展品10.1
宏盟集團股份有限公司。
2021激勵獎勵計劃
績效限制股票單位協議
GRANT通知
除非另有定義，否則在宏盟集團2021年激勵獎計劃（經修訂、重訂或其他方式不時修改，以下簡稱“或者為法定目的而成立的人士，其業務或活動（“法定機構”）包括對各種公共機構的員工福利計劃、養老金計劃、保險計劃開展投資基金管理；”）中所定義的術語，在本授權通知（以下簡稱“授予通知”）及附錄A《本授權通知附錄A所載的履行限制股單位協議》（以下統稱“協議”).
你已被授予表現限制性股票單位（"PRSUs“），受計劃和本協議的條款和條件約束。
| 僱員： | [__________] | ||||
| 授予日期： | [__________] | ||||
| 最大限度的PRSUs數量： | [__________] | ||||
| 解禁期程： | PRSUs應根據附件A所規定的數量和時間進行授予（任何PRSUs有資格授予的日期在本文件中被稱為“發行日期”). | ||||
您在下面簽名，可通過Omnicom批准的電子手段完成，表明您同意並理解PRSUs受本協議中包含的所有條款和條件約束，包括授予通知、附件A的表現受限股份單位協議，計劃以及附件A第6條中規定的限制契約。 因此，請務必閱讀包含PRSUs特定條款和條件的所有附件A。
員工: 宏盟集團股份有限公司:
作者：_________________________ 作者：_________________________
姓名： 姓名： Louis F. Januzzi
標題: 標題: 高級副總裁，總顧問暨秘書
總顧問及秘書
總顧問及秘書
展覽A
宏盟集團股份有限公司。
宏盟集團股份有限公司。
2021激勵獎勵計劃
績效限制股票單位協議
1.PRSUs的獎勵。 Omnicom已授予員工在授予通知中設定的PRSUs數量。 每個PRSUs代表收到一股股份的權利。 但是，在PRSUs獲得授權之前，員工對其所涉股份沒有任何權利。 在實際交付任何經過授權的股份之前，該等PRSUs將代表Omnicom的無法償還債務，僅可通過Omnicom的一般資產（如果有的話）提供。
2.股息等值、股東權利及存托.
a)對於股份記錄日（「記錄日期」）上尚未行使的每個PRSU，如果公司支付了任何股票股利或其他分配，員工將有權按以下方式收取該股利或其他分配：
(i)如果Omnicom的股東以現金形式支付分紅派息或其他分配給股東的費用，則員工將有資格收到與如果與員工收到分紅或其他分配有關的PRSUs已經以股票形式結算時員工將會收到的現金支付相等的現金支付，扣除適用的稅款代扣，前提是，現金支付將受到與分配的PRSUs相同的賦存要求和轉讓限制以及對延期付款的條件限制，並應根據本協議的條款視為與PRSUs有關，涉及沒收、可轉讓性和支付時間。
(ii)如果Omnicom的股東以股票形式支付任何此類分紅或分配，員工將有資格獲得與員工如果已經以股票形式結算與員工正在接收分紅的PRSUs相等的PRSUs數量。 任何這樣的額外PRSUs將受到與它們所分配的PRSUs相同的授予規定和轉讓限制，並應根據本協議條款視為PRSUs。
儘管如前所述，如果員工有權獲得股息或其他分配，因持有在記錄日期之後但在支付適用的股息或其他分配之前發放的股票，其發行與PRSUs的結算有關（“結算的PRSUs”），則員工不得同時有權根據本2(a)段收取有關已結算PRSUs的股息或其他分配。
b)在PRSUs累積日起之前，員工應不會獲發任何現金或股份。依照第4條的規定進行分配時，證實該PRSUs的股份將被轉入員工的券商賬戶或計劃管理員持有的參與者trust（即“券商賬戶”），或者，在奧美的唯一裁量下，可能發行並遞交給員工（或其許可的
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透過歐尼康公司將股份轉移予受讓人（「受讓人」）及任何現金應支付予員工。除非股份已存入員工的券商賬戶或發行並記錄在歐尼康公司或其轉移代理人或登記機構的記錄上並交付予員工，在此之前，員工或任何聲稱透過員工取得權利或特權的人士對於此處交付的任何股份均不擁有歐尼康公司股東的任何權利或特權。除非本合同另有規定，在此發行、記錄和交付之後，員工將擁有所有股東對於投票該等股份以及獲得該等股份股息和分紅派息的權利。
3.授予和喪失資格；委員會裁量。
a)授權和沒收一般情況下在除了3(a)(ii)和(iii)段提供的規定之外，應該在衡量日期（如下所定義）成熟並不可沒收的PRSUs數量應該等於（向最接近完整的PRSUs四捨五入）（i）績效比率（如下所定義）乘以（ii）衡量日期前立即未實行的PRSUs總數。
(i)根據衡量日期計算績效比率。在日歷年結束後[ ]的合理時間內，委員會將確定表現比率（委員會確定表現比率的日期在本協議中稱為“衡量日期”），該比率將確定將授予的PRSUs數量（由委員會確定的此比率稱為“績效比率”），基於Omnicom的相對股東權益平均回報率相對於同行業每個成員的平均股東權益回報率。委員會應按以下方式確定表現比率: [將在每個個別獎勵協議中具體說明]。
(i)酌情授予股票董事會可自行決定，加快或允許任何未根據本第3(a)款條款授予股票的PRSUs的授予。
(ii)沒收PRSUs.
(1)在下列第3(b)條至第3(d)條款的規定下，若員工發生解雇情況，員工對任何截至解雇日期尚未發生的PRSUs的獲得權以及相關股份的權利將自解雇日期起自動失效，員工將不再擁有這些PRSUs或相關股份的任何其他權利。
(2)Effective as of the Measurement Date, if the Performance Ratio is not the Maximum Performance Ratio, any PRSUs that are no longer eligible to vest pursuant to paragraph 3(a)(i) shall terminate effective as of the Measurement Date and the Employee shall have no further rights to such PRSUs or the related Shares.
b)Termination of Employment due to Death. In the event of a Termination of Employment prior to [__________] by reason of the death of the Employee, all of the PRSUs shall become vested and non-forfeitable as of the Termination Date. In the event of a Termination of Employment on or after [__________] by reason of the death of the Employee, the number of PRSUs that shall become vested and non-forfeitable on the Measurement Date
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shall equal (rounded up to the nearest full PRSU) (i) the Performance Ratio, multiplied by (ii) the total number of PRSUs outstanding immediately prior to the Termination Date.
c)Termination of Employment due to Disability. In the event of a Termination of Employment prior to [__________] by reason of the Disability of the Employee, the number of PRSUs that shall become vested and non-forfeitable on the Termination Date as a result of such Termination of Employment (rounded up to the nearest full PRSU) shall equal (A) all of the PRSUs that are outstanding immediately prior to the Termination Date, multiplied by (B) a fraction, the numerator of which shall be the number of full calendar months between January 1, [ ] and the Termination Date and the denominator of which shall be [__________], provided, however, that the Committee may determine in its discretion that a greater number of PRSUs shall vest as of the Termination Date in such circumstance. In the event of a Termination of Employment on or after [__________] by reason of the Disability of the Employee, the number of PRSUs that shall become vested and non-forfeitable on the Measurement Date shall equal (rounded up to the nearest full PRSU) (i) the Performance Ratio, multiplied by (ii) the total number of PRSUs outstanding immediately prior to the Termination Date.
d)Termination of Employment, other than due to Disability or death. In addition, in the event of a Termination of Employment prior to the Measurement Date that occurs for reasons other than due to Disability or death of the Employee, the number of PRSUs that shall become vested and non-forfeitable on the Measurement Date shall equal (rounded up to the nearest full PRSU) (A) the Performance Ratio, multiplied by (B) one of the following:
(i)In the event of a Termination of Employment on or after [__________] and prior to [__________], one-third of the total number of PRSUs outstanding immediately prior to the Termination of Employment (rounded up to the nearest whole share), with the remaining two-thirds of the PRSUs being immediately forfeited on the Termination Date;
(ii)In the event of a Termination of Employment on or after [__________] and prior to [__________], two-thirds of the total number of PRSUs outstanding immediately prior to the Termination of Employment (rounded up to the nearest whole share), with the remaining one-third of the PRSUs being immediately forfeited on the Termination Date;
(iii)In the event of a Termination of Employment on or after [__________], the total number of PRSUs outstanding immediately prior to the Termination Date.
e)The Employee acknowledges that upon a Change in Control prior to a Vesting Date, Article 10 of the Plan shall govern.
4.Distribution of Shares.
a)Shares shall be distributed to the Employee (or in the event of the Employee’s death, to his or her estate) with respect to such Employee’s vested PRSUs on the earliest to occur of the following:
(i)In the seventh month following the Employee’s “separation from service” (as defined in Section 1.409A-1(h) of the Treasury Regulations) due to Disability;
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(ii)Within thirty (30) days following the Employee’s death;
(iii)Within thirty (30) days following the Measurement Date but in all events within calendar year [ ]. For the avoidance of doubt, if the PRSUs become vested and non-forfeitable as a result of the application of Section 10.2 of the Plan, the distribution shall occur in January [ ].
b)Neither the time nor form of distribution of Shares with respect to the PRSUs may be changed, except as may be permitted by the Committee in accordance with the Plan and Section 409A of the Code and the Treasury Regulations thereunder. No payment under this Agreement shall be made at a time earlier than that provided for in this Agreement unless such payment is (A) an acceleration of payment permitted to be made under Treasury Regulation §1.409A-3(j)(4) or (B) a payment that would otherwise not be subject to additional taxes and interest under Section 409A.
5.Tax Withholding. Notwithstanding any other provision of this Agreement:
a)The Employee is ultimately liable and responsible for all taxes owed in connection with the PRSUs, regardless of any action Omnicom or any Omnicom Affiliate takes with respect to any tax withholding obligations that arise in connection with the PRSUs. Neither Omnicom nor any of its Affiliates makes any representation or undertaking regarding the treatment of any tax associated with the awarding or vesting of the PRSUs or the subsequent sale of Shares issuable pursuant to the PRSUs. Omnicom and its Affiliates do not commit and are under no obligation to structure the PRSUs to reduce or eliminate the Employee’s tax liability.
b)Prior to any event in connection with the PRSU (e.g., vesting) that Omnicom determines may result in any domestic or foreign tax withholding obligation, whether national, federal, state or local, including any social tax obligation (the “Tax Withholding Obligation”), the Employee shall make arrangements satisfactory to Omnicom for the satisfaction of any Tax Withholding Obligation that arise in connection with his/her PRSUs, including, without limitation, by electing to have the administrator of the Plan withhold a portion of the vested Shares on the Vesting Date in payment of the relevant withholding taxes or maintaining sufficient cash in Employee’s Brokerage Account for payment of the relevant withholding taxes. In the event Shares are withheld for the satisfaction of any Tax Withholding Obligation, the number of Shares to be withheld shall equal the quotient of (A) the amount of the Tax Withholding Obligation, and (B) the Fair Market Value of the Shares on the Vesting Date.
c) To the maximum extent permitted by law, Omnicom has the right to retain without notice from shares of Stock issuable under the PRSUs or from salary payable to the Employee, shares of Stock or cash having a value sufficient to satisfy the Tax Withholding Obligation.
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6.Non-Solicitation/Non-Servicing and Protection of Confidential Information Agreement.
a)In consideration for and in order to be eligible to receive the voluntary grant of the PRSUs provided in this Agreement and for other good and valuable consideration (including the receipt of other compensation paid to the Employee in connection with the Employee’s employment by a member of the Group), except on behalf of a member of the Group, the Employee will not, as an individual, employee, consultant, independent contractor, partner, shareholder, member or in association with any other person, firm, corporation or other form of entity, directly or indirectly, and regardless of the Employee continuing to be employed by a member of the Group or the reason for the Employee ceasing to be so employed by any member of the Group:
(i)during the Employment Period, directly or indirectly, solicit business on behalf of, render any services to, engage in, or have any ownership interests or other affiliation in, any business or other endeavor, which is engaged in the business of the same nature as or competitive with any member of the Group; provided, however, that nothing contained in this clause (i) shall be deemed to prevent the undersigned from owning less than ¼ of 1% of the shares of any publicly held corporation engaged in any such business;
(ii)during the Restricted Period, solicit, render services to or for, or accept from, any Restricted Client, any business of the type performed by any member of the Group for such Restricted Client or persuade or attempt in any manner to persuade any Restricted Client to cease to do business or to reduce the amount of business which any such Restricted Client has customarily done or is reasonably expected to do with members of the Group; provided, however, that solely with respect to this paragraph 6(a)(ii), the definition of Restricted Client shall be limited to the particular product, brand or service of such Restricted Client in respect of which at any time during the one-year period prior to the Termination Date, the Employee (A) had a servicing relationship, supervisory responsibility or other involvement, or (B) participated in, supervised or had any responsibility or other involvement in a Pitch; and
(iii)during the Restricted Period, employ as an employee or retain as a consultant any person, firm, corporation or other form of entity who is then or at any time during the one-year period prior to the Termination Date was, an employee of or exclusive consultant to a member of the Group, or persuade or attempt to persuade any employee of or exclusive consultant to a member of the Group to leave the employ of such member of the Group or to become employed as an employee or retained as a consultant by any other person, firm, corporation or other form of entity; provided, however, a solicitation pursuant to general recruitment advertising that is not directed at the employees or exclusive consultants of any member of the Group shall not be deemed to be a breach of this provision.
b)As a professional in a highly service-oriented and creative business, the Employee understands and agrees that his/her position with the Company requires and will continue to require services which are of a special character and which places him/her in a position of confidence and trust with the Clients and employees of members of the Group. The
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Employee further acknowledges that his/her services to the Clients necessarily require that the Employee have access to Confidential Information (as defined below) of members of the Group and their respective Clients and that, in the course of his/her employment with or rendering of services to the Company, the Employee will develop personal relationships with the Clients and knowledge of those Clients’ affairs and requirements. Accordingly, the Employee acknowledges that the type and periods of restrictions imposed in this Agreement are fair and reasonable and are reasonably required in order to protect and maintain the proprietary interests of the members of the Group, other legitimate business interests of members of the Group, and the goodwill associated with the members of the Group. The Employee further understands and agrees that the Restricted Clients may be serviced from any location and accordingly it is reasonable that the covenants set forth herein are not limited by narrow geographic area but generally by the location of such Restricted Clients. In the event that any covenant contained in this Agreement shall be determined by any court or other tribunal of competent jurisdiction to be unenforceable by reason of its extending for too great a period of time or over too great a geographical area or by reason of its being too extensive in any other respect, (i) such covenant shall be interpreted to extend only over the maximum period of time for which it may be enforceable and/or over the maximum geographical area as to which it may be enforceable and/or to the maximum extent in all other respects as to which it may be enforceable, all as determined by such court or other tribunal making such determination, and (ii) in its reduced form, such covenant shall then be enforceable, but such reduced form of covenant shall only apply with respect to the operation of such covenant in the particular jurisdiction in or for which such adjudication is made.
c)The Employee hereby acknowledges and agrees that for so long as the Employee has been employed by the Company (which term, as used in this paragraph 6(c) and paragraph 6(d) shall be deemed to include any Affiliate of the Company), the Employee has acquired and shall continue to acquire and have access to confidential or proprietary information about the Company and/or its Clients, including but not limited to, trade secrets, methods, models, passwords, access to computer files, financial information and records, computer software programs, agreements and/or contracts between the Company and its Clients, Client contacts, creative policies and ideas, advertising campaigns, public relations campaigns, creative and media materials, graphic design, budgets, practices, concepts, strategies, methods of operation, financial or business projections of the Company, and information about or received from its Clients (collectively, “Confidential Information”). Accordingly, in consideration for and in order to be eligible to receive the voluntary grant of the PRSUs provided in this Agreement, for so long as the Employee is employed by a member of the Group and thereafter, the Employee will retain in strictest confidence all Confidential Information and shall not disclose any such Confidential Information to anyone outside the members of the Group and Omnicom, except in the course of the Employee’s duties for the Company or with Omnicom’s express written consent. The Employee hereby acknowledges that he/she is aware that such Confidential Information is not readily available to the public and agrees that he/she will not at any time utilize such Confidential Information for his/her own benefit or for the benefit of third parties.
d)The Employee hereby acknowledges and agrees that all materials created or modified by the Employee for so long as the Employee is employed by the Company, including, without limitation, all works of authorship, inventions, processes, ideas, methods,
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concepts and other tangible and intangible materials (collectively, “Work Product”), shall be “work for hire” and that the Company and/or Omnicom shall be the exclusive owner of the Work Product and all intellectual property rights associated with the Work Product, including all trademarks, patents or copyrights contained therein. To the extent any Work Product does not qualify as “work for hire”, the Employee hereby assigns ownership of all such Work Product to the Company and/or Omnicom and agrees to take all reasonable measures, at the Company’s expense, to perfect such rights in the Company and/or Omnicom. The Employee hereby appoints the Company and/or Omnicom as his/her attorney-in-fact with the limited power to execute assignments of such Work Product. If the Employee is an employee in the State of California, the parties hereto agree and acknowledge that the terms of this paragraph shall be subject to the terms of Section 2870 of the California Labor Code, a copy of which is annexed to this Agreement. The Employee hereby agrees to advise the Company and/or Omnicom promptly in writing of any inventions that he/she believes meet the criteria set forth in Section 2870 (which notice shall contain substantiation of such belief).
e)Each of the covenants and agreements contained in this Section 6 (collectively, the “Protective Covenants”) is separate, distinct and severable. All rights, remedies and benefits expressly provided for in this Section 6 are cumulative and are not exclusive of any rights, remedies or benefits provided for by law, in this Section 6 or otherwise, and the exercise of any remedy by a party hereto shall not be deemed an election to the exclusion of any other remedy (any such claim by the other party being hereby waived). The provisions of this Section 6 are not in lieu of, but are in addition to the continuing obligations of the Employee (which the Employee hereby acknowledges) to not use or disclose Confidential Information known to the Employee until any particular piece of Confidential Information becomes generally known to the public (through no action of the Employee), whereupon the restriction on use and disclosure shall cease as to that particular item. The existence of any claim, demand, action or cause of action that the Employee may have against Omnicom or any of its Affiliates, whether predicated pursuant to this Section 6 or otherwise, shall not constitute a defense to the enforcement of the provisions of this Section 6 or any other provision or provisions of this Agreement. The covenants contained in this Section 6 for the benefit of Omnicom and the members of the Group, shall survive any termination of this Agreement and may be waived in whole or in part by Omnicom without the consent of any other person, firm, corporation or other form of entity. The temporal duration of the Protective Covenants shall not expire, and shall be tolled, during any period in which the Employee is in violation of any of such Protective Covenants, and all such Protective Covenants shall automatically be extended by the period of such violation. The Employee further acknowledges that he/she is a highly regarded employee who considered the terms and conditions upon which he/she is electing to be granted the PRSUs and that he/she has been advised and has had the opportunity to obtain counsel of his/her choice in connection with reviewing and executing this Agreement.
f)By acceptance of the grant of PRSUs, the Employee agrees that if the Employee were, without authority, to use or disclose Confidential Information, or otherwise breach any of the Protective Covenants, or threaten to do so, in addition to all other available remedies (including without limitation seeking such damages as it can show it has sustained by reason of such breach), (i) Omnicom and/or any member of the Group shall be entitled to specific performance and injunctive and other appropriate relief (without being required to post
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bond or other security and without having to prove the inadequacy of the available remedies at law) to prevent the Employee from doing so, and/or (ii) Omnicom (by action of the Chairman, Chief Executive Officer, President, Chief Financial Officer or General Counsel of Omnicom) may cause any or all of the following actions to occur: (x) the PRSUs granted hereunder shall become void, shall be forfeited and shall terminate effective the date on which the Employee entered into such activity, (y) any vested shares of Stock acquired by the Employee pursuant to the grant hereunder shall be forfeited and returned to Omnicom, and (z) any gain realized by the Employee from the sale or transfer of shares of Stock acquired through the grant hereunder, shall be returned by the Employee to Omnicom. The Employee acknowledges that the harm caused to Omnicom and/or members of the Group by the breach or anticipated breach of this Agreement is by its nature irreparable because, among other things, it is not readily susceptible of proof as to the monetary harm that would ensue. The Employee consents that any interim or final equitable relief entered by a court of competent jurisdiction shall, at the request of Omnicom and/or a member of the Group be entered on consent and enforced by any court having jurisdiction over the Employee, without prejudice to any rights either party may have to appeal from the proceedings that resulted in any grant of such relief.
g)During the Restricted Period, prior to accepting employment with any subsequent employer, the Employee shall notify any prospective employer in writing of his/her obligations under this Agreement. In addition, immediately after accepting employment with a subsequent employer, the Employee shall provide Omnicom with a copy of the notice that was sent by him/her to such subsequent employer.
h) The Employee acknowledges and agrees that if Employee has received an equity award (including any restricted stock, restricted stock unit or stock option award) from Omnicom during or after 2005 pursuant to the Plan or any other current or former equity plan of Omnicom, the Employee has previously agreed to restrictions similar to those set forth in this Section 6 (the “Prior Restrictions”) and such Prior Restrictions shall remain in full force and effect and shall be in addition to the Employee’s obligations under this Section 6.
i) Nothing in this Agreement shall prevent the Employee from (i) communicating directly with, cooperating with, or providing information to, or receiving financial awards from, any federal, state or local government agency, including without limitation the U.S. Securities and Exchange Commission, the U.S. Commodity Futures Trading Commission, the U.S. Department of Justice, the U.S. Equal Employment Opportunity Commission, or the U.S. National Labor Relations Board, without notifying or seeking permission from the Company, (ii) exercising any rights the Employee may have under Section 7 of the U.S. National Labor Relations Act, such as the right to engage in concerted activity, including collective action or discussion concerning wages or working conditions, or (iii) discussing or disclosing information about unlawful acts in the workplace, such as harassment or discrimination based on a protected characteristic or any other conduct that the Employee has reason to believe is unlawful. In addition, the Employee acknowledges receipt of the following notice of immunity rights under the U.S. Defend Trade Secrets Act, which states: “(1) An individual shall not be held criminally or civilly liable under any federal or state trade secret law for the disclosure of a trade secret that (A) is made (i) in confidence to a Federal, State, or local government official, either directly or indirectly, or to an attorney; and (ii) solely for the purpose
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of reporting or investigating a suspected violation of law; or (B) is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal; and (2) an individual who files a lawsuit for retaliation by an employer for reporting a suspected violation of law may disclose a trade secret to the attorney of the individual and use the trade secret information in the court proceeding, if the individual (A) files any document containing the trade secret under seal, and (B) does not disclose a trade secret, except pursuant to court order.”
7.Definitions. For purposes of this Agreement, the terms set forth below shall have the following meanings:
a)“Affiliate” of Omnicom or the Company, as the case may be, shall mean any person, firm, corporation or other form of entity that directly, or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with Omnicom or the Company, as the case may be as determined by Omnicom.
b) “Average Return on Equity” means the average of the annual Return on Equity calculated with respect to Omnicom or a member of the Peer Group, as applicable, for each of calendar years [ ], [ ] and [ ][; provided, that, in the event of a significant change in the role or responsibilities of the Employee prior to the end of [ ], the Committee shall consider the calendar years prior to such significant change and may, in its discretion, change the definition of Average Return on Equity for purposes of the PRSUs.]
c) “Client” means any person, firm, corporation or other form of entity to whom any member of the Group (i) rendered services at any time during the Employment Period or (ii) had made a Pitch at any time during the Employment Period, or the six months immediately following, the Termination Date.
d) “Company” means the Omnicom Affiliate by whom the Employee is employed as of the date of this Agreement and each other Omnicom Affiliate by whom the Employee is employed at any time during the Employment Period, notwithstanding anything in the Plan to the contrary.
e)“Employee” means the Employee set forth in the Grant Notice.
f) “Employment Period” means the period that the Employee is employed by any member of the Group.
g)“Group” means (i) if the Company operates within an Omnicom network, all of the companies, group of companies and divisions operating under a global or national brand of such Omnicom network, and (ii) if the Company operates as part of a division or separate company independent of an Omnicom network, all companies and divisions operating under such independent brand.
h)“Omnicom” means Omnicom Group Inc., a New York corporation.
i)“Peer Group” means the following group of companies: WPP Group plc, The Interpublic Group of Companies, Inc. and Publicis Groupe SA, provided, however, that, without limiting the provisions of Article 10 of the Plan, in the event of a Change in Control or any transaction described in Section 10.1 of the Plan or any similar or other extraordinary transaction that may occur with respect to Omnicom or a member of the Peer Group or a member
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of the Peer Group ceasing to be a publicly traded company, the Committee may make such changes and adjustments to the Peer Group from time to time that it deems equitable or appropriate in its discretion as a result of or to account for such Change in Control or transaction described in Section 10.1 of the Plan or such similar or other extraordinary transaction or event that may occur with respect to Omnicom or a member of the Peer Group or a member of the Peer Group ceasing to be a publicly traded company, which change(s) or adjustment(s) may include replacing or substituting members of the Peer Group.
j)“Performance Group” means the group of companies consisting of Omnicom and the members of the Peer Group.
k)“Pitch” means a new business presentation or similar offering of services; provided, however, a general mailing or an incidental contact shall not be deemed a Pitch.
l) “Restricted Client” means any person, firm, corporation or other form of entity to whom any member of the Group (i) rendered services at any time during the one-year period prior to the Termination Date, or (ii) had made a Pitch at any time during the one-year period immediately preceding, or the six months immediately following, the Termination Date.
m)“Restricted Period” means the Employment Period and the one year period immediately following the end of the Employment Period.
n)“Return on Equity” means with respect to Omnicom or a member of the Peer Group, as applicable, an amount expressed as a percentage and calculated as Omnicom’s or the applicable Peer Group member’s total net income over a given fiscal year divided by Omnicom’s or the applicable Peer Group member’s average shareholder’s equity over such fiscal year, in each case calculated in such manner as the Committee may determine.
o)“Share” means a share of Stock.
p) “Termination Date” means the date on which the Termination of Employment occurs.
q) “Termination of Employment” means the time when the Employee is no longer employed by any Omnicom Affiliate for any reason whatsoever, as determined by Omnicom or an Omnicom Affiliate.
8.Nontransferability. No right or interest of the Employee in the PRSUs not yet vested may be pledged, encumbered, or hypothecated to or in favor of any party other than Omnicom or an Omnicom Affiliate, or shall be subject to any lien, obligation, or liability of the Employee to any other party other than Omnicom or an Omnicom Affiliate. No PRSU not yet vested shall be assigned, transferred, or otherwise disposed of by the Employee other than by will or the laws of descent and distribution or pursuant to beneficiary designation procedures approved from time to time by the Committee. Notwithstanding the foregoing, to the extent and under such terms and conditions as determined by the Committee, the Employee may assign or transfer the PRSUs not yet vested (each transferee thereof, a “Permitted Assignee”) (i) to the Employee’s spouse, children or grandchildren (including any adopted and step children or grandchildren), parents, grandparents or siblings, (ii) to a trust for the benefit of the Employee and/or one or more of the persons referred to in clause (i), (iii) to a partnership, limited liability company or corporation in which the Employee or the persons referred to in clause (i) are the
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only partners, members or shareholders or (iv) for charitable donations; provided, however, that such Permitted Assignee shall be bound by and subject to all of the terms and conditions of the Plan and this Agreement relating to the transferred PRSUs and shall execute an agreement satisfactory to Omnicom evidencing such obligations; and provided further that the Employee shall remain bound by the terms and conditions of the Plan.
9.Investment Representation and Compliance With Applicable Law. The Employee hereby represents and covenants that (a) the PRSUs and the related Stock will be acquired for investment and not with a view to the distribution thereof within the meaning of the Securities Act, unless such acquisition has been registered under the Securities Act and any applicable state securities law; and (b) any subsequent sale of any such PRSUs or the related Stock unless their acquisition had been so registered, shall be made either pursuant to an effective registration statement under the Securities Act and any applicable state securities laws, or pursuant to an exemption from registration under the Securities Act and such state securities laws.
10.No Understandings as to Employment. Nothing in the grant of the PRSUs or in this Agreement shall constitute or be evidence of any understanding, express or implied, on the part of the Company, Omnicom or any Omnicom Affiliate to employ the Employee for any period or shall interfere with or restrict in any way the rights of the Company, Omnicom and the Omnicom Affiliates to discharge the Employee at any time for any reason whatsoever, with or without cause.
11.Plan Incorporated. The Employee accepts the PRSUs herein subject to all of the provisions of the Plan, which are incorporated into this Agreement by reference, including the provisions that authorize the Committee to administer and interpret the Plan and which provide that the Committee’s decisions, determinations and interpretations with respect to the Plan are final and conclusive on all persons affected hereby. Except with respect to definitions used in this Agreement, in the event of a conflict between the provisions of this Agreement and the provisions of the Plan, the provisions of the Plan shall govern. Terms not otherwise defined in this Agreement shall have the meanings ascribed in the Plan.
12.Amendment. The award of PRSUs and this Agreement may be wholly or partially amended or otherwise modified, suspended or terminated at any time or from time to time by the Board or the Committee, provided that, except as provided by Article 10 of the Plan, neither the amendment, modification, suspension nor termination of this Agreement shall, without the consent of the Employee, adversely alter or impair any rights or obligations of the Employee under this Agreement with respect to the award of PRSUs in any material way.
13.Assignment. The parties hereto agree that Omnicom shall have the right to assign this Agreement, and accordingly, this Agreement shall inure to the benefit of, and may be enforced by, any and all successors and assigns of Omnicom, including, without limitation, by asset assignment, stock sale, merger, consolidation or other corporate reorganization. Subject to Section 8, the Employee agrees that his/her obligations under this Agreement are personal to him/her, and the Employee shall not have the right to assign or otherwise transfer his/her obligations hereunder. Any purported assignment or transfer by the Employee shall be void and ineffective.
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14.Governing Law. The interpretation and construction of this Agreement, and all matters relating hereto (including, without limitation, the validity or enforcement of this Agreement), shall be governed by the laws of New York without regard to any conflicts or choice of laws provisions of the State of New York that would result in the application of the law of any other jurisdiction.
15.Notice. Any notice to be given to Omnicom under the terms of this Agreement shall be addressed to the Office of the General Counsel of Omnicom at 280 Park Avenue, New York, New York 10017, and any notice to be given to the Employee shall be addressed to the Employee at the address set forth beneath his or her signature hereto, or at such other address for a party as such party may hereafter designate in writing to the other. Any such notice shall be deemed to have been duly given if mailed, postage prepaid, addressed as aforesaid.
16.Headings. All section titles and captions in this Agreement are for convenience only, shall not be deemed part of this Agreement, and in no way shall define, limit, extend or describe the scope or intent of any provisions of this Agreement.
17.Further Assurances. The parties shall execute all documents, provide all information, and take or refrain from taking all actions as may be reasonably necessary or appropriate to achieve the purposes of this Agreement. The Employee acknowledges that any sale of Stock issued from the PRSUs following the date of vesting shall be further evidence of Employee’s acceptance of the terms of this Agreement, including Section 6 of this Agreement.
18.Entire Agreement. This Agreement, including the Grant Notice and this Performance Restricted Stock Unit Agreement attached as Exhibit A to the Grant Notice, subject to the terms and conditions of the Plan, constitute the entire agreement among the parties hereto pertaining to the subject matter hereof and supersede all prior agreements and understandings pertaining thereto. Notwithstanding the foregoing, any other confidentiality agreement, non-solicitation/non-servicing agreement or any other type of restrictive covenant agreement that the Employee has entered into prior to the date hereof or may enter into after the date hereof with Omnicom or one of its Affiliates shall remain in full force and effect. No oral understandings, oral statements, oral promises or oral inducements between the parties hereto relating to this Agreement exist. No representations, warranties, covenants or conditions, express or implied, whether by statute or otherwise, other than as set forth in this Agreement, have been made by the parties hereto.
19.Remedies. No failure by any party to insist upon the strict performance of any covenant, duty, agreement or condition of this Agreement or to exercise any right or remedy consequent upon a breach thereof shall constitute waiver of any such breach or any other covenant, duty, agreement or condition.
20.Acceptance; Counterparts. The Employee acknowledges and agrees that the Employee’s acceptance of the terms of this Agreement through electronic means shall have the same force and effect as an acceptance made in writing. This Agreement may be executed in two or more counterparts, or by facsimile transmission, each of which shall be deemed to be an original and all of which taken together shall constitute one and the same instrument.
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21.Waiver. By signing and returning this Agreement, the Employee agrees that the Employee’s rights in respect of the PRSUs (including upon Termination of Employment) shall be defined solely by the Plan and the provisions of this Agreement. Accordingly, the Employee waives all other claims he/she may have against Omnicom or any of its Affiliates, and their respective officers, directors, agents and employees for any losses or damages arising out of the forfeiture of any PRSUs as a result of such Termination of Employment, or otherwise in relation to the Plan with respect to such PRSUs.
22.Third Party Beneficiaries. Nothing in this Agreement is intended to confer upon any other person except the Employee, Omnicom and the Affiliates of Omnicom any rights or remedies hereunder or shall create any third party beneficiary rights in any person (other than Affiliates of Omnicom).
23.No Strict Construction. The language used in this Agreement will be deemed to be the language chosen by the parties hereto to express their mutual intent, and no rule of law or contract interpretation that provides that in the case of ambiguity or uncertainty a provision should be construed against the draftsman will be applied against any party hereto. The provisions of this Agreement shall be construed according to their fair meaning and neither for nor against any party hereto irrespective of which party caused such provisions to be drafted.
24.Committee Authority. The Committee shall have the power to interpret the Plan and this Agreement and to adopt such rules for the administration, interpretation and application of the Plan as are consistent therewith and to interpret or revoke any such rules. All actions taken and all interpretations and determinations made by the Committee in good faith shall be final and binding upon the Employee, Omnicom and all other interested persons. No member of the Committee shall be personally liable for any action, determination or interpretation made in good faith with respect to the Plan or this Agreement.
25.Agreement Severable. In the event that any provision in this Agreement is held invalid or unenforceable, such provision shall be severable from, and such invalidity or unenforceability shall not be construed to have any effect on, the remaining provisions of this Agreement.
26.Employee Data Privacy.
a)The Employee hereby explicitly and unambiguously consents to the collection, use and transfer, in electronic or other form, of the Employee’s personal data as described in this document by Omnicom and/or the Company for the exclusive purpose of implementing, administering and managing the Employee’s participation in the Plan.
b)The Employee understands that Omnicom and/or the Company hold certain personal information, including, but not limited to, name, home address and telephone number, date of birth, social insurance number or other identification number, salary, nationality, job title, any Shares or directorships held in the Company or any of its Affiliates, details of all entitlement to PRSUs and Shares awarded, canceled, exercised, vested, unvested or outstanding in the Employee’s favor (“Data”), for the purpose of implementing, administering and managing the Plan.
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c)The Employee understands that Data may be transferred to any third parties assisting in the implementation, administration and management of the Plan, that these recipients may be located in the Employee’s country or elsewhere, and that the recipient’s country may have different data privacy laws and protections than the Employee’s country. The Employee understands that the Employee may request a list with the names and addresses of any potential recipients of the Data by contacting the Employee’s local human resources representative.
d)The Employee authorizes the recipients to receive, possess, use, retain and transfer the Data, in electronic or other form, for the purposes of implementing, administering and managing the Employee’s participation in the Plan, including any requisite transfer of such Data as may be required to a broker or other third party. The Employee understands that Data shall be held only as long as is necessary to implement, administer and manage the Employee’s participation in the Plan. The Employee understands that the Employee may, at any time, view Data, request additional information about the storage and processing of Data, require any necessary amendments to Data or refuse or withdraw the consents herein, in any case without cost, by contacting in writing the Employee’s local human resources representative. The Employee understands, however, that refusing or withdrawing consent may affect the Employee’s ability to participate in the Plan. For more information on the consequences of the refusal to consent or withdrawal of consent, the Employee understands that the Employee may contact the Employee’s local human resources representative.
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Annex I
to Performance Restricted Stock Unit Agreement
California Labor Code Section 2870
Employment agreements; assignment of rights
(a) Any provision in an employment agreement which provides that an employee shall assign, or offer to assign, any of his or her rights in an invention to his or her employer shall not apply to an invention that the employee developed entirely on his or her own time without using the employer’s equipment, supplies, facilities, or trade secret information except for those inventions that either:
(i) relate at the time of conception or reduction to practice of the invention to the employer’s business, or actual or demonstrably anticipated research or development of the employer; or
(ii) result from any work performed by the employee for the employer.
(b) To the extent a provision in an employment agreement purports to require an employee to assign an invention otherwise excluded from being required to be assigned under subdivision (a), the provision is against the public policy of this state and is unenforceable.
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