividends that would have been paid on the shares of Common Stock deliverable upon vesting of                           such RSUs and PSUs as if such shares of Common Stock had been delivered on the Grant Date. Such amounts will be paid in cash, without interest, subject to the same terms and conditions, including but not limited to those related to vesting, forfeiture, cancellation         and payment, as apply to such RSUs and PSUs.  The Grantee  will have only the rights of 







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a general unsecured creditor of the Company until payment of such amounts is made as specified herein.




Article 6 - Governing law and Jurisdiction


		
	6.1 
	Governing law  and  jurisdiction. This  Agreement shall be governed by and shall  be  construed in accordance with the laws of the State of New York. The Company and the Grantee irrevocably submit, in respect of any suit, action or proceeding arising out of or relating to or concerning the Plan or the interpretation or enforcement of this Agreement, to the exclusive jurisdiction of any state or federal court located in New York, New York and to be bound by the provisions of Section 3.16 of the Plan.




		
	6.2
	Partial invalidity.  Parties expressly agree that the invalidity or unenforceability  of  an  Article or Articles of this Agreement shall not affect the validity or enforceability of any other Article of this Agreement and that the remainder of this  Agreement will remain in  full effect. Any such invalid or  unenforceable Article  shall be replaced or be  deemed to  be replaced by a provision that is considered to be valid and enforceable. The                    interpretation of the replacing Article shall be as close as possible to the intent of the            invalid or unenforceable Article.




Article 7 - Grantee Covenants


		
	7.1 
	In consideration of the Award granted under this Agreement, Grantee agrees to abide by     the provisions of Section 7 of the Employment Agreement.




		
	7.2 
	The Grantee acknowledges that the Grantee’s agreement to abide by the covenants set          forth in Section 7 of the Employment Agreement are a material inducement for the        Company to make the Award granted under this Agreement.


 
Article 8 - Definitions


		
	8.1 
	“Employment Agreement” shall mean the Employment Agreement, dated as of         December 11, 2014, between Voya Financial and Grantee.




		
	8.2
	“Termination Date” shall mean the date upon which Grantee’s Employment with the Company terminates.


        



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IN WITNESS WHEREOF, each of the parties hereto has signed this Agreement effective as of the date first written above.
 
	
					
	 
	 
	 
	 
	 

	VOYA FINANCIAL, INC.




                                                                        
Name:
Title:




                                                                        
Name:
Title:






GRANTEE




                                                                        


	 
	 
	 
	 

	 
	 
	 






























































[Signature page to Omnibus Plan 2015 Award Agreement]

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