Participant:
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Fabrizio Freda
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Grant Date:
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March 11, 2021
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Target Number of Shares:
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There are three separate Awards granted hereby. Each is a “Tranche,” and will be separately, the “First Tranche”, the “Second Tranche” and the
“Third Tranche,” respectively.
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•
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First Tranche:
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The Target Number of Shares is 27,457.
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•
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Second Tranche:
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The Target Number of Shares is 28,598.
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•
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Third Tranche:
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The Target Number of Shares is 29,872.
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For the avoidance of doubt, it is understood that a Participant’s rights, if any, with respect to any one Tranche shall be determined independently of the Participant’s rights, if any, with respect to any other Tranche. |
Service Period:
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March 11, 2021 to June 30, 2024.
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Full Performance Period:
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July 1, 2021 to June 30, 2025.
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Type of Award:
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Stock Unit and Performance Award (referred to herein as “Price Vested Units”).
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(a) |
Stock Price Goals
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(i) |
For the First Tranche, the “Stock Price Goal” shall mean an average of the closing trading prices of the Shares (on the New York Stock Exchange or other principal exchange on which
the Shares are traded) for any period of 20 consecutive trading days during the Service Period that equals or exceeds $323.03 per Share. If the Stock Price Goal for the First Tranche is not achieved, the First Tranche shall be immediately
forfeited without consideration, and the Participant shall have no further rights with respect thereto. Notwithstanding the foregoing, the Stock Price Goal shall be subject to adjustment by the Committee or the Subcommittee to reflect changes
in capitalization of the Company in accordance with Section 13 of the Plan.
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(ii) |
For the Second Tranche, the “Stock Price Goal” shall mean an average of the closing trading prices of the Shares (on the New York Stock Exchange or other principal exchange on which
the Shares are traded) for any period of 20 consecutive trading days during the Service Period that equals or exceeds $333.21 per Share. If the Stock Price Goal for the Second Tranche is not achieved, the Second Tranche shall be immediately
forfeited without consideration, and the Participant shall have no further rights with respect thereto. Notwithstanding the foregoing, the Stock Price Goal shall be subject to adjustment by the Committee or the Subcommittee to reflect changes
in capitalization of the Company in accordance with Section 13 of the Plan.
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(iii) |
For the Third Tranche, the “Stock Price Goal” shall mean an average of the closing trading prices of the Shares (on the New York Stock Exchange or other principal exchange on which
the Shares are traded) for any period of 20 consecutive trading days during the Service Period that equals or exceeds $343.61 per Share. If the Stock Price Goal for the Third Tranche is not achieved, the Third Tranche shall be immediately
forfeited without consideration, and the Participant shall have no further rights with respect thereto. Notwithstanding the foregoing, the Stock Price Goal shall be subject to adjustment by the Committee or the Subcommittee to reflect changes
in capitalization of the Company in accordance with Section 13 of the Plan.
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(b) |
Cumulative Operating Income Goal
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(i) |
“Cumulative Operating Income Goal” shall mean that the Company has achieved positive Cumulative Operating Income, as defined below, for the Full Performance Period. If the Cumulative
Operating Income Goal is not achieved, all of the Tranches shall be immediately forfeited without consideration, and the Participant shall have no further rights with respect thereto.
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(ii) |
For purposes of this Agreement, “Cumulative Operating Income” means the sum of operating income for each full fiscal year in the Full Performance Period beginning with the fiscal
year ending June 30, 2022. Operating income of the Company shall have the meaning utilized by the Company in its consolidated financial statements in accordance with generally accepted accounting principles as in effect on July 1, 2021,
calculated without regard to the following:
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• |
Changes in accounting principles (i.e. cumulative effect of GAAP changes)
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• |
Income/loss from discontinued operations and income/loss on sale of discontinued operations or adjustments to previously disposed businesses and such items which are the result of a
change in the law or the Company’s response thereto.
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• |
Impairments of intangibles and goodwill related to acquisitions.
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• |
The impact of an acquired business’ income statement not included in the Long-Range Plan (LRP) coincident with the Full Performance Period, whether dilutive or accretive. For the
sake of clarity, the LRP will be adjusted to include the expected performance of the acquired business(es) (i.e. the income statement acquisition model used to support the purchase decision). The adjustment includes due diligence fees,
investment banking fees, the operating performance of business and any transition and/or integration costs as reflected on the income statement of the acquired brand, as well as any fair value accounting charges or credits to the statement of
earnings.
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• |
Non-recurring and non-operating income/expenses that are separately stated and disclosed in the financial statements and/or Management’s Discussion and Analysis of Financial
Condition and Results of Operations appearing in the Company’s reports for the applicable period – e.g., restructuring charges, legal settlement charges.
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(c) |
If the Participant’s employment is terminated or a Change in Control occurs prior to the end of the Full Performance Period, Paragraphs 4 and 5 of the Agreement will govern the
treatment of the Price Vested Units.
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By
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/s/ Fabrizio Freda |
Date
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March 11, 2021
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Fabrizio Freda
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1. |
Award Grant. The Company hereby awards to the Participant a target award of
Price Vested Units in respect of the number of Shares set forth in the Notice of Grant, representing Stock Unit and Performance Awards under the terms of the Plan.
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2. |
Right to Delivery of Shares Under Price Vested Units. The percentage of the Price Vested Units to be earned and Shares to be delivered has been established by the Subcommittee based on achievement of (a) the Stock Price Goals prior to
the end of the Service Period and (b) achievement of the Cumulative Operating Income Goal prior to the end of the Full Performance Period specified in
the Notice of Grant. Except as otherwise provided in paragraph 3, 4 or 5 below, at the end of the Service Period and the Full Performance Period, the number of Shares earned in respect of the Price Vested Units will be determined in
accordance with the Notice of Grant.
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3. |
Delivery of Shares and Payment of Dividend Equivalents Under Price Vested Units.
Payments under this Agreement will be made in the form of delivery of the number of Shares that is equivalent to the number of Price Vested Units earned and deliverable to the Participant pursuant to paragraph 2 above. Except as otherwise
provided in paragraph 4 or 5 below, payments, if any, with respect to each Tranche will be made on September 2, 2025, and the form of such payout will be the delivery of Shares. In addition, each Price Vested Unit that becomes earned and
payable pursuant to paragraph 2 above carries a Dividend Equivalent Right, payable in cash at the same time as the delivery of Shares in accordance with this paragraph 3 and paragraph 4 or 5. For the avoidance of doubt, with respect to each
Tranche, such Dividend Equivalent Right shall not attach to, and no payment shall be made as a result of, dividends (a) the record date for which is prior to the grant date of the Price Vested Units or (b) paid with respect to Price Vested
Units that are not ultimately earned.
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4. |
Change in Control.
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(a) |
Upon a Change in Control, provided that the Price Vested Units remain outstanding and have not been forfeited prior to such date and the
Participant does not terminate his employment (e.g., by retiring or by voluntarily resigning other than for Good Reason or as provided in paragraph 4(b) below) prior to the end of the Service Period, (i) at any time before the end of the
Full Performance Period, the Cumulative Operating Income Goal for the Price Vested Units shall be deemed met in full, and (ii) at any time before the end of the Service Period, the Service Period shall be deemed terminated as of the date of
the Change of Control, such that the Stock Price Goals for each respective Tranche must be achieved as of or prior to such date. In such a case, if the Stock Price Goal for any Tranche is achieved as of such date, one hundred percent (100%) of the Target Number of Shares granted with respect to each such Tranche shall be delivered in accordance with paragraph 3 or, if earlier,
in accordance with this paragraph 4. For the avoidance of doubt, if the Stock Price Goal for any Tranche is not achieved as of the end of the Service
Period (either upon June 30, 2024 or the date of a Change of Control, if earlier), then any such unvested Tranche will be forfeited. Upon a Change in Control that occurs prior to the end of the Service Period, and notwithstanding
the requirement that the Stock Price Goals be met for a period of 20 consecutive trading days during the Service Period as provided under the Notice of Grant, the Stock Price Goal for each Tranche shall be deemed achieved if the price with
respect to each Stock Price Goal as set forth on the Notice of Grant is achieved based upon (i) the price per Share paid to other stockholders in connection with the Change in Control transaction, or (ii) if the Change in Control does not
involve consideration paid to stockholders, the last trading price of the Shares (on the New York Stock Exchange or other principal exchange on which the Shares are traded) as of immediately prior to the Change in Control.
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(b) |
If on or after a Change in Control, the Participant terminates for Good Reason (as defined
below), dies, becomes disabled as described in paragraph 5(b), or is terminated by the Company without Cause in accordance with paragraph 5(c), the following provisions shall apply:
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(i) |
Where the Change in Control occurs after the Full Performance Period, the number of Price Vested Units earned and Shares deliverable pursuant to paragraph 2, if any,
but not yet delivered in accordance with paragraph 3 will be delivered in accordance with this paragraph 4.
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(ii) |
If any such termination occurs within two years following a Change in Control that constitutes a
“change in control event” within the meaning of Section 409A of the Code or the Participant dies or becomes disabled as described in paragraph 5(b), the delivery of Shares and payments under this paragraph will be made within two weeks
following the date on which Participant terminates employment or dies or becomes disabled as described in paragraph 5(b); provided such termination (excluding Participant’s death or disability as described in paragraph 5(b)) constitutes a
“separation from service” for purposes of section 409A of the Code; provided further that if such termination (excluding Participant’s death or disability as described in paragraph 5(b)) does not constitute a “separation from service” for
purposes of section 409A of the Code or such “separation from service” does not occur within two years following a Change in Control that constitutes a “change in control event” within the meaning of Section 409A of the Code, such payments
shall be made in accordance with paragraph 3. If the Shares cease to be outstanding immediately after the Change in Control (e.g., due to a merger with and into another entity), then the amount and type of consideration to be
received in respect of each Share earned under a Price Vested Unit will be based on the consideration paid to each stockholder per Share generally upon the Change in Control as determined by the Subcommittee. Notwithstanding anything herein
to the contrary, the Subcommittee shall have the right to terminate and pay out any amounts hereunder in accordance with Treasury Regulation 1.409A-3(j)(4)(ix). In the event that a Change in Control occurs after the Participant’s termination
of employment, each Price Vested Unit shall be converted into the right to receive an amount in cash based on the consideration paid to each stockholder per Share generally upon the Change in Control as determined by the Subcommittee.
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(iii) |
For purposes hereof, “Good Reason” means the occurrence of any of the following, without the express written consent of the Participant:
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(A) |
the assignment to the Participant of any duties inconsistent in any material adverse respect with the Participant’s position, authority or responsibilities
immediately prior to the Change in Control, or any other material adverse change in such position, including title, authority or responsibilities;
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(B) |
any failure by the Company to pay any amounts for compensation or benefits owed to the Participant or a material reduction of the overall amounts of compensation and
benefits in effect prior to the Change in Control, other than an insubstantial or inadvertent failure remedied by the Company promptly after receipt of notice thereof given by the Participant;
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(C) |
the Company’s requiring the Participant to be based at any office or location more than fifty (50) miles from that location at which he performed his or her services
for the Company immediately prior to the Change in Control, except for travel reasonably required in the performance of the Participant’s responsibilities; or
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(D) |
any failure by the Company to obtain the assumption and agreement to perform this Agreement by a successor, unless such assumption occurs by operation of law.
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(c) |
If after a Change in Control, the Participant terminates his or her employment (e.g., by retiring or by voluntarily resigning) after the Service Period but prior to
the end of the Full Performance Period, the Tranches of the Price Vested Units that vested in connection with the Change in Control under paragraph 4(a), if any, shall remain outstanding and shall be delivered in accordance with paragraph 3.
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5. |
Termination of Employment. If the Participant’s employment terminates, except
as otherwise provided in paragraph 4, the vesting of Price Vested Units and the delivery of Shares thereunder will be as follows:
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(a) |
Death. If the Participant dies prior to the end of the Service Period, provided that the Price Vested Units remain outstanding and have not been forfeited prior to such date, (i) the Cumulative Operating Income Goal shall be
deemed met in full, and (ii) the Service Period shall be deemed terminated as of the earlier of (A) the one-year anniversary of the date of the Participant’s death and (B) the last day of the Service Period, such that the Stock Price Goals
for each respective Tranche must be achieved as of or prior to such date. In such a case, if the Stock Price Goal for a Tranche is achieved on or prior to such date, then one hundred percent (100%) of the Target Number of Shares underlying
each such Tranche shall become vested. For the avoidance of doubt, if the Stock Price Goals are not achieved as of the such date (either upon June 30, 2024 or the one-year anniversary of the Participant’s death, if earlier), then all
Tranches subject to such Stock Price Goals will be forfeited. If the Participant dies on or after the last day of the Service Period, one hundred percent (100%) of the Target Number of Shares with respect to each Tranche for which the Stock
Price Goals were achieved before the end of the Service Period, if any, will be delivered. Delivery of Shares hereunder, if any, will be made (1) if the Participant dies prior to June 30, 2023, on the 75th day following the date of the
one-year anniversary of the Participant’s death, (2) if the Participant dies on or after June 30, 2023 but prior to June 30, 2024, on September 13, 2024, and (3) if the Participant dies on or after June 30, 2024, on the 75th day following the
date of the Participant’s death. All delivery of Shares under this paragraph 5(a) shall be made in accordance with any applicable laws or Company procedures regarding such delivery of Shares.
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(b) |
Disability. If the Participant becomes “disabled” (within the meaning of
Treasury Regulation 1.409A-3(i)(4)) prior to the end of the Service Period, provided that the Price Vested Units remain outstanding and have not been
forfeited prior to such date, (i) the Cumulative Operating Income Goal shall be deemed met in full, and (ii) the Service Period shall be deemed terminated as of the earlier of (A) the one-year anniversary of the date on which the Participant
becomes disabled and (B) the last day of the Service Period, such that the Stock Price Goals for each respective Tranche must be achieved as of or prior to such date. In such a case, if the Stock Price Goal for a Tranche is achieved on or
prior to such date, then one hundred percent (100%) of the Target Number of Shares underlying each such Tranche shall become vested. For the avoidance of doubt, if the Stock Price Goals are not achieved as of the such date (either upon June
30, 2024 or the one-year anniversary of the date of the Participant becomes disabled, if earlier), then all Tranches subject to such Stock Price Goals will be forfeited. If the Participant becomes disabled on or after the last day of the
Service Period, one hundred percent (100%) of the Target Number of Shares with respect to each Tranche for which the Stock Price Goals were achieved before the end of the Service Period, if any, will be delivered. Delivery of Shares
hereunder, if any, will be made (1) if the disability occurs prior to June 30, 2023, on the 75th day following the date of the one-year anniversary of the date on which the Participant becomes disabled, (2) if the disability occurs on or
after June 30, 2023 but prior to June 30, 2024, on September 13, 2024, and (3) if the disability occurs on or after June 30, 2024, on the 75th day following the date on which the Participant becomes disabled.
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(c) |
Termination of Employment Without Cause. If the Participant employment is
terminated at the instance of the Company or relevant subsidiary without Cause (as defined below) (i) and if the Stock Price Goals for any of the Tranches are achieved as of the end of the Service Period and (ii) the Cumulative Operating
Income Goal is achieved by the end of the Full Performance Period, one hundred percent (100%) of the Target Number of Shares granted with respect to such Tranches for which such Stock Price Goals were achieved, if any, shall be delivered in
accordance with paragraph 3. If the Stock Price Goal for any Tranche is not achieved as of the end of the Service Period, such Tranche will be forfeited, and if the Cumulative Operating Income Goal is not achieved by the end of the Full
Performance Period, then the Price Vested Units will be forfeited.
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(d) |
Termination of Employment By Employee. If the Participant terminates his or
her employment (e.g., by retiring or by voluntarily resigning) on or prior to the end of the Service Period, then the Price Vested Units will be forfeited. If the Participant terminates his or her employment (e.g., by retiring or by
voluntarily resigning) following the end of the Service Period but on or prior to the end of the Full Performance Period, and at least one Tranche of the Price Vested Units remains outstanding and has not been forfeited as of the termination
date, then the Cumulative Operating Income Goal shall be measured for achievement as of the end of the Full Performance Period. If the Cumulative Operating Income Goal is achieved as of the end of the Full Performance Period then the
Tranche(s) subject to the Stock Price Goal(s) that was (were) achieved prior to the end of the Service Period, if any, shall become vested and one hundred percent (100%) of the Target Number of Shares granted with respect to such Tranche(s)
shall be delivered in accordance with paragraph 3 of this Agreement. If the Participant terminates his or her employment at any time and the Cumulative Operating Income Goal is not achieved as of the end of the Full Performance Period, then
the Price Vested Units will be forfeited.
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(e) |
Termination of Employment With Cause. If the Participant is terminated for Cause, all
Tranches of the Price Vested Units will be forfeited, regardless of whether a Tranche has been otherwise earned and vested. If (a) the Participant is no longer employed by the Company for any reason, (b) delivery of Shares of a Tranche has
not previously been made, and (c) it is determined that Participant’s behavior while he was employed would have constituted Cause, then each Tranche not previously delivered will be forfeited, regardless of whether such Tranche has been
otherwise earned and vested. For this purpose, “Cause” is defined in the employment agreement in effect between the Participant and the Company or any subsidiary, including any employment agreement entered into after the Grant Date. In the
absence of an employment agreement, “Cause” means any breach by the Participant of any of his or her material obligations under any Company policy or procedure, including, without limitation, the Code of Conduct.
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(f) |
Post Employment Conduct. Payout of any Price Vested Unit Award after termination of employment is subject to satisfaction of the conditions precedent that, for the lesser of (A) 24 months following termination of employment or (B) the
period remaining until date of delivery of the Shares as described in paragraph 3, the Participant neither (i) competes with, takes employment with, or renders services to a competitor of the Company, its subsidiaries, or affiliates nor
(ii) conducts himself in a manner adversely affecting the Company. The term “competitor” means any business that is engaged in, or is preparing to become engaged in, the makeup, skin care, hair care, toiletries or fragrance business or
other business in which the Company is engaged or preparing to become engaged, or that otherwise competes with, or is preparing to compete with, the Company. If the Participant’s employment terminates after the expiration of the Full
Performance Period but prior to payout, payout will be subject to this paragraph 5(f).
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6. |
No Rights of Stock Ownership. This grant of Price Vested Units does not
entitle the Participant to any interest in or to any voting or other rights normally attributable to Share ownership other than the Dividend Equivalent Rights granted under paragraph 3 above and until Shares are actually delivered to the
Participant.
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7. |
Withholding Taxes. Regardless of any action the Company or the Participant’s
employer (the “Employer”) takes with respect to any or all income tax, social security (or social insurance), payroll tax, fringe benefits tax, payment on account or other tax-related items related to the participation in the Plan and this
Agreement and legally applicable to the Participant (“Tax-Related Items”), the Participant acknowledges that the ultimate liability for all Tax-Related Items legally due by the Participant is and remains his or her responsibility and may
exceed the amount actually withheld by the Company or the Employer. Furthermore, the Participant acknowledges that the Company and/or the Employer (i) make no representations or undertakings regarding the treatment of any Tax-Related Items in
connection with any aspect of the Price Vested Units, including, but not limited to, the grant of the Price Vested Units, the vesting of the Price Vested Units, the delivery of Shares, the subsequent sale of Shares acquired under the Plan and
the receipt of any dividends, and (ii) do not commit to and are under no obligation to structure the terms of the grant of the Price Vested Units or any aspect of the Participant’s participation in the Plan to reduce or eliminate his or her
liability for Tax-Related Items or achieve any particular tax result. If the Participant is or becomes subject to Tax-Related Items in more than one jurisdiction, the Participant acknowledges that the Company and/or the Employer (or former
employer, as applicable) may be required to withhold or account for Tax-Related Items in more than one jurisdiction.
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8. |
Nonassignability. This award may not be assigned, pledged, or transferred
except, if the Participant dies, to a designated beneficiary or by will or by the laws of descent and distribution. The foregoing restrictions do not apply to transfers under a court order, including, but not limited to, any domestic
relations order.
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9. |
Effect Upon Employment. The Participant’s right to continue to serve the
Company or any of its subsidiaries as an officer, employee, or otherwise, is not enlarged or otherwise affected by an award under this Agreement. Nothing in this Agreement or the Plan gives the Participant any right to continue in the employ
of the Company or any of its subsidiaries or interfere in any way with any right the Company or any of its subsidiaries may have to terminate his or her employment at any time. Payment of Shares is not secured by a trust, insurance contract
or other funding medium, and the Participant does not have any interest in any fund or specific asset of the Company by reason of this Award or the account established on his or her behalf. A Price Vested Unit confers no rights as a
stockholder of the Company until Shares are actually delivered to the Participant.
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10. |
Electronic Notice, Delivery and Acceptance. The Company may, in its sole
discretion, decide to deliver any documents related to Price Vested Units awarded under the Plan or future Price Vested Units that may be awarded under the Plan by email or other electronic means. The Participant hereby consents to receive
such documents by email or other electronic delivery and agrees to access information concerning the Plan through an on-line or electronic system established and maintained by the Company or by another third party designated by the Company.
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11. |
Data Privacy. As a condition of this Price Vested Unit grant, the
Participant hereby expressly consents to the collection, use, disclosure, transfer and other processing of his or her personal data as set out in this Section 11 and as otherwise required by applicable law.
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12. |
Discretionary Nature and Acceptance of Award. The Participant agrees to be
bound by the terms of this Agreement and acknowledges, understands and agrees that:
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(a) |
The Plan is established voluntarily by the Company, it is discretionary in nature, and it may be modified, amended, suspended or terminated by the Company at any
time, unless otherwise provided in the Plan and this Agreement;
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(b) |
The award is exceptional, voluntary and occasional, and does not create any contractual or other right to receive future awards, or benefits in lieu of Price Vested
Units, even if Price Vested Units have been awarded in the past;
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(c) |
All decisions with respect to future Price Vested Units or other awards, if any, will be at the sole discretion of the Company;
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(d) |
The Participant’s participation in the Plan is voluntary;
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(e) |
The Price Vested Units and any Shares acquired under the Plan, and the income and value of the same, are not intended to replace any pension rights or compensation;
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(f) |
The Participant’s participation in the Plan shall not create a right to further employment with the Employer and shall not interfere with the ability of the Company
or the Employer to terminate the Participant’s employment at any time;
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(g) |
This Award of the Price Vested Units will be deemed accepted unless it is declined by way of written notice by the Participant within 30 days of the Grant Date to the
Equity Based Compensation Department of the Company located at 767 Fifth Avenue, New York, NY 10153;
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(h) |
The Price Vested Units and any Shares acquired under the Plan, and the income and value of the same, are not part of normal or expected compensation or salary for any
purposes, including, but not limited to, calculating any severance, resignation, termination, redundancy, dismissal end of service payments, bonuses, holiday pay, long-service awards, pension or retirement or welfare benefits or similar
payments;
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(i) |
In the event the Participant is not an employee of the Company, the Price Vested Units and the Participant’s participation in the Plan will not be interpreted to form
an employment or service contract or relationship with the Company or with any subsidiary of the Company;
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(j) |
The future value of the underlying Shares is unknown and indeterminable and cannot be predicted with certainty;
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(k) |
In consideration of the Price Vested Units, no claim or entitlement to compensation or damages shall arise from forfeiture of the Price Vested Units or diminution in
value of the Price Vested Units, or Shares acquired upon vesting of the Price Vested Units, resulting from termination of Participant’s employment (for any reason whatsoever and whether or not later found to be invalid or in breach of
employment laws in the jurisdiction where the Participant is employed, or the terms of the Participant’s employment), and in consideration of the Price Vested Units, Participant irrevocably releases the Employer, the Company and any of its
subsidiaries from any such claim that may arise; if, notwithstanding the foregoing, any such claim is found by a court of competent jurisdiction to have arisen, then, by acknowledging and agreeing to or signing the Notice of Grant, the
Participant shall be deemed irrevocably to have waived his or her right to pursue or seek remedy for any such claim or entitlement against the Employer, the Company or any of its subsidiaries;
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(l) |
For Purposes of the Price Vested Units, the Participant’s employment or service relationship will be considered terminated as of the date the Participant is no longer actively
providing services to the Employer, the Company or any of its subsidiaries as determined by the Administrator in its sole discretion (regardless of the reason for such termination and whether or not later found to be invalid or in breach of
employment laws in the jurisdiction where the Participant is employed or the terms of the Participant’s employment agreement, if any);
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(m) |
The Company is not providing any tax, legal or financial advice, nor is the Company making any recommendations regarding the Participant’s participation in the Plan
or Participant’s acquisition or sale of the underlying Shares; and
|
(n) |
Participant is hereby advised to consult with Participant’s own personal tax, legal and financial advisors regarding the Participant’s participation in the Plan
before taking any action related to the Plan.
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13. |
Failure to Enforce Not a Waiver. The Company’s or the Participant’s failure
to enforce at any time any provision of this Agreement does not constitute a waiver of that provision or of any other provision of this Agreement.
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14. |
Governing Law. The Price Vested Unit Award Agreement is governed by and is to
be construed according to the laws of the State of New York that apply to agreements made and performed in that state, without regard to its choice of law provisions. For purposes of litigating any dispute that arises under the Price Vested
Units or this Agreement, the parties hereby submit to and consent to the jurisdiction of the State of New York, and agree that such litigation will be conducted in the courts of New York County, New York, or the federal courts for the United
States for the Southern District of New York, and no other courts, where the Price Vested Units are made and/or to be performed.
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15. |
Partial Invalidity. The invalidity or illegality of any provision of the
Agreement will be deemed not to affect the validity of any other provision. Furthermore, it is the parties’ intent that any order striking any portion of this Agreement and/or the Plan should modify the stricken terms as narrowly as possible
to give as much effect as possible to the intentions of the parties hereunder.
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16. |
Entire Agreement. This Agreement and the Plan constitute the entire agreement
between the Participant and the Company regarding the award and supersede all prior and contemporaneous agreements and understandings, oral or written, between the parties regarding the award. Except as expressly set forth herein, this
Agreement (and any provision of this Agreement) may not be modified, changed, clarified, or interpreted by the parties, except in a writing specifying the modification, change, clarification, or interpretation, and signed by a duly authorized
Company officer.
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17. |
Section 409A Compliance. This Agreement is intended to comply with Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”), and any regulations, rulings, or guidance provided thereunder. Each payment under this Agreement shall be
treated as a separate payment for purposes of Section 409A of the Code. In no event may the Participant, directly or indirectly, designate the calendar year of any payment to be made under this Agreement. The Company reserves the unilateral
right to amend this Agreement upon written notice to the Participant to prevent taxation under Section 409A of the Code. Notwithstanding any contrary provision in the Plan or this Agreement, any payment(s) of “nonqualified deferred
compensation” (within the meaning of Section 409A of the Code) that are otherwise required to be made under this Agreement to a “specified employee” (as defined under Section 409A of the Code) as a result of his or her “separation from
service” (as defined below) (other than a payment that is not subject to Section 409A of the Code) shall, to the extent required by Section 409A of the Code, be delayed for the first six (6) months following such “separation from service” and
shall instead be paid on the payment date that immediately follows the end of such six-month period (or, if earlier, within 10 business days following the date of death of the specified employee) or as soon as administratively practicable
within 90 days thereafter, but in no event later than the end of the applicable taxable year.
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18. |
Recoupment. Notwithstanding any other provision of this Agreement to the
contrary, the Participant acknowledges and agrees that the Price Vested Units, any Shares acquired pursuant thereto and/or any amount received with respect to any sale of such Shares are subject to potential cancellation, recoupment,
rescission, payback or other action in accordance with the terms of the Company’s recoupment policy as in effect on the Grant Date and as such policy applicable to the Company’s executive officers may be amended from time to time in order to
comply with changes in laws, rules or regulations that are applicable to the Price Vested Units and Shares. The Participant agrees and consents to the Company’s application, implementation and enforcement of (a) the recoupment policy, and (b)
any provision of applicable law relating to cancellation, recoupment, rescission or payback of compensation and expressly agrees that the Company may take such actions as are necessary to effectuate the recoupment policy (as applicable to the
Participant) or applicable law without further consent or action being required by the Participant. For purposes of the foregoing, the Participant expressly and explicitly authorizes the Company to issue instructions, on his or her behalf, to
any brokerage firm and/or third party administrator engaged by the Company to hold his or her Shares and other amounts acquired under the Plan to re-convey, transfer or otherwise return such Shares and/or other amounts to the Company upon the
enforcement of the provisions continued in this Section 18. To the extent that the terms of this Agreement and the recoupment policy conflict, the terms of the recoupment policy shall prevail.
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19. |
Insider Trading/Market Abuse Laws. By Participating in the Plan, the
Participant agrees to comply with the Company’s Insider Trading Policy. Further, the Participant acknowledges that the Participant’s country of employment (and country of residence, if different) may also have laws or regulations governing
insider trading and that such laws or regulations may impose additional restrictions on the Participant’s ability to participate in the Plan (e.g., acquiring or selling Shares) and that the Participant is solely responsible for complying with
such laws or regulations.
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20. |
Prohibition on Pledging or Hedging Before Payment of Shares. The Participant
agrees not to purchase any financial instruments (including prepaid variable forward contracts, equity swaps, collars, and exchange funds) or otherwise engage in transactions that are designed to or have the effect of pledging, hedging or
offsetting any decrease in the market value of the awards in this Agreement prior to the payment of Shares under this Agreement.
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21. |
Exchange Control, Tax and/or Foreign Asset/Account Reporting. The Participant
acknowledges that there may be exchange control, tax, foreign asset and/or account reporting requirements that may affect the Participant’s ability to acquire or hold Shares acquired under the Plan or cash received from participating in the
Plan (including from any Dividend Equivalents Rights paid with respect to the Price Vested Units or dividends paid on Shares acquired under the Plan) in a brokerage/bank account or legal entity outside the Participant’s country of employment
(and country of residence, if different). The Participant may be required to report such accounts, assets, the balances therein, the value thereof and/or the transactions related thereto to the tax or other authorities in the Participant’s
country of employment (and country of residence, if different). The Participant also may be required to repatriate sale proceeds or other funds received as a result of the Participant’s participation in the Plan to the Participant’s country
of employment (and country of residence, if different) through a designated bank or broker within a certain time after receipt. The Participant acknowledges that it is the Participant’s responsibility to be compliant with such regulations,
and the Participant should consult his or her personal legal advisor for any details.
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22. |
Imposition of Other Requirements. The Company reserves the right to impose
other requirements on the Participant’s participation in the Plan, on the Price Vested Units and on any Shares acquired under the Plan, to the extent the Company determines it is necessary or advisable for legal or administrative reasons, and
to require the Participant to sign any additional agreements or undertakings that may be necessary to accomplish the foregoing.
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The Estée Lauder Companies Inc.
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By:
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/s/ Michael O’Hare | |
Michael O’Hare
Executive Vice President,
Global Human Resources
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