the
Participant will be credited with a number of Performance Share Units equal to
the number of shares of Common Stock for which delivery is deferred.
Performance Share Units may be paid by the Company by delivery of shares of
Common Stock, in cash, or a combination thereof, as the Board shall in its sole
discretion deem appropriate, in accordance with the timing and manner of payment
elected by the Participant on his or her election form, or if no deferral
election is made, as soon as administratively practicable following the vesting
of the Performance Share Unit.
Each Performance Share Unit agreement shall be in such form and shall contain
such terms and conditions as the Board shall deem appropriate.
The terms and
conditions of Performance Share Unit agreements may change from time to time,
and the terms and conditions of separate Performance Share Unit agreements need
not be identical, but each Performance Share Unit agreement shall include
(through incorporation of provisions hereof by reference in the agreement or
otherwise) the substance of each of the following provisions:
(I)
CONSIDERATION.
A PERFORMANCE SHARE UNIT MAY BE AWARDED IN
CONSIDERATION FOR PAST SERVICES ACTUALLY RENDERED TO THE COMPANY OR AN AFFILIATE
FOR ITS BENEFIT.
THE BOARD SHALL HAVE THE DISCRETION TO PROVIDE THAT THE
PARTICIPANT PAY FOR SUCH PERFORMANCE SHARE UNITS WITH CASH OR OTHER
CONSIDERATION PERMISSIBLE BY LAW.
(II)
VESTING.
VESTING SHALL BE BASED ON THE ACHIEVEMENT OF CERTAIN
PERFORMANCE CRITERIA, WHETHER FINANCIAL, TRANSACTIONAL OR OTHERWISE, AS
DETERMINED BY THE BOARD.
VESTING SHALL BE SUBJECT TO THE PERFORMANCE SHARE UNIT
AGREEMENT.
UPON FAILURE TO MEET PERFORMANCE CRITERIA, SHARES OF COMMON STOCK
AWARDED UNDER THE PERFORMANCE SHARE UNIT AGREEMENT SHALL BE SUBJECT TO A SHARE
REACQUISITION RIGHT IN FAVOR OF THE COMPANY IN ACCORDANCE WITH A VESTING
SCHEDULE TO BE DETERMINED BY THE BOARD.
13
(III)
TERMINATION OF PARTICIPANT'S CONTINUOUS SERVICE.
IN THE EVENT A
PARTICIPANT'S CONTINUOUS SERVICE TERMINATES, THE COMPANY SHALL REACQUIRE ANY OR
ALL OF THE SHARES OF COMMON STOCK HELD BY THE PARTICIPANT THAT HAVE NOT VESTED
AS OF THE DATE OF TERMINATION UNDER THE TERMS OF THE PERFORMANCE SHARE UNIT
AGREEMENT.
(IV)
TRANSFERABILITY.
RIGHTS TO ACQUIRE THE VALUE OF SHARES OF COMMON
STOCK UNDER THE PERFORMANCE SHARE UNIT AGREEMENT SHALL BE TRANSFERABLE BY THE
PARTICIPANT ONLY UPON SUCH TERMS AND CONDITIONS AS ARE SET FORTH IN THE
PERFORMANCE SHARE UNIT AGREEMENT, AS THE BOARD SHALL DETERMINE IN ITS
DISCRETION, SO LONG AS COMMON STOCK AWARDED UNDER THE PERFORMANCE SHARE UNIT
AGREEMENT REMAINS SUBJECT TO THE TERMS OF THE PERFORMANCE SHARE UNIT AGREEMENT.
(V)
DISCRETIONARY ADJUSTMENTS AND LIMITS.
SUBJECT TO THE LIMITS
IMPOSED UNDER SECTION 162(M) OF THE CODE FOR STOCK AWARDS THAT ARE INTENDED TO
QUALIFY AS "PERFORMANCE-BASED COMPENSATION," NOTWITHSTANDING THE SATISFACTION OF
ANY PERFORMANCE GOALS, THE NUMBER OF SHARES OF COMMON STOCK GRANTED, ISSUED,
RETAINABLE AND/OR VESTED UNDER A PERFORMANCE SHARE UNIT MAY, TO THE EXTENT
SPECIFIED IN THE STOCK AWARD AGREEMENT, BE REDUCED, BUT NOT INCREASED, BY THE
COMMITTEE ON THE BASIS OF SUCH