Forfeiture. If the Optionee breaches any noncompetition, nonsolicitation, and/or assignment of inventions agreement or obligations with the Company, or breaches in any material respect any nondisclosure agreement (each, a “Protective Agreement”), the Company notifies the Optionee of such breach within one (1) year following the date on which it acquires actual knowledge thereof, and such breach is not cured within the time provided for such cure under such Protective Agreement, if applicable, then, absent a contrary determination by the Board (or its designee) (i) the Optionee shall immediately forfeit to the Company the Option granted hereunder, whether vested or unvested, and (ii) within ten (10) business days after receiving such notice from the Company, any Common Stock received pursuant to the exercise of the Option during the two (2) year period prior to the uncured breach of the Protective Agreement shall be subject to Clawback (as described herein). If, while employed by or providing services to the Company or any Affiliate, the Optionee engages in activity that constitutes fraud or other intentional misconduct and that activity directly results in any financial restatements, then (i) the Optionee shall immediately forfeit to the Company the Option, whether vested or unvested, and (ii) within ten (10) business days after receiving notice from the Company, any Common Stock received pursuant to the exercise of the Option shall be subject to Clawback. In addition, the Company shall retain the right to bring an action at equity or law to enjoin the Optionee’s activity and recover damages resulting from such activity. Further, to the extent required by Company policy or applicable law (including, without limitation, Section 304 of the Xxxxxxxx-Xxxxx Act and Section 954 of the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act) and/or the rules and regulations of the NYSE or any other securities exchange or inter-dealer quotation service on which the Common Stock is listed or quoted, the Option granted under this Agreement shall also be subject (including on a retroactive basis) to clawback, forfeiture or similar requirements (and such requirements shall be deemed incorporated by reference into this Agreement). With respect to any shares of Common Stock subject to “Clawback” hereunder, the Optionee shall (A) forfeit and pay to Company any gain realized on the prior sale or transfer of such Common Stock and (B) at the option of the Company, either (x) sell or transfer into the market any shares of such Common Stock then held by the Optionee and forfeit and pay to Company any gain realized thereon, or (y) sell or transfer to the Company any shares of such Common Stock for the lesser of the then-fair market value and the amount paid by the Optionee therefor. The Optionee’s failure to return to the Company any certificate(s) evidencing the shares of Common Stock required to be returned pursuant to this paragraph shall not preclude the Company from canceling any and all such certificate(s) and shares. Similarly, the Optionee’s failure to pay to the Company any cash required to be paid pursuant to this paragraph shall not preclude the Company from taking any and all legal action it deems appropriate to facilitate its recovery.
Appears in 7 contracts
Samples: Nonstatutory Stock Option Agreement (Cumulus Media Inc), Nonstatutory Stock Option Agreement (Cumulus Media Inc), Nonstatutory Stock Option Agreement (Cumulus Media Inc)
Forfeiture. If In the Optionee breaches any noncompetition, nonsolicitation, and/or assignment of inventions agreement or obligations with the Company, or breaches in any material respect any nondisclosure agreement (each, a “Protective Agreement”), the Company notifies the Optionee of such breach within one (1) year following the date on which it acquires actual knowledge thereof, and such breach is not cured within the time provided for such cure under such Protective Agreement, if applicable, then, absent a contrary determination by the Board (or its designee) event that (i) the Optionee shall immediately forfeit to the Company the Option granted hereunderEmployee’s employment is terminated for any reason, whether vested or unvested, and (ii) within ten (10) business days after receiving such notice from by the Company, by the Employee or otherwise, voluntarily or involuntarily, other than in the circumstances described in Section 2 of this Agreement, or (iii) the Employee attempts to sell, assign, transfer or otherwise dispose of, or mortgage, pledge or otherwise encumber any Common Stock received pursuant to the exercise of the Option during Restricted Shares or the two (2) year period prior Restricted Shares become subject to the uncured breach of the Protective Agreement attachment or any similar involuntary process, then any Restricted Shares that have not previously vested shall be subject forfeited by the Employee to Clawback (as described herein). If, while employed by or providing services to the Company or any Affiliate, the Optionee engages in activity that constitutes fraud or other intentional misconduct and that activity directly results in any financial restatements, then (i) the Optionee shall immediately forfeit to the Company the Option, whether vested or unvested, and (ii) within ten (10) business days after receiving notice from the Company, the Employee shall thereafter have no right, title or interest whatever in such Restricted Shares, and, if the Company does not have custody of any Common Stock received pursuant to the exercise of the Option shall be subject to Clawback. In additionand all certificates representing Restricted Shares so forfeited, the Company Employee shall retain the right to bring an action at equity or law to enjoin the Optionee’s activity and recover damages resulting from such activity. Further, to the extent required by Company policy or applicable law (including, without limitation, Section 304 of the Xxxxxxxx-Xxxxx Act and Section 954 of the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act) and/or the rules and regulations of the NYSE or any other securities exchange or inter-dealer quotation service on which the Common Stock is listed or quoted, the Option granted under this Agreement shall also be subject (including on a retroactive basis) to clawback, forfeiture or similar requirements (and such requirements shall be deemed incorporated by reference into this Agreement). With respect to any shares of Common Stock subject to “Clawback” hereunder, the Optionee shall (A) forfeit and pay to Company any gain realized on the prior sale or transfer of such Common Stock and (B) at the option of the Company, either (x) sell or transfer into the market any shares of such Common Stock then held by the Optionee and forfeit and pay to Company any gain realized thereon, or (y) sell or transfer to the Company any shares of such Common Stock for the lesser of the then-fair market value and the amount paid by the Optionee therefor. The Optionee’s failure to immediately return to the Company any certificate(s) evidencing and all certificates representing Restricted Shares so forfeited. Additionally, the shares of Common Stock required Employee will deliver to be returned pursuant to this paragraph shall not preclude the Company from canceling a stock power duly executed in blank relating to any and all such certificate(s) and shares. Similarly, the Optionee’s failure to pay certificates representing Restricted Shares forfeited to the Company any cash required in accordance with the previous sentence or, if such stock power has previously been tendered to be paid pursuant to this paragraph shall not preclude the Company, the Company from taking will be authorized to deem such previously tendered stock power delivered, and the Company will be authorized to cancel any and all legal action it deems appropriate certificates representing Restricted Shares so forfeited and to facilitate its recoverycause a book entry to be made in the records of the Company’s transfer agent in the name of the Employee (or a new stock certificate to be issued, if requested by the Employee) evidencing any Shares that vested prior to forfeiture. If the Restricted Shares are evidenced by a book entry made in the records of the Company’s transfer agent, then the Company will be authorized to cause such book entry to be adjusted to reflect the number of Restricted Shares so forfeited.
Appears in 7 contracts
Samples: Restricted Stock Agreement (Life Time Fitness Inc), Restricted Stock Agreement (Life Time Fitness Inc), Restricted Stock Agreement (Life Time Fitness, Inc.)
Forfeiture. If the Optionee Recipient breaches any noncompetition, nonsolicitation, and/or assignment of inventions agreement or obligations with the Company, or breaches in any material respect any nondisclosure agreement (each, a “Protective Agreement”), the Company notifies the Optionee Recipient of such breach within one (1) year following the date on which it acquires actual knowledge thereof, and such breach is not cured within the time provided for such cure under such Protective Agreement, if applicable, then, absent a contrary determination by the Board (or its designee) (i) the Optionee Recipient shall immediately forfeit to the Company the Option any then-outstanding Restricted Stock Units granted hereunder, whether vested or unvested, and (ii) within ten (10) business days after receiving such notice from the Company, any Common Stock received pursuant to the exercise of the Option this Award during the two (2) year period prior to the uncured breach of the Protective Agreement shall be subject to Clawback (as described herein). If, while employed by or providing services to the Company or any Affiliate, the Optionee Recipient engages in activity that constitutes fraud or other intentional misconduct and that activity directly results in any financial restatements, then (i) the Optionee Recipient shall immediately forfeit to the Company the Optionany then-outstanding Restricted Stock Units, whether vested or unvested, and (ii) within ten (10) business days after receiving notice from the Company, any Common Stock received pursuant to the exercise of the Option Award shall be subject to Clawback. In addition, the Company shall retain the right to bring an action at equity or law to enjoin the OptioneeRecipient’s activity and recover damages resulting from such activity. Further, to To the extent required by Company policy or applicable law (including, without limitation, Section 304 of the Xxxxxxxx-Xxxxx Act and Section 954 of the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act) and/or the rules and regulations of the NYSE or any other securities exchange or inter-dealer quotation service on which the Common Stock is listed or quoted, the Option Award granted under this Agreement shall also be subject (including on a retroactive basis) to clawback, forfeiture or similar requirements (and such requirements shall be deemed incorporated by reference into this Agreement). With respect to any shares of Common Stock subject to “Clawback” hereunder, the Optionee Recipient shall (A) forfeit and pay to Company any gain the entire value realized on the prior sale or transfer of such Common Stock and (B) at the option of the Company, either (x) sell or transfer into the market any shares of such Common Stock then held by the Optionee Recipient and forfeit and pay to Company any gain the entire value realized thereon, or (y) sell or transfer to the Company any shares of such Common Stock for the lesser of the then-fair market value and the amount paid by the Optionee thereforno consideration. The OptioneeRecipient’s failure to return to the Company any certificate(s) evidencing the shares of Common Stock required to be returned pursuant to this paragraph shall not preclude the Company from canceling any and all such certificate(s) and shares. Similarly, the OptioneeRecipient’s failure to pay to the Company any cash required to be paid pursuant to this paragraph shall not preclude the Company from taking any and all legal action it deems appropriate to facilitate its recovery.
Appears in 3 contracts
Samples: Restricted Stock Unit Agreement (Cumulus Media Inc), Restricted Stock Unit Agreement (Cumulus Media Inc), Restricted Stock Unit Agreement (Cumulus Media Inc)
Forfeiture. If The Grantee shall forfeit all of the Optionee breaches Restricted Stock Units and any noncompetition, nonsolicitation, and/or assignment right under this Agreement to receive Common Stock upon the occurrence of inventions agreement or obligations any of the following events before the expiration of the Period of Restriction: · Termination of employment with the CompanyCompany or its subsidiaries for any reason. Notwithstanding the foregoing, or breaches in any material respect any nondisclosure agreement (each, a “Protective Agreement”), no forfeiture shall occur if termination of employment with the Company notifies the Optionee of such breach within one (1) year following the date on which it acquires actual knowledge thereofis due to death, and such breach is not cured within the time provided for such cure under such Protective Agreement, if applicable, then, absent a contrary determination by the Board (or its designee) (i) the Optionee shall immediately forfeit to the Company the Option granted hereunder, whether vested or unvested, and (ii) within ten (10) business days after receiving such notice from the Company, any Common Stock received pursuant to the exercise of the Option during the two (2) year period prior to the uncured breach of the Protective Agreement shall be subject to Clawback Disability (as described herein). If, while employed by or providing services to defined under the then established rules of the Company or any Affiliateof its subsidiaries, as the case may be), occurs at anytime following a Change of Control, or if the Grantee’s employment is terminated by the Company, without Cause, prior to June 30, 2010. · Any attempt to sell, transfer, pledge, or assign the Restricted Stock Units or the right to receive the Common Stock issuable under the Restricted Stock Units in violation of this Agreement. If the Grantee’s employment is voluntarily terminated, or if the Grantee retires (as defined under the then established rules of the Company or any of its subsidiaries, as the case may be); or if the Grantee continues to be employed by FE but ceases to be employed in an executive position during the two-year Performance Period the Restricted Stock Units in this Agreement will be forfeited and payable as follows, subject to Section 3.8 of the Plan: · If the Grantee’s employment terminates prior to a full month after the Date of Grant, all Restricted Stock Units and any Restricted Stock Units earned as Dividend Equivalents will be forfeited. · If the Grantee’s employment terminates a full month or more after the Date of Grant, the Optionee engages Grantee will be entitled to a prorated number of Restricted Stock Units. The number of shares to be prorated will be calculated as of the June 30, 2010 vesting date by multiplying the number of shares initially awarded and all Dividend Equivalents earned through the vesting date, by the number of full months served after the date of grant, divided by twenty-four months. The prorated shares will then be adjusted upward or downward by the performance factors in activity that constitutes fraud or other intentional misconduct accordance with the provisions under the caption “Performance Adjusted Restricted Stock Units”, (as determined by the Compensation Committee). All fractional shares will be rounded up to the next full shares. The remaining portion of Restricted Stock Units initially granted and that activity directly results in all associated Dividend Equivalents will be forfeited. Upon the occurrence of any financial restatementsof the above events (for which no exception has been made as set forth above) before the expiration of the Period of Restriction, then (i) the Optionee Restricted Stock Units shall immediately forfeit be forfeited by the Grantee to the Company and the Option, whether vested or unvested, Grantee’s interest in the Restricted Stock Units and (ii) within ten (10) business days after receiving notice from the Company, any Common Stock received pursuant to issuable under the exercise of the Option shall be subject to Clawback. In additionRestricted Stock Units, the Company shall retain including the right to bring an action at equity or law to enjoin receive Dividend Equivalents (as defined below) shall terminate immediately in accordance with the Optionee’s activity and recover damages resulting from foregoing, unless such activity. Further, to forfeiture is waived in the extent required by Company policy or applicable law (including, without limitation, Section 304 sole discretion of the Xxxxxxxx-Xxxxx Act and Section 954 of the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act) and/or the rules and regulations of the NYSE or Committee. However, any other securities exchange or inter-dealer quotation service on which the Common Restricted Stock is listed or quoted, the Option granted under this Agreement Units not forfeited shall also be subject (including on a retroactive basis) to clawback, forfeiture or similar requirements (and such requirements shall be deemed incorporated by reference into this Agreement). With respect to any shares of Common Stock subject to “Clawback” hereunder, the Optionee shall (A) forfeit and pay to Company any gain realized on the prior sale or transfer of such Common Stock and (B) at the option of the Company, either (x) sell or transfer into the market any shares of such Common Stock then held by the Optionee and forfeit and pay to Company any gain realized thereon, or (y) sell or transfer to the Company any shares of such Common Stock for the lesser of the then-fair market value and the amount paid by the Optionee therefor. The Optionee’s failure to return to the Company any certificate(s) evidencing the shares of Common Stock required continue to be returned pursuant adjusted for performance in accordance with the provisions under the caption "Performance Adjusted Restricted Stock Units" above and shall include the right to this paragraph shall not preclude the Company from canceling any and all such certificate(s) and shares. Similarly, the Optionee’s failure to pay to the Company any cash required to be paid pursuant to this paragraph shall not preclude the Company from taking any and all legal action it deems appropriate to facilitate its recoveryreceive Dividend Equivalents.
Appears in 2 contracts
Samples: Restricted Stock Unit Agreement (Toledo Edison Co), Restricted Stock Unit Agreement (Toledo Edison Co)
Forfeiture. If If, at any time during Participant’s Continuous Service or at any time during the Optionee breaches any noncompetition12-month period following termination of Participant’s Continuous Service, nonsolicitation, and/or assignment of inventions agreement or obligations with the Company, or breaches Participant engages in any material respect any nondisclosure agreement conduct that constitutes Cause (each, a “Protective Agreement”as defined above), then at the election of the Committee, (a) this Agreement and all unvested Performance Restricted Stock Units granted hereunder shall terminate, and (b) Participant shall return to the Company notifies for cancellation all Shares held by Participant plus pay the Optionee Company the amount of any proceeds received from the sale of any Shares to the extent such breach within one (1) year following the date on which it acquires actual knowledge thereof, and such breach is not cured within the time provided for such cure Shares were issued pursuant to Performance Restricted Stock Units granted under such Protective Agreement, if applicable, then, absent a contrary determination by the Board (or its designee) this Agreement that vested (i) during the Optionee shall 12-month period immediately forfeit preceding the Cause, or (ii) on the date of or at any time after such Cause. If the Company is required to prepare an accounting restatement due to the material noncompliance of the Company with any financial reporting requirement under the securities laws, the Committee may terminate any Performance Restricted Stock Units granted hereunder or require Participant to reimburse the Company the Option amount of any payment or benefit received with respect to any Performance Restricted Stock Units granted hereunder, whether vested or unvested, and (ii) within ten (10) business days after receiving such notice from the Company, any Common Stock received pursuant hereunder to the exercise of extent the Option during the two (2) year period prior Performance Restricted Stock Units would not have been earned or accrued after giving effect to the uncured breach accounting restatement. The forfeiture and recoupment provisions of the Protective Agreement this Section 4 shall be subject to Clawback (as described herein). Ifapplied by the Committee, while employed by or providing services at its discretion, to the Company or any Affiliate, the Optionee engages in activity that constitutes fraud or other intentional misconduct and that activity directly results in any financial restatements, then (i) the Optionee shall immediately forfeit to the Company the Option, whether vested or unvested, and (ii) within ten (10) business days after receiving notice from the Company, any Common Stock received pursuant to the exercise of the Option shall be subject to Clawback. In addition, the Company shall retain the right to bring an action at equity or law to enjoin the Optionee’s activity and recover damages resulting from such activitymaximum extent permitted under applicable laws. Further, to these provisions are in addition to, and not in lieu of, any recoupment requirements under the extent required by Company policy Xxxxxxxx-Xxxxx Act or under other applicable law (laws, rules, regulations or stock exchange listing standards, including, without limitation, Section 304 of the Xxxxxxxx-Xxxxx Act and Section 954 of the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act) and/or the rules and regulations Act of 2010 or Section 10D of the NYSE U.S. Securities Exchange Act of 1934, as amended, and shall apply notwithstanding anything to the contrary in this Agreement or in the Plan. Participant expressly agrees that the Company may take such actions as are necessary or appropriate to effectuate the foregoing (as applicable to Participant) or applicable law without further consent or action being required by Participant. For purposes of the foregoing and as a condition to the grant, Participant expressly and explicitly authorizes the Company to issue instructions, on Participant’s behalf, to Xxxxxx Xxxxxxx (or any other securities exchange or inter-dealer quotation stock plan service on which provider engaged by the Common Stock is listed or quoted, the Option Company to administer awards granted under this Agreement shall also be subject (including on a retroactive basisthe Plan) to clawbackre-convey, forfeiture transfer or similar requirements (and otherwise return such requirements shall be deemed incorporated by reference into this Agreement). With respect Shares and/or other amounts to any shares of Common Stock subject to “Clawback” hereunder, the Optionee shall (A) forfeit and pay to Company any gain realized on the prior sale or transfer of such Common Stock and (B) at the option of the Company, either (x) sell or transfer into the market any shares of such Common Stock then held by the Optionee and forfeit and pay to Company any gain realized thereon, or (y) sell or transfer to the Company any shares of such Common Stock for the lesser of the then-fair market value and the amount paid by the Optionee therefor. The Optionee’s failure to return to the Company any certificate(s) evidencing the shares of Common Stock required to be returned pursuant to this paragraph shall not preclude the Company from canceling any and all such certificate(s) and shares. Similarly, the Optionee’s failure to pay to the Company any cash required to be paid pursuant to this paragraph shall not preclude the Company from taking any and all legal action it deems appropriate to facilitate its recovery.
Appears in 2 contracts
Samples: Restricted Stock Unit Agreement (Nu Skin Enterprises, Inc.), Restricted Stock Unit Agreement (Nu Skin Enterprises, Inc.)
Forfeiture. If In the Optionee breaches any noncompetition, nonsolicitation, and/or assignment of inventions agreement or obligations with the Company, or breaches in any material respect any nondisclosure agreement (each, a “Protective Agreement”), the Company notifies the Optionee of such breach within one (1) year following the date on which it acquires actual knowledge thereof, and such breach is not cured within the time provided for such cure under such Protective Agreement, if applicable, then, absent a contrary determination by the Board (or its designee) event that (i) the Optionee shall immediately forfeit to the Company the Option granted hereunderEmployee’s employment is terminated for any reason, whether vested by the Company, by the Employee or unvestedotherwise, and voluntarily or involuntarily or as a result of death or disability, or (ii) within ten (10) business days after receiving such notice from the Employee attempts to sell, assign, transfer or otherwise dispose of, or mortgage, pledge or otherwise encumber any of the Restricted Shares or the Restricted Shares become subject to attachment or any similar involuntary process, then any Restricted Shares that have not previously vested shall be forfeited by the Employee to the Company, any Common Stock received pursuant to the exercise of the Option during the two (2) year period prior to the uncured breach of the Protective Agreement Employee shall be subject to Clawback (as described herein). Ifthereafter have no right, while employed by title or providing services to interest whatever in such Restricted Shares, and, if the Company or does not have custody of any Affiliateand all certificates representing Restricted Shares so forfeited, the Optionee engages in activity that constitutes fraud or other intentional misconduct and that activity directly results in any financial restatements, then (i) the Optionee Employee shall immediately forfeit to the Company the Option, whether vested or unvested, and (ii) within ten (10) business days after receiving notice from the Company, any Common Stock received pursuant to the exercise of the Option shall be subject to Clawback. In addition, the Company shall retain the right to bring an action at equity or law to enjoin the Optionee’s activity and recover damages resulting from such activity. Further, to the extent required by Company policy or applicable law (including, without limitation, Section 304 of the Xxxxxxxx-Xxxxx Act and Section 954 of the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act) and/or the rules and regulations of the NYSE or any other securities exchange or inter-dealer quotation service on which the Common Stock is listed or quoted, the Option granted under this Agreement shall also be subject (including on a retroactive basis) to clawback, forfeiture or similar requirements (and such requirements shall be deemed incorporated by reference into this Agreement). With respect to any shares of Common Stock subject to “Clawback” hereunder, the Optionee shall (A) forfeit and pay to Company any gain realized on the prior sale or transfer of such Common Stock and (B) at the option of the Company, either (x) sell or transfer into the market any shares of such Common Stock then held by the Optionee and forfeit and pay to Company any gain realized thereon, or (y) sell or transfer to the Company any shares of such Common Stock for the lesser of the then-fair market value and the amount paid by the Optionee therefor. The Optionee’s failure to return to the Company any certificate(s) evidencing and all certificates representing Restricted Shares so forfeited. Additionally, the shares of Common Stock required Employee will deliver to be returned pursuant to this paragraph shall not preclude the Company from canceling a stock power duly executed in blank relating to any and all such certificate(s) and shares. Similarly, the Optionee’s failure to pay certificates representing Restricted Shares forfeited to the Company any cash required in accordance with the previous sentence or, if such stock power has previously been tendered to be paid pursuant to this paragraph shall not preclude the Company, the Company from taking will be authorized to deem such previously tendered stock power delivered, and the Company will be authorized to cancel any and all legal action it deems appropriate certificates representing Restricted Shares so forfeited and to facilitate its recoverycause a book entry to be made in the records of the Company’s transfer agent in the name of the Employee (or a new stock certificate to be issued, if requested by the Employee) evidencing any Shares that vested prior to forfeiture. If the Restricted Shares are evidenced by a book entry made in the records of the Company’s transfer agent, then the Company will be authorized to cause such book entry to be adjusted to reflect the number of Restricted Shares so forfeited. The Restricted Shares, and any value received by the Employee pursuant to the Restricted Shares (in the form of Shares upon vesting or proceeds from the sale of such Shares), shall be subject to recovery by the Company to the extent required by, and in accordance with the terms of, any policy adopted by the Company in response to rules issued by the Securities and Exchange Commission or any stock exchange listing standard requiring recovery of incentive compensation in connection with an accounting restatement.
Appears in 2 contracts
Samples: Restricted Stock Agreement (Life Time Fitness, Inc.), Restricted Stock Agreement (Life Time Fitness, Inc.)
Forfeiture. If Notwithstanding anything herein to the Optionee contrary, if the Participant breaches any noncompetitionRestrictive Covenants applicable to the Participant (including, nonsolicitation, and/or assignment of inventions agreement or obligations with the Company, or breaches in any material respect any nondisclosure agreement (each, a “Protective Agreement”)without limitation, the Company notifies Restrictive Covenants set forth in Exhibit A hereto) following termination of the Optionee Participant’s Employment by the Participant other than due to Disability or Good Reason, in each case on or after the second anniversary of such breach within one the Date of Grant, then (1x) year following any portion of the Option that vested during the twelve-month period immediately preceding the date on which it acquires actual knowledge thereofof termination (the “Preceding Tranche”) shall be automatically forfeited, and such breach is not cured within the time provided for such cure under such Protective Agreement, if applicable, then, absent a contrary determination by the Board (or its designeey) (i) the Optionee shall immediately forfeit to the Company the Option granted hereunder, whether vested or unvested, and (ii) within ten (10) business days after receiving such notice from the Company, any Common Stock received Shares acquired pursuant to the exercise of an Option in the Option during the two (2) year period prior to the uncured breach of the Protective Agreement Preceding Tranche shall be subject to Clawback the call option set forth in Section 6 of the Investors Agreement and (z) any proceeds from the sale of Shares described in preceding clause (y), shall be immediately repaid to the Company. Notwithstanding anything herein to the contrary, if the Participant breaches any Restrictive Covenants applicable to the Participant (including, without limitation, the Restrictive Covenants set forth in Exhibit A hereto) during the Severance Period (as described herein). If, while employed by or providing services to the Company or any Affiliate, the Optionee engages in activity that constitutes fraud or other intentional misconduct and that activity directly results in any financial restatements, defined below) then (ix) any Vested Portion then held by the Optionee Participant shall immediately forfeit to the Company the Optionbe automatically forfeited, whether vested or unvested, and (iiy) within ten (10) business days after receiving notice from the Company, any Common Stock received Shares acquired pursuant to the exercise of the Option shall be subject to Clawbackthe call option set forth in Section 6 of the Investors Agreement and (z) any proceeds from the sale of Shares described in preceding clause (y), shall be immediately repaid to the Company. In additionFor purposes of this Agreement “Severance Period” shall mean, in the event of termination of the Participant’s Employment in circumstances entitling the Participant to severance under an applicable plan or policy or an individual agreement, and under which plan, policy or individual agreement the Participant elects to and actually receives severance, the Company shall retain two-year period immediately following the right to bring an action at equity or law to enjoin the Optionee’s activity and recover damages resulting from such activity. Further, to the extent required by Company policy or applicable law (including, without limitation, Section 304 of the Xxxxxxxx-Xxxxx Act and Section 954 of the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act) and/or the rules and regulations of the NYSE or any other securities exchange or inter-dealer quotation service on which the Common Stock is listed or quoted, the Option granted under this Agreement shall also be subject (including on a retroactive basis) to clawback, forfeiture or similar requirements (and such requirements shall be deemed incorporated by reference into this Agreement). With respect to any shares of Common Stock subject to “Clawback” hereunder, the Optionee shall (A) forfeit and pay to Company any gain realized on the prior sale or transfer date of such Common Stock and (B) at the option of the Company, either (x) sell or transfer into the market any shares of such Common Stock then held by the Optionee and forfeit and pay to Company any gain realized thereon, or (y) sell or transfer to the Company any shares of such Common Stock for the lesser of the then-fair market value and the amount paid by the Optionee therefor. The Optionee’s failure to return to the Company any certificate(s) evidencing the shares of Common Stock required to be returned pursuant to this paragraph shall not preclude the Company from canceling any and all such certificate(s) and shares. Similarly, the Optionee’s failure to pay to the Company any cash required to be paid pursuant to this paragraph shall not preclude the Company from taking any and all legal action it deems appropriate to facilitate its recoverytermination.
Appears in 2 contracts
Samples: Nonqualified Stock Option Agreement (Freescale Semiconductor Holdings I, Ltd.), Nonqualified Stock Option Agreement (Freescale Semiconductor Inc)
Forfeiture. If the Optionee breaches any noncompetition, nonsolicitation, and/or assignment (a) Upon Cessation (as defined below) of inventions agreement or obligations Grantee’s full-time employment with the CompanyCompany and its Subsidiaries (the “Termination Date”) before all of the Restricted Shares become Vested Restricted Shares, or breaches in all Unvested Restricted Shares as of the Termination Date shall, without further action of any material respect any nondisclosure agreement (each, a “Protective Agreement”), kind by the Company notifies or Grantee, be forfeited. Unvested Restricted Shares that are forfeited shall be deemed to be immediately transferred to the Optionee Company without any payment by the Company or action by Grantee, and the Company shall have the full right to cancel any evidence of Grantee’s ownership of such breach within one forfeited Unvested Restricted Shares and to take any other action necessary to demonstrate that Grantee no longer owns such forfeited Unvested Restricted Shares automatically upon such forfeiture. Following such forfeiture, Grantee shall have no further rights with respect to such forfeited Unvested Restricted Shares. The “Cessation” of Grantee’s employment with the Company is any cessation of Grantee’s full-time employment with the Company and its Subsidiaries for any reason or under any circumstances other than due to Grantee’s death, including because of Grantee’s disability (1) year following the date on which it acquires actual knowledge thereof, and such breach is not cured within the time provided for such cure under such Protective Agreement, if applicable, then, absent a contrary determination meaning of Section 22(e)(3) of the Code) as determined by the Board (or its designee) Committee, except for any (i) the Optionee shall immediately forfeit to the Company the Option granted hereunder, whether vested transfer of employment between or unvested, and (ii) within ten (10) business days after receiving such notice from the Company, any Common Stock received pursuant to the exercise of the Option during the two (2) year period prior to the uncured breach of the Protective Agreement shall be subject to Clawback (as described herein). If, while employed by or providing services to among the Company or any Affiliateof its Subsidiaries, the Optionee engages in activity that constitutes fraud or other intentional misconduct and that activity directly results in any financial restatements, then (i) the Optionee shall immediately forfeit to the Company the Option, whether vested or unvested, and (ii) within ten (10) business days after receiving notice from the Companyany sick leave, any Common Stock received pursuant to the exercise of the Option shall be subject to Clawback. In additionmilitary leave, the Company shall retain the right to bring an action at equity or law to enjoin the Optionee’s activity and recover damages resulting from such activity. Further, to the extent required by Company policy or applicable law (including, without limitation, Section 304 of the Xxxxxxxx-Xxxxx Act and Section 954 of the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act) and/or the rules and regulations of the NYSE or any other securities exchange or inter-dealer quotation service on which temporary personal leave of absence authorized by the Common Stock is listed or quotedCompany. Notwithstanding anything to the contrary in this Agreement, the Option granted under this Agreement Unvested Restricted Shares shall also be subject (including on a retroactive basis) to clawbackbecome Vested Restricted Shares upon the death of Grantee during Grantee’s full-time employment with the Company or any of its Subsidiaries, forfeiture or similar requirements (and such requirements provided that Grantee shall be deemed incorporated by reference into this Agreement). With respect to any shares of Common Stock subject to “Clawback” hereunder, the Optionee shall (A) forfeit and pay to Company any gain realized on the prior sale or transfer of such Common Stock and (B) at the option of the Company, either (x) sell or transfer into the market any shares of such Common Stock then held have been continuously employed by the Optionee and forfeit and pay to Company any gain realized thereon, or (y) sell or transfer to one of its Subsidiaries since the Company any shares of such Common Stock for the lesser of the then-fair market value and the amount paid by the Optionee therefor. The Optionee’s failure to return to the Company any certificate(s) evidencing the shares of Common Stock required to be returned pursuant to this paragraph shall not preclude the Company from canceling any and all such certificate(s) and shares. Similarly, the Optionee’s failure to pay to the Company any cash required to be paid pursuant to this paragraph shall not preclude the Company from taking any and all legal action it deems appropriate to facilitate its recoveryGrant Date.
Appears in 2 contracts
Samples: Restricted Stock Agreement (Egl Inc), Restricted Stock Agreement (Egl Inc)
Forfeiture. If at any time during the Optionee breaches term of the Options granted pursuant to this Agreement a Forfeiture Event (as defined below) shall occur or be discovered, then all outstanding Options shall immediately terminate in full. If at any noncompetition, nonsolicitation, and/or assignment time during the Optionee's employment or at any time following Optionee's termination of inventions agreement or obligations with employment until the Company, or breaches in any material respect any nondisclosure agreement (each, a “Protective Agreement”), the Company notifies the Optionee later of such breach within one (1) year following the date on which it acquires actual knowledge thereof, and such breach is not cured within the time provided for such cure under such Protective Agreement, if applicable, then, absent a contrary determination by the Board (or its designee) (i) the twelve-month anniversary of the date Optionee's employment is terminated for any reason, or (ii) the six-month anniversary of the date Optionee exercises Optionee's last remaining Options, a Forfeiture Event occurs, then the Optionee shall immediately forfeit pay to the Company an amount equal to the "Option Gain" on any Options exercised during the twelve-month period preceding such Forfeiture Event and any Options exercised following such Forfeiture Event. For purposes hereof, "Option Gain" shall mean the Fair Market Value of a share of the Class A Common Stock on the date of exercise over the Option granted hereunderPrice, whether vested multiplied by the number of shares purchased upon exercise of the Options. "Forfeiture Event" means the following: (i) conduct related to the Optionee's employment for which either criminal or unvestedcivil penalties may be sought, and (ii) within ten the commission of an act of fraud or intentional misrepresentation, (10iii) business days after receiving such notice from embezzlement or misappropriation or conversion of assets or opportunities of the Company, (iv) any Common Stock received pursuant to the exercise of the Option during the two (2) year period prior to the uncured breach of the Protective Agreement shall be subject to Clawback non-competition or non-solicitation provisions of the Key Employee Covenants, (as described herein). Ifv) disclosing or misusing any confidential or proprietary information of the Company in violation of the Key Employee Covenants, while employed by or providing services to any other non-disclosure agreement with the Company or other duty of confidentiality or the Company's xxxxxxx xxxxxxx policy, (vi) any Affiliateother material breach of the Key Employee Covenants, or (vii) any other actions of Optionee that the Committee determines in good faith are harmful to the interests of the Company. The Committee, in its sole discretion, may waive, at any time, in writing this forfeiture provision and release the Optionee engages in activity that constitutes fraud or other intentional misconduct and that activity directly results in any financial restatements, then (i) the Optionee shall immediately forfeit to the Company the Option, whether vested or unvested, and (ii) within ten (10) business days after receiving notice from the Company, any Common Stock received pursuant to the exercise of the Option shall be subject to Clawbackliability hereunder. In addition, the Company shall retain the right Committee may, in its sole discretion, elect to bring an action at equity or law to enjoin the Optionee’s activity and recover damages resulting from such activity. Further, to the extent required by Company policy or applicable law (including, without limitation, Section 304 purchase any shares acquired upon exercise of the Xxxxxxxx-Xxxxx Act and Section 954 Option for the exercise price paid by the Optionee in lieu of enforcing payment of the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act) and/or the rules and regulations of the NYSE or any other securities exchange or inter-dealer quotation service on which the Common Stock is listed or quoted, the Option granted under this Agreement shall also be subject (including on a retroactive basis) to clawback, forfeiture or similar requirements (and such requirements shall be deemed incorporated by reference into this Agreement). With Gain with respect to any shares of Common Stock subject to “Clawback” hereunder, the Optionee shall (A) forfeit and pay to Company any gain realized on the prior sale which have not been sold or transfer of such Common Stock and (B) at the option of the Company, either (x) sell or transfer into the market any shares of such Common Stock then held otherwise transferred by the Optionee and forfeit and pay to Company any gain realized thereon, or (y) sell or transfer to the Company any shares of such Common Stock for the lesser of the then-fair market value and the amount paid by the Optionee therefor. The Optionee’s failure to return to the Company any certificate(s) evidencing the shares of Common Stock required to be returned pursuant to this paragraph shall not preclude the Company from canceling any and all such certificate(s) and shares. Similarly, the Optionee’s failure to pay to the Company any cash required to be paid pursuant to this paragraph shall not preclude the Company from taking any and all legal action it deems appropriate to facilitate its recovery.
Appears in 2 contracts
Samples: 1996 Stock Incentive Plan Master Stock Option Agreement (Nu Skin Enterprises Inc), 1996 Stock Incentive Plan Master Stock Option Agreement (Nu Skin Enterprises Inc)
Forfeiture. If Notwithstanding anything herein to the Optionee contrary, if the Participant breaches any noncompetition, nonsolicitation, and/or assignment of inventions agreement or obligations with the Company, or breaches in any material respect any nondisclosure agreement (each, a “Protective Agreement”), the Company notifies the Optionee of such breach within one (1) year following the date on which it acquires actual knowledge thereof, and such breach is not cured within the time provided for such cure under such Protective Agreement, if applicable, then, absent a contrary determination by the Board (or its designee) (i) the Optionee shall immediately forfeit Restrictive Covenants applicable to the Company the Option granted hereunder, whether vested or unvested, and (ii) within ten (10) business days after receiving such notice from the Company, any Common Stock received pursuant to the exercise of the Option during the two (2) year period prior to the uncured breach of the Protective Agreement shall be subject to Clawback (as described herein). If, while employed by or providing services to the Company or any Affiliate, the Optionee engages in activity that constitutes fraud or other intentional misconduct and that activity directly results in any financial restatements, then (i) the Optionee shall immediately forfeit to the Company the Option, whether vested or unvested, and (ii) within ten (10) business days after receiving notice from the Company, any Common Stock received pursuant to the exercise of the Option shall be subject to Clawback. In addition, the Company shall retain the right to bring an action at equity or law to enjoin the Optionee’s activity and recover damages resulting from such activity. Further, to the extent required by Company policy or applicable law Participant (including, without limitation, Section 304 the Restrictive Covenants set forth in Exhibit A hereto) following termination of the Xxxxxxxx-Xxxxx Act and Section 954 Participant’s Employment by the Participant other than due to Disability or Good Reason, in each case on or after the second anniversary of the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act) and/or the rules and regulations Date of the NYSE or any other securities exchange or inter-dealer quotation service on which the Common Stock is listed or quotedGrant, the Option granted under this Agreement shall also be subject (including on a retroactive basis) to clawback, forfeiture or similar requirements (and such requirements shall be deemed incorporated by reference into this Agreement). With respect to any shares of Common Stock subject to “Clawback” hereunder, the Optionee shall (A) forfeit and pay to Company any gain realized on the prior sale or transfer of such Common Stock and (B) at the option of the Company, either then (x) sell or transfer into any portion of the market Restricted Stock Unit Award that vested during the twelve-month period immediately preceding the date of termination (the “Preceding Tranche”) shall be automatically forfeited, (y) any shares Shares acquired pursuant to the Preceding Tranche shall be subject to the call option set forth in Section 6 of such Common Stock the Investors Agreement and (z) any proceeds from the sale of Shares described in preceding clause (y), shall be immediately repaid to the Company. Notwithstanding anything herein to the contrary, if the Participant breaches any Restrictive Covenants applicable to the Participant (including, without limitation, the Restrictive Covenants set forth in Exhibit A hereto) during the Severance Period (as defined below) then (x) any Vested Portion then held by the Optionee and forfeit and pay to Company any gain realized thereonParticipant shall be automatically forfeited, or (y) sell or transfer any Shares acquired pursuant to the Company Restricted Stock Unit Award shall be subject to the call option set forth in Section 6 of the Investors Agreement and (z) any shares proceeds from the sale of Shares described in preceding clause (y), shall be immediately repaid to the Company. For purposes of this Agreement “Severance Period” shall mean, in the event of termination of the Participant’s Employment in circumstances entitling the Participant to severance under an applicable plan or policy or an individual agreement, and under which plan, policy or individual agreement the Participant elects to and actually receives severance, the two-year period immediately following the date of such Common Stock for the lesser of the then-fair market value and the amount paid by the Optionee therefor. The Optionee’s failure to return to the Company any certificate(s) evidencing the shares of Common Stock required to be returned pursuant to this paragraph shall not preclude the Company from canceling any and all such certificate(s) and shares. Similarly, the Optionee’s failure to pay to the Company any cash required to be paid pursuant to this paragraph shall not preclude the Company from taking any and all legal action it deems appropriate to facilitate its recoverytermination.
Appears in 2 contracts
Samples: Restricted Stock Unit Award Agreement (Freescale Semiconductor Holdings I, Ltd.), Restricted Stock Unit Award Agreement (Freescale Semiconductor Inc)
Forfeiture. If Subject to the Optionee breaches provisions of Sections 3(b) and 3(c), all unvested PRSUs shall be immediately forfeited upon the Participant’s Termination for any noncompetitionreason[, nonsolicitationprovided that, and/or assignment to the extent the Participant’s employment is terminated without Cause or the Participant resigns for Good Reason prior to the consummation of inventions agreement or obligations with the Company, or breaches a Change in any material respect any nondisclosure agreement Control (each, a “Protective AgreementGood Leaver Termination Event”), subject to the Participant’s compliance with the section of that certain employment agreement by and between the Participant and the Company, dated [•] entitled “Conditions to Payment” (the “Release Requirement”), (i) the time-vesting conditions associated with the PRSUs shall accelerate with respect to a prorated portion based on a ratio equal to (A) the number of days the Participant would have been employed during the period beginning on the Vesting Commencement Date if the Participant had remained employed through the first (1st) anniversary of the Good Leaver Termination Event divided by (B) 1095 (provided that such ratio shall not exceed one (1)), [provided, further, that if the Participant’s employment with the Company terminates in accordance with an orderly transition plan coordinated with the Board (“Orderly Transition”), the Company notifies time-vesting conditions associated with the Optionee PRSUs shall accelerate with respect to a prorated portion based on a ratio equal to (x) the number of days the Participant would have been employed during the period beginning on the Vesting Commencement Date if the Participant had remained employed through the second (2nd) anniversary of the Orderly Transition divided by (y) 1095 (provided that such breach within ratio shall not exceed one (1) year following the date on which it acquires actual knowledge thereof, and such breach is not cured within the time provided for such cure under such Protective Agreement, if applicable, then, absent a contrary determination by the Board (or its designee) (i) the Optionee shall immediately forfeit to the Company the Option granted hereunder, whether vested or unvested))], and (ii) within ten (10) business days after receiving such notice from the Company, in respect of any Common Stock received pursuant to the exercise performance periods that have not yet completed as of the Option during Good Leaver Termination Event [or Orderly Transition, as applicable] performance will be measured at the two (2) year period prior to the uncured breach time of the Protective Agreement shall be subject to Clawback (Good Leaver Termination Event [or Orderly Transition, as described herein). If, while employed by or providing services to applicable] based on the Company or any Affiliate, the Optionee engages in activity that constitutes fraud or other intentional misconduct and that activity directly results in any financial restatements, then (i) the Optionee shall immediately forfeit to the Company the Option, whether vested or unvested, and (ii) within ten (10) business days after receiving notice from the Company, any Common Stock received pursuant to the exercise sum of the Option shall be subject to Clawback. In addition, the Company shall retain the right to bring an action at equity or law to enjoin the Optionee’s activity and recover damages resulting from such activity. Further, to the extent required by Company policy or applicable law (including, without limitation, Section 304 of the Xxxxxxxx-Xxxxx Act and Section 954 of the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act) and/or the rules and regulations of the NYSE or any other securities exchange or inter-dealer quotation service on which the Common Stock is listed or quoted, the Option granted under this Agreement shall also be subject (including on a retroactive basis) to clawback, forfeiture or similar requirements (and such requirements shall be deemed incorporated by reference into this Agreement). With respect to any shares of Common Stock subject to “Clawback” hereunder, the Optionee shall (A) forfeit and pay to Company any gain realized on actual performance through the prior sale Good Leaver Termination Event [or transfer of such Common Stock and Orderly Transition, as applicable] plus (B) at projected performance from the option date immediately after the Good Leaver Termination Event [or Orderly Transition, as applicable] through the end of the applicable performance period based on the then current operating budget of the Company, either (x) sell or transfer into the market any shares of such Common Stock then held last previously approved by the Optionee and forfeit and pay to Company any gain realized thereon, or (y) sell or transfer Board prior to the Company any shares of such Common Stock for Executive’s Good Leaver Termination [or Orderly Transition, as applicable] after consultation with the lesser then current Chief Executive Officer of the then-fair market value and the amount paid by the Optionee therefor. The Optionee’s failure to return to the Company any certificate(s) evidencing the shares of Common Stock required to be returned pursuant to this paragraph shall not preclude the Company from canceling any and all such certificate(s) and shares. Similarly, the Optionee’s failure to pay to the Company any cash required to be paid pursuant to this paragraph shall not preclude the Company from taking any and all legal action it deems appropriate to facilitate its recoveryCompany.]
Appears in 1 contract
Samples: Performance Restricted Stock Unit Agreement (Agiliti, Inc. \De)
Forfeiture. If the Optionee breaches any noncompetition, nonsolicitation, and/or assignment of inventions agreement or obligations with the Company, or breaches in any material respect any nondisclosure agreement (each, a “Protective Agreement”), the Company notifies the Optionee of such breach within one (1) year following the date on which it acquires actual knowledge thereof, and such breach is not cured within the time provided for such cure under such Protective Agreement, if applicable, then, absent a contrary determination by the Board (or its designee) (i) the Optionee shall immediately forfeit Employee attempts to pledge, encumber, assign, transfer or otherwise dispose of any of the Company Restricted Shares (except as permitted by Section 1(b) of this Agreement) or the Option granted hereunderRestricted Shares become subject to attachment or any similar involuntary process in violation of this Agreement, whether vested or unvested, and (ii) within ten the Employee’s employment with the Company or an Affiliate (10A) business days after receiving is terminated for Cause or (B) terminates under the circumstances covered by Section 2(c) of this Agreement and the Employee subsequently violates any of the restrictions contained in such notice from Section, then any Restricted Shares that have not previously vested shall be forfeited by the Employee to the Company, any Common Stock received pursuant to the exercise of the Option during the two (2) year period prior to the uncured breach of the Protective Agreement Employee shall be subject to Clawback (as described herein). Ifthereafter have no right, while employed by title or providing services to interest whatever in such Restricted Shares, and, if the Company or does not have custody of any Affiliateand all certificates representing Restricted Shares so forfeited, the Optionee engages in activity that constitutes fraud or other intentional misconduct and that activity directly results in any financial restatements, then (i) the Optionee Employee shall immediately forfeit to the Company the Option, whether vested or unvested, and (ii) within ten (10) business days after receiving notice from the Company, any Common Stock received pursuant to the exercise of the Option shall be subject to Clawback. In addition, the Company shall retain the right to bring an action at equity or law to enjoin the Optionee’s activity and recover damages resulting from such activity. Further, to the extent required by Company policy or applicable law (including, without limitation, Section 304 of the Xxxxxxxx-Xxxxx Act and Section 954 of the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act) and/or the rules and regulations of the NYSE or any other securities exchange or inter-dealer quotation service on which the Common Stock is listed or quoted, the Option granted under this Agreement shall also be subject (including on a retroactive basis) to clawback, forfeiture or similar requirements (and such requirements shall be deemed incorporated by reference into this Agreement). With respect to any shares of Common Stock subject to “Clawback” hereunder, the Optionee shall (A) forfeit and pay to Company any gain realized on the prior sale or transfer of such Common Stock and (B) at the option of the Company, either (x) sell or transfer into the market any shares of such Common Stock then held by the Optionee and forfeit and pay to Company any gain realized thereon, or (y) sell or transfer to the Company any shares of such Common Stock for the lesser of the then-fair market value and the amount paid by the Optionee therefor. The Optionee’s failure to return to the Company any certificate(s) evidencing and all certificates representing Restricted Shares so forfeited. Additionally, the shares of Common Stock required Employee will deliver to be returned pursuant to this paragraph shall not preclude the Company from canceling a stock power duly executed in blank relating to any and all such certificate(s) and shares. Similarly, the Optionee’s failure to pay certificates representing Restricted Shares forfeited to the Company any cash required in accordance with the previous sentence or, if such stock power has previously been tendered to be paid pursuant to this paragraph shall not preclude the Company, the Company from taking will be authorized to deem such previously tendered stock power delivered, and the Company will be authorized to cancel any and all legal action it certificates representing Restricted Shares so forfeited and to cause a book entry to be made in the records of the Company’s transfer agent in the name of the Employee (or a new stock certificate to be issued, if requested by the Employee) evidencing any Shares that vested prior to forfeiture. If the Restricted Shares are evidenced by a book entry made in the records of the Company’s transfer agent, then the Company will be authorized to cause such book entry to be adjusted to reflect the number of Restricted Shares so forfeited. “Cause” means (i) the Employee’s continued failure to substantially perform his or her duties with the Company or an Affiliate after demand for substantial performance is delivered to the Employee, (ii) the Employee’s conviction of a crime (including misdemeanors) that, in the Company’s determination, impairs the Employee’s ability to perform his or her duties with the Company or an Affiliate, (iii) the Employee’s violation of any policy of the Company or an Affiliate that the Company deems appropriate material, (iv) the Employee’s violation of any securities law, rule or regulation that the Company deems material, (v) the Employee’s engagement in conduct that, in the Company’s determination, exposes the Company or an Affiliate to facilitate its recoverycivil or regulatory liability or injury to their reputations, (vi) the Employee’s engagement in conduct that would subject the Employee to statutory disqualification pursuant to Section 15(b) of the Exchange Act and the regulations promulgated thereunder, or (vii) the Employee’s gross or willful misconduct, as determined by the Company.
Appears in 1 contract
Forfeiture. If cancellation is made (either partial or complete cancellation), then the Optionee breaches non-refundable advance deposit amount called for on page 1 shall be forfeited by the Lessee in consideration of the LVCVA holding said dates for exclusive use of the Lessee and rendering the same unavailable for others and as liquidated damages therefore. The Lessee further covenants that if any noncompetition, nonsolicitation, and/or assignment default is made in payment of inventions agreement the rent or obligations with any part thereof at the Companytimes above specified, or breaches if any default is made in any material respect any nondisclosure agreement (eachthe covenants or agreements herein contained, a “Protective Agreement”), the Company notifies the Optionee of such breach within one (1) year following the date on which it acquires actual knowledge thereof, and such breach is not cured within the time provided for such cure under such Protective Agreement, if applicable, then, absent a contrary determination by the Board (or its designee) (i) the Optionee shall immediately forfeit to the Company the Option granted hereunder, whether vested or unvested, and (ii) within ten (10) business days after receiving such notice from the Company, any Common Stock received pursuant to the exercise this rental of the Option during the two (2) year period prior to the uncured breach of the Protective Agreement shall be subject to Clawback (as described herein). If, while employed by or providing services to the Company or any Affiliate, the Optionee engages in activity that constitutes fraud or other intentional misconduct and that activity directly results in any financial restatements, then (i) the Optionee shall immediately forfeit to the Company the Option, whether vested or unvested, and (ii) within ten (10) business days after receiving notice from the Company, any Common Stock received pursuant to the exercise of the Option shall be subject to Clawback. In addition, the Company shall retain the right to bring an action at equity or law to enjoin the Optionee’s activity and recover damages resulting from such activity. Further, to the extent required by Company policy or applicable law (including, without limitation, Section 304 of the Xxxxxxxx-Xxxxx Act and Section 954 of the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act) and/or the rules and regulations of the NYSE or any other securities exchange or inter-dealer quotation service on which the Common Stock is listed or quoted, the Option granted under this Agreement shall also be subject (including on a retroactive basis) to clawback, forfeiture or similar requirements (and such requirements shall be deemed incorporated by reference into this Agreement). With respect to any shares of Common Stock subject to “Clawback” hereunder, the Optionee shall (A) forfeit and pay to Company any gain realized on the prior sale or transfer of such Common Stock and (B) facilities at the option of the CompanyLVCVA shall cease and terminate, either and the relation of the parties shall be the same in all respects as if said term had fully expired. the LVCVA may reenter the said premises and hold the same as of its former state therein, remove all persons therefrom and resort to any legal proceedings to obtain such possession. the Lessee shall notwithstanding such reentry, pay the full amount of said rental as herein agreed to be paid. If cancellation is made by Lessee less than three years before show date, Lessee agrees to pay, as liquidated damages, twenty-five percent (x25%) sell or transfer into of the market any shares of such Common Stock then held by the Optionee and forfeit and pay to Company any gain realized thereon, or (y) sell or transfer to the Company any shares of such Common Stock minimum daily rate for the lesser total number of show days on lease. If cancellation is made by Lessee less than two years before show date, Lessee agrees to pay, as liquidated damages fifty percent (50%) of the thenminimum daily rate for the total number of show days on lease. If cancellation is made by Lessee less than one year before show date, Lessee agrees to pay, as liquidated damages, one hundred percent (100%) of the minimum daily rate for the total number of show days on lease. The LVCVA will make all reasonable efforts to re-fair market value and lease the Leased Premises upon written notification of the Lessee's default, but any such re-lease shall not serve to relieve the Lessee from the payment of the above referenced liquidated damages. The liquidated damages provisions in this paragraph are a consequence of the fact that the amount of actual damages resulting from Tenant's termination is impossible to ascertain. Any liquidated damages paid by the Optionee therefor. The Optionee’s failure to return to the Company any certificate(s) evidencing the shares of Common Stock required Tenant is not to be returned pursuant to this paragraph shall not preclude the Company from canceling any and all such certificate(s) and shares. Similarly, the Optionee’s failure to pay to the Company any cash required to be paid pursuant to this paragraph shall not preclude the Company from taking any and all legal action it deems appropriate to facilitate its recoveryconstrued as a penalty.
Appears in 1 contract
Samples: Lease Agreement (Applied Business Telecommunications)
Forfeiture. If the Optionee breaches any noncompetition, nonsolicitation, and/or assignment of inventions agreement or obligations with the Company, or breaches in any material respect any nondisclosure agreement (each, a “Protective Agreement”), the Company notifies the Optionee of such breach within one (1) year following the date on which it acquires actual knowledge thereof, and such breach is not cured within the time provided for such cure under such Protective AgreementExecutive agrees that, if applicableany provision of Sections 5 (a) or (b) is breached as determined by Molex, thenExecutive shall forfeit, absent a contrary determination by the Board (or its designee) upon written notice to such effect from Molex: (i) the Optionee shall immediately forfeit all right, title and interest to the Company the Option granted hereunder, Restricted Stock (whether vested or unvested, and ); (ii) within ten any Stock issued upon vesting of the Restricted Stock then owned by Executive; and (10iii) business days after receiving such notice from the Company, any Common Stock received and all profits realized by Executive pursuant to any sales or transfers of any Stock underlying the exercise of Restricted Stock within the Option during the two (2) year 24 month period prior to the uncured breach date of such breach. For purposes of this Agreement, “profit” is defined as the difference between the fair market value of the Protective Agreement shall be subject to Clawback (as described herein). If, while employed by or providing services to Stock on the Company or any Affiliate, grant date and the Optionee engages in activity that constitutes fraud or other intentional misconduct and that activity directly results in any financial restatements, then (i) the Optionee shall immediately forfeit to the Company the Option, whether vested or unvested, and (ii) within ten (10) business days after receiving notice from the Company, any Common Stock received pursuant to the exercise fair market value of the Option Stock on the date of sale or transfer. Additionally, Molex shall be subject to Clawback. In addition, the Company shall retain have the right to bring an action at equity issue a stock transfer order and other appropriate instructions to its transfer agent with respect to the Stock underlying the Restricted Stock, and Molex further shall be entitled to reimbursement from the Executive of any fees and expenses (including attorneys’ fees) incurred by or law on behalf of Molex in enforcing its rights hereunder. By accepting this Restricted Stock, Executive hereby consents to enjoin the Optionee’s activity and recover damages resulting a deduction from such activity. Further, any amounts Molex owes to Executive from time to time (including amounts owed to Executive as compensation as well as any other amounts owed to Executive by Molex) to the extent required of any amounts that Executive owes Molex hereunder. Whether or not Molex elects to make any set-off in whole or in part, if Molex does not recover by Company policy or applicable law (includingmeans of set-off the full amount Executive owes to Molex, without limitationcalculated as set forth above, Section 304 of the Xxxxxxxx-Xxxxx Act and Section 954 of the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act) and/or the rules and regulations of the NYSE or any other securities exchange or inter-dealer quotation service on which the Common Stock is listed or quoted, the Option granted under this Agreement shall also be subject (including on a retroactive basis) to clawback, forfeiture or similar requirements (and such requirements shall be deemed incorporated by reference into this Agreement). With respect to any shares of Common Stock subject to “Clawback” hereunder, the Optionee shall (A) forfeit and pay to Company any gain realized on the prior sale or transfer of such Common Stock and (B) at the option of the Company, either (x) sell or transfer into the market any shares of such Common Stock then held by the Optionee and forfeit and pay to Company any gain realized thereon, or (y) sell or transfer to the Company any shares of such Common Stock for the lesser of the then-fair market value and the amount paid by the Optionee therefor. The Optionee’s failure to return to the Company any certificate(s) evidencing the shares of Common Stock required to be returned pursuant to this paragraph shall not preclude the Company from canceling any and all such certificate(s) and shares. Similarly, the Optionee’s failure Executive agrees to pay immediately the unpaid balance to the Company any cash required to be paid pursuant to this paragraph shall not preclude the Company from taking any and all legal action it deems appropriate to facilitate its recoveryMolex.
Appears in 1 contract
Samples: Incorporated 2000 Molex Long Term Stock Plan Restricted Stock Agreement (Molex Inc)
Forfeiture. If at anytime during the Optionee breaches term of these Options a Forfeiture Event (as defined below) shall occur or be discovered, then all outstanding Options shall immediately terminate in full. If at anytime during the Optionee's employment or at any noncompetition, nonsolicitation, and/or assignment time following Optionee's termination of inventions agreement or obligations with employment until the Company, or breaches in any material respect any nondisclosure agreement (each, a “Protective Agreement”), the Company notifies the Optionee later of such breach within one (1) year following the date on which it acquires actual knowledge thereof, and such breach is not cured within the time provided for such cure under such Protective Agreement, if applicable, then, absent a contrary determination by the Board (or its designee) (i) the twelve-month anniversary of the date Optionee's employment is terminated for any reason, or (ii) the six-month anniversary of the date Optionee exercises Optionee's last remaining Options, a Forfeiture Event occurs, then the Optionee shall immediately forfeit pay to the Company an amount equal to the "Option Gain" on any Options exercised during the 12 month period preceding such Forfeiture Event and any Options exercised following such Forfeiture Event. For purposes hereof, "Option Gain" shall mean the Fair Market Value of a share of the Class A Common Stock on the date of exercise over the Option granted hereunderPrice, whether vested multiplied by the number of shares purchased upon exercise of the Options. "Forfeiture Event" means the following: (i) conduct related to the Optionee's employment for which either criminal or unvestedcivil penalties may be sought, and (ii) within ten the commission of an act of fraud or intentional misrepresentation, (10iii) business days after receiving such notice from embezzlement or misappropriation or conversion of assets or opportunities of the Company, (iv) any Common Stock received pursuant to the exercise of the Option during the two (2) year period prior to the uncured breach of the Protective Agreement shall be subject to Clawback non-competition or non-solicitation provisions of the Key Employee Covenants, (as described herein). Ifv) disclosing or misusing any confidential or proprietary information of the Company in violation of the Key Employee Covenants, while employed by or providing services to any other non-disclosure agreement with the Company or other duty of confidentiality or the Company's xxxxxxx xxxxxxx policy, (vi) any Affiliateother material breach of the Key Employee Covenants, or (vii) any other actions of Optionee that the Committee determines in good faith are harmful to the interests of the Company. The Committee, in its sole discretion, may waive at any time in writing this forfeiture provision and release the Optionee engages in activity that constitutes fraud or other intentional misconduct and that activity directly results in any financial restatements, then (i) the Optionee shall immediately forfeit to the Company the Option, whether vested or unvested, and (ii) within ten (10) business days after receiving notice from the Company, any Common Stock received pursuant to the exercise of the Option shall be subject to Clawbackliability hereunder. In addition, the Company shall retain Committee may, in its sole discretion, elect to purchase any shares acquired upon exercise of the right to bring an action at equity or law to enjoin Option for the exercise price paid by the Optionee’s activity and recover damages resulting from such activity. Further, to the extent required by Company policy or applicable law (including, without limitation, Section 304 in lieu of enforcing payment of the Xxxxxxxx-Xxxxx Act and Section 954 of the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act) and/or the rules and regulations of the NYSE or any other securities exchange or inter-dealer quotation service on which the Common Stock is listed or quoted, the Option granted under this Agreement shall also be subject (including on a retroactive basis) to clawback, forfeiture or similar requirements (and such requirements shall be deemed incorporated by reference into this Agreement). With Gain with respect to any shares of Common Stock subject to “Clawback” hereunder, the Optionee shall (A) forfeit and pay to Company any gain realized on the prior sale which have not been sold or transfer of such Common Stock and (B) at the option of the Company, either (x) sell or transfer into the market any shares of such Common Stock then held otherwise transferred by the Optionee and forfeit and pay to Company any gain realized thereon, or (y) sell or transfer to the Company any shares of such Common Stock for the lesser of the then-fair market value and the amount paid by the Optionee therefor. The Optionee’s failure to return to the Company any certificate(s) evidencing the shares of Common Stock required to be returned pursuant to this paragraph shall not preclude the Company from canceling any and all such certificate(s) and shares. Similarly, the Optionee’s failure to pay to the Company any cash required to be paid pursuant to this paragraph shall not preclude the Company from taking any and all legal action it deems appropriate to facilitate its recovery.
Appears in 1 contract
Samples: Stock Incentive Plan Nonqualified Stock Option Agreement (Nu Skin Enterprises Inc)
Forfeiture. If the Optionee Recipient breaches any noncompetition, nonsolicitation, and/or assignment of inventions agreement or obligations with the Company, or breaches in any material respect any nondisclosure agreement (each, a “Protective Agreement”), the Company notifies the Optionee Recipient of such breach within one (1) year following the date on which it acquires actual knowledge thereof, and such breach is not cured within the time provided for such cure under such Protective Agreement, if applicable, then, absent a contrary determination by the Board (or its designee) (i) the Optionee Recipient shall immediately forfeit to the Company the Option any then-outstanding Restricted Stock Units granted hereunder, whether vested or unvested, and (ii) within ten (10) business days after receiving such notice from the Company, any Common Stock received pursuant to the exercise of the Option this Award during the two (2) year period prior to the uncured breach of the Protective Agreement shall be subject to Clawback (as described herein). If, while employed by or providing services to the Company or any Affiliate, the Optionee Recipient engages in activity that constitutes fraud or other intentional misconduct and that activity directly results in any financial restatements, then (i) the Optionee Recipient shall immediately forfeit to the Company the Optionany then-outstanding Restricted Stock Units, whether vested or unvested, and (ii) within ten (10) business days after receiving notice from the Company, any Common Stock received pursuant to the exercise of the Option Award shall be subject to Clawback. In addition, the Company shall retain the right to bring an action at equity or law to enjoin the OptioneeRecipient’s activity and recover damages resulting from such activity. Further, to the extent required by Company policy or applicable law (including, without limitation, Section 304 of the Xxxxxxxx-Xxxxx Act and Section 954 of the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act) and/or the rules and regulations of the NYSE or any other securities exchange or inter-dealer quotation service on which the Common Stock is listed or quoted, the Option Award granted under this Agreement shall also be subject (including on a retroactive basis) to clawback, forfeiture or similar requirements (and such requirements shall be deemed incorporated by reference into this Agreement). With respect to any shares of Common Stock subject to “Clawback” hereunder, the Optionee Recipient shall (A) forfeit and pay to Company any gain the entire value realized on the prior sale or transfer of such Common Stock and (B) at the option of the Company, either (x) sell or transfer into the market any shares of such Common Stock then held by the Optionee Recipient and forfeit and pay to Company any gain the entire value realized thereon, or (y) sell or transfer to the Company any shares of such Common Stock for the lesser of the then-fair market value and the amount paid by the Optionee thereforno consideration. The OptioneeRecipient’s failure to return to the Company any certificate(s) evidencing the shares of Common Stock required to be returned pursuant to this paragraph shall not preclude the Company from canceling any and all such certificate(s) and shares. Similarly, the OptioneeRecipient’s failure to pay to the Company any cash required to be paid pursuant to this paragraph shall not preclude the Company from taking any and all legal action it deems appropriate to facilitate its recovery.
Appears in 1 contract
Samples: Restricted Stock Unit Agreement (Cumulus Media Inc)
Forfeiture. If If, before the Optionee breaches any noncompetitionDistribution Date, nonsolicitation(a) Deer Valley or DVHB terminates a Seller’s employment for Cause (as defined in each Employment Agreement), and/or assignment of inventions agreement or obligations (b) a Seller terminates his employment with the CompanyDVHB prior to December 31, 2010, or (c) a Seller breaches the terms of a Non-Competition Agreement (in any material respect any nondisclosure agreement (eacheach case, a “Protective AgreementForfeiture Event”), the Company notifies the Optionee of such breach within one (1) year following the date on which it acquires actual knowledge thereof, and such breach is not cured within the time provided for such cure under such Protective Agreement, if applicable, then, absent upon written notice by Deer Valley or DVHB to such Seller, such Seller (a contrary determination by “Forfeiting Seller”) shall have forfeited his interest in the Board Escrowed Cash and Price Guarantee Payment (or its designeethe “Forfeited PATA Interest”). Upon a Forfeiture Event, (y) Deer Valley shall be entitled to fifty (i50%) percent of the Optionee Forfeited PATA Interest (including fifty percent (50%) of the Escrowed Cash allocated to such Forfeiting Seller which shall be immediately forfeit released from the Escrow Account to the Company the Option granted hereunder, whether vested or unvestedDeer Valley), and (iiz) within ten the remaining fifty (1050%) business days after receiving such notice from percent of the Company, any Common Stock received pursuant Forfeited PATA Interest (including the Price Guarantee Payment) shall be allocated to the exercise remaining Seller’s pro-rata, according to Exhibit “A” attached to the Earnout Agreement. Upon a Forfeiture Event, Exhibit “A” shall be deemed amended to reflect that fifty percent (50%) of the Option during Forfeiting Seller’s interest has been allocated to the two (2) year period remaining Sellers. Notwithstanding anything to the contrary, a Forfeiture Event shall not affect any cash distributions made prior to the uncured breach date of the Protective Agreement shall be subject to Clawback (as described herein). If, while employed by or providing services to the Company or any Affiliate, the Optionee engages in activity that constitutes fraud or other intentional misconduct and that activity directly results in any financial restatements, then (i) the Optionee shall immediately forfeit to the Company the Option, whether vested or unvested, and (ii) within ten (10) business days after receiving notice from the Company, any Common Stock received pursuant to the exercise of the Option shall be subject to Clawback. In addition, the Company shall retain the right to bring an action at equity or law to enjoin the Optionee’s activity and recover damages resulting from such activity. Further, to the extent required by Company policy or applicable law (including, without limitation, Section 304 of the Xxxxxxxx-Xxxxx Act and Section 954 of the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act) and/or the rules and regulations of the NYSE or any other securities exchange or inter-dealer quotation service on which the Common Stock is listed or quoted, the Option granted under this Agreement shall also be subject (including on a retroactive basis) to clawback, forfeiture or similar requirements (and such requirements shall be deemed incorporated by reference into this Agreement). With respect to any shares of Common Stock subject to “Clawback” hereunder, the Optionee shall (A) forfeit and pay to Company any gain realized on the prior sale or transfer of such Common Stock and (B) at the option of the Company, either (x) sell or transfer into the market any shares of such Common Stock then held by the Optionee and forfeit and pay to Company any gain realized thereon, or (y) sell or transfer to the Company any shares of such Common Stock for the lesser of the then-fair market value and the amount paid by the Optionee therefor. The Optionee’s failure to return to the Company any certificate(s) evidencing the shares of Common Stock required to be returned pursuant to this paragraph shall not preclude the Company from canceling any and all such certificate(s) and shares. Similarly, the Optionee’s failure to pay to the Company any cash required to be paid pursuant to this paragraph shall not preclude the Company from taking any and all legal action it deems appropriate to facilitate its recoveryForfeiture Event.
Appears in 1 contract
Samples: Earnout Agreement (Deer Valley Corp)
Forfeiture. If, at any time during Participant’s Continuous Service or at any time during the 12-month period following termination of Participant’s Continuous Service, Participant engages in conduct that constitutes Cause (as defined above), then at the election of the Committee, (a) this Agreement and all unvested Performance Restricted Stock Units granted hereunder shall terminate, and (b) Participant shall return to the Company for cancellation all Shares held by Participant plus pay the Company the amount of any proceeds received from the sale of any Shares to the extent such Shares were issued pursuant to Performance Restricted Stock Units granted under this Agreement that vested (i) during the 12-month period immediately preceding the Cause, or (ii) on the date of or at any time after such Cause. If the Optionee breaches any noncompetitionCompany is required to prepare an Accounting Restatement, nonsolicitationas defined in the Nu Skin Enterprises, and/or assignment of inventions agreement or obligations with Inc. Executive Officer Incentive Compensation Recovery Policy (the Company, or breaches in any material respect any nondisclosure agreement (each, a “Protective Agreement”Recovery Policy,” which is incorporated herein by reference), the Company notifies Recovery Policy shall apply to the Optionee of fullest extent required by applicable law, rule, regulation, or stock exchange rule or listing standard. In such breach within one case or in any other circumstances determined appropriate by the Committee, the Committee may (1) year following terminate any Performance Restricted Stock Units granted hereunder or (2) require Participant to return any Shares received upon the date on which it acquires actual knowledge thereofvesting of, and such breach is not cured within the time provided for such cure under such Protective Agreement, if applicable, then, absent a contrary determination by the Board (or its designee) (i) the Optionee shall immediately forfeit to reimburse the Company the Option amount of any payment or benefit received with respect to, any Performance Restricted Stock Units granted hereunder, whether vested or unvested, and (ii) within ten (10) business days after receiving such notice from the Company, any Common Stock received pursuant to the exercise of the Option during the two (2) year period prior to the uncured breach of the Protective Agreement shall be subject to Clawback (as described herein). If, while employed by or providing services to the Company or any Affiliate, the Optionee engages in activity that constitutes fraud or other intentional misconduct and that activity directly results in any financial restatements, then (i) the Optionee shall immediately forfeit to the Company the Option, whether vested or unvested, and (ii) within ten (10) business days after receiving notice from the Company, any Common Stock received pursuant to the exercise of the Option shall be subject to Clawback. In addition, the Company shall retain the right to bring an action at equity or law to enjoin the Optionee’s activity and recover damages resulting from such activity. Further, to the extent that either (1) the Performance Restricted Stock Units would not have been earned or accrued after giving effect to the Accounting Restatement, as determined by the Committee or required by the Recovery Policy; or (2) the Company policy or determines such actions are necessary to satisfy a recoupment requirement under the Recovery Policy. The forfeiture and recoupment provisions of this Section 4 shall be applied by the Committee, at its discretion, to the maximum extent permitted under applicable law (includinglaws. Further, without limitationthese provisions are in addition to, Section 304 of and not in lieu of, any recoupment requirements under the Xxxxxxxx-Xxxxx Act or under other applicable laws, rules, regulations or stock exchange listing standards, and shall apply notwithstanding anything to the contrary in this Agreement or in the Plan. Participant expressly agrees that the Company may take such actions as are necessary or appropriate to effectuate the foregoing provisions of this Section 954 4 (as applicable to Participant) or applicable law without further consent or action being required by Participant. For purposes of the Xxxx-Xxxxx Xxxx Street Reform foregoing and Consumer Protection Act) and/or as a condition to the rules grant, Participant expressly and regulations of explicitly authorizes the NYSE Company to issue instructions, on Participant’s behalf, to Fidelity (or any other securities exchange or inter-dealer quotation stock plan service on which provider engaged by the Common Stock is listed or quoted, the Option Company to administer awards granted under this Agreement shall also be subject (including on a retroactive basisthe Plan) to clawbackre-convey, forfeiture transfer or similar requirements (and such requirements shall be deemed incorporated otherwise return any Shares held by reference into this Agreement). With respect Participant and/or other amounts to any shares of Common Stock subject to “Clawback” hereunder, the Optionee shall (A) forfeit and pay to Company any gain realized on the prior sale or transfer of such Common Stock and (B) at the option of the Company, either (x) sell or transfer into the market any shares of such Common Stock then held by the Optionee and forfeit and pay to Company any gain realized thereon, or (y) sell or transfer to the Company any shares of such Common Stock for the lesser of the then-fair market value and the amount paid by the Optionee therefor. The Optionee’s failure to return to the Company any certificate(s) evidencing the shares of Common Stock required to be returned pursuant to this paragraph shall not preclude the Company from canceling any and all such certificate(s) and shares. Similarly, the Optionee’s failure to pay to the Company any cash required to be paid pursuant to this paragraph shall not preclude the Company from taking any and all legal action it deems appropriate to facilitate its recovery.
Appears in 1 contract
Samples: Performance Restricted Stock Unit Agreement (Nu Skin Enterprises, Inc.)
Forfeiture. If cancellation is made (either partial or complete cancellation), then the Optionee breaches non-refundable advance deposit amount called for on page 1 shall be forfeited by the Lessee in consideration of the LVCVA holding said dates for exclusive use of the Lessee and rendering the same unavailable for others and as liquidated damages therefore. The Lessee further covenants that if any noncompetition, nonsolicitation, and/or assignment default is made in payment of inventions agreement the rent or obligations with any part thereof at the Companytimes above specified, or breaches if any default is made in any material respect any nondisclosure agreement (eachthe covenants or agreements herein contained, a “Protective Agreement”), the Company notifies the Optionee of such breach within one (1) year following the date on which it acquires actual knowledge thereof, and such breach is not cured within the time provided for such cure under such Protective Agreement, if applicable, then, absent a contrary determination by the Board (or its designee) (i) the Optionee shall immediately forfeit to the Company the Option granted hereunder, whether vested or unvested, and (ii) within ten (10) business days after receiving such notice from the Company, any Common Stock received pursuant to the exercise this rental of the Option during the two (2) year period prior to the uncured breach of the Protective Agreement shall be subject to Clawback (as described herein). If, while employed by or providing services to the Company or any Affiliate, the Optionee engages in activity that constitutes fraud or other intentional misconduct and that activity directly results in any financial restatements, then (i) the Optionee shall immediately forfeit to the Company the Option, whether vested or unvested, and (ii) within ten (10) business days after receiving notice from the Company, any Common Stock received pursuant to the exercise of the Option shall be subject to Clawback. In addition, the Company shall retain the right to bring an action at equity or law to enjoin the Optionee’s activity and recover damages resulting from such activity. Further, to the extent required by Company policy or applicable law (including, without limitation, Section 304 of the Xxxxxxxx-Xxxxx Act and Section 954 of the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act) and/or the rules and regulations of the NYSE or any other securities exchange or inter-dealer quotation service on which the Common Stock is listed or quoted, the Option granted under this Agreement shall also be subject (including on a retroactive basis) to clawback, forfeiture or similar requirements (and such requirements shall be deemed incorporated by reference into this Agreement). With respect to any shares of Common Stock subject to “Clawback” hereunder, the Optionee shall (A) forfeit and pay to Company any gain realized on the prior sale or transfer of such Common Stock and (B) facilities at the option of the CompanyLVCVA shall cease and terminate, either and of the parties shall be the same in all respects as if said term had fully expired. The LVCVA may reenter the said premises and hold the same as of its former sate therein, removal all persons therefrom and resort to any legal proceedings to obtain such possession. The Lessee shall notwithstanding such reentry, pay the full amount of said rental as herein agreed to be paid. If cancellation is made by Lessee less than three years before show date, Lessee agrees to pay, as liquidated damages, twenty-five percent (x25%) sell or transfer into of the market any shares of such Common Stock then held by the Optionee and forfeit and pay to Company any gain realized thereon, or (y) sell or transfer to the Company any shares of such Common Stock minimum daily rate for the lesser total number of show days on lease. If cancellation is made by Lessee less than two years before show date, Lessee agrees to pay, as liquidated damages, fifty percent (50%) of the thenminimum daily rate for the total number of show days on lease. If cancellation is made by Lessee less than one year before show date, Lessee agrees to pay, as liquidated damages, one hundred (100%) of the minimum daily rate for the total number of show days on lease. The LVCVA will make all reasonable efforts to re- lease the Leased Premises upon written notification of the Lessee's default, but any such re-fair market value and lease shall not serve to relieve the Lessee from the payment of the above referenced liquidated damages. The liquidated damages provisions in this paragraph are a consequence of the fact that the amount of actual damages resulting from Tenant's termination is impossible to ascertain. Any liquidated damages paid by the Optionee therefor. The Optionee’s failure to return to the Company any certificate(s) evidencing the shares of Common Stock required Tenant is not to be returned pursuant to this paragraph shall not preclude the Company from canceling any and all such certificate(s) and shares. Similarly, the Optionee’s failure to pay to the Company any cash required to be paid pursuant to this paragraph shall not preclude the Company from taking any and all legal action it deems appropriate to facilitate its recoveryconstrued as a penalty.
Appears in 1 contract
Samples: Lease Agreement (Applied Business Telecommunications)
Forfeiture. If The Participant shall forfeit all of the Optionee breaches Restricted Stock Units and any noncompetition, nonsolicitation, and/or assignment right under this Award Agreement to receive any payment hereunder upon the occurrence of inventions agreement or obligations any of the following events before the expiration of the Period of Restriction: • Termination of employment with the CompanyCompany for any reason; provided, or breaches however, that no forfeiture shall occur if termination of employment occurs due to the Participant’s involuntary termination in any material respect any nondisclosure agreement (each, connection with and resulting from a “Protective Agreement”), Change in Control within the Company notifies the Optionee of such breach within one (1) two-year period following the date on which it acquires actual knowledge thereofof the Change in Control and the satisfaction of the conditions as described in paragraph d) of the subsection entitled “Period of Restriction” above; and further provided, that if the conditions of paragraph d) of the subsection entitled “Period of Restriction” above are not met, the Restricted Stock Units and such breach is not cured within any right under this Award Agreement to receive any payment will be forfeited. • Any attempt to sell, transfer, pledge, assign or otherwise alienate or hypothecate the time provided for such cure Restricted Stock Units or the right to receive any payment under such Protective the Restricted Stock Units in violation of this Award Agreement. Notwithstanding the above, if applicablethe Participant dies, then, absent has a contrary determination by the Board (or its designee) (i) the Optionee shall immediately forfeit to the Company the Option granted hereunder, whether vested or unvested, and (ii) within ten (10) business days after receiving such notice from the Company, any Common Stock received pursuant to the exercise termination of the Option during the two (2) year period prior to the uncured breach of the Protective Agreement shall be subject to Clawback employment upon retirement (as described herein). If, while employed by or providing services to defined under the then established rules of the Company or any Affiliateof its Subsidiaries, as the Optionee engages case may be), has a termination of employment due to Disability, is involuntarily terminated other than under paragraph d) of the subsection entitled “Period of Restriction” above under conditions in activity which the Participant qualifies for and receives any employer severance benefit that constitutes fraud or other intentional misconduct may be offered, provided that the Participant executes, submits and that activity directly results in any financial restatements, then (i) the Optionee shall immediately forfeit does not revoke an agreement to release the Company the Option, whether vested or unvested, and (ii) within ten (10) business days after receiving notice from the Company, any Common Stock received pursuant to the exercise of the Option shall be subject to Clawback. In addition, the Company shall retain the right to bring an action at equity or law to enjoin the Optionee’s activity and recover damages resulting from such activity. Further, to the extent required by Company policy or applicable law (including, without limitation, Section 304 of the Xxxxxxxx-Xxxxx Act and Section 954 of the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act) and/or the rules and regulations of the NYSE or any other securities exchange or inter-dealer quotation service on which the Common Stock is listed or quoted, the Option granted under this Agreement shall also be subject (including on a retroactive basis) to clawback, forfeiture or similar requirements (and such requirements shall be deemed incorporated by reference into this Agreement). With respect to any shares of Common Stock subject to “Clawback” hereunder, the Optionee shall (A) forfeit and pay to Company any gain realized on the prior sale or transfer of such Common Stock and (B) at the option of the Company, either (x) sell or transfer into the market any shares of such Common Stock then held by the Optionee and forfeit and pay to Company any gain realized thereon, or (y) sell or transfer to the Company any shares of such Common Stock for the lesser of the then-fair market value and the amount paid by the Optionee therefor. The Optionee’s failure to return to the Company any certificate(s) evidencing the shares of Common Stock required to be returned pursuant to this paragraph shall not preclude the Company from canceling in full against any and all such certificate(sclaims as required by (and within the time period mandated by) and shares. Similarlythe arrangement or plan providing the employer severance benefit, or if the Participant continues to be employed by the Company until the Vest Date but ceases to be employed in an executive position during the three-year Period of Restriction, the Optionee’s failure to pay Restricted Stock Units awarded to the Company any cash required Participant under this Award Agreement will be forfeited and/or payable as follows: • If the Participant dies, terminates employment as described above or ceases to be paid pursuant employed in an executive position prior to this paragraph a full month after the Award Date, all Restricted Stock Units earned will be forfeited upon the death or termination. • If the Participant dies, terminates employment as described above or ceases to be employed in an executive position after the lapse of a full month or more after the Award Date, the Participant will be entitled to a prorated number of Restricted Stock Units. The proration will be calculated by multiplying the number of Restricted Stock Units awarded by the number of full months served after the Award Date, divided by thirty-six months. The prorated Restricted Stock Units will then be adjusted upward or downward by the performance factors in accordance with the provisions under the subsection “Performance Adjustment” (as determined by the Committee), except that no adjustment is made upon death. The remaining portion of Restricted Stock Units awarded will be forfeited. Upon the occurrence of any of the above forfeiture events (for which no exception has been made as set forth above) before the expiration of the Period of Restriction, the Restricted Stock Units that are to be forfeited as described above (either in full or in part), shall not preclude be forfeited by the Company from taking Participant to the Company. At the time of such forfeiture, the Participant’s interest in the Restricted Stock Units and any and all legal action it deems appropriate to facilitate its recoverypayments under the Restricted Stock Units shall terminate, unless such forfeiture is waived in the sole discretion of the Committee.
Appears in 1 contract
Samples: Restricted Stock Unit Award Agreement (Firstenergy Corp)
Forfeiture. If the Optionee Recipient breaches any noncompetition, nonsolicitation, and/or assignment of inventions agreement or obligations with the Company, or breaches in any material respect any nondisclosure agreement (each, a “Protective Agreement”), the Company notifies the Optionee Recipient of such breach within one (1) year following the date on which it acquires actual knowledge thereof, and such breach is not cured within the time provided for such cure under such Protective Agreement, if applicable, then, absent a contrary determination by the Board (or its designee) (i) the Optionee Recipient shall immediately forfeit to the Company the Option any then-outstanding Restricted Stock Units granted hereunder, whether vested or unvested, and (ii) within ten (10) business days after receiving such notice from the Company, any Common Stock received pursuant to the exercise of the Option this Award during the two (2) year period prior to the uncured breach of the Protective Agreement shall be subject to Clawback (as described herein). If, while employed by or providing services to the Company or any Affiliate, the Optionee Recipient engages in activity that constitutes fraud or other intentional misconduct and that activity directly results in any financial restatements, then (i) the Optionee Recipient shall immediately forfeit to the Company the Optionany then-outstanding Restricted Stock Units, whether vested or unvested, and (ii) within ten (10) business days after receiving notice from the Company, any Common Stock received pursuant to the exercise of the Option Award shall be subject to Clawback. In addition, the Company shall retain the right to bring an action at equity or law to enjoin the OptioneeRecipient’s activity and recover damages resulting from such activity. Further, in the event, while the Recipient is employed by or providing services to the Company or any Affiliate, any activity (other than an activity described in the immediately preceding paragraph, which activity shall be subject to the terms of such immediately preceding paragraph) results in a financial restatement, any Shares received pursuant to Performance RSUs granted hereunder shall be subject to Clawback solely to the extent that (i) they would not have vested because of the failure to achieve performance goals based on the Company’s financial performance as described in the restated financials and (ii) the restatement is filed within two (2) years after the last day of the financial period that is the subject of the restatement. For the avoidance of doubt, Shares shall not be subject to Clawback pursuant to the immediately preceding sentence to the extent that the Company’s financial performance as described in the restated financials is sufficient to achieve the performance-based vesting goals set forth herein with respect to such Performance RSUs. To the extent required by Company policy or applicable law (including, without limitation, Section 304 of the Xxxxxxxx-Xxxxx Act and Section 954 of the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act) and/or the rules and regulations of the NYSE or any other securities exchange or inter-dealer quotation service on which the Common Stock is listed or quoted, the Option Award granted under this Agreement shall also be subject (including on a retroactive basis) to clawback, forfeiture or similar requirements (and such requirements shall be deemed incorporated by reference into this Agreement). With respect to any shares of Common Stock subject to “Clawback” hereunder, the Optionee Recipient shall (A) forfeit and pay to Company any gain the entire value realized on the prior sale or transfer of such Common Stock and (B) at the option of the Company, either (x) sell or transfer into the market any shares of such Common Stock then held by the Optionee Recipient and forfeit and pay to Company any gain the entire value realized thereon, or (y) sell or transfer to the Company any shares of such Common Stock for the lesser of the then-fair market value and the amount paid by the Optionee thereforno consideration. The OptioneeRecipient’s failure to return to the Company any certificate(s) evidencing the shares of Common Stock required to be returned pursuant to this paragraph shall not preclude the Company from canceling any and all such certificate(s) and shares. Similarly, the OptioneeRecipient’s failure to pay to the Company any cash required to be paid pursuant to this paragraph shall not preclude the Company from taking any and all legal action it deems appropriate to facilitate its recovery.
Appears in 1 contract
Samples: Restricted Stock Unit Agreement (Cumulus Media Inc)
Forfeiture. If Notwithstanding anything to the Optionee breaches any noncompetitioncontrary in this Agreement, nonsolicitationif the Participant’s Service is terminated for Cause, and/or assignment or if, during the term of inventions agreement or obligations the Participant’s Service with the Company, Company and its Affiliates and for one year after such Service ends (or breaches such longer period as specified in any material respect any nondisclosure agreement the Participant’s Restrictive Covenant Agreement or following the Participant’s Normal Retirement and prior to the Scheduled Vesting Date) (each, a the “Protective AgreementRestricted Period”), the Company notifies the Optionee of such breach within one (1) year following the date on which it acquires actual knowledge thereof, and such breach is not cured within the time provided for such cure under such Protective Agreement, if applicable, then, absent a contrary determination by the Board (or its designee) (i) the Optionee shall immediately forfeit to the Company the Option granted hereunder, whether vested or unvested, and (ii) within ten (10) business days after receiving such notice from the Company, Participant breaches any Common Stock received pursuant to the exercise of the Option during the two (2) year period prior to the uncured breach of the Protective Agreement shall be subject to Clawback (as described herein). If, while employed by restrictive covenants contained in Section 6 or providing services to the Company or any Affiliate, the Optionee engages in activity that constitutes fraud or other intentional misconduct and that activity directly results in any financial restatementsSection 7, then (i) the Optionee Participant shall immediately forfeit this Award and any right to the Company the Option, whether vested or unvestedreceive Shares that have not yet been issued pursuant to Section 3, and (ii) within ten with respect to Shares that have been issued pursuant to this Award, either (10A) business days after receiving notice from the Participant shall return such Shares to the Company, any Common Stock received or (B) the Participant shall pay to the Company in cash an amount equal to the Fair Market Value of such Shares as of their respective vesting date. EXHIBIT A FORM OF RELEASE A release is required as a condition for receiving the benefits provided pursuant to the exercise Restricted Stock Award Agreement between GENERAC HOLDINGS INC. (the “Company”) and Participant (“Participant”) dated _______________________________ (the “Agreement”); thus, by executing this release (“Release”), you have advised us that you hold no claims against the Company, its predecessors, successors or assigns, affiliates, shareholders or members and each of their respective officers, directors, agents and employees (collectively, the “Releasees”), and by execution of this Release you agree to waive and release any such claims, except relating to any compensation, severance pay and benefits described in any written agreement between you and the Company. You understand and agree that this Release will extend to all claims, demands, liabilities and causes of action of every kind, nature and description whatsoever, whether known, unknown or suspected to exist, which you ever had or may now have against the Releasees in your capacity as an employee of the Option shall be subject to Clawback. In additionCompany, the Company shall retain the right to bring an action at equity or law to enjoin the Optionee’s activity and recover damages resulting from such activity. Further, to the extent required by Company policy or applicable law (including, without limitation, Section 304 any claims, demands, liabilities and causes of action arising from your employment with the Releasees and the termination of that employment, including any claims for severance or vacation pay, business expenses, and/or pursuant to any federal, state, county, or local employment laws, regulations, executive orders, or other requirements, including, but not limited to, Title VII of the Xxxxxxxx-Xxxxx 1964 Civil Rights Act, the 1866 Civil Rights Act, the Age Discrimination in Employment Act as amended by the Older Workers Benefit Protection Act, the Americans with Disabilities Act, the Civil Rights Act of 1991, the Workers Adjustment and Retraining Notification Act and Section 954 any other local, state or federal fair employment laws, and any contract or tort claims. You understand and agree that this Release is intended to include all claims by you or on your behalf alleging discrimination on the basis of the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act) and/or the rules and regulations of the NYSE race, sex, religion, national origin, age, disability, marital status, or any other securities exchange protected status or inter-dealer quotation service involving any contract or tort claims based on which your termination from the Common Stock Company. It is listed or quoted, the Option granted under this Agreement shall also be subject (including on a retroactive basis) to clawback, forfeiture or similar requirements (and such requirements shall be deemed incorporated by reference into this Agreement). With respect acknowledged that your termination is not in any way related to any shares work-related injury. It also is understood and agreed that the remedy at law for breach of Common Stock subject to “Clawback” hereunderthe Award Agreement, the Optionee shall (A) forfeit any restrictive covenant agreements between you and pay to Company any gain realized on the prior sale or transfer of such Common Stock and (B) at the option of the Company, either (x) sell or transfer into the market any shares of such Common Stock then held by the Optionee and/or this Release shall be inadequate, and forfeit and pay to Company any gain realized thereon, or (y) sell or transfer to the Company any shares of such Common Stock for shall be entitled to injunctive relief in respect thereof. Your ability to receive payments and benefits under the lesser terms of the thenAward Agreement will remain open for a 21-fair market value day period after your Termination Date to give you an opportunity to consider the effect of this Release. At your option, you may elect to execute this Release on an earlier date. Additionally, you have seven days after the date you execute this Release to revoke it. As a result, this Release will not be effective until eight days after you execute it. We also want to advise you of your right to consult with legal counsel prior to executing a copy of this Release. Finally, this is to expressly acknowledge: ● You understand that you are not waiving any claims or rights that may arise after the date you execute this Release. ● You understand and agree that the amount paid by compensation and benefits described in the Optionee thereforAward Agreement offer you consideration greater than that to which you would otherwise be entitled. The Optionee’s failure to return to I hereby state that I have carefully read this Release and that I am signing this Release knowingly and voluntarily with the Company any certificate(s) evidencing full intent of releasing the shares of Common Stock required to be returned pursuant to this paragraph shall not preclude the Company Releases from canceling any and all such certificate(s) and sharesclaims, except as set forth herein. SimilarlyFurther, the Optionee’s failure to pay if signed prior to the Company any cash required completion of the 21 day review period, this is to be paid pursuant to acknowledge that I knowingly and voluntarily signed this paragraph shall not preclude the Company from taking any and all legal action it deems appropriate to facilitate its recovery.Release on an earlier date. Date: EXHIBIT B SECTION 83(b) ELECTION
Appears in 1 contract
Samples: Restricted Stock Award Agreement (Generac Holdings Inc.)
Forfeiture. If the Optionee breaches any noncompetition, nonsolicitation, and/or assignment violates the Standards of inventions agreement or obligations with Conduct contained in sections 4.1 through 4.5 of the Company, or breaches in any material respect any nondisclosure agreement current Company Employee Handbook attached hereto as Exhibit 3 (each, a the “Protective AgreementPolicies”), the Company notifies the Optionee of such breach within one (1) year following the date on which it acquires actual knowledge thereofany grant, and such breach is not cured within the time provided for such cure under such Protective Agreementexercise, if applicablepayment, then, absent a contrary determination by the Board (delivery or its designee) (i) the Optionee shall immediately forfeit to the Company the Option granted hereunder, whether vested or unvested, and (ii) within ten (10) business days after receiving such notice from the Company, any Common Stock received transfer made pursuant to this Agreement during the exercise period of the Option breach, or during the two (2) year period prior to the uncured breach breach, of the Protective Agreement Policies shall be subject to Clawback (as described herein)rescinded. If, while employed by or providing services to the The Company or any Affiliate, shall notify the Optionee engages in activity that constitutes fraud or other intentional misconduct and that activity directly results in writing of any financial restatements, then such rescission within one (i1) year of the Optionee shall immediately forfeit to the Company the Option, whether vested or unvested, and (ii) within date it acquires actual knowledge of such breach. Within ten (10) business days after receiving such a notice from the Company, the Optionee shall pay to the Company the amount of any Common Stock gain realized or payment received as a result of the grant, exercise, payment, delivery or transfer pursuant to the exercise of the Option Option. Such payment shall be subject made either in cash or by returning to Clawback. In addition, the Company the number of Shares that the Optionee received in connection with the rescinded grant, exercise, payment, delivery or transfer. The Company’s rights of rescission hereunder shall retain the right be in addition to bring an action at equity or law to enjoin the Optionee’s activity any and recover damages resulting from such activity. Further, all other remedies that may be available to the extent required by Company policy at law or applicable law (in equity in such event, including, without limitation, Section 304 the right to request any court of competent jurisdiction to issue a decree of specific performance or issue a temporary and permanent injunction, without the necessity of the Xxxxxxxx-Xxxxx Act Company posting bond or furnishing other security and Section 954 without proving special damages or irreparable injury, enjoining and restricting the breach, or threatened breach, of any such covenant. Further and notwithstanding anything herein or in the Plan or in any other agreement to the contrary, if the Optionee is an executive officer of the Company, in the event of any accounting restatement resulting from material noncompliance with financial reporting requirements under federal securities laws, any grant, exercise, payment, delivery or transfer made pursuant to this Agreement during the three year period preceding the date on which the Company is required to prepare an accounting restatement, or as may otherwise be mandated or modified under regulations promulgated pursuant to the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act) and/or Act of 2010, shall be rescinded and subject to clawback. Further, without limiting the rules and regulations of the NYSE foregoing, any grant, exercise, payment, delivery or transfer made pursuant to this Agreement which is subject to recovery under any other securities law, government regulation, stock exchange listing requirement or inter-dealer quotation service on which the Common Stock is listed or quoted, the Option granted under this Agreement shall also Company policy will be subject (including on a retroactive basis) to clawback, forfeiture such clawbacks or similar requirements (and such requirements shall deductions as may be deemed incorporated by reference into this Agreement). With respect to any shares of Common Stock subject to “Clawback” hereunder, the Optionee shall (A) forfeit and pay to Company any gain realized on the prior sale or transfer of such Common Stock and (B) at the option of the Company, either (x) sell or transfer into the market any shares of such Common Stock then held by the Optionee and forfeit and pay to Company any gain realized thereon, or (y) sell or transfer to the Company any shares of such Common Stock for the lesser of the then-fair market value and the amount paid by the Optionee therefor. The Optionee’s failure to return to the Company any certificate(s) evidencing the shares of Common Stock required to be returned made pursuant to this paragraph shall not preclude the such law, government regulation, stock exchange listing requirement or Company from canceling any and all such certificate(s) and shares. Similarly, the Optionee’s failure to pay to the Company any cash required to be paid pursuant to this paragraph shall not preclude the Company from taking any and all legal action it deems appropriate to facilitate its recoverypolicy.
Appears in 1 contract
Samples: Non Qualified Stock Option Agreement (Software Acquisition Group Inc.)
Forfeiture. If Notwithstanding anything to the Optionee breaches any noncompetitioncontrary in this Agreement, nonsolicitationif the Participant’s Service is terminated for Cause, and/or assignment or if, during the term of inventions agreement or obligations the Participant’s Service with the Company, Company and its Affiliates and for one year after such Service ends (or breaches such longer period as specified in any material respect any nondisclosure agreement (each, a “Protective Agreement”), the Company notifies the Optionee of such breach within one (1) year following the date on which it acquires actual knowledge thereof, and such breach is not cured within the time provided for such cure under such Protective Participant’s Restrictive Covenant Agreement, if applicable, then, absent a contrary determination by or following the Board (or its designee) (i) the Optionee shall immediately forfeit to the Company the Option granted hereunder, whether vested or unvested, Participant’s Normal Retirement and (ii) within ten (10) business days after receiving such notice from the Company, any Common Stock received pursuant to the exercise of the Option during the two (2) year period prior to the uncured breach Scheduled Vesting Date) (the “Restricted Period”), the Participant breaches any of the Protective Agreement shall be subject to Clawback (as described herein). If, while employed by restrictive covenants contained in Section 6 or providing services to the Company or any Affiliate, the Optionee engages in activity that constitutes fraud or other intentional misconduct and that activity directly results in any financial restatementsSection 7, then (i) the Optionee Participant shall immediately forfeit this Award and any right to the Company the Option, whether vested or unvestedreceive Shares that have not yet been issued pursuant to Section 3, and (ii) within ten with respect to Shares that have been issued pursuant to this Award, either (10A) business days after receiving notice from the Participant shall return such Shares to the Company, any Common Stock received or (B) the Participant shall pay to the Company in cash an amount equal to the Fair Market Value of such Shares as of the respective vesting date of the underlying Units. EXHIBIT A Performance Goals Exhibit A shall be provided by separate document and constitutes part of this Agreement. EXHIBIT B FORM OF RELEASE A release is required as a condition for receiving the benefits provided pursuant to the exercise Performance Share Award Agreement between GENERAC HOLDINGS INC. (the “Company”) and ________________ (“Participant”) dated _________ (the “Agreement”); thus, by executing this release (“Release”), you have advised us that you hold no claims against the Company, its predecessors, successors or assigns, affiliates, shareholders or members and each of their respective officers, directors, agents and employees (collectively, the “Releasees”), and by execution of this Release you agree to waive and release any such claims, except relating to any compensation, severance pay and benefits described in any written agreement between you and the Company. You understand and agree that this Release will extend to all claims, demands, liabilities and causes of action of every kind, nature and description whatsoever, whether known, unknown or suspected to exist, which you ever had or may now have against the Releasees in your capacity as an employee of the Option shall be subject to Clawback. In additionCompany, the Company shall retain the right to bring an action at equity or law to enjoin the Optionee’s activity and recover damages resulting from such activity. Further, to the extent required by Company policy or applicable law (including, without limitation, Section 304 any claims, demands, liabilities and causes of action arising from your employment with the Releasees and the termination of that employment, including any claims for severance or vacation pay, business expenses, and/or pursuant to any federal, state, county, or local employment laws, regulations, executive orders, or other requirements, including, but not limited to, Title VII of the Xxxxxxxx-Xxxxx 1964 Civil Rights Act, the 1866 Civil Rights Act, the Age Discrimination in Employment Act as amended by the Older Workers Benefit Protection Act, the Americans with Disabilities Act, the Civil Rights Act of 1991, the Workers Adjustment and Retraining Notification Act and Section 954 any other local, state or federal fair employment laws, and any contract or tort claims. You understand and agree that this Release is intended to include all claims by you or on your behalf alleging discrimination on the basis of the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act) and/or the rules and regulations of the NYSE race, sex, religion, national origin, age, disability, marital status, or any other securities exchange protected status or inter-dealer quotation service involving any contract or tort claims based on which your termination from the Common Stock Company. It is listed or quoted, the Option granted under this Agreement shall also be subject (including on a retroactive basis) to clawback, forfeiture or similar requirements (and such requirements shall be deemed incorporated by reference into this Agreement). With respect acknowledged that your termination is not in any way related to any shares work-related injury. It also is understood and agreed that the remedy at law for breach of Common Stock subject to “Clawback” hereunderthe Award Agreement, the Optionee shall (A) forfeit any restrictive covenant agreements between you and pay to Company any gain realized on the prior sale or transfer of such Common Stock and (B) at the option of the Company, either (x) sell or transfer into the market any shares of such Common Stock then held by the Optionee and/or this Release shall be inadequate, and forfeit and pay to Company any gain realized thereon, or (y) sell or transfer to the Company any shares of such Common Stock for shall be entitled to injunctive relief in respect thereof. Your ability to receive payments and benefits under the lesser terms of the thenAward Agreement will remain open for a 21-fair market value day period after your Termination Date to give you an opportunity to consider the effect of this Release. At your option, you may elect to execute this Release on an earlier date. Additionally, you have seven days after the date you execute this Release to revoke it. As a result, this Release will not be effective until eight days after you execute it. We also want to advise you of your right to consult with legal counsel prior to executing a copy of this Release. Finally, this is to expressly acknowledge: ● You understand that you are not waiving any claims or rights that may arise after the date you execute this Release. ● You understand and agree that the amount paid by compensation and benefits described in the Optionee thereforAward Agreement offer you consideration greater than that to which you would otherwise be entitled. The Optionee’s failure to return to I hereby state that I have carefully read this Release and that I am signing this Release knowingly and voluntarily with the Company any certificate(s) evidencing full intent of releasing the shares of Common Stock required to be returned pursuant to this paragraph shall not preclude the Company Releases from canceling any and all such certificate(s) and sharesclaims, except as set forth herein. SimilarlyFurther, the Optionee’s failure to pay if signed prior to the Company any cash required completion of the 21 day review period, this is to be paid pursuant to acknowledge that I knowingly and voluntarily signed this paragraph shall not preclude the Company from taking any and all legal action it deems appropriate to facilitate its recovery.Release on an earlier date. Date:
Appears in 1 contract
Samples: Performance Share Unit Award Agreement (Generac Holdings Inc.)
Forfeiture. If The Participant shall forfeit all of the Optionee breaches Restricted Stock Units and any noncompetition, nonsolicitation, and/or assignment right under this Award Agreement to receive Shares of inventions agreement or obligations common stock upon the occurrence of any of the following events before the expiration of the Period of Restriction: · Termination of employment with the CompanyCompany for any reason; provided, however, that no forfeiture shall occur if termination of employment occurs upon or breaches after a Change in any material respect any nondisclosure agreement (eachControl. · Any attempt to sell, a “Protective transfer, pledge, assign or otherwise alienate or hypothecate the Restricted Stock Units or the right to receive the common stock issuable under the Restricted Stock Units in violation of this Award Agreement”), . Notwithstanding the Company notifies the Optionee of such breach within one (1) year following the date on which it acquires actual knowledge thereof, and such breach is not cured within the time provided for such cure under such Protective Agreementabove, if applicablethe Participant dies, thenhas a termination of employment upon retirement, absent a contrary determination by the Board (or its designee) (i) the Optionee shall immediately forfeit to the Company the Option granted hereunder, whether vested or unvested, and (ii) within ten (10) business days after receiving such notice from the Company, any Common Stock received pursuant to the exercise of the Option during the two (2) year period prior to the uncured breach of the Protective Agreement shall be subject to Clawback (as described herein). If, while employed by or providing services to defined under the then established rules of the Company or any Affiliateof its Subsidiaries, as the Optionee engages case may be), has a termination of employment due to Disability, is involuntarily terminated under conditions in activity which the Participant qualifies for and receives an employer severance benefit that constitutes fraud or other intentional misconduct is offered, and that activity directly results in any financial restatements, then (i) the Optionee shall immediately forfeit executes an agreement to release the Company the Option, whether vested or unvested, and (ii) within ten (10) business days after receiving notice from the Company, any Common Stock received pursuant to the exercise of the Option shall be subject to Clawback. In addition, the Company shall retain the right to bring an action at equity or law to enjoin the Optionee’s activity and recover damages resulting from such activity. Further, to the extent required by Company policy or applicable law (including, without limitation, Section 304 of the Xxxxxxxx-Xxxxx Act and Section 954 of the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act) and/or the rules and regulations of the NYSE or any other securities exchange or inter-dealer quotation service on which the Common Stock is listed or quoted, the Option granted under this Agreement shall also be subject (including on a retroactive basis) to clawback, forfeiture or similar requirements (and such requirements shall be deemed incorporated by reference into this Agreement). With respect to any shares of Common Stock subject to “Clawback” hereunder, the Optionee shall (A) forfeit and pay to Company any gain realized on the prior sale or transfer of such Common Stock and (B) at the option of the Company, either (x) sell or transfer into the market any shares of such Common Stock then held by the Optionee and forfeit and pay to Company any gain realized thereon, or (y) sell or transfer to the Company any shares of such Common Stock for the lesser of the then-fair market value and the amount paid by the Optionee therefor. The Optionee’s failure to return to the Company any certificate(s) evidencing the shares of Common Stock required to be returned pursuant to this paragraph shall not preclude the Company from canceling in full against any and all such certificate(sclaims as required by (and per the timing requirements in) and shares. Similarlythe arrangement or plan providing the employer severance benefit; or if the Participant continues to be employed by the Company until March 2, 2012 but ceases to be employed in an executive position during the three-year Period of Restriction, the Optionee’s failure to pay Restricted Stock Units awarded to the Company any cash required Participant under this Award Agreement will be forfeited and/or payable as follows: · If the Participant dies, terminates employment as described above or ceases to be paid pursuant employed in an executive position prior to this paragraph a full month after the Grant Date, all Restricted Stock Units earned will be forfeited upon the death or termination. · If the Participant dies, terminates employment as described above or ceases to be employed in an executive position after the lapse of a full month or more after the Grant Date, the Participant will be entitled to a prorated number of Restricted Stock Units. The proration will be calculated by multiplying the number of Restricted Stock Units awarded by the number of full months served after the Grant Date, divided by thirty-six months. The prorated Restricted Stock Units will then be adjusted upward or downward by the performance factors in accordance with the provisions under the subsection “Performance Adjustment” (as determined by the Committee), except that no adjustment is made upon death. All fractional shares will be rounded up to the next full share. The remaining portion of Restricted Stock Units awarded will be forfeited. Upon the occurrence of any of the above forfeiture events (for which no exception has been made as set forth above) before the expiration of the Period of Restriction, the Restricted Stock Units that are to be forfeited as described above (either in full or in part), shall not preclude be forfeited by the Company from taking any Participant to the Company. At the time of such forfeiture, the Participant’s interest in the Restricted Stock Units and all legal action it deems appropriate to facilitate its recovery.the common stock issuable under the Restricted Stock Units shall terminate, unless such forfeiture is waived in the sole discretion of the Committee. {00475016.DOC;9 }
Appears in 1 contract
Samples: Restricted Stock Unit Award Agreement (Pennsylvania Electric Co)
Forfeiture. If If, before the Optionee breaches any noncompetitionDistribution Date, nonsolicitation(a) Deer Valley or DVHB terminates a Seller’s employment for Cause (as defined in each Employment Agreement), and/or assignment (b) a Seller terminates his employment with DVHB prior to the five (5) year term of inventions agreement or obligations with the Companyeach Employment Agreement, or (c) a Seller breaches the terms of a Non-Competition Agreement (in any material respect any nondisclosure agreement (eacheach case, a “Protective AgreementForfeiture Event”), then, upon written notice by Deer Valley or DVHB to such Seller, such Seller (a “Forfeiting Seller”) shall have forfeited his interest in the Company notifies Escrowed Shares and related Price Guarantee Payment, if any (the Optionee “Forfeited PATA Interest”). Upon a Forfeiture Event, (y) fifty (50%) percent of such breach within one (1) year following the date on which it acquires actual knowledge thereofForfeited PATA Interest shall be immediately released from the Price Adjustment Target Account to Deer Valley, and such breach is not cured within (z) the time provided for such cure under such Protective Agreementremaining fifty (50%) percent of the Forfeited PATA Interest (including the Price Guarantee Payment, if applicableany) shall be allocated to the remaining Seller’s pro-rata according to Exhibit “A”, thenas amended, absent and distributed accordingly on the Distribution Date. Upon a contrary determination by Forfeiture Event, Exhibit “A” shall be deemed amended to reflect that the Board (or its designee) Forfeiting Seller’s interest has been allocated to the remaining Sellers, as follows: each remaining Seller’s percentage interest shall equal (i) the Optionee shall immediately forfeit number of shares stated next to the Company the Option granted hereunder, whether vested or unvested, and such Seller’s name on Exhibit “A,” divided by (ii) within ten (10) business days after receiving such notice from the Company, any Common Stock received pursuant total number of shares held by all Sellers less the shares held by the Forfeiting Seller. Notwithstanding anything to the exercise of the Option during the two (2) year period contrary, a Forfeiture Event shall not affect any cash distributions made prior to the uncured breach date of the Protective Agreement shall be subject to Clawback (as described herein). If, while employed by or providing services to the Company or any Affiliate, the Optionee engages in activity that constitutes fraud or other intentional misconduct and that activity directly results in any financial restatements, then (i) the Optionee shall immediately forfeit to the Company the Option, whether vested or unvested, and (ii) within ten (10) business days after receiving notice from the Company, any Common Stock received pursuant to the exercise of the Option shall be subject to Clawback. In addition, the Company shall retain the right to bring an action at equity or law to enjoin the Optionee’s activity and recover damages resulting from such activity. Further, to the extent required by Company policy or applicable law (including, without limitation, Section 304 of the Xxxxxxxx-Xxxxx Act and Section 954 of the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act) and/or the rules and regulations of the NYSE or any other securities exchange or inter-dealer quotation service on which the Common Stock is listed or quoted, the Option granted under this Agreement shall also be subject (including on a retroactive basis) to clawback, forfeiture or similar requirements (and such requirements shall be deemed incorporated by reference into this Agreement). With respect to any shares of Common Stock subject to “Clawback” hereunder, the Optionee shall (A) forfeit and pay to Company any gain realized on the prior sale or transfer of such Common Stock and (B) at the option of the Company, either (x) sell or transfer into the market any shares of such Common Stock then held by the Optionee and forfeit and pay to Company any gain realized thereon, or (y) sell or transfer to the Company any shares of such Common Stock for the lesser of the then-fair market value and the amount paid by the Optionee therefor. The Optionee’s failure to return to the Company any certificate(s) evidencing the shares of Common Stock required to be returned pursuant to this paragraph shall not preclude the Company from canceling any and all such certificate(s) and shares. Similarly, the Optionee’s failure to pay to the Company any cash required to be paid pursuant to this paragraph shall not preclude the Company from taking any and all legal action it deems appropriate to facilitate its recoveryForfeiture Event.
Appears in 1 contract
Samples: Earnout Agreement (Deer Valley Corp)
Forfeiture. If This agreement is made upon the Optionee breaches any noncompetition, nonsolicitation, and/or assignment of inventions agreement or obligations with condition that if the Companypayments which Sea-land herein agrees to pay, or breaches in any material respect any nondisclosure agreement (eachpart thereof, a “Protective Agreement”), the Company notifies the Optionee of such breach within one (1) year following shall be unpaid on the date on which it acquires actual knowledge thereofthe same shall become due, or if default be made in any of the terms, agreements, conditions or covenants herein contained on the part of Sea-Land and such conditions remain uncured or payments remain unpaid beyond the expiration of written notice of default as provided in this article, this agreement shall become forfeited, and Anchorage may exercise all rights of entry and re-entry upon the premises. Sea-Land shall not be considered in default as to any provisions of this agreement where such default is the result of, or pursuant to, any process, order or decree of any court or regulatory body or because of a work stoppage arising from a labor dispute. No default shall be declared by Anchorage as to any breach is not which may be cured within or obviated by Sea-land until the time provided for expiration of thirty (30) days after written notice by Anchorage to Sea-land of such cure under default and if, during such Protective Agreementthirty (30) day period, if applicablesuch default shall have been cured or obviated; provided, then, absent a contrary determination by the Board (or its designee) (i) the Optionee shall immediately forfeit to the Company the Option granted hereunder, whether vested or unvested, and (ii) within that only ten (10) business days after receiving written notice shall be required in the case of a default in the payments of sums herein provided to be paid by Sea-Land; and provided further that, except for failure to make payments of money when due, no default shall be declared by Anchorage if Sea-Land shall commence to cure or obviate such notice from the Company, any Common Stock received pursuant to the exercise of the Option during the two (2) year period default prior to the uncured breach expiration of such notice period and shall prosecute such work to completion with reasonable diligence, even though performance of PREFERENTIAL USE AGREEMENT WITH SEA-LAND SERVICE, INC. PAGE 12 such term agreement, condition or covenant shall not have been effected or completed strictly within the Protective Agreement shall be subject to Clawback (as described herein). If, while employed by or providing services to the Company or any Affiliate, the Optionee engages in activity that constitutes fraud or other intentional misconduct and that activity directly results in any financial restatements, then (i) the Optionee shall immediately forfeit to the Company the Option, whether vested or unvested, and (ii) within ten (10) business days after receiving notice from the Company, any Common Stock received pursuant to the exercise of the Option shall be subject to Clawback. In addition, the Company shall retain the right to bring an action at equity or law to enjoin the Optionee’s activity and recover damages resulting from such activity. Further, to the extent required by Company policy or applicable law (including, without limitation, Section 304 of the Xxxxxxxx-Xxxxx Act and Section 954 of the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act) and/or the rules and regulations of the NYSE or any other securities exchange or inter-dealer quotation service on period during which the Common Stock is listed same should have been effected or quotedcompleted, the Option granted under this Agreement Sea-Land shall also not be subject (including on a retroactive basis) to clawback, forfeiture or similar requirements (and such requirements shall be deemed incorporated by reference into this Agreement). With respect considered in default as to any shares provisions of Common Stock subject to “Clawback” hereunder, this agreement if the Optionee shall (A) forfeit and pay to Company any gain realized on the prior sale or transfer non-payment of such Common Stock and (B) at the option of the Company, either (x) sell or transfer into the market any shares of such Common Stock then held sums as provided in this agreement is occasioned by the Optionee and forfeit and pay to Company any gain realized thereon, or (y) sell or transfer to the Company any shares of such Common Stock for the lesser of the then-fair market value and the amount paid by the Optionee therefor. The OptioneeAnchorage’s failure to return repair and maintain the premises as provided in Article 5 in a good, and workable condition; or if Anchorage fails to maintain the Company any certificate(s) evidencing the shares of Common Stock required to be returned pursuant to this paragraph shall not preclude the Company from canceling any and all such certificate(s) and shares. Similarly, the Optionee’s failure to pay to the Company any cash required to be paid pursuant to this paragraph shall not preclude the Company from taking any and all legal action it deems appropriate to facilitate its recoveryother convenants set forth herein.
Appears in 1 contract
Samples: Agreement (Horizon Lines, Inc.)
Forfeiture. If at any time during the Optionee breaches term of the Options granted pursuant to this Agreement a Forfeiture Event (as defined below) shall occur or be discovered, then all outstanding Options shall immediately terminate in full. If at any noncompetition, nonsolicitation, and/or assignment time during the Optionee’s employment or at any time following Optionee’s termination of inventions agreement or obligations with employment until the Company, or breaches in any material respect any nondisclosure agreement (each, a “Protective Agreement”), the Company notifies the Optionee later of such breach within one (1) year following the date on which it acquires actual knowledge thereof, and such breach is not cured within the time provided for such cure under such Protective Agreement, if applicable, then, absent a contrary determination by the Board (or its designee) (i) the twelve-month anniversary of the date Optionee’s employment is terminated for any reason, or (ii) the six-month anniversary of the date Optionee exercises Optionee’s last remaining Options, a Forfeiture Event occurs, then the Optionee shall immediately forfeit pay to the Company an amount equal to the “Option Gain” on any Options exercised during the twelve-month period preceding such Forfeiture Event and any Options exercised following such Forfeiture Event. For purposes hereof, “Option Gain” shall mean the Fair Market Value of a share of the Class A Common Stock on the date of exercise over the Option granted hereunderPrice, whether vested multiplied by the number of shares purchased upon exercise of the Options. “Forfeiture Event” means the following: (i) conduct related to the Optionee’s employment for which either criminal or unvestedcivil penalties may be sought, and (ii) within ten the commission of an act of fraud or intentional misrepresentation, (10iii) business days after receiving such notice from embezzlement or misappropriation or conversion of assets or opportunities of the Company, (iv) any Common Stock received pursuant to the exercise of the Option during the two (2) year period prior to the uncured breach of the Protective Agreement shall be subject to Clawback non-competition or non-solicitation provisions of the Key Employee Covenants, (as described herein). Ifv) disclosing or misusing any confidential or proprietary information of the Company in violation of the Key Employee Covenants, while employed by or providing services to any other non-disclosure agreement with the Company or other duty of confidentiality or the Company’s xxxxxxx xxxxxxx policy, (vi) any Affiliateother material breach of the Key Employee Covenants, or (vii) any other actions of Optionee that the Committee determines in good faith are harmful to the interests of the Company. The Committee, in its sole discretion, may waive, at any time, in writing this forfeiture provision and release the Optionee engages in activity that constitutes fraud or other intentional misconduct and that activity directly results in any financial restatements, then (i) the Optionee shall immediately forfeit to the Company the Option, whether vested or unvested, and (ii) within ten (10) business days after receiving notice from the Company, any Common Stock received pursuant to the exercise of the Option shall be subject to Clawbackliability hereunder. In addition, the Company shall retain the right Committee may, in its sole discretion, elect to bring an action at equity or law to enjoin the Optionee’s activity and recover damages resulting from such activity. Further, to the extent required by Company policy or applicable law (including, without limitation, Section 304 purchase any shares acquired upon exercise of the Xxxxxxxx-Xxxxx Act and Section 954 Option for the exercise price paid by the Optionee in lieu of enforcing payment of the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act) and/or the rules and regulations of the NYSE or any other securities exchange or inter-dealer quotation service on which the Common Stock is listed or quoted, the Option granted under this Agreement shall also be subject (including on a retroactive basis) to clawback, forfeiture or similar requirements (and such requirements shall be deemed incorporated by reference into this Agreement). With Gain with respect to any shares of Common Stock subject to “Clawback” hereunder, the Optionee shall (A) forfeit and pay to Company any gain realized on the prior sale which have not been sold or transfer of such Common Stock and (B) at the option of the Company, either (x) sell or transfer into the market any shares of such Common Stock then held otherwise transferred by the Optionee and forfeit and pay to Company any gain realized thereon, or (y) sell or transfer to the Company any shares of such Common Stock for the lesser of the then-fair market value and the amount paid by the Optionee therefor. The Optionee’s failure to return to the Company any certificate(s) evidencing the shares of Common Stock required to be returned pursuant to this paragraph shall not preclude the Company from canceling any and all such certificate(s) and shares. Similarly, the Optionee’s failure to pay to the Company any cash required to be paid pursuant to this paragraph shall not preclude the Company from taking any and all legal action it deems appropriate to facilitate its recovery.
Appears in 1 contract
Samples: Stock Incentive Plan Master Stock Option Agreement and Stock Option (Nu Skin Enterprises Inc)
Forfeiture. If If, before the Optionee breaches any noncompetitionDistribution Date, nonsolicitation(a) the Parent ---------- - Company or Deer Valley terminates a Seller's employment for Cause (as defined in each Employment Agreement), and/or assignment (b) a Seller terminates his employment with Deer - Valley prior to the five (5) year term of inventions agreement or obligations with the Companyeach Employment Agreement, or (c) a - Seller breaches the terms of a Non-Competition Agreement (in any material respect any nondisclosure agreement (eacheach case, a “Protective Agreement”"Forfeiture Event"), the Company notifies the Optionee of such breach within one (1) year following the date on which it acquires actual knowledge thereof, and such breach is not cured within the time provided for such cure under such Protective Agreement, if applicable, then, absent upon written notice by Parent Company or Deer Valley ----------------- to such Seller, such Seller (a contrary determination by "Forfeiting Seller") shall have forfeited his ----------------- interest in the Board Price Adjustment Target Account (or its designeethe "Forfeited PATA Interest"). ----------------------- Upon a Forfeiture Event, (y) fifty (50%) percent of the Forfeited PATA Interest - shall be immediately released from the Price Adjustment Target Account to the Buyer, and (z) the remaining fifty (50%) percent of the Forfeited PATA Interest - shall be allocated to the remaining Seller's pro-rata according to Exhibit"A", ---------- as amended, and distributed accordingly on the Distribution Date. Upon a Forfeiture Event, Exhibit"A" shall be deemed amended to reflect that the ---------- Forfeiting Seller's interest has been allocated to the remaining Sellers, as follows: each remaining Seller's percentage interest shall equal (i) the Optionee shall immediately forfeit number of shares stated next to the Company the Option granted hereunder, whether vested or unvested, and such Seller's name on Exhibit "A," divided by (ii) within ten (10) business days after receiving such notice from the Company, any Common Stock received pursuant ---------- total number of shares held by all Sellers less the shares held by the Forfeiting Seller. Notwithstanding anything to the exercise of the Option during the two (2) year period contrary, a Forfeiture Event shall not affect any Cash Distributions made prior to the uncured breach date of the Protective Agreement shall be subject to Clawback (as described herein). If, while employed by or providing services to the Company or any Affiliate, the Optionee engages in activity that constitutes fraud or other intentional misconduct and that activity directly results in any financial restatements, then (i) the Optionee shall immediately forfeit to the Company the Option, whether vested or unvested, and (ii) within ten (10) business days after receiving notice from the Company, any Common Stock received pursuant to the exercise of the Option shall be subject to Clawback. In addition, the Company shall retain the right to bring an action at equity or law to enjoin the Optionee’s activity and recover damages resulting from such activity. Further, to the extent required by Company policy or applicable law (including, without limitation, Section 304 of the Xxxxxxxx-Xxxxx Act and Section 954 of the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act) and/or the rules and regulations of the NYSE or any other securities exchange or inter-dealer quotation service on which the Common Stock is listed or quoted, the Option granted under this Agreement shall also be subject (including on a retroactive basis) to clawback, forfeiture or similar requirements (and such requirements shall be deemed incorporated by reference into this Agreement). With respect to any shares of Common Stock subject to “Clawback” hereunder, the Optionee shall (A) forfeit and pay to Company any gain realized on the prior sale or transfer of such Common Stock and (B) at the option of the Company, either (x) sell or transfer into the market any shares of such Common Stock then held by the Optionee and forfeit and pay to Company any gain realized thereon, or (y) sell or transfer to the Company any shares of such Common Stock for the lesser of the then-fair market value and the amount paid by the Optionee therefor. The Optionee’s failure to return to the Company any certificate(s) evidencing the shares of Common Stock required to be returned pursuant to this paragraph shall not preclude the Company from canceling any and all such certificate(s) and shares. Similarly, the Optionee’s failure to pay to the Company any cash required to be paid pursuant to this paragraph shall not preclude the Company from taking any and all legal action it deems appropriate to facilitate its recoveryForfeiture Event.
Appears in 1 contract
Samples: Earnout Agreement (Cytation Corp)
Forfeiture. If Notwithstanding anything to the Optionee breaches any noncompetitioncontrary in this Agreement, nonsolicitationif the Participant’s Service is terminated for Cause, and/or assignment or if, during the term of inventions agreement or obligations the Participant’s Service with the Company, Company and its Affiliates and for one year after such Service ends (or breaches such longer period as specified in any material respect any nondisclosure agreement (each, a “Protective Agreement”), the Company notifies the Optionee of such breach within one (1) year following the date on which it acquires actual knowledge thereof, and such breach is not cured within the time provided for such cure under such Protective Participant’s Restrictive Covenant Agreement, if applicable, then, absent a contrary determination by or following the Board (or its designee) (i) the Optionee shall immediately forfeit to the Company the Option granted hereunder, whether vested or unvested, Participant’s Normal Retirement and (ii) within ten (10) business days after receiving such notice from the Company, any Common Stock received pursuant to the exercise of the Option during the two (2) year period prior to the uncured breach Scheduled Vesting Date) (the “Restricted Period”), the Participant breaches any of the Protective Agreement shall be subject to Clawback (as described herein). If, while employed by restrictive covenants contained in Section 5 or providing services to the Company or any Affiliate, the Optionee engages in activity that constitutes fraud or other intentional misconduct and that activity directly results in any financial restatementsSection 6, then (i) the Optionee Participant shall immediately forfeit this Award and any right to the Company the Option, whether vested or unvestedreceive Shares that have not yet been issued pursuant to Section 3, and (ii) within ten with respect to Shares that have been issued pursuant to this Award, either (10A) business days after receiving notice from the Participant shall return such Shares to the Company, any Common Stock received or (B) the Participant shall pay to the Company in cash an amount equal to the Fair Market Value of such Shares as of their respective vesting date. EXHIBIT A FORM OF RELEASE A release is required as a condition for receiving the benefits provided pursuant to the exercise Restricted Stock Award Agreement between GENERAC HOLDINGS INC. (the “Company”) and Participant (“Participant”) dated (the “Agreement”); thus, by executing this release (“Release”), you have advised us that you hold no claims against the Company, its predecessors, successors or assigns, affiliates, shareholders or members and each of their respective officers, directors, agents and employees (collectively, the “Releasees”), and by execution of this Release you agree to waive and release any such claims, except relating to any compensation, severance pay and benefits described in any written agreement between you and the Company. You understand and agree that this Release will extend to all claims, demands, liabilities and causes of action of every kind, nature and description whatsoever, whether known, unknown or suspected to exist, which you ever had or may now have against the Releasees in your capacity as an employee of the Option shall be subject to Clawback. In additionCompany, the Company shall retain the right to bring an action at equity or law to enjoin the Optionee’s activity and recover damages resulting from such activity. Further, to the extent required by Company policy or applicable law (including, without limitation, Section 304 any claims, demands, liabilities and causes of action arising from your employment with the Releasees and the termination of that employment, including any claims for severance or vacation pay, business expenses, and/or pursuant to any federal, state, county, or local employment laws, regulations, executive orders, or other requirements, including, but not limited to, Title VII of the Xxxxxxxx-Xxxxx 1964 Civil Rights Act, the 1866 Civil Rights Act, the Age Discrimination in Employment Act as amended by the Older Workers Benefit Protection Act, the Americans with Disabilities Act, the Civil Rights Act of 1991, the Workers Adjustment and Retraining Notification Act and Section 954 any other local, state or federal fair employment laws, and any contract or tort claims. You understand and agree that this Release is intended to include all claims by you or on your behalf alleging discrimination on the basis of the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act) and/or the rules and regulations of the NYSE race, sex, religion, national origin, age, disability, marital status, or any other securities exchange protected status or inter-dealer quotation service involving any contract or tort claims based on which your termination from the Common Stock Company. It is listed or quoted, the Option granted under this Agreement shall also be subject (including on a retroactive basis) to clawback, forfeiture or similar requirements (and such requirements shall be deemed incorporated by reference into this Agreement). With respect acknowledged that your termination is not in any way related to any shares work-related injury. It also is understood and agreed that the remedy at law for breach of Common Stock subject to “Clawback” hereunderthe Award Agreement, the Optionee shall (A) forfeit any restrictive covenant agreements between you and pay to Company any gain realized on the prior sale or transfer of such Common Stock and (B) at the option of the Company, either (x) sell or transfer into the market any shares of such Common Stock then held by the Optionee and/or this Release shall be inadequate, and forfeit and pay to Company any gain realized thereon, or (y) sell or transfer to the Company any shares of such Common Stock for shall be entitled to injunctive relief in respect thereof. Your ability to receive payments and benefits under the lesser terms of the thenAward Agreement will remain open for a 21-fair market value day period after your Termination Date to give you an opportunity to consider the effect of this Release. At your option, you may elect to execute this Release on an earlier date. Additionally, you have seven days after the date you execute this Release to revoke it. As a result, this Release will not be effective until eight days after you execute it. We also want to advise you of your right to consult with legal counsel prior to executing a copy of this Release. Finally, this is to expressly acknowledge: ● You understand that you are not waiving any claims or rights that may arise after the date you execute this Release. ● You understand and agree that the amount paid by compensation and benefits described in the Optionee thereforAward Agreement offer you consideration greater than that to which you would otherwise be entitled. The Optionee’s failure to return to I hereby state that I have carefully read this Release and that I am signing this Release knowingly and voluntarily with the Company any certificate(s) evidencing full intent of releasing the shares of Common Stock required to be returned pursuant to this paragraph shall not preclude the Company Releases from canceling any and all such certificate(s) and sharesclaims, except as set forth herein. SimilarlyFurther, the Optionee’s failure to pay if signed prior to the Company any cash required completion of the 21 day review period, this is to be paid acknowledge that I knowingly and voluntarily signed this Release on an earlier date. Date: EXHIBIT B SECTION 83(b) ELECTION This statement is being made under Section 83(b) of the Internal Revenue Code, pursuant to this paragraph shall not preclude the Company from taking any and all legal action it deems appropriate to facilitate its recoveryTreas.
Appears in 1 contract
Samples: Restricted Stock Award Agreement (Generac Holdings Inc.)
Forfeiture. If The Grantee shall forfeit all of the Optionee breaches Restricted Stock Units and any noncompetition, nonsolicitation, and/or assignment right under this Agreement to receive Common Stock upon the occurrence of inventions agreement or obligations any of the following events before the expiration of the Period of Restriction: · Termination of employment with the CompanyCompany or its subsidiaries for any reason. Notwithstanding the foregoing, or breaches in any material respect any nondisclosure agreement (each, a “Protective Agreement”), no forfeiture shall occur if termination of employment with the Company notifies the Optionee of such breach within one (1) year following the date on which it acquires actual knowledge thereofis due to death, and such breach is not cured within the time provided for such cure under such Protective Agreement, if applicable, then, absent a contrary determination by the Board (or its designee) (i) the Optionee shall immediately forfeit to the Company the Option granted hereunder, whether vested or unvested, and (ii) within ten (10) business days after receiving such notice from the Company, any Common Stock received pursuant to the exercise of the Option during the two (2) year period prior to the uncured breach of the Protective Agreement shall be subject to Clawback Disability (as described herein). If, while employed by or providing services to defined under the then established rules of the Company or any Affiliateof its subsidiaries, as the case may be), or occurs at anytime following a Change of Control under circumstances where the Grantee is involuntarily terminated and would qualify for, elect to accept an employer severance benefit, if offered, and execute an agreement to release the Company in full against any and all claims as required by the arrangement or plan providing the employer severance benefit. · Any attempt to sell, transfer, pledge, or assign the Restricted Stock Units or the right to receive the Common Stock issuable under the Restricted Stock Units in violation of this Agreement. If the Grantee’s employment is involuntary terminated under conditions in which the Grantee qualifies for, elects to accept an employer severance benefit, if offered, and executes an agreement to release the Company in full against any and all claims as required by the arrangement or plan providing the employer severance benefit; or if the Grantee retires (as defined under the then established rules of the Company or any of its subsidiaries, as the case may be); or if the Grantee continues to be employed by FE but ceases to be employed in an executive position during the three-year Performance Period the Restricted Stock Units in this Agreement will be forfeited and payable as follows, subject to Section 3.8 of the Plan: · If the Grantee’s employment terminates prior to a full month after the Date of Grant, all Restricted Stock Units and any Restricted Stock Units earned as Dividend Equivalents will be forfeited. · If the Grantee’s employment terminates a full month or more after the Date of Grant, the Optionee engages Grantee will be entitled to a prorated number of Restricted Stock Units. The number of shares to be prorated will be calculated as of the March 3, 2011 vesting date by multiplying the number of shares initially awarded and all Dividend Equivalents earned through the vesting date, by the number of full months served after the date of grant, divided by thirty-six months. The prorated shares will then be adjusted upward or downward by the performance factors in activity that constitutes fraud or other intentional misconduct accordance with the provisions under the caption “Performance Adjusted Restricted Stock Units”, (as determined by the Compensation Committee). All fractional shares will be rounded up to the next full shares. The remaining portion of Restricted Stock Units initially granted and that activity directly results in all associated Dividend Equivalents will be forfeited. Upon the occurrence of any financial restatementsof the above events (for which no exception has been made as set forth above) before the expiration of the Period of Restriction, then (i) the Optionee Restricted Stock Units shall immediately forfeit be forfeited by the Grantee to the Company and the Option, whether vested or unvested, Grantee’s interest in the Restricted Stock Units and (ii) within ten (10) business days after receiving notice from the Company, any Common Stock received pursuant to issuable under the exercise of the Option shall be subject to Clawback. In additionRestricted Stock Units, the Company shall retain including the right to bring an action at equity or law to enjoin receive Dividend Equivalents (as defined below) shall terminate immediately in accordance with the Optionee’s activity and recover damages resulting from foregoing, unless such activity. Further, to forfeiture is waived in the extent required by Company policy or applicable law (including, without limitation, Section 304 sole discretion of the Xxxxxxxx-Xxxxx Act and Section 954 of the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act) and/or the rules and regulations of the NYSE or Committee. However, any other securities exchange or inter-dealer quotation service on which the Common Restricted Stock is listed or quoted, the Option granted under this Agreement Units not forfeited shall also be subject (including on a retroactive basis) to clawback, forfeiture or similar requirements (and such requirements shall be deemed incorporated by reference into this Agreement). With respect to any shares of Common Stock subject to “Clawback” hereunder, the Optionee shall (A) forfeit and pay to Company any gain realized on the prior sale or transfer of such Common Stock and (B) at the option of the Company, either (x) sell or transfer into the market any shares of such Common Stock then held by the Optionee and forfeit and pay to Company any gain realized thereon, or (y) sell or transfer to the Company any shares of such Common Stock for the lesser of the then-fair market value and the amount paid by the Optionee therefor. The Optionee’s failure to return to the Company any certificate(s) evidencing the shares of Common Stock required continue to be returned pursuant adjusted for performance in accordance with the provisions under the caption "Performance Adjusted Restricted Stock Units" above and shall include the right to this paragraph shall not preclude the Company from canceling any and all such certificate(s) and shares. Similarly, the Optionee’s failure to pay to the Company any cash required to be paid pursuant to this paragraph shall not preclude the Company from taking any and all legal action it deems appropriate to facilitate its recoveryreceive Dividend Equivalents.
Appears in 1 contract
Forfeiture. If 11.1 In the Optionee breaches event of either of the parties failing to effect payment of any noncompetition, nonsolicitation, and/or assignment amount due in respect of inventions this agreement or obligations with the Companyon due date, or breaches in the event of either of the parties committing a breach of any material respect any nondisclosure of the other terms of this agreement and the defaulting party failing to remedy such breach within 7 (each, a “Protective Agreement”)seven) days of delivery by the aggrieved party to the defaulting party of written notice to do so, the Company notifies aggrieved party shall have the Optionee right at any time, without further notice and without prejudice to any other powers or rights which he may have by law or by virtue of this contract : xxx for specific performance in terms of this agreement and obtain payment of any amounts outstanding at the date of such breach within one (1) year following of this agreement; or to cancel this contract by giving the defaulting party written notice of such cancellation, and in the event that the defaulting party is the SELLER, to claim damages or, in the event that the defaulting party is the PURCHASER: he has already obtained occupation of the Property, the PURCHASER shall be obliged to vacate the Property immediately and to procure that the Property shall be vacated by any persons who occupy it through the PURCHASER's permission and place the SELLER in possession and vacant occupation thereof in the same condition as on the date on of occupation thereof by the PURCHASER; and the PURCHASER shall forfeit as rouwkoop or pre-liquidated damages to the SELLER the deposit and any other amount or amounts which have already been paid by him to the SELLER’s attorneys or to the SELLER; or the SELLER shall be entitled to claim damages only, in which event the SELLER shall be entitled to retain the deposit and any amount or amounts already paid to it acquires actual knowledge thereofor to the Seller’s Conveyancers, and such breach is not cured within to set them off against the time provided for such cure under such Protective Agreement, if applicable, then, absent a contrary determination by SELLER's damages incurred; and where the Board (PURCHASER has forfeited the deposit and/or other amounts in favour of the SELLER or its designee) (i) the Optionee shall immediately forfeit SELLER has become entitled to retain the deposit and/or other amounts paid to the Company Seller’s Conveyancer, the Option granted hereunder, whether vested or unvested, and (ii) within ten (10) business days after receiving such notice from the Company, any Common Stock received pursuant to the exercise of the Option during the two (2) year period prior to the uncured breach of the Protective Agreement SELLER shall be subject entitled to Clawback (as described herein). If, while employed by or providing services to the Company or any Affiliate, the Optionee engages in activity that constitutes fraud or other intentional misconduct and that activity directly results in any financial restatements, then (i) the Optionee shall immediately forfeit to the Company the Option, whether vested or unvested, and (ii) within ten (10) business days after receiving notice from the Company, any Common Stock received pursuant to the exercise of the Option shall be subject to Clawback. In addition, the Company shall retain the right to bring an action at equity or law to enjoin the Optionee’s activity and recover damages resulting from such activity. Further, to the extent required by Company policy or applicable law (including, without limitation, Section 304 of the Xxxxxxxx-Xxxxx Act and Section 954 of the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act) and/or the rules and regulations of the NYSE or any other securities exchange or inter-dealer quotation service on which the Common Stock is listed or quoted, the Option granted under this Agreement shall also be subject (including on a retroactive basis) to clawback, forfeiture or similar requirements (and such requirements shall be deemed incorporated by reference into this Agreement). With respect to any shares of Common Stock subject to “Clawback” hereunder, the Optionee shall (A) forfeit and pay to Company any gain realized on the prior sale or transfer claim payment of such Common Stock and (B) at the option of the Company, either (x) sell or transfer into the market any shares of such Common Stock then amounts held by the Optionee Seller’s Conveyancers, on demand. The defaulting party shall pay all legal and forfeit other costs, including costs on the attorney and pay client scale, incurred by the aggrieved party in successfully enforcing the provisions of this contract or to Company act against the defaulting party in terms of this agreement. It is specifically recorded that should any gain realized thereon, or (y) sell or transfer breach by the defaulting party occur at a time critical to the Company any shares of such Common Stock for the lesser of the then-fair market value and the amount paid by the Optionee therefor. The Optionee’s failure to return to the Company any certificate(s) evidencing the shares of Common Stock required to be returned pursuant to this paragraph shall not preclude the Company from canceling any and all such certificate(s) and shares. Similarlyregistration procedure, the Optionee’s failure aggrieved party shall be entitled to pay require the defaulting party to remedy such breach within a period of 24 (TWENTY FOUR) hours, and not within the Company 7 (SEVEN) days period provided for above upon cancellation of this contract for any cash required to be paid pursuant to this paragraph shall not preclude the Company from taking any and all legal action it deems appropriate to facilitate its recoveryreason whatsoever.
Appears in 1 contract
Samples: www.victoryestates.co.za
Forfeiture. If Notwithstanding anything contained in this Agreement to the Optionee breaches any noncompetitioncontrary, nonsolicitation, and/or assignment of inventions agreement or obligations with the Company, or breaches if you engage in any material respect any nondisclosure agreement (eachactivity inimical, a “Protective Agreement”)contrary or harmful to the interests of the Corporation, the Company notifies the Optionee of such breach within one including but not limited to: (1) year following the date on which it acquires actual knowledge thereofcompeting, and such breach is not cured within the time provided for such cure under such Protective Agreementdirectly or indirectly (either as owner, if applicableemployee or agent), then, absent a contrary determination by the Board (or its designee) (i) the Optionee shall immediately forfeit to the Company the Option granted hereunder, whether vested or unvested, and (ii) within ten (10) business days after receiving such notice from the Company, with any Common Stock received pursuant to the exercise of the Option during businesses of the two Corporation, (2) year period prior to the uncured breach soliciting any present or future employees or customers of the Protective Agreement shall be subject Corporation to Clawback terminate such employment or business relationship(s) with the Corporation, (as described herein). If3) disclosing or misusing any confidential information regarding the Corporation, while employed by or providing services to (4) disparaging or criticizing, orally or in writing, the Company business, products, policies, decisions, directors, officers or employees of Corporation or any Affiliate, the Optionee engages in activity that constitutes fraud or other intentional misconduct and that activity directly results in of its affiliates to any financial restatementsperson (such activities to be collectively referred to as “Wrongful Conduct”), then (i) unvested Options shall terminate automatically on the Optionee shall immediately forfeit to the Company the Option, whether vested or unvested, date on which you first engaged in such Wrongful Conduct and (ii) within ten (10) business days after receiving notice at the request of the Corporation, you shall forfeit or pay to the Corporation in cash any financial gain you realized from the Company, any Common Stock received pursuant to the vesting and exercise of the Option Options within the 12-month period immediately preceding such Wrongful Conduct, within the limitations proscribed by Applicable Laws and public policy. By accepting this Award, you consent to and authorize, and your spouse, if any, consents to and authorizes, the Corporation to deduct from any amounts payable by the Corporation to you, any amounts you owe to the Corporation under this Section 8. Subject to compliance with all Applicable Laws, the Board may make retroactive adjustments to, and you shall be reimburse the Corporation for, any amounts paid to you under the Award where such compensation was predicated upon achieving certain financial results that were substantially the subject to Clawbackof a restatement, and as a result of the restatement it is determined that you otherwise would not have been paid such compensation, regardless of whether or not the restatement resulted from your misconduct. In additioneach such instance, the Company shall retain the right to bring an action at equity or law to enjoin the Optionee’s activity and recover damages resulting from such activity. FurtherCorporation will, to the extent required practicable, seek to recover the amount by Company policy or applicable law (includingwhich your incentive compensation for the relevant period exceeded the lower payment that would have been made based on the restated financial results. In each instance described above, without limitationthe Corporation may, Section 304 to the extent practicable and compliant with Applicable Laws, seek to recover the described incentive compensation for the relevant period, plus a reasonable rate of interest. By accepting this Agreement, you consent to and authorize, and your spouse, if any, consents to and authorizes, the Xxxxxxxx-Xxxxx Act and Section 954 Corporation to deduct from any amounts payable by the Corporation to you, any amounts you owe to the Corporation under this Section. This right of the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act) and/or the rules and regulations of the NYSE or reimbursement is in addition to any other securities exchange or inter-dealer quotation service on which remedies the Common Stock is listed or quoted, the Option granted under this Agreement shall also be subject (including on a retroactive basis) to clawback, forfeiture or similar requirements (and such requirements shall be deemed incorporated by reference into Corporation may have against you for any breach of this Agreement). With respect to any shares of Common Stock subject to “Clawback” hereunder, the Optionee shall (A) forfeit and pay to Company any gain realized on the prior sale or transfer of such Common Stock and (B) at the option of the Company, either (x) sell or transfer into the market any shares of such Common Stock then held by the Optionee and forfeit and pay to Company any gain realized thereon, or (y) sell or transfer to the Company any shares of such Common Stock for the lesser of the then-fair market value and the amount paid by the Optionee therefor. The Optionee’s failure to return to the Company any certificate(s) evidencing the shares of Common Stock required to be returned pursuant to this paragraph shall not preclude the Company from canceling any and all such certificate(s) and shares. Similarly, the Optionee’s failure to pay to the Company any cash required to be paid pursuant to this paragraph shall not preclude the Company from taking any and all legal action it deems appropriate to facilitate its recovery.
Appears in 1 contract
Samples: Employee Nonqualified Stock Option Notice and Agreement (Del Taco Restaurants, Inc.)
Forfeiture. If In consideration for the Optionee breaches any noncompetitionpayments and benefits you will receive from the Company pursuant to this Agreement and for other good and valuable consideration, nonsolicitationexcept as otherwise expressly set forth in Section 2, and/or assignment you agree to cancel, forfeit and waive all rights to and interests in, and forfeit all underlying shares of inventions agreement or obligations with stock pursuant to, the Companyfollowing: (i) all payments and benefits under the Retention Agreement, or breaches in any material respect any nondisclosure agreement effective as of October 26, 2017, by and between the Company and you (each, a the “Protective Retention Agreement”), ; (ii) all performance stock units under the Company notifies the Optionee of such breach within one PSU Agreement; (1iii) year following the date on which it acquires actual knowledge thereof, and such breach is not cured within the time provided for such cure under such Protective Agreement, if applicable, then, absent a contrary determination by the Board (or its designee) (i) the Optionee shall immediately forfeit to the Company the Option granted hereunderall restricted stock units, whether vested or unvested, and under the 0000 XXX Agreement; (iiiv) within ten (10) business days after receiving such notice from the Company, any Common Stock received pursuant to the exercise of the Option during the two (2) year period prior to the uncured breach of the Protective Agreement shall be subject to Clawback (as described herein). If, while employed by or providing services to the Company or any Affiliate, the Optionee engages in activity that constitutes fraud or other intentional misconduct and that activity directly results in any financial restatements, then (i) the Optionee shall immediately forfeit to the Company the Optionall restricted stock units, whether vested or unvested, under the 0000 XXX Agreement; (v) all unvested shares of restricted stock under the RSA Agreement; (vi) all restricted stock units, whether vested or unvested, under the 0000 XXX Agreement; and (iivii) within ten all dividend equivalent units, whether vested or unvested, under the PSU Agreement, the 0000 XXX Agreement, the 0000 XXX Agreement and the 0000 XXX Agreement. With the exception of any indemnification arrangement or agreement you have with the Company (10) business days after receiving notice from except that you hereby agree that you will not be entitled to indemnification under any indemnification arrangement or agreement, notwithstanding anything to the contrary therein, with respect to matters relating to any current pending litigation or legal action against you, or any matters or proceedings related thereto, or any litigation or legal action derived or based on the same facts alleged therein), you agree to waive all rights to and interest in any other agreement or arrangement that you have with the Company, any Common Stock received pursuant to the exercise of the Option shall be subject to Clawback. In additionits subsidiaries or affiliates, the Company shall retain the right to bring an action at equity or law to enjoin the Optionee’s activity and recover damages resulting from such activity. Further, to the extent required by Company policy or applicable law (including, without limitation, Section 304 the letter agreement, dated July 5, 2019, by and between the Company and you, regarding tolling of the Xxxxxxxx-Xxxxx Act and Section 954 of the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act) and/or the rules and regulations of the NYSE or any other securities exchange or inter-dealer quotation service on which the Common Stock is listed or quoted, the Option granted under this Agreement shall also be subject (including on a retroactive basis) to clawback, forfeiture or similar requirements (and such requirements shall be deemed incorporated by reference into this Agreement). With vesting date with respect to any certain restricted stock units and shares of Common Stock subject to restricted stock (the “Clawback” hereunder, the Optionee shall (A) forfeit and pay to Company any gain realized on the prior sale or transfer of such Common Stock and (B) at the option of the Company, either (x) sell or transfer into the market any shares of such Common Stock then held by the Optionee and forfeit and pay to Company any gain realized thereon, or (y) sell or transfer to the Company any shares of such Common Stock for the lesser of the then-fair market value and the amount paid by the Optionee therefor. The Optionee’s failure to return to the Company any certificate(s) evidencing the shares of Common Stock required to be returned pursuant to this paragraph shall not preclude the Company from canceling any and all such certificate(s) and shares. Similarly, the Optionee’s failure to pay to the Company any cash required to be paid pursuant to this paragraph shall not preclude the Company from taking any and all legal action it deems appropriate to facilitate its recoveryTolling Letter”).
Appears in 1 contract
Samples: Restricted Stock Award Agreement (Hercules Capital, Inc.)
Forfeiture. If The Grantee shall forfeit all of the Optionee breaches Restricted Stock Units and any noncompetition, nonsolicitation, and/or assignment right under this Agreement to receive Common Stock upon the occurrence any of inventions agreement or obligations the following events before the expiration of the Period of Restriction: · Termination of employment with the CompanyCompany or its subsidiaries for any reason. Notwithstanding the foregoing, or breaches in any material respect any nondisclosure agreement (each, a “Protective Agreement”), no forfeiture shall occur if termination of employment with the Company notifies the Optionee of such breach within one (1) year following the date on which it acquires actual knowledge thereofis due to death, and such breach is not cured within the time provided for such cure under such Protective Agreement, if applicable, then, absent a contrary determination by the Board (or its designee) (i) the Optionee shall immediately forfeit to the Company the Option granted hereunder, whether vested or unvested, and (ii) within ten (10) business days after receiving such notice from the Company, any Common Stock received pursuant to the exercise of the Option during the two (2) year period prior to the uncured breach of the Protective Agreement shall be subject to Clawback Disability (as described herein). If, while employed by or providing services to defined under the then established rules of the Company or any Affiliateof its subsidiaries, as the case may be) or is pursuant to either Section 5(a) or (b) of Grantee’s Special Severance Agreement dated _______________ but without regard to the thirty-six (36) month period specified in Section 5(a) or 5(b) of such Special Severance Agreement. · Any attempt to sell, transfer, pledge, or assign the Restricted Stock Units or the right to receive the Common Stock issuable under the Restricted Stock Units in violation of this Agreement. If the Grantee’s employment is involuntary terminated under conditions in which the Grantee qualifies for, elects to accept an employer severance benefit, if offered, and execute an agreement to release the Company in full against any and all claims as required by the arrangement or plan providing the employer severance benefit or if the Grantee retires (as defined under the then established rules of the Company or any of its subsidiaries, as the case may be), the Optionee engages Restricted Stock Units in activity that constitutes fraud this Agreement will not be adjusted for performance in accordance with the provisions under the caption “Performance Adjusted Restricted Stock Units” above and will be forfeited and payable as follows, subject to Section 3.8 of the Plan: · If the Grantee’s employment terminates prior to a full year after the Date of Grant, all Restricted Stock Units and any Restricted Stock Units earned as Dividend Equivalents will be forfeited. · If the Grantee’s employment terminates a full year or other intentional misconduct and that activity directly results in more after the Date of Grant, the Grantee will be entitled to a prorated number Restricted Stock Units. The prorated number of Restricted Stock Units will be determined by multiplying the number of shares initially awarded by the number of full months served after the date of grant, divided by thirty-six months. Additionally, the Grantee will be entitled to all Restricted Stock Units earned as Dividend Equivalents on this Award, as of the date of termination. The remaining portion of Restricted Stock Units initially granted will be forfeited. The prorated portion will be issued as soon as practicable after the termination, subject to satisfying the applicable tax withholding requirements. Upon the occurrence of any financial restatementsof the above before the expiration of the Period of Restriction, then (i) the Optionee Restricted Stock Units shall immediately forfeit be forfeited by the Grantee to the Company and the Option, whether vested or unvested, Grantee’s interest in the Restricted Stock Units and (ii) within ten (10) business days after receiving notice from the Company, any Common Stock received pursuant to issuable under the exercise of the Option shall be subject to Clawback. In additionRestricted Stock Units, the Company shall retain including the right to bring an action at equity or law to enjoin receive Dividend Equivalents (as defined below) shall terminate immediately in accordance with the Optionee’s activity and recover damages resulting from foregoing, unless such activity. Further, to forfeiture is waived in the extent required by Company policy or applicable law (including, without limitation, Section 304 sole discretion of the Xxxxxxxx-Xxxxx Act and Section 954 of the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act) and/or the rules and regulations of the NYSE or any other securities exchange or inter-dealer quotation service on which the Common Stock is listed or quoted, the Option granted under this Agreement shall also be subject (including on a retroactive basis) to clawback, forfeiture or similar requirements (and such requirements shall be deemed incorporated by reference into this Agreement). With respect to any shares of Common Stock subject to “Clawback” hereunder, the Optionee shall (A) forfeit and pay to Company any gain realized on the prior sale or transfer of such Common Stock and (B) at the option of the Company, either (x) sell or transfer into the market any shares of such Common Stock then held by the Optionee and forfeit and pay to Company any gain realized thereon, or (y) sell or transfer to the Company any shares of such Common Stock for the lesser of the then-fair market value and the amount paid by the Optionee therefor. The Optionee’s failure to return to the Company any certificate(s) evidencing the shares of Common Stock required to be returned pursuant to this paragraph shall not preclude the Company from canceling any and all such certificate(s) and shares. Similarly, the Optionee’s failure to pay to the Company any cash required to be paid pursuant to this paragraph shall not preclude the Company from taking any and all legal action it deems appropriate to facilitate its recoveryCommittee.
Appears in 1 contract
Samples: Restricted Stock Unit Agreement (Jersey Central Power & Light Co)
Forfeiture. If Notwithstanding anything herein to the Optionee contrary, if the Participant breaches any noncompetition, nonsolicitation, and/or assignment of inventions agreement or obligations with the Company, or breaches in any material respect any nondisclosure agreement (each, a “Protective Agreement”), the Company notifies the Optionee of such breach within one (1) year following the date on which it acquires actual knowledge thereof, and such breach is not cured within the time provided for such cure under such Protective Agreement, if applicable, then, absent a contrary determination by the Board (or its designee) (i) the Optionee shall immediately forfeit Restrictive Covenants applicable to the Company the Option granted hereunder, whether vested or unvested, and (ii) within ten (10) business days after receiving such notice from the Company, any Common Stock received pursuant to the exercise of the Option during the two (2) year period prior to the uncured breach of the Protective Agreement shall be subject to Clawback (as described herein). If, while employed by or providing services to the Company or any Affiliate, the Optionee engages in activity that constitutes fraud or other intentional misconduct and that activity directly results in any financial restatements, then (i) the Optionee shall immediately forfeit to the Company the Option, whether vested or unvested, and (ii) within ten (10) business days after receiving notice from the Company, any Common Stock received pursuant to the exercise of the Option shall be subject to Clawback. In addition, the Company shall retain the right to bring an action at equity or law to enjoin the Optionee’s activity and recover damages resulting from such activity. Further, to the extent required by Company policy or applicable law Participant (including, without limitation, Section 304 the Restrictive Covenants set forth in Exhibit A hereto) following termination of the Xxxxxxxx-Xxxxx Act and Section 954 Participant’s Employment by the Participant other than due to Disability or Good Reason, in each case on or after the third anniversary of the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act) and/or the rules and regulations Date of the NYSE or any other securities exchange or inter-dealer quotation service on which the Common Stock is listed or quotedGrant, the Option granted under this Agreement shall also be subject (including on a retroactive basis) to clawback, forfeiture or similar requirements (and such requirements shall be deemed incorporated by reference into this Agreement). With respect to any shares of Common Stock subject to “Clawback” hereunder, the Optionee shall (A) forfeit and pay to Company any gain realized on the prior sale or transfer of such Common Stock and (B) at the option of the Company, either then (x) sell or transfer into any portion of the market Restricted Stock Unit Award that vested during the twelve-month period immediately preceding the date of termination (the “Preceding Tranche”) shall be automatically forfeited, (y) any shares Shares acquired pursuant to the Preceding Tranche shall be subject to the call option set forth in Section 6 of such Common Stock the Investors Agreement and (z) any proceeds from the sale of Shares described in preceding clause (y), shall be immediately repaid to the Company. Notwithstanding anything herein to the contrary, if the Participant breaches any Restrictive Covenants applicable to the Participant (including, without limitation, the Restrictive Covenants set forth in Exhibit A hereto) during the Severance Period (as defined below) then (x) any Vested Portion then held by the Optionee and forfeit and pay to Company any gain realized thereonParticipant shall be automatically forfeited, or (y) sell or transfer any Shares acquired pursuant to the Company Restricted Stock Unit Award shall be subject to the call option set forth in Section 6 of the Investors Agreement and (z) any shares proceeds from the sale of Shares described in preceding clause (y), shall be immediately repaid to the Company. For purposes of this Agreement “Severance Period” shall mean, in the event of termination of the Participant’s Employment in circumstances entitling the Participant to severance under an applicable plan or policy or an individual agreement, and under which plan, policy or individual agreement the Participant elects to and actually receives severance, the two-year period immediately following the date of such Common Stock for the lesser of the then-fair market value and the amount paid by the Optionee therefor. The Optionee’s failure to return to the Company any certificate(s) evidencing the shares of Common Stock required to be returned pursuant to this paragraph shall not preclude the Company from canceling any and all such certificate(s) and shares. Similarly, the Optionee’s failure to pay to the Company any cash required to be paid pursuant to this paragraph shall not preclude the Company from taking any and all legal action it deems appropriate to facilitate its recoverytermination.
Appears in 1 contract
Samples: Restricted Stock Unit Award Agreement (Freescale Semiconductor Holdings I, Ltd.)
Forfeiture. If (a) Forfeiture of Option Gain and Unexercised Options if the Optionee breaches Engages in Certain Activities. If, at any noncompetitiontime within (1) the term of this Option or (2) within 12 months after termination of employment for any reason whatsoever other than termination by the Optionee's employer without Cause, nonsolicitationor (3) within 12 months after the Optionee exercises any portion of this Option, and/or assignment whichever is the latest, the Optionee engages in any activity in adverse, contrary or harmful to the interests of inventions agreement the Company, including, but not limited to: (i) conduct related to the Optionee's employment for which either criminal or obligations civil penalties against the Optionee may be sought, (ii) violation of Company policies, including, without limitation, the Company's xxxxxxx xxxxxxx policy, (iii) while employed by the Company or Affiliate, serving as a consultant, advisor or in any other capacity to an entity that is, or proposes to be, in competition with or acting against the interests of the Company, (for purposes of this Agreement the entities listed in Exhibit A hereto, which is incorporated herein by reference, are conclusively presumed to be in competition with the Company), (iv) employing or recruiting any present, former or future employee of the Company, whether individually or behalf of another person or entity, (v) disclosing or misusing any confidential information or material concerning the Company, or breaches (vi) participating in any material respect any nondisclosure agreement (eacha hostile takeover attempt, a “Protective Agreement”), the Company notifies the Optionee of such breach within one then (1) year following this Option shall terminate effective as of the date on which it acquires actual knowledge thereofthe Optionee entered into such activity, unless terminated sooner by operation of another term or condition of this Award Agreement or the Plan, and such breach is not cured within the time provided for such cure under such Protective Agreement, if applicable, then, absent a contrary determination by the Board (or its designee) (i2) the Optionee shall immediately forfeit to the Company the Option granted hereunder, whether vested or unvested, and (ii) within ten (10) business days after receiving such notice from the Company, any Common Stock received pursuant to the exercise of the Option during the two (2) year period prior to the uncured breach of the Protective Agreement shall be subject to Clawback (as described herein). If, while employed by or providing services to the Company or any Affiliate, the Optionee engages in activity that constitutes fraud or other intentional misconduct and that activity directly results in any financial restatements, then (i) the Optionee shall immediately forfeit to the Company the Option, whether vested or unvested, and (ii) within ten (10) business days after receiving notice from the Company, any Common Stock received pursuant to the exercise of the Option shall be subject to Clawback. In addition, the Company shall retain the right to bring an action at equity or law to enjoin the Optionee’s activity and recover damages resulting from such activity. Further, to the extent required by Company policy or applicable law (including, without limitation, Section 304 of the Xxxxxxxx-Xxxxx Act and Section 954 of the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act) and/or the rules and regulations of the NYSE or any other securities exchange or inter-dealer quotation service on which the Common Stock is listed or quoted, the Option granted under this Agreement shall also be subject (including on a retroactive basis) to clawback, forfeiture or similar requirements (and such requirements shall be deemed incorporated by reference into this Agreement). With respect to any shares of Common Stock subject to “Clawback” hereunder, the Optionee shall (A) forfeit and pay to Company any gain realized on the prior sale or transfer of such Common Stock and (B) at the option of the Company, either (x) sell or transfer into the market any shares of such Common Stock then held by the Optionee and forfeit and pay to Company any gain realized thereon, or (y) sell or transfer to the Company any shares of such Common Stock for the lesser of the then-fair market value and the amount paid by the Optionee therefor. The Optionee’s failure to return to the Company any certificate(s) evidencing the shares of Common Stock required to be returned pursuant to this paragraph shall not preclude the Company from canceling any and all such certificate(s) and shares. Similarly, the Optionee’s failure to pay to the Company any cash required Option Gain realized by the Optionee from exercising all or a portion of this Option. Notwithstanding anything herein to the contrary, for purposes of this Section 6(a) an Optionee will not be deemed to be paid pursuant engaged in an activity that is adverse, contrary or harmful to this paragraph shall not preclude the Company from taking any merely because following the termination of his employment with the Company and all legal action it deems appropriate of its Subsidiaries and Affiliates he serves as an employee, consultant or an advisor to facilitate its recoveryan entity that is, or proposes to be, in competition with the Company.
Appears in 1 contract
Samples: Stock Option Award Agreement (Stratos Lightwave Inc)
