COOPER TIRE & RUBBER COMPANY Performance Stock Unit and Cash Unit Award Agreement
Exhibit (10.1)
▇▇▇▇▇▇ TIRE & RUBBER COMPANY
WHEREAS, [NAME] (the “Participant”) is an employee of ▇▇▇▇▇▇ Tire & Rubber Company or a
Subsidiary (the “Company”); and
WHEREAS, the Compensation Committee of the Board of ▇▇▇▇▇▇ Tire & Rubber Company (the
“Committee”) approved the terms and authorized on [DATE] (the “Date of Grant”) the grant of an
Award of Performance Stock Units and Performance Cash Units (these two types of awards being
collectively called “Performance Units”) pursuant to Sections 10 and 13 of the ▇▇▇▇▇▇ Tire & Rubber
Company 2010 Incentive Compensation Plan (the “Plan”).
NOW, THEREFORE, pursuant to the Plan and subject to the terms and conditions thereof and the
terms and conditions hereinafter set forth, the Company hereby confirms to the Participant
effective as of the Date of Grant, a grant of an Award of [INSERT NO.] Performance Stock Units and
[INSERT $] Performance Cash Units, each representing the opportunity to earn Target Payments.
1. Performance and Measurement Periods. The Performance Period shall be from
January 1, 20[ ] through December 31, 20 [ ] and shall be divided into the following “Measurement
Periods” in which 1/3 of the Performance Units granted hereby may be notionally earned (as
described below):
The “First Measurement Period” shall be from January 1, 20[ ] through December 31, 20[ ] and
[Insert 1/3 amount] of the Performance Stock Units and [Insert 1/3 amount] of the Performance Cash
Units shall be allocated thereto.
The “Second Measurement Period” shall be from January 1, 20[ ] through December 31, 20[ ] and
[Insert 1/3 amount] of the Performance Stock Units and [Insert 1/3 amount] of the Performance Cash
Units shall be allocated thereto.
The “Third Measurement Period” shall be from January 1, 20[ ] through December 31, 20[ ] and
[Insert 1/3 amount] of the Performance Stock Units and [Insert 1/3 amount] of the Performance Cash
Units shall be allocated thereto.
2. Performance Goals. The right to receive payments for any of the Performance
Units shall be contingent upon the achievement of specified levels of performance of the [ ]
goals as set forth in the Statement of Performance Goals attached hereto as Exhibit A. The
Performance Units that the Participant will have the opportunity to earn upon the achievement of
each Performance Goal shall be allocated in accordance with the weighting percentages specified for
each such Performance Goal in Exhibit A.
3. Crediting of Notionally Earned Performance Units.
(a) Below Threshold. If, upon the conclusion of a Measurement Period, achievement for
a particular Performance Goal falls below the threshold level, as set forth in the Statement of
Performance Goals, no Performance Units for the Measurement Period shall become notionally earned
with respect to that Performance Goal.
(b) Threshold. If, upon the conclusion of a Measurement Period, the achievement for a
particular Performance Goal equals the threshold level, as set forth in the Statement of
Performance Goals, [ ]% of the Performance Units allocated to such Performance Goal for the
Measurement Period shall become notionally earned.
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(c) Between Threshold and Target. If, upon the conclusion of a Measurement Period,
the achievement for a particular Performance Goal exceeds the threshold level, but is less than the
Target, as set forth in the Statement of Performance Goals, between [ ]% and [ ]0% of Performance
Units allocated to such Performance Goal for the Measurement Period shall become notionally earned
as determined by mathematical straight-line interpolation.
(d) Target. If, upon the conclusion of a Measurement Period, the achievement for a
particular Performance Goal equals the Target, as set forth in the Statement of Performance Goals,
[ ]% of the Performance Units allocated to such Performance Goal for the Measurement Period shall
become notionally earned.
(e) Between Target and Maximum. If, upon the conclusion of a Measurement Period,
achievement for a particular Performance Goal exceeds the Target, but is less than the maximum
level, as set forth in the Statement of Performance Goals, between [ ]% and [ ]% of the Performance
Units allocated to such Performance Goal for the Measurement Period shall become notionally earned,
as determined by mathematical straight-line interpolation.
(f) Maximum. If, upon the conclusion of a Measurement Period, achievement for a
particular Performance Goal equals or exceeds the maximum level, as set forth in the Statement of
Performance Goals, [ ]% of the Performance Units allocated to such Performance Goal for the
Measurement Period shall become notionally earned.
(g) Exceeds Maximum. In no event may more than the [ ]% of the Performance Units
allocated to any Performance Goal or [ ]% of all the Performance Units for any Measurement Period
become notionally earned.
(h) Conditions; Determination of Notionally-Earned Award. Following each Measurement
Period, the Committee shall determine whether and to what extent the Performance Goals have been
achieved for such Measurement Period and shall determine the number of Performance Units that shall
have become notionally earned hereunder. However, except as otherwise provided herein, the
Participant’s right to receive payment of notionally earned Performance Units shall be contingent
upon the Participant remaining in the continuous employ of the Company throughout the entire
Performance Period.
4. Performance Unit Account.
(a) Performance Unit Account. The Company shall establish an account on the books of
the Company (an “Account”) for the Participant and shall notionally credit the Participant’s
Account with any Performance Stock Units notionally earned by the Participant.
(b) Dividend Equivalents. The Participant’s Account shall be credited as of the last
business day of each calendar quarter with that number of additional Performance Stock Units
determined by dividing the amount of cash dividends paid on the dividend date by ▇▇▇▇▇▇ Tire &
Rubber Company during such quarter on that number of Common Shares equivalent to the number of
Performance Stock Units credited to and held in the Participant’s Account as of the dividend record
date for that quarter by the Fair Market Value per Common Share on the last business day of the
current calendar quarter, rounded up to the nearest whole share; however if a payment pursuant to
Section 10 occurs during the current calendar quarter, no dividend equivalents shall be credited on
that number of Common Shares equivalent to the number of Performance Stock Units so distributed.
Such additional Performance Stock Units shall become vested if, and at the same time as, the
underlying Performance Stock Units pursuant to which they were notionally earned become vested as
provided in Section 5 of this Award Agreement. No dividend equivalents shall be credited with
respect to Performance Cash Units.
(c) Statements. As soon as practicable following the close of a calendar year, the
Company shall furnish to the Participant a statement setting forth the number of notionally earned
Performance Units in the Participant’s Account at the close of such calendar year.
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(d) Nature of the Company’s Obligations/Participant’s Rights. The Company’s liability
to make payments based on the amount in a Participant’s Account shall be reflected in its books of
account as a general, unsecured and unfunded obligation, and the rights of the Participant or his
designated beneficiary to receive payments from the Company under the Plan are solely those of a
general, unsecured creditor. The Company shall not be required to segregate any of its assets in
respect to its obligations hereunder, and the Participant or his designated beneficiary shall not
have any interest whatsoever, vested or contingent, in any properties or assets of the Company.
Without limiting the generality or effect of the foregoing, the Participant shall have no voting
rights with respect to the Performance Units.
(e) No Trust. Nothing contained in the Plan and no action taken pursuant to the
provisions hereof shall create or be construed to create a trust of any kind, or a fiduciary
relationship between (i) the Company and the Committee (or any member thereof) and (ii) the
Participant, his designated beneficiary or any other person.
(f) Optional Trust. The Committee, at any time, may authorize the establishment of a
trust for the benefit of the Participant, containing such other terms and conditions as the
Committee shall approve, including provisions pursuant to which the assets of the trust would be
subject under certain conditions to the claims of general creditors of the Company. If such a trust
is established, then the value of all Performance Units notionally earned and credited to
Participants’ accounts may be delivered by the Company to the trust.
5. Vesting of the Performance Units. If the Participant remains in the employment of the
Company through the end of the Performance Period, the Performance Units notionally earned and
credited to the Participant’s Account shall become vested as of the end of the Performance Period
upon certification by the Committee; however, in the event the Participant’s employment is
terminated for Cause after the end of the Performance Period but prior to certification by the
Committee and/or payment of Participant’s Account, the Performance Units notionally earned and
credited to the Participant’s Account shall be forfeited.
6. Effect of Change in Control. In the event of a Change in Control during the
employment of the Participant prior to the termination of the Performance Period, the Performance
Units shall become vested as follows:
(a) If the Participant is a participant in ▇▇▇▇▇▇ Tire & Rubber Company’s Change in Control
Severance Pay Plan (the “Severance Plan”), the Performance Units shall also become vested only as
provided in the Severance Plan.
(b) If the Participant is not a participant in the Severance Plan upon the occurrence
of a Change in Control, the Participant shall receive: (i) any outstanding Performance Units which
have been notionally earned by or allocated or awarded to the Participant for a calendar year or
Performance Period or Measurement Period completed prior to the date of the Change in Control but
have not yet been paid (or settled in the case of Performance Stock Units), based on the
achievement of Performance Goals for such completed calendar year, Performance Period, or
Measurement Period; and (ii) any outstanding Performance Units which have not been notionally
earned by or allocated or awarded to the Participant for an uncompleted calendar year, Performance
Period, or Measurement Period, assuming achievement of Performance Goals at Target, prorated for
the number of full and partial months (on a fractional basis based on the number of days in the
applicable month) between the commencement date of the current uncompleted calendar year,
Performance Period, or Measurement Period and ending on the date of the Change in Control. The
Performance Cash Units shall be paid to the Participant on the 5th day following the Change in
Control and the Performance Stock Units shall be paid to the Participant at the same time (and in
the same form) as ▇▇▇▇▇▇ Tire & Rubber Company pays the per-share merger consideration to holders
of its Common Shares.
7. Effect of Death, Disability, Retirement. If the Participant’s employment with
the Company terminates during the Performance Period while the Participant is employed by the
Company, but before the occurrence of a Change in Control, due to (a) the Participant’s death, or
(b) the Participant’s Disability, or (c) the Participant’s Retirement, then (x) notionally earned
Performance Units for completed Measurement Periods will
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vest in full and (y) a pro rata number of
Performance Units allocated to any uncompleted Measurement Period
shall become vested. The pro rata portion that shall become vested shall be determined by
multiplying the total number of Performance Units allocated to each such uncompleted Measurement
Period by the number of days the Participant has been employed by the Company between the first day
of the Measurement Period and the date of such termination, divided by the total number of days in
each such uncompleted Measurement Period. The payment of such Performance Units will be in
accordance with Section 10 of this Award Agreement.
8. Effect of Voluntary or Involuntary Termination, except for Death, Disability, or
Cause. If the Participant’s employment with the Company terminates during a Performance Period
while the Participant is employed by the Company, but before the occurrence of a Change in Control,
due to the Participant’s voluntary or involuntary termination of employment, other than for death,
Disability, or Cause, then notionally earned Performance Units for completed Measurement Periods
will vest in full and will be paid in accordance with Section 10 of this Award Agreement. The
Performance Units allocated to any uncompleted Measurement Period shall be forfeited.
9. Effect of Termination for Cause. If the Participant’s employment with the
Company terminates before the end of the Performance Period, or prior to certification by the
Committee and/or payment of Participant’s Account for Cause, but before the occurrence of a Change
in Control, all Performance Units, whether or not notionally earned, will be forfeited.
10. Form and Time of Payment of Performance Units. Payments for any Performance
Stock Units that become vested as set forth herein will be made in the form of Common Shares.
Payments for any Performance Cash Units that become vested as set forth herein will be made in the
form of cash. In the event of a termination due to death or Disability pursuant to Section 7,
payment of notionally earned amounts and the pro rata number of Performance Units allocated to any
uncompleted Measurement Period shall be paid as soon as practicable after Committee certification
of the extent to which Performance Goals have been achieved for any uncompleted Measurement Period
and in the event of death, such payment shall be made to the designated beneficiary of the
Participant, or if there is no designated beneficiary or such beneficiary does not survive the
Participant, such payment shall be made to the estate of the Participant. The Participant shall
have the right to designate a beneficiary at any time by furnishing the Company with a beneficiary
designation form. The Participant may change or revoke a beneficiary designation at any time by
furnishing a revised beneficiary designation form to the Company. In the event of a termination of
employment due to Retirement pursuant to Section 7 or a termination due to Section 8, any payment
will be made as soon as practicable after the end of the Performance Period, but in no event shall
such payment occur later than two and one-half (21/2) months after the end of the Performance Period.
Performance Units will be forfeited if they are not vested as of the end of the Performance Period
and, except as otherwise provided in this Award Agreement, if the Participant ceases to be employed
by the Company at any time prior to such Performance Units becoming earned and vested as of the end
of the Performance Period.
11. Tax Withholding. To the extent that the Company is required to withhold any
federal, state, local or foreign tax in connection with the payment of earned and vested
Performance Units pursuant to this Award Agreement, it shall be a condition to the receipt of any
such cash and Common Shares that the Participant make arrangements satisfactory to the Company for
payment of such taxes required to be withheld, which may include by (a) remitting the required
amount to the Company, (b) authorizing the Company to withhold a portion of the Common Shares
otherwise issuable with a value equal to such tax, however, in no event shall the Company accept
Common Shares for payment of taxes in excess of the minimum amount of taxes required to be
withheld, (c) authorize the deduction of such amounts from the Participant’s other payments from
the Company, or (d) otherwise satisfy the applicable tax withholding requirement in a manner
satisfactory to the Company.
12. Compliance with Law. Notwithstanding any other provision of this Award
Agreement, the Company shall not be obligated to issue any Performance Stock Units or Common Shares
in settlement thereof, but may instead, to the extent permitted by applicable law, pay cash with a
value equal to the Fair Market Value of a Common Share on the date of certification of the
Performance Stock Units, if the issuance of any Performance Stock Units or Common Shares in
settlement thereof would result in a violation of any law,
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including, without limitation, any and all exchange controls, procedures and regulations, in
any relevant jurisdiction.
13. Transferability. The Participant’s right to receive the Performance Units shall
not be transferable by the Participant except by will or the laws of descent and distribution.
14. No Right to Continuation of Employment. Neither this Award Agreement nor any
action taken hereunder shall be construed as giving the Participant any right to continued
employment with the Company and neither this Award Agreement nor any action taken hereunder shall
be construed as entitling the Company to the services of the Participant for any period of time.
For purposes of this Award Agreement, the continuous employment of the Participant with the Company
shall not be deemed interrupted, and the Participant shall not be deemed to have ceased to be
employed by the Company, by reason of (a) the transfer of his employment among the Company or (b) a
leave of absence approved by the Committee in its sole discretion. This Performance Unit Award is
a voluntary, discretionary Award being made on a one-time basis and it does not constitute a
commitment to make any future Awards. This Performance Unit Award and any payments made hereunder
will not be considered salary or other compensation for purposes of any severance pay or similar
allowance, except as otherwise required by law.
15. Data Privacy. Information about the Participant and the Participant’s
participation in the Plan may be collected, recorded, and held, used and disclosed for any purpose
related to the administration of the Plan. The Participant understands that such processing of
this information may need to be carried out by the Company and by third-party administrators
whether such persons are located within the Participant’s country or elsewhere, including the
United States of America. The Participant consents to the processing of information relating to
the Participant and the Participant’s participation in the Plan in any one or more of the ways
referred to above.
16. Amendments. Any amendment to the Plan shall be deemed to be an amendment to this
Award Agreement to the extent that the amendment is applicable hereto; provided, however, that no
amendment shall adversely affect the rights of the Participant hereunder without the Participant’s
consent.
17. Severability. In the event that one or more of the provisions of this Award
Agreement shall be invalidated for any reason by a court of competent jurisdiction, any provision
so invalidated shall be deemed to be separable from the other provisions hereof, and the remaining
provisions hereof shall continue to be valid and fully enforceable.
18. Binding Effect. Participant acknowledges the receipt of a copy of the Plan and
agrees to be bound by all the terms and provisions thereof. The terms of the Plan as it presently
exists, and as it may be amended, are deemed incorporated herein by reference, and any conflict
between the terms of the Award Agreement and the provisions of the Plan shall be resolved by the
Committee, whose determination shall be final and binding on all parties. In general, and except as
otherwise determined by the Committee, the provisions of the Plan shall be deemed to supersede the
provisions of this Award Agreement to the extent of any conflict between the Plan and this Award
Agreement. In addition, notwithstanding the terms set forth herein, the Committee shall have the
right to grant Performance Units upon such terms as it deems appropriate, so long as such
provisions are within the terms of the Plan.
19. Notices. Any notice pursuant to this Award Agreement to the Company shall be
addressed to it at its office at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, Attention: Secretary of
▇▇▇▇▇▇ Tire & Rubber Company. Any notice pursuant to the Award Agreement to Participant shall be
addressed to the Participant at the address as set forth below. Either party shall have the right
to designate at any time hereafter in writing a different address.
20. Governing Law. This Award Agreement shall be governed by and construed in
accordance with the laws of the State of Ohio and shall in all respects be interpreted, enforced
and governed under the internal and domestic laws of such state. Any claims or legal actions by one
party against the other arising out of the relationship between the parties contemplated herein
(whether or not arising under this Award Agreement) shall be governed by the laws of the State of
Ohio.
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21. Performance Units Subject to the Company’s Clawback Policy. Notwithstanding
anything in this Award Agreement to the contrary, the Performance Units and Common Shares and cash
payable with respect thereto shall be subject to the Company’s clawback policy, as it may be in
effect from time to time, including, without limitation, the provisions of such clawback policy
required by Section 10D of the Exchange Act and any applicable rules or regulations issued by the
U.S. Securities and Exchange Commission or any national securities exchange or national securities
association on which the Common Shares may be traded.
22. Defined Terms.
| (a) | For the purposes of this Award Agreement: |
“Affiliated Employer” means any corporation, partnership, limited liability company, joint
venture, unincorporated association or other entity in which ▇▇▇▇▇▇ Tire & Rubber Company has a
direct or indirect ownership or other equity interest.
“Cause” means that prior to any termination of employment, the Participant shall have
committed:
any act or omission constituting a material breach by the Participant of any of his
significant obligations to or agreements with the Company or the continued failure or
refusal of the Participant to adequately perform the duties reasonably required by the
Company which, in each case, is materially injurious to the financial condition or business
reputation of, or is otherwise materially injurious to, the Company, after notification by
the Board of such breach, failure or refusal and failure of the Participant to correct such
breach, failure or refusal within thirty (30) days of such notification (other than by
reason of the incapacity of the Participant due to physical or mental illness); or
any other willful act or omission which is materially injurious to the financial
condition or business reputation of, or is otherwise materially injurious to the Company,
and failure of the Participant to correct such act or omission within thirty (30) days after
notification by the Board of any such act or omission (other than by reason of the
incapacity of the Participant due to physical or mental illness); or
the Participant is found guilty of, or pleads guilty or nolo contendere to, a felony or
any criminal act involving fraud, embezzlement, or theft.
For purposes of this Award Agreement, no act, or failure to act, on the Participant’s part
shall be deemed “willful” if done, or omitted to be done, by the Participant in good faith and with
a reasonable belief that the Participant’s action or omission was in the best interest of the
Company. Any notification to be given by the Board in accordance with Section 22(a)(i) or 22(a)(ii)
shall be in writing and shall specifically identify the breach, failure, refusal, act, omission or
injury to which the notification relates and, in the case of Section 22(a)(i) or Section 22(a)(ii)
shall describe the injury to the Company, and such notification must be given within twelve (12)
months of the Board becoming aware of the breach, failure, refusal, act, omission or injury
identified in the notification. Failure to notify the Participant within any such twelve (12) month
period shall be deemed to be a waiver by the Board of any such breach, failure, refusal, act or
omission by the Participant and any such breach, failure, refusal, act or omission by the
Participant shall not then be determined to be a breach of this Award Agreement. For the avoidance
of doubt and for the purpose of determining Cause, the exercise of business judgment by the
Participant shall not be determined to be Cause, even if such business judgment materially injures
the financial condition or business reputation of, or is otherwise materially injurious to, the
Company, unless such business judgment by the Participant was not made in good faith, or
constitutes willful or wanton misconduct, or was an intentional violation of state or federal law.
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“Change in Control” means the occurrence of any of the following events:
▇▇▇▇▇▇ Tire & Rubber Company merges into itself, or is merged or consolidated with,
another entity and as a result of such merger or consolidation less than 51% of the voting
power of the then-outstanding voting securities of the surviving or resulting entity immediately
after such transaction are directly or indirectly beneficially owned in the aggregate by the
former stockholders of ▇▇▇▇▇▇ Tire & Rubber Company immediately prior to such transaction;
all or substantially all the assets accounted for on the consolidated balance sheet of
▇▇▇▇▇▇ Tire & Rubber Company are sold or transferred to one or more entities or persons, and
as a result of such sale or transfer less than 51% of the voting power of the
then-outstanding voting securities of such entity or person immediately after such sale or
transfer is directly or indirectly beneficially held in the aggregate by the stockholders of
▇▇▇▇▇▇ Tire & Rubber Company immediately prior to such transaction or series of
transactions;
a person, within the meaning of Section 3(a)(9) or 13(d)(3) (as in effect on the
effective date of the Severance Plan) of the Securities Exchange Act of 1934, (the “Exchange
Act”) (a “Person”) becomes the beneficial owner (as defined in Rule 13d-3 of the Securities
and Exchange Commission pursuant to the Exchange Act) (a “Beneficial Owner”) of 35% or more
of the voting power of the then-outstanding voting securities of ▇▇▇▇▇▇ Tire & Rubber
Company; provided, however, that the foregoing does not apply to any such acquisition that
is made by (w) any Affiliated Employer; (x) any employee benefit plan of ▇▇▇▇▇▇ Tire &
Rubber Company or any Affiliated Employer; or (y) any person or group of which employees of
▇▇▇▇▇▇ Tire & Rubber Company or of any Affiliated Employer control a greater than 25%
interest unless the Board determines that such person or group is making a “hostile
acquisition;” or (z) any person or group that directly or indirectly through one or more
intermediaries, controls or is controlled by, or is under common control with, the
Participant; or
a majority of the members of the Board are not Continuing Directors, where a
“Continuing Director” is any member of the Board who (x) was a member of the Board on the
effective date of the Severance Plan or (y) was nominated for election or elected to such
Board with the affirmative vote of a majority of the Continuing Directors who were members
of such Board at the time of such nomination or election, provided that any director
appointed or elected to the Board to avoid or settle a threatened or actual proxy contest
(including but not limited to a consent solicitation) shall in no event be deemed to be a
Continuing Director.
“Disability” means the Participant becomes disabled and qualifies, or would have qualified, to
receive disability benefits pursuant to the Company’s long-term disability plan in effect, provided
the Participant is eligible to participate in such long-term disability plan (regardless of whether
or not the Participant has elected to participate in such long-term disability plan).
“Performance Cash Unit” has the value of $1 each.
“Performance Stock Unit” has the value of one Common Share each.
“Retirement” means termination of employment with the Company after the Participant’s
continuous years of employment with the Company and the Participant’s age equal at least 75 years.
(b) Capitalized terms that are used but not defined herein are as defined in the Plan.
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The undersigned Participant hereby acknowledges receipt of this Award Agreement and accepts
the Performance Units granted thereunder, subject to the terms and conditions of the Plan and the
terms and conditions hereinabove set forth.
Date: |
||||||
| PARTICIPANT NAME | ||||||
| Signature | ||||||
| Social Security No./Tax Identification No. | ||||||
| Home Address | ||||||
| City State Zip |
This undersigned officer executes this Award Agreement on behalf of ▇▇▇▇▇▇ Tire & Rubber
Company.
| ▇▇▇▇▇▇ TIRE & RUBBER COMPANY |
||||
| By: | ||||
| [Name] | ||||
| [Title] | ||||
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EXHIBIT A
▇▇▇▇▇▇ TIRE & RUBBER COMPANY
Performance Units
Statement of Performance Goals
[ ] Measurement Period of the [ ] Performance Period
Performance Units
Statement of Performance Goals
[ ] Measurement Period of the [ ] Performance Period
| 1. | The Performance criteria are: |
| 2. | The Performance Goals for the First Measurement Period and their respective weights are as set forth below: |
| 3. | Performance Goals for the Second Measurement Period and Third Measurement Period will be established by the Committee in its discretion and communicated to the Participant not later than ninety (90) days after the beginning of each such Measurement Period. |
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