Annual Report — Form 10-K — Sect. 13 / 15(d) – SEA’34 Filing Table of Contents
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10: EX-21 Subsidiaries List HTML 41K
11: EX-23 Consent of Experts or Counsel HTML 44K
12: EX-24 Power of Attorney HTML 101K
9: EX-12 Statement re: Computation of Ratios HTML 53K
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14: EX-31.B Certification -- §302 - SOA'02 HTML 48K
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16: EX-32.B Certification -- §906 - SOA'02 HTML 43K
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25: R3 Consolidated Statements of Comprehensive Income HTML 58K
26: R4 Consolidated Statements of Comprehensive Income HTML 47K
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30: R8 Consolidated Statements of Cash Flows HTML 45K
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31: R9 Consolidated Statements of Shareholders' HTML 88K
Investment
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Investment (Parenthetical)
33: R11 Summary of Accounting Policies HTML 51K
34: R12 Revenues HTML 46K
35: R13 Cost of Sales and Selling, General and HTML 49K
Administrative Expenses
36: R14 Consideration Received from Vendors HTML 45K
37: R15 Advertising Costs HTML 52K
38: R16 Pharmacies and Clinics Transactions (Notes) HTML 122K
39: R17 Canada Exit HTML 122K
40: R18 Restructuring Initiatives HTML 63K
41: R19 Credit Card Receivables Transaction HTML 45K
42: R20 Fair Value Measurements HTML 87K
43: R21 Cash Equivalents HTML 47K
44: R22 Inventory HTML 47K
45: R23 Other Current Assets HTML 55K
46: R24 Property and Equipment HTML 60K
47: R25 Other Noncurrent Assets HTML 54K
48: R26 Goodwill and Intangible Assets HTML 80K
49: R27 Accounts Payable HTML 44K
50: R28 Accrued and Other Current Liabilities HTML 60K
51: R29 Commitments and Contingencies HTML 71K
52: R30 Notes Payable and Long-Term Debt HTML 81K
53: R31 Derivative Financial Instruments HTML 92K
54: R32 Leases HTML 85K
55: R33 Income Taxes HTML 115K
56: R34 Other Noncurrent Liabilities HTML 56K
57: R35 Share Repurchase HTML 55K
58: R36 Share-Based Compensation HTML 113K
59: R37 Defined Contribution Plans HTML 71K
60: R38 Pension and Postretirement Health Care Plans HTML 231K
61: R39 Accumulated Other Comprehensive Income HTML 65K
62: R40 Segment Reporting HTML 94K
63: R41 Quarterly Results (Unaudited) HTML 249K
64: R42 Summary of Accounting Policies (Policies) HTML 157K
65: R43 Advertising Costs (Tables) HTML 52K
66: R44 Pharmacies and Clinics Transactions (Tables) HTML 83K
67: R45 Canada Exit (Tables) HTML 101K
68: R46 Restructuring Initiatives (Tables) HTML 65K
69: R47 Fair Value Measurements (Tables) HTML 85K
70: R48 Other Current Assets (Tables) HTML 55K
71: R49 Property and Equipment (Tables) HTML 59K
72: R50 Other Noncurrent Assets (Tables) HTML 54K
73: R51 Goodwill and Intangible Assets (Tables) HTML 74K
74: R52 Accrued and Other Current Liabilities (Tables) HTML 60K
75: R53 Commitments and Contingencies (Tables) HTML 60K
76: R54 Notes Payable and Long-Term Debt (Tables) HTML 83K
77: R55 Derivative Financial Instruments (Tables) HTML 87K
78: R56 Leases (Tables) HTML 80K
79: R57 Income Taxes (Tables) HTML 111K
80: R58 Other Noncurrent Liabilities (Tables) HTML 55K
81: R59 Share Repurchase (Tables) HTML 51K
82: R60 Share-Based Compensation (Tables) HTML 113K
83: R61 Defined Contribution Plans (Tables) HTML 69K
84: R62 Pension and Postretirement Health Care Plans HTML 242K
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85: R63 Accumulated Other Comprehensive Income (Tables) HTML 62K
86: R64 Segment Reporting (Tables) HTML 89K
87: R65 Quarterly Results (Unaudited) (Tables) HTML 250K
88: R66 Summary of Accounting Policies (Details) HTML 46K
89: R67 Revenues (Details) HTML 51K
90: R68 Advertising Costs (Details) HTML 48K
91: R69 Pharmacies and Clinics Transactions - Narrative HTML 67K
(Details)
92: R70 Pharmacies and Clinics Transactions - Schedule of HTML 69K
Gain on Pharmacies and Clinics Transaction
(Details)
93: R71 Pharmacies and Clinics Transactions - Schedule of HTML 59K
Pharmacy and Clinic Inventory and Other Assets
(Details)
94: R72 Canada Exit - Narrative (Details) HTML 69K
95: R73 Canada Exit - Schedule of Income/(Loss) on HTML 79K
Discontinued Operations (Details)
96: R74 Canada Exit - Schedule of Pretax Exit Costs HTML 53K
(Details)
97: R75 Canada Exit - Schedule of Assets and Liabilities HTML 60K
of Discontinued Operations (Details)
98: R76 Restructuring Initiatives - Schedule of HTML 57K
Restructuring Costs (Details)
99: R77 Restructuring Initiatives - Schedule of HTML 59K
Restructuring-Related Liabilities (Details)
100: R78 Credit Card Receivables Transaction (Details) HTML 53K
101: R79 Fair Value Measurements - Schedule of Fair Value HTML 76K
Measurements - Recurring Basis (Details)
102: R80 Fair Value Measurements - Schedule of Significant HTML 48K
Financial Instruments not Measured at Fair Value
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103: R81 Cash Equivalents (Details) HTML 49K
104: R82 Inventory (Details) HTML 43K
105: R83 Other Current Assets (Details) HTML 58K
106: R84 Property and Equipment (Details) HTML 66K
107: R85 Other Noncurrent Assets (Details) HTML 55K
108: R86 Goodwill and Intangible Assets - Narrative HTML 83K
(Details)
109: R87 Goodwill and Intangible Assets - Schedule of HTML 54K
Intangible Assets (Details)
110: R88 Goodwill and Intangible Assets - Schedule of HTML 53K
Estimated Amortization Expense (Details)
111: R89 Accounts Payable (Details) HTML 45K
112: R90 Accrued and Other Current Liabilities (Details) HTML 69K
113: R91 Commitments and Contingencies - Narrative HTML 74K
(Details)
114: R92 Commitments and Contingencies - Schedule of HTML 57K
Expenses Incurred and Amounts Accrued (Details)
115: R93 Notes Payable and Long-Term Debt - Narrative HTML 73K
(Details)
116: R94 Notes Payable and Long-Term Debt - Schedule of HTML 71K
Carrying Value and Maturities of Debt Portfolio
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117: R95 Notes Payable and Long-Term Debt - Schedule of HTML 55K
Required Principal Payments (Details)
118: R96 Notes Payable and Long-Term Debt - Schedule of HTML 52K
Commercial Paper (Details)
119: R97 Derivative Financial Instruments - Narrative HTML 63K
(Details)
120: R98 Derivative Financial Instruments - Schedule of HTML 63K
Outstanding Interest Rate Swap Summary (Details)
121: R99 Derivative Financial Instruments - Schedule of HTML 63K
Classification and Fair Value (Details)
122: R100 Derivative Financial Instruments - Schedule of HTML 46K
Derivative Contracts - Effect on Results of
Operations (Details)
123: R101 Leases - Narrative (Details) HTML 68K
124: R102 Leases - Schedule of Rent Expense (Details) HTML 48K
125: R103 Leases - Schedule of Future Minimum Lease Payments HTML 111K
(Details)
126: R104 Income Taxes - Narrative (Details) HTML 83K
127: R105 Income Taxes - Schedule of Tax Rate Reconciliation HTML 61K
- Continuing Operations (Details)
128: R106 Income Taxes - Schedule of Provision for Income HTML 78K
Taxes (Details)
129: R107 Income Taxes - Schedule of Net Deferred Tax HTML 74K
Asset/(Liability) (Details)
130: R108 Income Taxes - Schedule of Reconciliation of HTML 54K
Liability for Unrecognized Tax Benefits (Details)
131: R109 Other Noncurrent Liabilities (Details) HTML 59K
132: R110 Share Repurchase - Narrative (Details) HTML 67K
133: R111 Share Repurchase - Schedule of Share Repurchases HTML 48K
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134: R112 Share-Based Compensation - Narrative (Details) HTML 96K
135: R113 Share-Based Compensation - Schedule of Restricted HTML 75K
Stock Activity and Performance Share Unit Activity
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136: R114 Share-Based Compensation - Schedule of Stock HTML 76K
Option Activity (Details)
137: R115 Share-Based Compensation - Schedule of Stock HTML 49K
Option Exercises (Details)
138: R116 Defined Contribution Plans (Details) HTML 89K
139: R117 Pension and Postretirement Health Care Plans - HTML 92K
Narrative (Details)
140: R118 Pension and Postretirement Health Care Plans - HTML 69K
Schedule of Change in Projected Benefit Obligation
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141: R119 Pension and Postretirement Health Care Plans - HTML 71K
Schedule of Change in Plan Assets (Details)
142: R120 Pension and Postretirement Health Care Plans - HTML 60K
Schedule of Recognition of Funded/(Underfunded)
Status (Details)
143: R121 Pension and Postretirement Health Care Plans - HTML 52K
Schedule of Amounts in Accumulated Other
Comprehensive Income (Details)
144: R122 Pension and Postretirement Health Care Plans - HTML 72K
Schedule of Change in Accumulated Other
Comprehensive Income (Details)
145: R123 Pension and Postretirement Health Care Plans - HTML 56K
Schedule of Expected Amortization of Amounts in
Accumulated Other Comprehensive Income (Details)
146: R124 Pension and Postretirement Health Care Plans - HTML 63K
Schedule of Net Pension Benefit Expense (Details)
147: R125 Pension and Postretirement Health Care Plans - HTML 53K
Schedule of Defined Benefit Pension Plan
Information (Details)
148: R126 Pension and Postretirement Health Care Plans - HTML 47K
Schedule of Benefit Obligation Weighted Average
Assumptions (Details)
149: R127 Pension and Postretirement Health Care Plans - HTML 51K
Schedule of Net Periodic Benefit Expense Weighted
Average Assumptions (Details)
150: R128 Pension and Postretirement Health Care Plans - HTML 60K
Schedule of Asset Category (Details)
151: R129 Pension and Postretirement Health Care Plans - HTML 68K
Schedule of Fair Value Measurements (Details)
152: R130 Pension and Postretirement Health Care Plans - HTML 56K
Schedule of Estimated Future Benefit Payments
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153: R131 Accumulated Other Comprehensive Income (Details) HTML 79K
154: R132 Segment Reporting - Schedule of Business Segment HTML 78K
Results (Details)
155: R133 Segment Reporting - Narrative (Details) HTML 51K
156: R134 Segment Reporting - Schedule of Total Assets by HTML 50K
Segments (Details)
157: R135 Quarterly Results (Unaudited) - Schedule of HTML 118K
Quarterly Results (Details)
158: R136 Quarterly Results (Unaudited) - Summary of Sales HTML 63K
by Product Category (Details)
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Amended and Restated Target Corporation 2011 Long-Term Incentive Plan
EXECUTIVE
PERFORMANCE SHARE UNIT AGREEMENT
THIS PERFORMANCE SHARE UNIT AGREEMENT (the “Agreement”) is made in Minneapolis, Minnesota as of the date of grant (the “Grant Date”) set forth in the award letter (the “Award Letter”) by and between the Company and the person
(the “Executive”) identified in the Award Letter. This award (the “Award”) of Performance Share Units (“PSUs”), provided to you as a Service Provider, is being issued under the Amended and Restated Target Corporation 2011 Long-Term Incentive Plan (the “Plan”), subject to the following terms and conditions.
1. Definitions. Except as otherwise provided in this Agreement, the defined terms used in this Agreement shall have the same meaning as in the Plan. The term “Committee” shall also include those persons to whom authority has been delegated under the Plan.
2. Grant of PSUs. Subject to the relevant terms of the Plan and this Agreement, as of the Grant Date,
the Company has granted the Executive the number of PSUs set forth in the Award Letter (the “Goal Payout”). The maximum number of Shares that may be earned is equal to 175% of the Goal Payout (the “Maximum Payout”). The number of Shares actually earned, if any, shall depend on the Company’s performance during the period comprised of the Company’s three consecutive fiscal years beginning with the first full fiscal year commencing after the Grant Date (the “Performance Period”).
3. Minimum Performance Condition. Except as set forth in Section 6,
as a condition to the receipt of any Shares in settlement of the Award, the Company’s earnings from continuing operations before interest expense and income taxes, excluding: (a) restructuring, exit or disposal costs under ASC 420 and ASC 712, (b) impairment charges under ASC 350 and ASC 360, and (c) benefit plan curtailment, settlement, amendment and termination gains and losses under ASC 715, must be greater than zero for the first full fiscal year of the Performance Period (the “Minimum Performance Condition”). The Committee shall determine whether the Minimum Performance Condition is satisfied as soon as practicable after completion of the first full fiscal year of the Performance Period (the “Determination Date”).
4. Payout Formula.
Except as set forth in Section 6, if the Minimum Performance Condition is satisfied, the actual number of Shares earned will be determined by the Committee pursuant to a formula established by the Committee to measure the Company’s performance during the Performance Period (the “Payout Formula”). The determination of the actual number of Shares earned, which shall not exceed the Maximum Payout, shall occur as soon as practicable after completion of the Performance Period, but in any event not later than
November 30 of the calendar year in which the Performance Period ends (the date the Committee so determines, the “Final Determination Date”). A description of the Payout Formula and the percentage of Shares to be earned, if
any, for the various levels of performance will be communicated to the Executive. All decisions of the Committee regarding the application of the Payout Formula and the number of Shares earned shall be final and binding on the Executive. Except as set forth in Section 6, the Award shall be cancelled and the Executive shall have no rights hereunder if any of the following occur: (a) the Committee determines on the Determination Date that the Minimum Performance Condition has not been satisfied, (b) the Final Determination Date does not occur, or (c) the Committee determines on the Final Determination Date that no Shares have been earned.
5. Continuous Service Requirement. In order to earn any Shares, the Executive must be continuously providing Service from the Grant Date to the end of the Performance Period, except as described in
this Section and Section 6. Even if the Executive is not continuously providing Service through the end of the Performance Period, upon the occurrence of one of the events specified in Sections 5(a) through 5(d), the Shares that are earned during the Performance Period, if any, shall be paid out as provided in Section 10, in accordance with and subject to any restrictions set forth in this Agreement, the Plan or any Release Agreement that the Executive may be required to enter pursuant to this Section or Section 6. “Release Agreement” means an agreement containing a release of claims, a covenant not to engage in competitive employment, and/or other provisions deemed appropriate by the Committee in its sole discretion.
(a) Early Retirement Date. The Executive’s Service terminates on or after the Executive’s Early Retirement
Date and the Company receives a valid unrevoked Release Agreement from the Executive. “Early Retirement Date” is the date that is (i) on or prior to the Executive’s termination of Service, (ii) at or after attaining age 45 and prior to attaining age 55 and completing at least 15 years of Service (which 15 years need not be continuous), (iii) if the Executive’s termination of Service is voluntary, at least six months after the Executive commenced discussions with the Company’s Chief Executive Officer or most senior human resources executive regarding the Executive’s consideration of termination, and (iv) the following additional requirements are satisfied, to the extent applicable: (A) if the Executive’s Early Retirement Date occurs prior to the Executive’s attainment of age 48, the Executive was providing
Service for at least the first 24 months of the Performance Period, (B) if the Executive’s Early Retirement Date occurs prior to the Executive’s attainment of age 52 and on or after attainment of age 48, the Executive was providing Service for at least the first 18 months of the Performance Period, and (C) if the Executive’s Early Retirement Date occurs prior to the Executive’s attainment of age 55 and on or after attainment of age 52, the Executive was providing Service for at least the first 12 months of the Performance Period.
(b) Normal Retirement Date. The Executive’s Service terminates on or after the Executive’s Normal Retirement Date and the Company receives a valid unrevoked Release Agreement from the Executive. “Normal Retirement Date”
is the date that is (i) on or prior to the Executive’s termination of Service, (ii) at or after attaining age 55 and completing at least 5 years of Service (which 5 years need not be continuous), and (iii) if the Executive’s termination of Service is voluntary, at least six months after the Executive commenced discussions with the
2.
Company’s Chief Executive Officer or most senior human resources executive regarding the Executive’s consideration of termination.
(c) Death. The Executive’s death prior to the Executive’s termination of Service.
(d) Disability.
The Executive’s Disability (as determined by the Committee in its sole discretion, provided such determination complies with the definition of disability under Code Section 409A) prior to the Executive’s termination of Service.
6. Change in Control.
(a) If a Change in Control occurs prior to the Determination Date or after a Committee determination on the Determination Date that the Minimum Performance Condition has been satisfied, the Award will continue to be subject to the Continuous Service Requirement provided in Section 5, the Minimum Performance Condition shall be deemed to be satisfied and, at the end of the Performance Period, the total number of Shares earned under the Payout Formula shall be deemed to be equal to the Goal Payout,
except that if, after a Change in Control and prior to the end of the Performance Period:
(i) the Executive’s Service terminates voluntarily by the Executive for Good Reason or involuntarily without Cause, and provided that the Company has received a valid unrevoked Release Agreement from the Executive, then the total number of Shares earned under the Payout Formula shall be deemed to be equal to the Goal Payout multiplied by a fraction. The numerator of such fraction shall be the number of months that have elapsed between the Grant Date and the date of termination of Service following the Change in Control, and the denominator shall be the number of months between the Grant Date and the end of the Performance Period. Notwithstanding the foregoing in this Section 6(a)(i), the total number of Shares
earned under the Payout Formula shall be deemed to be equal to the Goal Payout if, on or prior to the termination of Service under this Section 6(a)(i), the Executive meets the requirements for age, years of Service and minimum Service during the Performance Period for an “Early Retirement Date” in Section 5(a) or a “Normal Retirement Date” in Section 5(b) and the Company has received a valid unrevoked Release Agreement from the Executive.
(ii) the Executive experiences one of the events specified in Sections 5(a) through 5(d), then the total number of Shares earned under the Payout Formula shall be deemed to be equal to the Goal Payout.
(b) If, prior to a Change in Control, the Committee
has determined on the Determination Date that the Minimum Performance Condition has not been satisfied, then the Award shall be cancelled and the Executive shall have no rights hereunder.
7. Cause. Notwithstanding any other provisions of this Agreement to the contrary, if the Committee concludes, in its sole discretion, that the Executive’s Service was terminated in whole or in part for Cause, all of the PSUs subject to the Award shall terminate immediately and the Executive shall have no rights hereunder.
3.
8. Other Termination; Changes of Service.
If the Executive’s termination of Service occurs at any time prior to the end of the Performance Period for any reason not meeting the conditions specified in Sections 5 through 7, all of the PSUs subject to the Award shall terminate effective as of the date of termination of Service and the Executive shall have no rights hereunder. Service shall not be deemed terminated in the case of (a) any approved leave of absence, or (b) transfers among the Company and any Subsidiaries in the same Service Provider capacity; however, a termination of Service shall occur if (i) the relationship the Executive had with the Company or a Subsidiary at the Grant Date terminates, even if the Executive continues in another Service Provider
capacity with the Company or a Subsidiary, or (ii) the Executive experiences a “separation from service” within the meaning of Code Section 409A.
9. Dividend Equivalents. The Executive shall have the right to receive additional PSUs with a value equal to the regular cash dividend paid on one Share for each PSU earned pursuant to this Agreement prior to the conversion of PSUs and issuance of Shares pursuant to Section 10. The dividend equivalents will be based on the actual number of PSUs earned pursuant to this Agreement. The number of additional PSUs to be received as dividend equivalents for each PSU held shall be determined by dividing the cash dividend per share by the Fair Market Value of one Share on the dividend payment date; provided,
however, that for purposes of avoiding the issuance of fractional PSUs, on each dividend payment date the additional PSUs issued as dividend equivalents shall be rounded up to the nearest whole number. All such additional PSUs received as dividend equivalents shall be subject to forfeiture in the same manner and to the same extent as the original PSUs granted hereby, and shall be converted into Shares on the basis and at the time set forth in Section 10 hereof.
10. Time of Payout. Vested PSUs shall be converted to Shares in accordance with the Payout Formula and shall be issued as soon as practicable following the end of the Performance Period and after the Committee has determined on the Final Determination Date that they have been earned, but not later than 60 days following the Final Determination Date. The Committee in its sole
discretion may accelerate or delay the distribution of any payment under this Agreement to the extent allowed or required under Code Section 409A. Payment of amounts under this Agreement are intended to comply with the requirements of Code Section 409A and this Agreement shall in all respects be administered and construed to give effect to such intent.
11. Taxes. The Executive acknowledges that (a) the ultimate liability for any and all income tax, social insurance, payroll tax, payment on account or other tax-related withholding (“Tax-Related Items”) legally due by him or her is and remains the Executive’s responsibility and may exceed the amount actually withheld by the Company and/or a Subsidiary to which the Executive is providing Service
(the “Service Recipient”) and (b) the Company and/or the Service Recipient or a former Service Recipient, as applicable, (i) make no representations or undertakings regarding the treatment of any Tax-Related Items in connection with any aspect of the PSUs, including, but not limited to, the grant, vesting and/or conversion of the PSUs and issuance of Shares; (ii) do not commit and are under no obligation to structure the terms of the grant or any aspect of the PSUs to reduce or eliminate the Executive’s liability for Tax-Related Items; (iii) may be required to withhold or account for Tax-Related Items in
4.
more than one jurisdiction if the Executive has become subject to tax in more than
one jurisdiction between the Grant Date and the date of any relevant taxable event; and (iv) may refuse to deliver the Shares to the Executive if he or she fails to comply with his or her obligations in connection with the Tax-Related Items as provided in this Section.
The Executive authorizes and consents to the Company and/or the Service Recipient, or their respective agents, satisfying all applicable Tax-Related Items which the Company reasonably determines are legally payable by him or her by withholding from the Shares that would otherwise be delivered to the Executive the highest number of whole Shares that the Company determines
has a value less than or equal to the aggregate applicable Tax-Related Items. In lieu thereof, the Executive may elect at the time of conversion of the PSUs such other then-permitted method or combination of methods established by the Company and/or the Service Recipient to satisfy the Executive’s Tax-Related Items.
12. Limitations on Transfer. The Award shall not be sold, assigned, transferred, exchanged or encumbered by the Executive other than pursuant to the terms of the Plan.
13. Recoupment Provision. In the event of a restatement of the
Company’s consolidated financial statements that is caused, in whole or in part, by the intentional misconduct of the Executive, the Company may take one or more of the following actions with respect to the Award, as determined by the Compensation Committee of the Board (the “Compensation Committee”) in its sole discretion, and the Executive shall be bound by such determination:
(a) cancel all or a portion of the PSUs, whether earned or unearned, including any dividend equivalents related to the Award; and
(b) require repayment of all or any portion of the amounts realized or received by the Executive resulting from the conversion of PSUs to Shares or the sale of Shares related to the Award.
The term “restatement” shall mean the result of revising financial statements previously filed with the Securities and Exchange Commission to reflect the correction of an error. The term “intentional misconduct” shall be limited to conduct that the Compensation Committee determines indicates intent to mislead management, the Board, or the Company’s shareholders, but shall not include good faith errors in judgment made by the Executive.
The Executive agrees that the Company may setoff any amounts it is entitled to recover under this Section against any amounts owed
by the Company to the Executive under any of the Company’s deferred compensation plans to the extent permitted under Code Section 409A. The Executive further agrees that the terms of this Section shall survive the Executive’s termination of Service and any conversion of the Award into Shares. This Section 13 shall not apply, and no amounts may be recovered hereunder, following a Change in Control.
14. No Employment Rights. Nothing in this Agreement, the Plan or the Award Letter shall confer upon the Executive any right to continued Service with the Company or any Subsidiary, as applicable,
nor shall it interfere with or limit in any way any right of the Company
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or any Subsidiary, as applicable, to terminate the Executive’s Service at any time with or without Cause or change the Executive’s compensation, other benefits, job responsibilities or title provided in compliance with applicable local laws and permitted under the terms of the Executive’s Service contract, if any.
(a) The Executive’s rights to vest in the PSUs or receive Shares after termination of Service shall be determined pursuant to
Sections 4 through 10. Those rights and the Executive’s date of termination of Service will not be extended by any notice period mandated under local law (e.g., active service would not include a period of “garden leave” or similar notice period pursuant to local law).
(b) This Agreement, the Plan and the Award Letter are separate from, and shall not form, any part of the contract of Service of the Executive, or affect any of the rights and obligations arising from the Service relationship between the Executive and the Company and/or the Service Recipient.
(c) No Service Provider has a right to participate
in the Plan. All decisions with respect to future grants, if any, shall be at the sole discretion of the Company and/or the Service Recipient.
(d) The Executive will have no claim or right of action in respect of any decision, omission or discretion which may operate to the disadvantage of the Executive.
15. Nature of Grant. In accepting the grant, the Executive acknowledges, understands, and agrees that:
(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, and any such modification, amendment, suspension or termination will not constitute a constructive or wrongful dismissal;
(b) the PSUs are extraordinary items and are not part of normal or expected compensation or salary for any purposes, including, but not limited to, calculating any severance, resignation, termination, redundancy, end of service payments, bonuses, long-service awards, pension or welfare or retirement benefits or similar payments;
(c) in no event should the PSUs be considered as compensation for, or relating in any way to, past services
for the Company or the Service Recipient, nor are the PSUs or the underlying Shares intended to replace any pension rights or compensation;
(d) the future value of the underlying Shares is unknown and cannot be predicted with certainty;
(e) the Company is not providing any tax, legal or financial advice, nor is the Company making any recommendations regarding the Executive’s participation in the Plan or the PSUs;
6.
(f) no
claim or entitlement to compensation or damages shall arise from forfeiture of the PSUs resulting from termination of the Executive’s Service (for any reason whatsoever and whether or not in breach of local labor laws), and in consideration of the grant of the PSUs to which the Executive is otherwise not entitled, the Executive irrevocably (i) agrees never to institute any such claim against the Company or the Service Recipient, (ii) waives the Executive’s ability, if any, to bring any such claim, and (iii) releases the Company and the Service Recipient from any such claim. If, notwithstanding the foregoing, any such claim is allowed by a court of competent jurisdiction, then, by participating in the Plan, the Executive shall be deemed irrevocably to have agreed not to pursue such claim and agrees to execute
any and all documents necessary to request dismissal or withdrawal of such claims; and
(g) the Executive is hereby advised to consult with personal tax, legal and financial advisors regarding participation in the Plan before taking any action related to the PSUs or the Plan.
16. Governing Law; Venue; Jurisdiction; Severability. To the extent that federal laws do not otherwise control, this Agreement, the Award Letter, the Plan and all determinations made and actions taken pursuant to the Plan shall be governed by the laws of the State of Minnesota without regard to its conflicts-of-law principles and shall be construed accordingly. The exclusive forum and venue for any legal action arising out of or related to this Agreement shall be the
United States District Court for the District of Minnesota, and the parties submit to the personal jurisdiction of that court. If neither subject matter nor diversity jurisdiction exists in the United States District Court for the District of Minnesota, then the exclusive forum and venue for any such action shall be the courts of the State of Minnesota located in Hennepin County, and the Executive, as a condition of this Agreement, consents to the personal jurisdiction of that court. If any provision of this Agreement, the Award Letter or the Plan shall be held illegal or invalid for any reason, the illegality or invalidity shall not affect the remaining parts of the Agreement, the Award Letter or the Plan, and the Agreement, the Award Letter and the Plan shall be construed and enforced as if the illegal or invalid provision had not been included.
17. Currencies
and Dates. Unless otherwise stated, all dollars specified in this Agreement and the Award Letter shall be in U.S. dollars and all dates specified in this Agreement shall be U.S. dates.
18. Imposition of Other Requirements. The Company reserves the right to impose other requirements on the Executive’s participation in the Plan, on the PSUs and on any Shares acquired under the Plan, to the extent the Company determines it is necessary or advisable in order to comply with local law or facilitate the administration of the Plan, and to require the Executive to sign any additional agreements or undertakings that may be necessary to accomplish the foregoing.
19. Plan
and Award Letter Incorporated by Reference; Electronic Delivery. The Plan, as hereafter amended from time to time, and the Award Letter shall be deemed to be
7.
incorporated into this Agreement and are integral parts hereof. In the event there is any inconsistency between the provisions of this Agreement and the Plan, the provisions of the Plan shall govern. The Company or a third party designated by the Company may deliver to the Executive by electronic means any documents related to his or her participation in the Plan. The Executive acknowledges
receipt of a copy of the Plan and the Award Letter.
[End of Agreement]
8.
Dates Referenced Herein and Documents Incorporated by Reference
