CRH 8-K
Crh Public Ltd Co (CRH)
8-K
2025-05-09
For: 2025-05-09
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Added on
April 11, 2026
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d)
of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): May 9, 2025 (May 8, 2025)
(Exact name of registrant as specified in its charter)
(State or other jurisdiction of incorporation) | (Commission File Number) | (I.R.S. Employer Identification No.) | ||||||||||||
| (Address of principal executive offices) | ||
(Registrant’s telephone number, including area code)
Not Applicable
(Former name or former address, if changed since last report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
| Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) | |||||
| Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) | |||||
| Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d 2(b)) | |||||
| Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) | |||||
Securities registered pursuant to Section 12(b) of the Act:
| Title of each class | Trading Symbol(s) | Name of each exchange on which registered | |||||||||||||||||||||
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter)
| Emerging Growth Company | |||||
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(e) of the Exchange Act ☐
Item 3.03 Material Modification to Rights of Security Holders.
The 2025 Annual General Meeting of Shareholders (the ‘2025 AGM’) of CRH public limited company (the ‘Company’) was held on May 8, 2025. The rights of shareholders of the Company are governed by its Memorandum and Articles of Association (the ‘Articles’) and the Irish Companies Act 2014. At the 2025 AGM, the Company’s shareholders considered and approved, among other things, certain amendments to the Company’s Articles (see Proposals 10, 11 and 12 in Item 5.07 below). The amendments to the Company’s Articles are effective from May 8, 2025.
A description of the amendments to the Articles is set forth in the Company’s Definitive Proxy Statement filed with the U.S. Securities and Exchange Commission on March 28, 2025 (the ‘Proxy Statement’), under the sections titled “Proposal 10: Approval of Certain Amendments to the Articles of CRH plc with respect to Advance Notice Provisions and Information and Procedural Requirements for Shareholder Proposals, including Nominations of Directors,” “Proposal 11: Approval of Certain Amendments to the Articles of CRH plc to (a) Provide for a Plurality Voting Standard in the Event of Contested Director Elections; and (b) Grant the Board of Directors Sole Authority to Determine its Size and Provide for the Possibility of Holdover Directors in the Event of No Directors Receiving Sufficient Votes for Election,” and “Proposal 12: Approval of Certain Amendments to the Articles of CRH plc to Provide that the Limit on Directors’ Fees should be determined by the Board of Directors and to Make Certain Administrative Amendments,” respectively, and is incorporated by reference into this Item 3.03.
The foregoing description, and the descriptions in the Proxy Statement, do not purport to be complete and are qualified in their entirety by reference to the full text of the Articles as amended and restated, which is filed as Exhibit 3.1 to this Current Report on Form 8-K and is incorporated herein by reference.
Item 5.02 Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.
At the 2025 AGM, the Company’s shareholders voted to approve the CRH plc Equity Incentive Plan (the ‘Equity Incentive Plan’), which had previously been approved by the Board of Directors of the Company (the ‘Board’). A description of the material terms of the Equity Incentive Plan are included in the Proxy Statement under the section titled “Proposal 4: Approval of the CRH plc Equity Incentive Plan,” and is incorporated herein by reference. As further described in the Proxy Statement, the Equity Incentive Plan will replace the Company’s 2014 Performance Share Plan, and all other Board-approved discretionary share plans in operation (other than the Company’s Savings-related Share Option and the Share Participation
Schemes) and no further awards will be granted under these plans. An aggregate of 15 million of the Company’s ordinary shares has been reserved for issuance under the Equity Incentive Plan.
The foregoing description, and the description of the material terms contained in the Proxy Statement, do not purport to be complete and are qualified in their entirety by reference to the full text of the Equity Incentive Plan, which is filed as Exhibit 10.1 to this Current Report on Form 8-K and is incorporated herein by reference. Copies of the forms of award agreement, which will be used in connection with awards of restricted share units, awards of performance share units and awards of restricted share units to non-management Directors made under the Equity Incentive Plan, are attached as Exhibits 10.2, 10.3 and 10.4, respectively, to this Current Report on Form 8-K and are incorporated herein by reference.
Item 5.03 Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.
The information set forth above under Item 3.03 is hereby incorporated by reference into this Item 5.03.
Item 5.07 Submission of Matters to a Vote of Security Holders.
The Company held its 2025 AGM on May 8, 2025. There were 677,867,916 ordinary shares eligible to be voted at the 2025 AGM. 527,199,858 ordinary shares were represented in person or by proxy, which constituted a quorum. Shareholders approved Proposals 1(a) through 1(l), 4, 5(b), 6, 7, 8, 9, 10, 11(a), 11(b) and 12, respectively. In addition, the shareholders approved, on an advisory basis, (i) Proposals 2 and 5(a) and (ii) the option of holding a “Say-on-Pay” vote every year under Proposal 3.
The final voting results for each matter are as follows:
Proposals 1(a)-(l). By separate resolutions, to re-elect each of the 12 Director nominees:
Nominees | For | Against | Abstain | Broker Non-Votes | |||||||||||||
(a) | Richie Boucher | 474,966,274 | 27,065,642 | 1,545,761 | 23,620,767 | ||||||||||||
(b) | Caroline Dowling | 499,581,539 | 2,448,754 | 1,544,104 | 23,620,767 | ||||||||||||
(c) | Richard Fearon | 484,399,570 | 17,632,872 | 1,545,235 | 23,620,767 | ||||||||||||
(d) | Johan Karlström | 497,038,895 | 4,994,061 | 1,546,135 | 23,620,767 | ||||||||||||
(e) | Shaun Kelly | 499,573,195 | 2,441,437 | 1,559,054 | 23,620,767 | ||||||||||||
(f) | Badar Khan | 499,663,050 | 2,361,508 | 1,547,780 | 23,620,767 | ||||||||||||
(g) | Lamar McKay | 488,686,002 | 13,339,477 | 1,538,795 | 23,620,767 | ||||||||||||
(h) | Jim Mintern | 501,900,102 | 105,581 | 1,566,655 | 23,620,767 | ||||||||||||
(i) | Gillian L. Platt | 495,415,998 | 6,600,736 | 1,554,893 | 23,620,767 | ||||||||||||
(j) | Mary K. Rhinehart | 494,816,519 | 7,218,199 | 1,538,968 | 23,620,767 | ||||||||||||
(k) | Siobhán Talbot | 499,221,671 | 2,809,804 | 1,543,863 | 23,620,767 | ||||||||||||
(l) | Christina Verchere | 501,616,955 | 406,713 | 1,545,071 | 23,620,767 | ||||||||||||
Proposal 2. To approve, on an advisory basis, the compensation of the Company’s Named Executive Officers for 2024 (“Say-on-Pay”):
For | Against | Abstain | Broker Non-Vote | ||||||||
| 474,768,241 | 27,235,035 | 1,543,088 | 23,620,767 | ||||||||
Proposal 3. To approve, on an advisory basis, the frequency of future “Say-on-Pay” votes:
Annually | Every 2 Years | Every 3 Years | Abstain | Broker Non-Vote | ||||||||||
| 499,105,127 | 154,673 | 2,782,436 | 1,506,867 | 23,620,767 | ||||||||||
Proposal 4. To approve the CRH plc Equity Incentive Plan:
For | Against | Abstain | Broker Non-Vote | ||||||||
| 483,930,381 | 18,075,734 | 1,565,833 | 23,620,767 | ||||||||
Proposal 5(a) - (b). By separate resolutions: (a) to ratify, in a non-binding vote, the appointment of Deloitte & Touche LLP (‘Deloitte U.S.’) as the independent registered public accounting firm of the Company for fiscal 2025; and (b) to authorize, in a binding vote, the Board to fix the compensation of Deloitte U.S., Deloitte Ireland LLP and other Deloitte affiliates:
For | Against | Abstain | Broker Non-Vote | |||||||||||
(a) | 516,221,500 | 8,797,864 | 2,113,369 | 0 | ||||||||||
(b) | 525,331,715 | 289,826 | 1,518,545 | 0 | ||||||||||
Proposal 6. To renew the annual authority of the Board to issue ordinary shares of the Company:
For | Against | Abstain | Broker Non-Vote | ||||||||
| 509,873,651 | 15,694,445 | 1,571,990 | 0 | ||||||||
Proposal 7. To renew the annual authority of the Board to issue ordinary shares of the Company for cash without first offering shares to existing shareholders:
For | Against | Abstain | Broker Non-Vote | ||||||||
| 453,407,879 | 72,126,446 | 1,598,408 | 0 | ||||||||
Proposal 8. To renew the annual authority of the Board to make market purchases and overseas market purchases of ordinary shares of the Company:
For | Against | Abstain | Broker Non-Vote | ||||||||
| 524,339,184 | 589,209 | 2,205,992 | 0 | ||||||||
Proposal 9. To determine the price range at which the Company can re-issue ordinary shares of the Company that it holds as treasury shares:
For | Against | Abstain | Broker Non-Vote | ||||||||
| 520,965,850 | 3,942,322 | 2,226,213 | 0 | ||||||||
Proposal 10. To amend the Company’s Articles to clarify the advance notice requirements for Director nominations and other shareholder proposals:
For | Against | Abstain | Broker Non-Vote | ||||||||
| 501,181,090 | 791,102 | 1,541,426 | 23,620,767 | ||||||||
Proposal 11(a) - (b). By separate resolutions, to amend the Company’s Articles to: (a) provide for a plurality voting standard in the event of contested Director elections; and (b) grant the Board sole authority to determine its size and to ensure re-election of at least the minimum number of Directors required:
For | Against | Abstain | Broker Non-Vote | |||||||||||
(a) | 501,352,634 | 626,106 | 1,533,226 | 23,620,767 | ||||||||||
(b) | 498,756,359 | 3,224,304 | 1,531,303 | 23,620,767 | ||||||||||
Proposal 12. To amend the Company’s Articles to provide the Board with the ability to determine the fees payable to the non-management Directors and make certain administrative amendments:
For | Against | Abstain | Broker Non-Vote | ||||||||
| 496,875,173 | 5,115,352 | 1,528,105 | 23,620,767 | ||||||||
Item 9.01 Financial Statements and Exhibits.
(d) Exhibits.
| Exhibit No. | Description | |||||||
3.1 | ||||||||
| 10.1* | ||||||||
| 10.2* | ||||||||
| 10.3* | ||||||||
| 10.4* | ||||||||
104 | Cover Page Interactive Data File (formatted in Inline XBRL) | |||||||
| * | Management compensation plan or arrangement. | |||||||
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, as amended, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
Date: May 9, 2025
| CRH public limited company | ||||||||||||||||||||
| /s/ Neil Colgan | ||||||||||||||||||||
| By: | Neil Colgan | |||||||||||||||||||
| Company Secretary | ||||||||||||||||||||
Exhibit 10.1
CRH PLC
EQUITY INCENTIVE PLAN
EQUITY INCENTIVE PLAN
ARTICLE I
GENERAL
1.1Purpose
The purpose of the CRH plc Equity Incentive Plan (the “Plan”) is to help the Group (as defined below): (1) attract, retain and motivate Eligible Individuals (as defined below) of CRH plc, a corporation organized under the laws of Ireland (the “Company”); (2) provide an opportunity for such individuals to acquire Ordinary Shares (as defined below) and cash awards; and (3) align the interests of such persons with the Company’s shareholders.
1.2Definitions of Certain Terms and Rules of Construction
For purposes of the Plan, the following terms have the meanings set forth below:
1.2.1“Affiliate” means any Subsidiary of the Company or any corporation, limited partnership or other organization controlling, controlled by or under common control with the Company.
1.2.2“Applicable Exchange” means the New York Stock Exchange, the London Stock Exchange or any other national stock exchange or quotation system on which the Shares may be listed or quoted.
1.2.3“Applicable Law” means the laws of Ireland, the United States and any state thereof that are applicable to the Company, the Shares, the Plan and Awards, including any rules and regulations relating thereto (including of the Applicable Exchange) and the applicable laws, rules and regulations of any other country or jurisdiction where Awards are granted. For the avoidance of doubt, Applicable Law will include any tax law that imposes requirements in order to avoid adverse tax consequences.
1.2.4“Award” means an award granted pursuant to the Plan.
1.2.5“Award Agreement” means the written document by which each Award is evidenced, and which may, but need not be (as determined by the Committee) executed or acknowledged by a Grantee as a condition to receiving an Award or the benefits under an Award, and which sets forth the terms and provisions applicable to Awards granted to such Grantee. Any reference herein to an agreement in writing, and acceptance thereof, will be deemed to include an electronic writing, and acceptance thereof, to the extent permitted by Applicable Law.
1.2.6“Board” means the Board of Directors of the Company.
1.2.7“Cause” means, unless otherwise defined in an employment or services agreement between the Grantee and any member of the Group: (a) any breach by the Grantee of a material policy, procedure or rule of any member of the Group, including the CRH Code of Business Conduct, any other obligations of the Grantee as an employee of any member of the Group and
under any arrangement between the Grantee and any member of the Group, which breach, if deemed curable by the applicable member of the Group, remains uncured to the reasonable satisfaction of the applicable member of the Group for 30 calendar days after the Grantee receives written notice of the breach from the applicable member of the Group; (b) the Grantee’s gross negligence or willful failure to perform substantially and satisfactorily the Grantee’s duties as an employee of any member of the Group or under any arrangement between any member of the Group and the Grantee; (c) any act of fraud, dishonesty or fraudulent activity, misappropriation, embezzlement, theft, bribery, forgery or similar conduct of the Grantee; (d) indictment for, conviction of, guilty plea or plea of nolo contendere of the Grantee to a crime that constitutes a felony (or equivalent under the law of any state or non-U.S. jurisdiction) or a crime that constitutes a misdemeanor (or equivalent under the law of any state or non-U.S. jurisdiction) involving moral turpitude; or (e) any other act or omission of the Grantee which, if it were known to the public, in any member of the Group’s reasonable judgment could have a significant adverse impact on the Company or any Affiliate, or their business or reputation.
1.2.8 “Change in Control” means the occurrence of any of the following events:
(a)during any period of not more than 36 months, individuals who constitute the Board as of the beginning of the period (the “Incumbent Directors”) cease for any reason to constitute at least a majority of the Board; provided that any person becoming a Director subsequent to the beginning of such period, whose election or nomination for election was approved by a vote of at least two-thirds of the Incumbent Directors then on the Board (either by a specific vote or by approval of the proxy statement of the Company in which such person is named as a nominee for Director, without written objection to such nomination) will be an Incumbent Director; provided, however, that no individual initially elected or nominated as a Director as a result of an actual or publicly threatened election contest with respect to Directors or as a result of any other actual or publicly threatened solicitation of proxies by or on behalf of any person other than the Board will be deemed to be an Incumbent Director;
(b)any Person, is or becomes, directly or indirectly, the beneficial owner (as determined for purposes of Rule 13d-3 of the Exchange Act) of securities of the Company having 30% or more of the combined voting power of Company Voting Securities, provided, however, that the event described in this paragraph (b) will not be deemed to be a Change in Control by virtue of the ownership or acquisition (including any purchase or redemption) of Company Voting Securities: (1) by any member of the Group, (2) by any employee benefit plan (or related trust) sponsored or maintained by any member of the Group, (3) by any underwriter temporarily holding securities pursuant to an offering of such securities, (4) pursuant to a Non-Qualifying Transaction (as defined in paragraph (c) of this definition) or (5) by any private investor from any member of the Group;
(c)the consummation of (i) a merger, takeover, scheme of arrangement, consolidation, statutory share exchange or similar form of corporate transaction involving the Company that requires the approval of the Company’s shareholders, whether for such transaction or the issuance of securities in the transaction or (ii) the sale or other disposition of all or substantially all the assets of the Company to an entity that is not an Affiliate (a “Business Combination”), unless, immediately following such Business Combination, (1) the “beneficial owners” (as used in Rule 13d-3 of the Exchange Act) of the Company Voting Securities
outstanding immediately prior to the consummation of such Business Combination continue to own, directly or indirectly, more than 50% of the combined voting power of the Company or other entity resulting from such Business Combination or, if applicable, the ultimate parent of it (the “Surviving Company”) in substantially the same proportions as their ownership, immediately prior to the Business Combination, of the Company Voting Securities, (2) no Person beneficially owns, directly or indirectly, 30% or more of the combined voting power of the then outstanding voting securities of the Surviving Company and (3) at least a majority of the members of the board of directors of the Surviving Company following the consummation of the Business Combination are Incumbent Directors (a Business Combination which satisfies all of the criteria specified in (1), (2) and (3) of this paragraph (ii) will be deemed to be a “Non-Qualifying Transaction”); or
(d)the Company’s shareholders approve a plan of complete liquidation or dissolution of the Company.
Notwithstanding the foregoing, a Change in Control will not be deemed to occur solely because any person acquires beneficial ownership of more than 30% of the Company Voting Securities as a result of the acquisition of Company Voting Securities by any member of the Group which reduces the number of Company Voting Securities outstanding; provided that if after such acquisition by any member of the Group such person becomes the beneficial owner of additional Company Voting Securities that increases the percentage of outstanding Company Voting Securities beneficially owned by such person, a Change in Control will then occur.
1.2.9“CIC Protection Period” means on or within two years following a Change in Control.
1.2.10“Code” means the Internal Revenue Code of 1986.
1.2.11“Committee” means the Compensation Committee of the Board, as constituted from time to time and including any successor committee.
1.2.12“Company Voting Securities” mean the Company’s outstanding securities eligible to vote for the election of the members of the Board, save for any outstanding 7% “A” Cumulative Preference Shares or 5% Cumulative Preference Shares in the capital of the Company.
1.2.13“Consent” has the meaning set forth in Section 4.4.2.
1.2.14“Consultant” means any individual that provides bona fide consulting or advisory services to any member of the Group other than a Non-Management Director.
1.2.15“Covered Person” has the meaning set forth in Section 1.3.4.
1.2.16“Data” has the meaning set forth in Section 4.21.
1.2.17“Director” means a director of the Company.
1.2.18“Dividend Equivalent Rights” has the meaning set forth in Section 2.8.
1.2.19“Effective Date” has the meaning set forth in Section 4.21.
1.2.20“Eligible Individual” means an Employee, Non-Management Director or Consultant.
1.2.21“Employee” means an employee and/or prospective employee of any member of the Group, but not including a Non-Management Director.
1.2.22“Employment” means a Grantee’s performance of services for any member of the Group, as determined by the Committee. The terms “employ” and “employed” will have their correlative meanings. The Committee in its sole discretion may determine (a) whether and when a Grantee’s leave of absence results in a termination of Employment, (b) whether and when a change in a Grantee’s association with any member of the Group results in a termination of Employment, and (c) the impact, if any, of any such leave of absence or change in association on outstanding Awards. Unless expressly provided otherwise, any references in the Plan or any Award Agreement to a Grantee’s Employment being terminated will include both voluntary and involuntary terminations.
1.2.23“Exchange Act” means the Securities Exchange Act of 1934.
1.2.24“Fair Market Value” means, with respect to a Share, unless determined as otherwise specified herein, the closing price reported for the Ordinary Shares on the applicable date as reported on the New York Stock Exchange. For purposes of the grant of any Award, the applicable date will be the trading day on which the Award is granted or, if the date the Award is granted is not a trading day, the trading day immediately prior to the date the Award is granted. For purposes of the exercise of any Award, the applicable date is the date a notice of exercise is received by the Company or, if such date is not a trading day, the trading day immediately following the date a notice of exercise is received by the Company.
1.2.25“Good Reason” means, unless otherwise defined in an employment or services agreement between the Grantee and any member of the Group, the occurrence of any of the following in the absence of the Grantee’s written consent:
(a)Except during the CIC Protection Period, (i) a material diminution in the Grantee’s position, authority, duties or responsibilities, (ii) a material reduction in the Grantee’s annual base salary or annual target bonus opportunity or (iii) a requirement that the Grantee relocate the Grantee’s primary workplace more than 50 miles from the Grantee’s principal place of employment immediately prior to the relocation; and
(b)Solely during the CIC Protection Period, (i) a material diminution in the Grantee’s position, authority, duties or responsibilities, in each case, from those in effect, immediately prior to the Change in Control, (ii) a reduction in the Grantee’s annual base salary, annual target bonus opportunity or annual target long-term incentive opportunity, in each case, from those in effect immediately prior to the Change in Control or (iii) a requirement that the Grantee relocate the Grantee’s primary workplace more than 50 miles from the Grantee’s principal place of employment immediately prior to the Change in Control;
provided that notwithstanding the foregoing, the occurrence of any of the events described in the immediately preceding clauses will not constitute Good Reason unless, (x) the Grantee provides the Company with written notice within 60 days after the initial occurrence of any such event that
the Grantee believes constitutes Good Reason, (y) the Company fails to cure such event within 30 days after receipt of such notice and (z) the Grantee terminates employment, if at all, within 30 days following the end of the cure period.
1.2.26“Grant Date” means the date on which a Grantee receives an Award.
1.2.27“Grantee” means an Eligible Individual who receives an Award.
1.2.28“Group” means the Company and each of its Subsidiaries.
1.2.29“Incentive Share Option” means a Share Option that is intended to be an “incentive stock option” within the meaning of Sections 421 and 422 of the Code, and which is designated as an Incentive Share Option in the applicable Award Agreement, provided that all references to Incentive Share Options contained herein will only apply to Employees.
1.2.30“Non-Employee Sub-Plan” means the Non-Employee Sub-Plan to the Plan, as in effect from time to time.
1.2.31“Non-Management Director” means a director of the Company who is not an Employee.
1.2.32“Ordinary Shares” or “Shares” means the Ordinary Shares of €0.32 each of the Company, and any other securities or property issued in exchange therefor or in lieu thereof pursuant to Section 1.6.3.
1.2.33“Other Share-Based or Cash-Based Awards” has the meaning set forth in Section 2.9.1.
1.2.34“Performance-Based Awards” means certain Other Share-Based or Cash-Based Awards granted pursuant to Section 2.9.2.
1.2.35“Performance Goals” means the performance goals established by the Committee in connection with the grant of Awards.
1.2.36“Performance Share Unit” means an Award pursuant to Section 2.7, providing for the right to receive Ordinary Shares or cash upon the attainment of specific Performance Goals.
1.2.37“Person” has the meaning given in Section 3(a)(9) of the Exchange Act and used in Sections 13(d) and 14(d) of the Exchange Act.
1.2.38“Plan” has the meaning set forth in Section 1.1.
1.2.39“Plan Action” has the meaning set forth in Section 4.4.1.
1.2.40“Restricted Shares” means an Award pursuant to Section 2.5.
1.2.41“Restricted Share Unit” means an Award pursuant to Section 2.6, providing for the right to receive Ordinary Shares or cash in an amount measured by reference to the value of Ordinary Shares.
1.2.42“Section 409A” means Section 409A of the Code.
1.2.43“Securities Act” means the Securities Act of 1933.
1.2.44“Share Limit” has the meaning set forth in Section 1.6.1.
1.2.45“Share Appreciation Right” or “SAR” means an Award pursuant to Section 2.4, payable in cash or Shares, that entitles a Grantee upon exercise to the excess of the Fair Market Value of the Shares underlying the Award over the base price established in respect of such Shares.
1.2.46“Share Option” means a right pursuant to Section 2.3 to purchase Ordinary Shares, and which may be either an Incentive Share Option or a non-incentive Share Option.
1.2.47“Subsidiary” means (i) in the case of an Incentive Share Option, a “subsidiary corporation” of the Company within the meaning of Section 424(f) of the Code and (ii) in all other cases, an entity in which the Company possesses, directly or indirectly, the power to direct or cause the direction of the management policies of such entity, whether through the ownership of the voting securities, by contract or otherwise.
1.2.48“Sub-Plan” means any sub-plan established with respect to the Plan, including the Non-Employee Sub-Plan.
1.2.49“Ten Percent Shareholder” means a person owning shares possessing more than 10% of the combined voting power of all classes of shares of the Company and of any Subsidiary or parent corporation of the Company.
1.2.50“Treasury Regulations” means the regulations promulgated under the Code by the United States Treasury Department.
Whenever used in the Plan or an Award Agreement, (i) the singular form of a word will be deemed to include the plural form, unless the context requires otherwise; (ii) the words “include”, “includes” and “including” will be deemed to be followed by the words “without limitation”; (iii) references to a statute, rule or regulation are to the statute, rule or regulation, as amended, modified, supplemented or replaced from time to time, and in all cases include any applicable ruling, court case, interpretive guidance or other requirement established by a governmental authority, agency or stock exchange (and, in the case of statutes, include any rules and regulations promulgated under the statute); (iv) references to any governmental authority include any successor to the governmental authority; (v) references to a contract, agreement, policy or plan are to the contract, agreement, policy or plan as amended, modified, supplemented or replaced from time to time; (vi) references to any entity include any corporation, limited liability company, partnership, association, business trust and similar organization and include any governmental authority, and in all cases include any successor thereto; and (vii) references to the Plan will include any Sub-Plan. Unless the text indicates otherwise, references to sections are to sections of the Plan.
1.3Administration
1.3.1The Committee will administer the Plan. In particular, the Committee will have the authority in its sole discretion to:
(a)exercise all of the powers granted to it, and make all determinations, under the Plan;
(b)construe, interpret and implement and correct any defect, supply any omission and reconcile any inconsistency in the Plan and all Award Agreements and determine disputed facts related thereto; provided that, with respect to all claims or disputes arising out of any determination of the Committee that materially adversely affects a Grantee’s Award, (i) the affected Grantee will file a written claim with the Committee for review, explaining the reasons for such claim, and (ii) the Committee’s decision must be written and must explain the decision;
(c)prescribe, amend and rescind rules and regulations relating to the Plan, including rules governing the Committee’s own operations;
(d)grant, or recommend to the Board for approval to grant, Awards and determine the terms of such Awards;
(e)amend the Plan or any outstanding Award Agreement in any respect including to:
(1)accelerate the time or times at which the Award becomes vested, unrestricted or may be exercised or waive or amend any vesting terms,
(2)accelerate the time or times at which Shares are delivered under the Award (and, without limitation on the Committee’s rights, in connection with such acceleration, the Committee may provide that any Shares delivered pursuant to such Award will be restricted Shares, which are subject to vesting, transfer, forfeiture or repayment provisions similar to those in the Grantee’s underlying Award), or
(3)reflect a change in the Grantee’s circumstances (including a change to part-time employment status or a change in position, duties or responsibilities);
(f)determine at any time whether, to what extent and under what circumstances and method or methods, subject to Section 4.13,
(1)Awards may be:
(A)settled in cash, Shares, other securities, other Awards or other property,
(B)exercised, or
(C)canceled, forfeited or suspended,
(2)Shares, other securities, other Awards or other property and other amounts payable with respect to an Award may be deferred either automatically or at the election of the Grantee thereof or of the Committee,
(3)Awards may be settled by the Company, any of its Affiliates or any of their designees,
(4)the exercise price for any Share Option (other than an Incentive Share Option, unless the Committee determines that such a Share Option will no longer constitute an Incentive Share Option) or Share Appreciation Right may be reset; and
(g)adopt, amend and administer such procedures or Sub-Plans on such terms and conditions different from those specified herein as may, in the judgment of the Committee, be necessary or desirable to further the purposes of the Plan or comply with Applicable Law.
1.3.2The determination of the Committee on all matters relating to the Plan or any Award Agreement will be entitled to the maximum deference permitted by law and will be final, binding and conclusive and non-reviewable and non-appealable and may be entered as a final judgment in any court having jurisdiction. The Committee may delegate (either generally or specifically) the powers, authorities and discretions conferred on it under this Section 1.3.1 as it deems appropriate in its sole discretion in accordance with Applicable Law and subject to the terms of the Company’s Memorandum and Articles of Association. The Committee may allocate among its members and delegate to any person who is not a member of the Committee, or to any administrative group within any member of the Group, any of its powers, responsibilities or duties. In delegating its authority, the Committee will consider the extent to which any delegation may cause Awards to fail to meet the requirements of Rules 16(b)-3(d)(1) or 16(b)-3(e) under the Exchange Act. Except as specifically provided to the contrary, references to the Committee include any administrative group, individual or individuals to whom the Committee has delegated its duties and powers.
1.3.3Notwithstanding anything to the contrary contained herein, the Board may, in its sole discretion, at any time and from time to time, grant Awards or administer the Plan. In any such case, the Board will have all of the authority and responsibility granted to the Committee herein.
1.3.4No member of the Board or Committee or any person to whom the Board or Committee delegates its powers, responsibilities or duties in writing, including by resolution (each such person, a “Covered Person”), will have any liability to any person (including any Grantee) for any action taken or omitted to be taken or any determination made with respect to the Plan or any Award, except as expressly provided by statute. To the extent permitted by Applicable Law, each Covered Person will be indemnified and held harmless by any member of the Group and any other Affiliates against and from:
(a) any loss, cost, liability or expense (including attorneys’ fees) that may be imposed upon or incurred by such Covered Person in connection with or resulting from any action,
suit or proceeding to which such Covered Person may be a party or in which such Covered Person may be involved by reason of any action taken or omitted to be taken under the Plan or any Award Agreement, in each case, in good faith; and
(b)any and all amounts paid by such Covered Person, with any member of the Group’s approval, in settlement thereof, or paid by such Covered Person in satisfaction of any judgment in any such action, suit or proceeding against such Covered Person, provided that any member of the Group and any other Affiliates will have the right, at their own expense, to assume and defend any such action, suit or proceeding and, once any member of the Group or any other Affiliate gives notice of its intent to assume the defense, any member of the Group or any other Affiliate, as applicable, will have sole control over such defense with counsel of their choice.
The foregoing right of indemnification will not be available to a Covered Person to the extent that a court of competent jurisdiction in a final judgment or other final adjudication, in either case, not subject to further appeal, determines that the acts or omissions of such Covered Person giving rise to the indemnification claim resulted from such Covered Person’s bad faith, fraud or willful misconduct. The foregoing right of indemnification will not be exclusive of any other rights of indemnification to which Covered Persons may be entitled under the Company’s Memorandum and Articles of Association, pursuant to any indemnification agreements between such Covered Person and any member of the Group or any other Affiliate, as applicable, as a matter of law, or otherwise, or any other power that any member of the Group or any other Affiliate may have to indemnify such persons or hold them harmless.
1.4Persons Eligible for Awards
Awards may be made to Eligible Individuals.
1.5Types of Awards Under Plan
The following types of Awards may be granted: Share Options, Share Appreciation Rights, Restricted Shares, Restricted Share Units, Performance Share Units, Dividend Equivalent Rights and Other Share-Based or Cash-Based Awards (including Performance-Based Awards) that the Committee determines to be consistent with the purposes of the Plan and the interests of any member of the Group and any other Affiliates, as applicable.
1.6Shares Available for Awards
1.6.1Ordinary Shares Subject to the Plan. Subject to the other provisions of this Section 1.6, the total number of Shares that may be subject to Awards will be 15,000,000 (the “Share Limit”). Ordinary Shares subject to awards that are assumed, converted or substituted under the Plan as a result of any member of the Group’s acquisition of another company (including by way of merger, combination or similar transaction) will not count against the number of Shares that may be granted under the Plan. Available Shares under a shareholder-approved plan of an acquired company (as appropriately adjusted to reflect the transaction) may be used for Awards and will not reduce the maximum number of Shares available for grant under the Plan, subject to applicable stock exchange requirements.
1.6.2Replacement of Shares. Shares subject to an Award that is forfeited (including any Restricted Shares repurchased by the Company at the same price paid by the Grantee so that such Shares are returned to the Company), expires or is settled for cash (in whole or in part), to the extent of such forfeiture, expiration or cash settlement will be available for future grants of Awards and will be added back in the same number of Shares as were deducted in respect of the grant of such Award. The payment of Dividend Equivalent Rights in cash in conjunction with any outstanding Awards will not be counted against the Shares available for issuance under the Plan. Shares tendered by a Grantee or withheld by the Company in payment of the exercise price of a Share Option or to satisfy any tax withholding obligation with respect to an Award will not again be available for Awards.
1.6.3Adjustments. The Committee will:
(a)adjust the type of property or securities, and the number, authorized pursuant to Section 1.6.1,
(b)adjust the type of property or securities, and the number, set forth in Section 2.3.2, that can be issued through Incentive Share Options, and
(c)adjust any other terms of the Plan and the terms of any outstanding Awards (including the number of Shares covered by each outstanding Award, the type of property or securities to which the Award relates and the exercise or strike price of any Award), in such manner as the Committee deems appropriate (including by payment of cash or other property or securities) to prevent the enlargement or dilution of rights, as a result of any increase or decrease in the number of issued Shares (or issuance of shares of stock or other property or securities other than Shares) resulting from a recapitalization, share split, bonus issue, reverse share split, share dividend, spinoff, split up, combination, reclassification or exchange of Shares, merger, consolidation, rights offering, separation, reorganization or liquidation or any other change in the corporate structure or Shares, including any extraordinary dividend or extraordinary distribution; provided that no such adjustment may be made if or to the extent that it would cause an outstanding Award to cease to be exempt from, or to fail to comply with, Section 409A.
1.6.4Sources of Shares Deliverable under Awards. Any Shares delivered pursuant to an Award may consist, in whole or in part, of authorized and unissued Shares, treasury Shares (within the meaning of the Companies Act 2014 of Ireland) or Shares reacquired by the Company in any manner, including via an employee benefit trust or other such trust or nominee arrangement utilized by the Company and approved by the Committee for the purposes of the grant or settlement of Awards, provided that, where Shares to be delivered pursuant to an Award are newly issued by the Company, the nominal value of each such Share will be fully paid up by or on behalf of the relevant Grantee in accordance with Applicable Law.
1.7Annual Limit on Non-Management Director Awards and Cash Fees. Subject to Article 88 of the Company’s Memorandum and Articles of Association (as may be amended or replaced from time to time), in each calendar year during any part of which the Plan is in effect, a Non-Management Director may not receive Awards for such individual’s service on the Board that,
taken together with any cash fees paid to such Non-Management Director during such calendar year for such individual’s service on the Board, have a value in excess of $950,000.
ARTICLE II
AWARDS UNDER THE PLAN
2.1 Agreements Evidencing Awards
Each Award granted will be evidenced by an Award Agreement that will contain such provisions and conditions as the Committee deems appropriate. Unless otherwise provided herein, the Committee may grant Awards in tandem with or, subject to Section 4.13, in substitution for or satisfaction of any other Award or Awards or any award granted under any other plan of any member of the Group. By accepting an Award, a Grantee thereby agrees that the Award will be subject to all of the terms and provisions of the Plan and the applicable Award Agreement.
2.2 No Rights as a Shareholder
No Grantee (or other person having rights pursuant to an Award) will have any of the rights of a shareholder of the Company with respect to Shares subject to an Award until the delivery of such Shares. Except as otherwise provided in Section 1.6.3 or the terms of the Award, no adjustments will be made for dividends, distributions or other rights (whether ordinary or extraordinary, and whether in cash, Ordinary Shares, other securities or other property) for which the record date is before the date the Shares are delivered, or in the event the Committee elects to use another system, such as book entries by the transfer agent, before the date in which such system evidences the Grantee’s ownership of such Shares.
2.3 Options
2.3.1 Grant. Share Options may be granted to eligible recipients in such number and at such times during the term of the Plan as the Committee may determine.
2.3.2 Incentive Share Options. At the time of grant, the Committee will determine:
(a)whether all or any part of a Share Option granted to an eligible Employee will be an Incentive Share Option; and
(b)the number of Shares subject to such Incentive Share Option; provided, however, that:
(1)the aggregate Fair Market Value (determined as of the time the option is granted) of the Shares with respect to which Incentive Share Options are exercisable for the first time by an eligible Employee during any fiscal year (under all such plans of the Group and of any parent corporation of the Company) may not exceed $100,000, and
(2)no Incentive Share Option (other than an Incentive Share Option that may be assumed or issued by the Company in connection with a
transaction to which Section 424(a) of the Code applies) may be granted to a person who is not eligible to receive an Incentive Share Option under the Code.
The form of any Share Option which is entirely or in part an Incentive Share Option will clearly indicate that such Share Option is an Incentive Share Option or, if applicable, the number of Shares subject to the Incentive Share Option. No more than 15,000,000 Shares (as adjusted pursuant to the provisions of Section 1.6.3) that can be delivered under the Plan may be issued through Incentive Share Options.
2.3.3 Exercise Price. The exercise price per Share with respect to each Share Option will be determined by the Committee but, except as otherwise permitted by Section 1.6.3, may never be less than the Fair Market Value of a Share (or, in the case of an Incentive Share Option granted to a Ten Percent Shareholder, 110% of the Fair Market Value).
2.3.4 Term of Share Option. In no event will any Share Option be exercisable after the expiration of 10 years (or, in the case of an Incentive Share Option granted to a Ten Percent Shareholder, five years) from the Grant Date.
2.3.5 Vesting and Exercise of Share Option and Payment for Shares. A Share Option may vest and be exercised at such time or times and subject to such terms and conditions as will be determined by the Committee at the time the Share Option is granted and as set forth in the Award Agreement. Subject to any limitations in the applicable Award Agreement, any Shares not acquired pursuant to the exercise of a Share Option on the applicable vesting date may be acquired thereafter at any time before the final expiration of the Share Option.
To exercise a Share Option, the Grantee must give written notice to the Company specifying the number of Shares to be acquired and accompanied by payment of the full purchase price therefor in cash or by certified or official bank check or in another form as determined by the Company, which may include:
(a)personal check,
(b)Shares, based on the Fair Market Value as of the exercise date,
(c)any other form of consideration approved by the Company and permitted by Applicable Law, and
(d)any combination of the foregoing.
The Committee may also make arrangements for the cashless exercise of a Share Option. Any person exercising a Share Option will make such representations and agreements and furnish such information as the Committee may, in its sole discretion, deem necessary or desirable to effect or assure compliance by the Company on terms acceptable to the Company with the provisions of the Securities Act, the Exchange Act and any other applicable legal requirements.
2.4 Share Appreciation Rights
2.4.1 Grant. Share Appreciation Rights may be granted to eligible recipients in such number and at such times during the term of the Plan as the Committee may determine.
2.4.2 Exercise Price. The exercise price per Share with respect to each Share Appreciation Right will be determined by the Committee but, except as otherwise permitted by Section 1.6.3, may never be less than the Fair Market Value of the Ordinary Shares.
2.4.3 Term of Share Appreciation Right. In no event will any Share Appreciation Right be exercisable after the expiration of 10 years from the date on which the Share Appreciation Right is granted.
2.4.4 Vesting and Exercise of Share Appreciation Right and Delivery of Shares. Each Share Appreciation Right may vest and be exercised in such installments as may be determined in the Award Agreement at the time the Share Appreciation Right is granted. Subject to any limitations in the applicable Award Agreement, any Share Appreciation Rights not exercised on the applicable vesting date may be exercised thereafter at any time before the final expiration of the Share Appreciation Right.
To exercise a Share Appreciation Right, the Grantee must give written notice to the Company specifying the number of Share Appreciation Rights to be exercised. Upon exercise of Share Appreciation Rights, Shares, cash or other securities or property, or a combination thereof, as specified by the Committee, equal in value to the following will be delivered to the Grantee: (a) the excess of: (i) the Fair Market Value of the Ordinary Shares on the date of exercise over (ii) the exercise price of such Share Appreciation Right, multiplied by (b) the number of Share Appreciation Rights exercised.
Any person exercising a Share Appreciation Right will make such representations and agreements and furnish such information as the Committee may, in its sole discretion, deem necessary or desirable to effect or assure compliance by the Company on terms acceptable to the Company with the provisions of the Securities Act, the Exchange Act and any other applicable legal requirements.
2.5 Restricted Shares
2.5.1 Grants. The Committee may grant or offer for sale Restricted Shares in such amounts and subject to such terms and conditions as the Committee may determine. Upon the delivery of such Restricted Shares, the Grantee will have the rights of a shareholder with respect to the Restricted Shares, subject to any other restrictions and conditions as the Committee may include in the applicable Award Agreement. The Restricted Shares will be registered in the Grantee’s name in book entries by the transfer agent, unless the Committee elects to use another system, such as the issuance of certificates, as evidencing ownership of such Shares. In the event that a certificate is issued in respect of Restricted Shares, such certificate may be registered in the name of the Grantee, and will, in addition to such legends required by applicable securities laws, bear an appropriate legend referring to the terms, conditions and restrictions applicable to such Award, but will be held by the Company or its designated agent until the time the restrictions lapse.
If the Restricted Shares are registered in another system, such as book-entry form, the restrictions will be placed on such system.
2.5.2 Right to Vote and Receive Dividends on Restricted Shares. Each Grantee of an Award of Restricted Shares will, during the period of restriction, be the beneficial and record owner of such Restricted Shares and will have full voting rights with respect thereto. During the period of restriction, all ordinary cash dividends or other ordinary distributions paid upon any restricted Share will be retained by the Company and will be paid to the relevant Grantee (without interest) when the Award of Restricted Shares vests and will revert back to the Company if for any reason the Restricted Share upon which such dividends or other distributions were paid reverts back to the Company (any extraordinary dividends or other extraordinary distributions will be treated in accordance with Section 1.6.3).
2.6 Restricted Share Units
The Committee may grant Awards of Restricted Share Units in such amounts and subject to such terms and conditions as the Committee may determine. A Grantee of a Restricted Share Unit will have only the rights of a general unsecured creditor of the Company, until delivery of Shares, cash or other securities or property is made as specified in the applicable Award Agreement. On the delivery date specified in the Award Agreement, the Grantee of each Restricted Share Unit not previously forfeited or terminated will receive one Share, cash or other securities or property equal in value to a Share or a combination thereof, as specified by the Committee.
2.7 Performance Share Units
The Committee may grant Awards of Performance Share Units in such amounts and subject to such terms and conditions as the Committee may determine. The Performance Goals to be achieved and the length of the performance period will be determined by the Committee. A Grantee of a Performance Share Unit will have only the rights of a general unsecured creditor of the Company, until delivery of Shares, cash or other securities or property is made as specified in the applicable Award Agreement. On the delivery date specified in the Award Agreement, the Grantee of each Performance Share Unit not previously forfeited or terminated will receive one Share, cash or other securities or property equal in value to a Share or a combination thereof, as specified by the Committee.
2.8 Dividend Equivalent Rights
The Committee may include in the Award Agreement with respect to any Award a dividend equivalent right (a “Dividend Equivalent Right”) entitling the Grantee to receive amounts equal to all or any portion of the regular cash dividends that would be paid on the Shares covered by such Award if such Shares had been delivered pursuant to such Award. The grantee of a Dividend Equivalent Right will have only the rights of a general unsecured creditor of the Company until payment of such amounts is made as specified in the applicable Award Agreement. In the event such a provision is included in an Award Agreement, the Committee will determine whether such payments will be made in cash, in Shares or in another form, whether they will be conditioned upon the exercise of the Award to which they relate (subject to compliance with Section 409A),
the time or times at which they will be made, and such other terms and conditions as the Committee will deem appropriate; provided that in no event may such payments may be made unless and until the Award to which they relate vests.
2.9 Other Share-Based or Cash-Based Awards
2.9.1 Grant. The Committee may grant other types of equity-based, equity-related or cash-based Awards (including the grant or offer for sale of unrestricted Shares and performance share awards) (“Other Share-Based or Cash-Based Awards”) in such amounts and subject to such terms and conditions as the Committee may determine. The terms and conditions set forth by the Committee in the applicable Award Agreement may relate to the achievement of Performance Goals, as determined by the Committee at the time of grant. Such Awards may entail the transfer of actual Shares to a Grantee and may include Awards designed to comply with or take advantage of the applicable local laws of jurisdictions other than the United States.
2.9.2 Performance-Based Awards. Notwithstanding anything to the contrary herein, Other Share-Based or Cash-Based Awards may, at the discretion of the Committee, be granted subject to the achievement of Performance Goals approved by the Committee for a performance period established by the Committee.
2.10 Repayment If Conditions Not Met
If the Committee determines that all terms and conditions of the Plan and a Grantee’s Award Agreement were not satisfied, and that the failure to satisfy such terms and conditions is material, then the Grantee will be obligated to pay the Company immediately upon demand therefor, (a) with respect to a Share Option and a Share Appreciation Right, an amount equal to the excess of the Fair Market Value (determined at the time of exercise) of the Shares that were delivered in respect of such exercised Share Option or Share Appreciation Right, as applicable, over the exercise price paid therefor, (b) with respect to Restricted Shares, an amount equal to the Fair Market Value (determined at the time such Shares became vested) of such Restricted Shares and (c) with respect to Restricted Share Units, an amount equal to the Fair Market Value (determined at the time of delivery) of the Shares delivered with respect to the applicable delivery date, in each case with respect to clauses (a), (b) and (c) of this Section 2.10, without reduction for any amount applied to satisfy withholding tax or other obligations in respect of such Award.
ARTICLE III
CHANGE IN CONTROL
3.1 Unless the Committee determines otherwise, or as otherwise provided in the applicable Award Agreement:
3.1.1 Unless Awards are not assumed, continued or substituted in connection with a Change in Control, if a Grantee’s Employment is terminated by any member of the Group without Cause, or the Grantee resigns the Grantee’s Employment for Good Reason, in either case, during the CIC Protection Period:
(a)Each Award granted to such Grantee prior to such Change in Control will become fully vested (including the lapsing of all restrictions and conditions) and, as applicable, exercisable;
(b)Any Shares deliverable pursuant to Restricted Share Units will be delivered promptly (but no later than 15 days) following such Grantee’s termination of Employment; and
(c) As of the Change in Control, any outstanding Performance-Based Awards will be deemed earned at the greater of the target level and the actual performance level as of the date of the Change in Control with respect to all open performance periods and will cease to be subject to any further performance conditions but will continue to be subject to time-based vesting following the Change in Control in accordance with the original performance period.
3.1.2 If Awards are not assumed, continued or substituted in connection with a Change in Control, Awards will vest immediately prior to the Change in Control with any Performance-Based Awards deemed earned at the greater of the target level and the actual performance level as of the date of the Change in Control with respect to all open performance periods.
3.2 To the extent the effect of a Change in Control on any Award is not otherwise addressed in Section 3.1 or the applicable Award Agreement, in the event of a Change in Control, a Grantee’s Award will be treated, to the extent determined by the Committee to be permitted under Section 409A to the extent applicable, in accordance with one or more of the following methods as determined by the Committee in its sole discretion: (i) settle such Awards for an amount of cash or securities equal to their value, where in the case of Share Options and Share Appreciation Rights, the value of such Awards, if any, will be equal to their in-the-money spread value (if any), as determined in the sole discretion of the Committee; (ii) provide for the assumption of, continuation of, or the issuance of substitute awards that will substantially preserve the otherwise applicable terms of, any affected Awards previously granted, as determined by the Committee in its sole discretion; (iii) modify the terms of such Awards to add events, conditions or circumstances (including termination of Employment within a specified period after a Change in Control) upon which the vesting of such Awards or lapse of restrictions thereon will accelerate; or (iv) provide that for a period of at least 20 days prior to the Change in Control, any Share Options or Share Appreciation Rights that would not otherwise become exercisable prior to the Change in Control will be exercisable as to all Shares subject thereto (but any such exercise will be contingent upon and subject to the occurrence of the Change in Control, and if the Change in Control does not take place within a specified period after giving such notice for any reason whatsoever, the exercise will be null and void), and that any Share Options or Share Appreciation Rights not exercised prior to the consummation of the Change in Control will terminate and be of no further force and effect as of the consummation of the Change in Control. In the event that the consideration paid in the Change in Control includes contingent value rights, earnout or indemnity payments or similar payments, then the Committee will determine if Awards settled under clause (i) above are (a) valued at closing taking into account such contingent consideration (with the value determined by the Committee in its sole discretion) or (b) entitled to a share of such contingent consideration. For the avoidance of doubt, in the event of a Change in Control where Share Options and Share Appreciation Rights are settled for an amount (as determined in the sole discretion of the Committee) of cash or securities, the Committee may, in its sole discretion, terminate any Share Option or Share Appreciation Right for which the exercise price is equal to or exceeds the per
Share value of the consideration to be paid in the Change in Control without payment of consideration therefor. Similar actions to those specified in this Section 3.2 may be taken in the event of a merger or other corporate reorganization that does not constitute a Change in Control.
ARTICLE IV
MISCELLANEOUS
4.1 Amendment of the Plan
4.1.1 Unless otherwise provided in the Plan or in an Award Agreement, the Board may at any time and from time to time suspend, discontinue, revise or amend the Plan in any respect whatsoever but, subject to Sections 1.3, 1.6.3, 3.1 and 3.2, no such amendment may materially adversely impair the rights of the Grantee of any Award without the Grantee’s consent. Subject to Sections 1.3, 1.6.3, 3.1 and 3.2, an Award Agreement may not be amended to materially adversely impair the rights of a Grantee without the Grantee’s consent.
4.1.2 Unless otherwise determined by the Board, shareholder approval of any suspension, discontinuance, revision or amendment will be obtained only to the extent necessary to comply with any applicable laws, regulations or rules of a securities exchange or self-regulatory agency; provided, however, if and to the extent the Board determines it is appropriate for the Plan to comply with the provisions of Section 422 of the Code, no amendment that would require shareholder approval under Section 422 of the Code will be effective without the approval of the Company’s shareholders.
4.2 Termination of Plan
The Board reserves the right to terminate the Plan at any time; provided, however, that in any case, the Plan will terminate on the day before the 10th anniversary of the Effective Date, and provided further, that all Awards granted before termination of the Plan will remain in effect until such Awards have been satisfied or terminated in accordance with the terms and provisions of the Plan and the applicable Award Agreements.
4.3 Tax Withholding
Grantees will be solely responsible for any applicable taxes (including income and excise taxes) and penalties, and any interest that accrues thereon, that they incur in connection with the receipt, vesting or exercise of any Award. As a condition to the delivery of any Shares, cash or other securities or property pursuant to any Award or the lifting or lapse of restrictions on any Award, or in connection with any other event that gives rise to a federal or other governmental tax withholding obligation (including with respect to any non-U.S. jurisdiction) on the part of any member of the Group relating to an Award (including the Federal Insurance Contributions Act (FICA) tax):
(a)any member of the Group may deduct or withhold (or cause to be deducted or withheld) from any payment or distribution to a Grantee whether or not pursuant to the Plan (including Shares otherwise deliverable),
(b)the Committee will be entitled to require that the Grantee remit cash to the Company (through payroll deduction or otherwise), and/or
(c)any member of the Group may enter into any other suitable arrangements to withhold, in each case in the discretion of such member of the Group, the amounts of such taxes to be withheld based on the individual tax rates applicable to the Grantee.
4.4 Required Consents and Legends
4.4.1 If the Committee at any time determines that any Consent (as hereinafter defined) is necessary or desirable as a condition of, or in connection with, the granting of any Award, the delivery of Shares or the delivery of any cash, securities or other property under the Plan, or the taking of any other action thereunder (each such action, a “Plan Action”), then, subject to Section 4.13, such Plan Action will not be taken, in whole or in part, unless and until such Consent will have been effected or obtained to the full satisfaction of the Committee. The Committee may direct that any certificate evidencing Shares delivered pursuant to the Plan will bear a legend setting forth such restrictions on transferability as the Committee may determine to be necessary or desirable, and may advise the transfer agent to place a stop transfer order against any legended Shares.
4.4.2 The term “Consent” as used in this Article IV with respect to any Plan Action includes:
(a) any and all listings, registrations, qualifications, consents, clearances or approvals in respect thereof upon any securities exchange or under any federal, state or local law, or law, rule or regulation of a jurisdiction outside the United States, or by any governmental or other regulatory body or any self-regulatory agency,
(b) any and all written agreements and representations by the Grantee with respect to the disposition of Shares, or with respect to any other matter, which the Committee may deem necessary or desirable to administer the Plan and Awards, effect tax withholding, administer applicable policies and comply with the terms of any such listing, registration or qualification or to obtain an exemption from the requirement that any such listing, qualification or registration be made, and
(c) any and all consents or authorizations required to comply with, or required to be obtained under, applicable local law or otherwise required by the Committee. Nothing herein will require the Company to list, register or qualify the Shares on any securities exchange.
4.5 Right of Offset
The Company will have the right to offset against its obligation to deliver Shares (or other property or cash) under the Plan or any Award Agreement any outstanding amounts (including travel and entertainment or advance account balances, loans, repayment obligations under any Awards, or amounts repayable to any member of the Group pursuant to other employee programs, including tax equalization) that the Grantee then owes to any member of the Group and any amounts the Committee otherwise deems appropriate pursuant to any tax equalization policy or agreement. Notwithstanding the foregoing, the Committee will have no right to offset against its
obligation to deliver Shares (or other property or cash) under the Plan or any Award Agreement if such offset could subject the Grantee to the additional tax imposed under Section 409A.
4.6 Nonassignability; No Hedging
Unless otherwise provided in an Award Agreement, no Award (or any rights and obligations thereunder) granted to any person may be sold, exchanged, transferred, assigned, pledged, hypothecated or otherwise disposed of or hedged, in any manner (including through the use of any cash-settled instrument), whether voluntarily or involuntarily and whether by operation of law or otherwise, other than by will or by the laws of descent and distribution, and all such Awards (and any rights thereunder) will be exercisable during the life of the Grantee only by the Grantee or the Grantee’s legal representative. Notwithstanding the foregoing, the Committee may permit, under such terms and conditions that it deems appropriate in its sole discretion, a Grantee to transfer any Award to any person or entity that the Committee so determines. Any sale, exchange, transfer, assignment, pledge, hypothecation, or other disposition in violation of the provisions of this Section 4.6 will be null and void and any Award which is hedged in any manner will immediately be forfeited. All of the terms and conditions of the Plan and the Award Agreements will be binding upon any permitted successors and assigns.
4.7 No Continued Employment or Engagement; Right of Discharge Reserved
Neither the adoption of the Plan nor the grant of any Award (or any provision in the Plan or Award Agreement) will confer upon any Grantee any right to continued Employment, or other engagement, with any member of the Group, nor will it interfere in any way with the right of any member of the Group to terminate, or alter the terms and conditions of, such Employment or other engagement at any time.
4.8 Nature of Payments
4.8.1 Any and all grants of Awards and deliveries of Ordinary Shares, cash, securities or other property under the Plan will be in consideration of services performed or to be performed for any member of the Group or another Affiliate, as applicable, by the Grantee. Awards may, in the discretion of the Committee, be made in substitution in whole or in part for cash or other compensation otherwise payable to a Grantee. Only whole Shares will be delivered under the Plan. Awards will, to the extent reasonably practicable, be aggregated in order to eliminate any fractional Shares. Fractional Shares may, in the discretion of the Committee, be forfeited or be settled in cash or otherwise as the Committee may determine.
4.8.2 All such grants and deliveries of Shares, cash, securities or other property under the Plan will constitute a special discretionary incentive payment to the Grantee, will not entitle the Grantee to the grant of any future Awards and will not be required to be taken into account in computing the amount of salary or compensation of the Grantee for the purpose of determining any contributions to or any benefits under any pension, retirement, profit-sharing, bonus, life insurance, severance or other benefit plan of any member of the Group or under any agreement with the Grantee, unless any member of the Group specifically provides otherwise.
4.9 Non-Uniform Determinations
4.9.1 The Committee’s determinations under the Plan and Award Agreements need not be uniform, and any such determinations may be made by it selectively among persons who receive, or are eligible to receive, Awards (whether or not such persons are similarly situated). Without limiting the generality of the foregoing, the Committee will be entitled, among other things, to make non-uniform and selective determinations under Award Agreements, and to enter into non-uniform and selective Award Agreements, as to (a) the persons to receive Awards, (b) the terms and provisions of Awards and (c) whether a Grantee’s Employment has been terminated for purposes of the Plan.
4.9.2 To the extent the Committee deems it necessary, appropriate or desirable to comply with Applicable Law or local laws or practices of jurisdictions other than the United States and to further the purposes of the Plan, the Committee may, in its sole discretion and without amending the Plan, (a) establish special rules applicable to Awards to Grantees who are non-United States nationals, are employed outside the United States or both and grant Awards (or amend existing Awards) in accordance with those rules, and (b) cause the Company to enter into an agreement with any local Subsidiary pursuant to which such Subsidiary will reimburse the Company for the cost of such equity incentives.
4.10 Other Payments or Awards
Nothing contained in the Plan will be deemed in any way to limit or restrict any member of the Group from making any award or payment to any person under any other plan, arrangement or understanding, whether now existing or hereafter in effect.
4.11 Plan Headings
The headings in the Plan are for the purpose of convenience only and are not intended to define or limit the construction of the provisions hereof.
4.12 Clawback/Recapture Policy
Awards will be subject to any clawback or recapture policy that any member of the Group may adopt from time to time (including the Company’s Policy for the Recovery of Erroneously Awarded Incentive-Based Compensation from Executive Officers) to the extent provided in such policy and, in accordance with such policy, may be subject to the requirement that the Awards be repaid to any member of the Group after they have been distributed to the Grantee.
4.13 Section 409A
4.13.1 All Awards that are intended to be “deferred compensation” subject to Section 409A will be interpreted, administered and construed to comply with Section 409A, and all Awards that are intended to be exempt from Section 409A will be interpreted, administered and construed to comply with and preserve such exemption. The Board and the Committee will have full authority to give effect to the intent of the foregoing sentence. To the extent necessary to give effect to this intent, in the case of any conflict or potential inconsistency between the Plan and a provision of any Award or Award Agreement with respect to an Award, the Plan will govern.
4.13.2 Without limiting the generality of Section 4.13.1, with respect to any Award that is “deferred compensation” subject to Section 409A, in each case to the extent required to comply with Section 409A:
(a)any payment due upon a Grantee’s termination of Employment will be paid only upon such Grantee’s “separation from service” from any member of the Group within the meaning of Section 409A;
(b)any payment due upon a Change in Control will be paid only if such Change in Control constitutes a “change in ownership” or “change in effective control” within the meaning of Section 409A, and in the event that such Change in Control does not constitute a “change in ownership” or “change in effective control” within the meaning of Section 409A, such Award will vest upon the Change in Control and any payment will be delayed until the first compliant date under Section 409A;
(c)if the Grantee is a “specified employee” within the meaning of Section 409A, any payment to be made with respect to such Award in connection with the Grantee’s “separation from service” from any member of the Group within the meaning of Section 409A (and any other payment that would be subject to the limitations in Section 409A(a)(2)(B) of the Code) will be delayed until six months after the Grantee’s separation from service (or earlier death) in accordance with the requirements of Section 409A;
(d)any other securities, other Awards or other property that the Company may deliver in lieu of Shares in respect of an Award will not have the effect of deferring delivery or payment beyond the date on which such delivery or payment would occur with respect to the Shares that would otherwise have been deliverable (unless the Committee elects a later date for this purpose in accordance with the requirements of Section 409A);
(e)with respect to any required Consent described in Section 4.4 or the applicable Award Agreement, if such Consent has not been effected or obtained as of the latest date provided by such Award Agreement for payment in respect of such Award and further delay of payment is not permitted in accordance with the requirements of Section 409A, such Award or portion thereof, as applicable, will be forfeited and terminate notwithstanding any prior earning or vesting;
(f)if the Award includes a “series of installment payments” (within the meaning of Section 1.409A-2(b)(2)(iii) of the Treasury Regulations), the Grantee’s right to the series of installment payments will be treated as a right to a series of separate payments and not as a right to a single payment;
(g)if the Award includes “dividend equivalents” (within the meaning of Section 1.409A-3(e) of the Treasury Regulations), the Grantee’s right to the dividend equivalents will be treated separately from the right to other amounts under the Award; and
(h)for purposes of determining whether the Grantee has experienced a separation from service from any member of the Group within the meaning of Section 409A, “subsidiary” will mean a corporation or other entity in a chain of corporations or other entities in which each corporation or other entity, starting with the Company, has a controlling interest in
another corporation or other entity in the chain, ending with such corporation or other entity. For purposes of the preceding sentence, the term “controlling interest” has the same meaning as provided in Section 1.414(c)-2(b)(2)(i) of the Treasury Regulations, provided that the language “at least 20 percent” is used instead of “at least 80 percent” each place it appears in Section 1.414(c)-2(b)(2)(i) of the Treasury Regulations.
4.14 Governing Law
EXCEPT AS PROVIDED IN THE APPLICABLE AWARD AGREEMENT, THE PLAN AND ALL AWARDS MADE AND ACTIONS TAKEN THEREUNDER WILL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF IRELAND, WITHOUT REFERENCE TO PRINCIPLES OF CONFLICT OF LAWS.
4.15 Waiver of Claims
Each Grantee of an Award recognizes and agrees that, before being selected by the Committee to receive an Award, the Grantee has no right to any benefits under the Plan. Accordingly, in consideration of the Grantee’s receipt of any Award hereunder, the Grantee expressly waives any right to contest the amount of any Award, the terms of any Award Agreement, any determination, action or omission hereunder or under any Award Agreement by the Committee, any member of the Group or the Board, or any amendment to the Plan or any Award Agreement (other than an amendment to the Plan or an Award Agreement to which the Grantee’s consent is expressly required by the express terms of an Award Agreement). Nothing contained in the Plan, and no action taken pursuant to its provisions, will create or be construed to create a trust of any kind or a fiduciary relationship between any member of the Group and any Grantee. The Plan is not intended to be subject to the Employee Retirement Income Security Act of 1974.
4.16 No Repricing or Reloads
Except as otherwise permitted by Section 1.6.3, reducing the exercise price of Share Options or Share Appreciation Rights issued and outstanding under the Plan, including through amendment, cancellation in exchange for the grant of a substitute Award or repurchase for cash or other consideration (in each case that has the effect of reducing the exercise price), will require approval of the Company’s shareholders. The Company will not grant any Share Options or Share Appreciation Rights with automatic reload features.
4.17 Severability; Entire Agreement
If any of the provisions of the Plan or any Award Agreement is finally held to be invalid, illegal or unenforceable (whether in whole or in part), such provision will be deemed modified to the extent, but only to the extent, of such invalidity, illegality or unenforceability and the remaining provisions will not be affected thereby; provided that if any of such provisions is finally held to be invalid, illegal or unenforceable because it exceeds the maximum scope determined to be acceptable to permit such provision to be enforceable, such provision will be deemed to be modified to the minimum extent necessary to modify such scope in order to make such provision enforceable hereunder. The Plan and any Award Agreements contain the entire agreement of the parties with respect to the subject matter thereof and supersede all prior agreements, promises,
covenants, arrangements, communications, representations and warranties between them, whether written or oral with respect to the subject matter thereof.
4.18 No Liability With Respect to Tax Qualification or Adverse Tax Treatment
Notwithstanding anything to the contrary contained herein, in no event will any member of the Group be liable to a Grantee on account of an Award’s failure to (a) qualify for favorable United States or non-United States tax treatment or (b) avoid adverse tax treatment under United States or non-United States law, including Section 409A.
4.19 No Third-Party Beneficiaries
Except as expressly provided in an Award Agreement, neither the Plan nor any Award Agreement will confer on any person other than any member of the Group and the Grantee of any Award any rights or remedies thereunder. The exculpation and indemnification provisions of Section 1.3.4 will inure to the benefit of a Covered Person’s estate and beneficiaries and legatees.
4.20 Successors and Assigns of the Company
The terms of the Plan will be binding upon, and inure to the benefit of, the Company and any successor entity, including as contemplated by Article III.
4.21 Data Privacy
By participating in the Plan, the Grantee’s attention is drawn towards the Company’s data privacy notice provided to them, which sets out how the Grantee’s personal data will be used and shared by the Company and its Subsidiaries as part of the administration of the Plan in accordance with the laws of Ireland. Such data privacy notice does not form part of this Plan and may be updated from time to time. Any such updates will be notified to the Grantee. As a condition of receipt of any Award, each Grantee explicitly and unambiguously consents to the collection, use and transfer, in electronic or other form, of personal data as described in this Section 4.21 by and among, as applicable, any member of the Group and any other Affiliates, for the exclusive purpose of implementing, administering and managing the Plan and Awards and the Grantee’s participation in the Plan. In furtherance of such implementation, administration and management, any member of the Group and its other Affiliates may hold certain personal information about a Grantee, including the Grantee’s name, home address, telephone number, date of birth, social security or insurance number or other identification number, salary, nationality, job title(s), information regarding any securities of the Company or any Affiliate, and details of all Awards (the “Data”). In addition to transferring the Data amongst themselves as necessary for the purpose of implementation, administration and management of the Plan and Awards and the Grantee’s participation in the Plan, the Company and its Affiliates may each transfer the Data to any third parties assisting any member of the Group and other Affiliates in the implementation, administration and management of the Plan and Awards and the Grantee’s participation in the Plan. Recipients of the Data may be located in the Grantee’s country or elsewhere, and the Grantee’s country and any given recipient’s country may have different data privacy laws and protections. By accepting an Award, each Grantee authorizes such recipients to receive, possess, use, retain and transfer the Data, in electronic or other form, for the purposes of assisting the Company and its Affiliates in the implementation, administration and management of the Plan and
Awards and the Grantee’s participation in the Plan, including any requisite transfer of such Data as may be required to a broker or other third party with whom any member of the Group or the Grantee may elect to deposit any Shares. The Data related to a Grantee will be held as long as is necessary to implement, administer and manage the Plan and Awards and the Grantee’s participation in the Plan. A Grantee may, at any time, view the Data held by of any member of the Group with respect to such Grantee, request additional information about the storage and processing of the Data with respect to such Grantee, recommend any necessary corrections to the Data with respect to the Grantee, or refuse or withdraw the consents herein in writing, in any case without cost by contacting the Grantee’s local human resources representative. Any member of the Group may cancel the Grantee’s eligibility to participate in the Plan, and in the Committee’s discretion, the Grantee may forfeit any outstanding Awards if the Grantee refuses or withdraws the consents described herein.
4.22 Date of Adoption and Approval of Shareholders
The Plan was adopted by the Board on March 14, 2025 and was approved by the Company’s shareholders on May 8, 2025 (the “Effective Date”).
NON-EMPLOYEE SUB-PLAN
TO THE CRH PLC EQUITY INCENTIVE PLAN
This sub-plan (the “Non-Employee Sub-Plan”) to the CRH plc Equity Incentive Plan (the “Plan”) has been adopted in accordance with Section 1.3.1 of the Plan and governs the grant of Awards to Consultants and Non-Management Directors. This Non-Employee Sub-Plan incorporates all the provisions of the Plan except as expressly modified in accordance with the provisions of this Non-Employee Sub-Plan.
In this Non-Employee Sub-Plan, the words and expressions used in the Plan shall bear, unless the context otherwise requires, the same meaning herein save to the extent the rules in this Non-Employee Sub-Plan provide to the contrary.
For the purposes of this Non-Employee Sub-Plan, the provisions of the Plan shall operate subject to the following modifications:
1. Interpretation.
In this Non-Employee Sub-Plan, unless the context otherwise requires, the following words and expressions have the following meanings:
“Companies Act” means the Companies Act 2014 of Ireland; and
“Service Provider” means any Consultant or Non-Management Director.
2. Eligibility.
Service Providers shall be eligible to receive Awards under this Non-Employee Sub-Plan at the discretion of the Committee.
3. Payment of Shares.
Notwithstanding any other provision of the Plan, no newly issued Share(s) shall be delivered to a Service Provider in satisfaction of an Award pursuant to the terms of the Plan or this Non-Employee Sub-Plan unless the nominal value of each such newly issued Share(s) is fully paid up by or on behalf of the relevant Service Provider in accordance with Applicable Law.
4. Delivery of Shares pursuant to an Award.
Where Shares to be delivered pursuant to an Award are for the benefit of a Service Provider, they shall only be delivered in a manner that is, in the opinion of the Committee, compliant with the provisions of Applicable Law and any applicable securities laws or stock exchange rules and regulations and consistent with the requirements of Section 82 of the Companies Act.
4. Shares Subject to this Non-Employee Sub-Plan.
Subject to adjustment as provided in Section 1.6.3 of the Plan, the maximum number of Shares that may be allotted and/or issued to or for the benefit of Service Providers pursuant to Awards shall be limited to such number of Shares as the Company has been authorized by its shareholders to allot and/or issue pursuant to Section 1021 of the Companies Act (including any disapplication of Section 1022 of the Companies Act) from time to time.
5. No “employees’ share scheme”.
Without prejudice to other Awards granted pursuant to the Plan, Awards granted to Service Providers pursuant to this Non-Employee Sub-Plan are not granted pursuant to an “employees’ share scheme” for the purposes of the Companies Act.
Exhibit 10.2
CRH PLC EQUITY INCENTIVE PLAN
RESTRICTED SHARE UNIT AWARD AGREEMENT
This Restricted Share Unit Award Agreement (including all appendices thereto, this “RSU Award Agreement”) evidences an award of Restricted Share Units (“RSUs”) by CRH plc, a corporation organized under the laws of Ireland (the “Company”) under the CRH plc Equity Incentive Plan[, including the [●] Sub-Plan)] (the “Plan”). Capitalized terms not defined in the RSU Award Agreement have the meanings given to them in the Plan. All provisions of this RSU Award Agreement should be read carefully, including the mutual dispute resolution provision in Appendix A.
Name of Grantee: [Participant Name] (the “Grantee”).
Date of Grant: [Grant Date] (the “Grant Date”).
Number of RSUs: [Number of Awards Granted]
1.Grant of RSUs. The Company hereby grants to the Grantee an Award of the number of RSUs set forth above, subject to all of the terms and conditions in this RSU Award Agreement and the Plan, which is incorporated herein by reference.
2.Vesting. __________________________________________________________ _______(each such date, a “Vesting Date”), subject to the Grantee’s continuous Employment through each such Vesting Date unless otherwise determined by the Committee in its sole discretion. Except as otherwise provided in this Section 2, in the event that the Grantee’s Employment terminates for any reason prior to the Vesting Date, any unvested RSUs will immediately be forfeited as of the date of such termination.
(a)[Treatment upon Termination due to Retirement. Upon a termination of the Grantee’s Employment due to Retirement, the RSUs will remain outstanding and continue to vest as if the Grantee had remained continuously Employed through each Vesting Date. For purposes of this RSU Award Agreement, “Retirement” means a voluntary termination of Employment by the Grantee after the Grantee has (x) reached age 60 and (y) provided five years of service to any member of the Group.]
(b)Treatment upon Death or Disability. Upon the Grantee’s death or Disability, the unvested RSUs will accelerate and become fully vested. For purposes of this RSU Award Agreement, “Disability” means the Grantee’s substantial inability to perform the essential functions of the Grantee’s role, with or without a reasonable accommodation, for a continuous period of 180 days due to physical or mental illness.
(c)Vesting upon Termination without Cause or for Good Reason Other than During the CIC Protection Period. Upon a termination of the Grantee’s Employment by any member of the Group without Cause or due to the Grantee’s resignation for Good Reason, in
either case, other than during the CIC Protection Period, a pro rata portion of the RSUs that would have become vested on the next Vesting Date (based on the number of calendar days elapsed from the previous Vesting Date through the Grantee’s date of termination) will remain outstanding and eligible to vest on the next Vesting Date, as if the Grantee had remained continuously Employed through such Vesting Date.
(d)Treatment upon a Change in Control.
(i)If the RSUs are assumed, continued or substituted in connection with the Change in Control in accordance with the Plan, upon a termination of the Grantee’s Employment by any member of the Group without Cause or due to the Grantee’s resignation for Good Reason, in either case, during the CIC Protection Period, the RSUs will accelerate and become fully vested.
(ii)For the avoidance of doubt, if the RSUs are not assumed, continued or substituted in connection with such Change in Control, the RSUs will vest immediately prior to the Change in Control in accordance with the Plan.
(e)Dealing Restriction. If on the date on which an Award is due to vest under this RSU Award Agreement a Dealing Restriction applies to the Award, the Award shall vest on the date on which such Dealing Restriction lifts. For purposes of this RSU Award Agreement, “Dealing Restriction” means restrictions imposed by the Company’s Insider Trading Policy or any other share dealing code adopted by the Company from time to time, or any Applicable Law which imposes restrictions on share dealing.
3.Delivery after Vesting. As soon as administratively practicable following the date upon which the RSUs vest pursuant to Section 2 hereof, the Company will deliver to the Grantee (or in the event of Grantee’s death, to the Grantee’s estate) one Share for each vested RSU; provided, however, that if the Grantee is a U.S. taxpayer, such delivery will in any event occur no later than March 15th of the calendar year following the year in which vesting occurred (the date on which the Shares are so issued, the “Delivery Date”).
4.Dividend Equivalents. On each date that a cash dividend or other distribution (other than cash dividends or other distributions pursuant to which the RSUs were adjusted pursuant to Section 1.6.3 of the Plan), if any, is paid to holders of Shares from the Grant Date through the date immediately prior to the Delivery Date, an amount (the “Dividend Equivalent Amount”) equal to the cash dividend that is paid on each Share, multiplied by the total number of RSUs and any Dividend Equivalent Units (as defined below) that remain unvested and outstanding as of the dividend payment record date, will be credited to the Grantee, and such credited amount will be converted into an additional number of RSUs (“Dividend Equivalent Units”) determined by dividing the Dividend Equivalent Amount by the Fair Market Value of a Share on the date of the dividend payment. Dividend Equivalent Units will be subject to the same conditions as the underlying RSUs with respect to which Dividend Equivalent Units were
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credited, including without limitation, vesting provisions and the provisions governing the timing and form of settlement.
5.Rights as a Shareholder. The Grantee or any person claiming under or through the Grantee will have no voting rights with respect to any of the Shares underlying any RSUs unless and until such Shares (which may be in registered, book-entry or such other form as the Committee may approve) have been issued to the Grantee or at the Grantee’s direction in accordance with this RSU Award Agreement and recorded in the register of members and such other books and records of the Company or its transfer agents or registrar as may be required and delivered to the Grantee or at its direction (including through electronic delivery to a brokerage account).
6.Withholding. Any member of the Group is permitted to withhold from any Shares delivered under this RSU Award Agreement or from any other compensation owed by any member of the Group to the Grantee any amounts required to be withheld for the payment of any taxes arising from the grant, vesting and/or settlement of the RSUs, including the payment of any dividends or dividend equivalents. The Committee, in its sole and absolute discretion and pursuant to such procedures as it may specify from time to time, may require the Grantee to satisfy any such tax liability, in whole or in part, to the extent permitted by Applicable Law, by (i) paying cash, (ii) electing to have the Company withhold otherwise deliverable Shares equal to the amount required to be withheld, (iii) withholding from Grantee’s wages or other cash compensation paid to the Grantee by any member of the Group, (iv) delivering to any member of the Group Shares having a Fair Market Value equal to the amount required to be withheld, (v) selling a sufficient number of such Shares otherwise deliverable to the Grantee through a broker-assisted (or other) cashless exercise program implemented by the Company equal to the amount required to be withheld or (vi) through any combination of the foregoing. Further, if the Grantee is subject to tax in more than one jurisdiction between the Grant Date and a date of any relevant taxable or tax withholding event, as applicable, the Grantee acknowledges and agrees that any member of the Group may be required to withhold or account for tax in more than one jurisdiction. If the Grantee fails to make satisfactory arrangements for the payment of such taxes hereunder at the time any applicable RSUs otherwise are scheduled to vest and be settled pursuant to Sections 2 and 3 hereof, the Grantee will forfeit such RSUs and any right to receive Shares thereunder and the RSUs. The Grantee acknowledges and agrees that the Company may refuse to deliver the Shares if such tax obligations are not delivered at the time they are due.
7.Amendments to this RSU Award Agreement. The Committee reserves the right at any time to amend this RSU Award Agreement; provided, however, that the Committee will not make any amendment that materially and adversely affects the Grantee’s rights under this RSU Award Agreement without the Grantee’s consent. Notwithstanding anything to the contrary in the Plan or this RSU Award Agreement, the Company reserves the right to revise this RSU Award Agreement as it deems necessary or advisable, in its sole and absolute discretion and without the consent of the Grantee, to comply with Section 409A or to otherwise avoid imposition of any additional taxation under Section 409A in connection with the RSUs.
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8.No Guarantee of Continued Service. The Grantee acknowledges and agrees that this RSU Award Agreement, the transactions contemplated hereunder and the vesting schedule set forth herein do not constitute an express or implied promise of continued engagement as an Employee or Consultant, as applicable, for the vesting period, for any period or at all.
9.Nature of Grant. In accepting the Award, the Grantee acknowledges, understands and agrees that:
(a)the grant of the RSUs is voluntary and occasional and does not create any contractual or other right to receive future grants of RSUs, or benefits in lieu of RSUs, even if RSUs have been granted in the past;
(b)all decisions with respect to future RSUs or other grants, if any, will be at the sole and absolute discretion of the Company;
(c)the Grantee is voluntarily participating in the Plan;
(d)the RSUs and any Shares acquired under the Plan are extraordinary items that do not constitute regular compensation for services rendered to any member of the Group, and are outside the scope of the Grantee’s employment agreement, offer letter, consulting agreement or similar agreement, if any;
(e)the RSUs and the Shares subject to the RSUs are not intended to replace any pension rights or compensation;
(f)the future value of the underlying Shares is unknown, indeterminable and cannot be predicted with certainty;
(g)unless otherwise provided in the Plan or by the Company in its sole and absolute discretion, the RSUs and the benefits evidenced by this RSU Award Agreement do not create any entitlement to have the RSUs or any such benefits transferred to, or assumed by, another company nor to be exchanged, cashed out or substituted for, in connection with any Business Combination or other corporate transaction affecting the Shares; and
(h)the following provisions apply only if the Grantee is providing services outside the United States:
(i)the RSUs and the Shares subject to the RSUs are not part of normal or expected compensation or salary for any purpose;
(ii)the Grantee acknowledges and agrees that none of the Company or any of its Affiliates will be liable for any foreign exchange rate fluctuation between the Grantee’s local currency and the United States Dollar that may affect the value of the RSUs or of any amounts due to the Grantee pursuant to the settlement of the RSUs or the subsequent sale of any Shares acquired upon settlement; and
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(iii)no claim or entitlement to compensation or damages will arise from forfeiture of the RSUs resulting from the termination of the Grantee’s status as an Employee or Consultant, as applicable (for any reason whatsoever whether or not later found to be invalid or in breach of employment laws in the jurisdiction where the Grantee is an Employee or Consultant, as applicable, or the terms of the Grantee’s employment or service agreement, if any), and in consideration of the grant of the RSUs to which the Grantee is otherwise not entitled, the Grantee irrevocably agrees never to institute any claim against any member of the Group or any other Affiliate, waives the Grantee’s ability, if any, to bring any such claim, and releases the Company and its Affiliates 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 Grantee will 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 claim.
10.No Advice Regarding Grant. The Company is not providing any tax, legal or financial advice, nor is the Company making any recommendations regarding the Grantee’s participation in the Plan or the Grantee’s acquisition or sale of the underlying Shares. The Grantee is hereby advised to consult with his or her own personal tax, legal and financial advisors regarding his or her participation in the Plan before taking any action related to the Plan. The Grantee understands that the Grantee (and not the Company) will be responsible for the Grantee’s own tax liability that may arise as a result of this investment or the transactions contemplated by this RSU Award Agreement.
11.Address for Notices. Any notice to be given to the Company under the terms of this RSU Award Agreement will be addressed to the Company at:
CRH plc
[*****]
[*****]
Attn: [*****] ([[*****]]),
or at such other address as the Company may hereafter designate in writing. Any notice to be given to the Grantee under the terms of this RSU Award Agreement will be addressed to the Grantee at the address that he or she most recently provided to the Company.
12.Grant is Not Transferable. This Award and the rights and privileges conferred hereby will not be transferred, assigned, pledged or hypothecated in any way (whether by operation of law or otherwise) and will not be subject to sale under execution, attachment or similar process. Upon any attempt to transfer, assign, pledge, hypothecate or otherwise dispose of this grant, or any right or privilege conferred hereby, or upon any attempted sale under any execution, attachment or similar process, this grant and the rights and privileges conferred hereby immediately will become null and void.
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13.Additional Conditions to Delivery of Shares. The issuance or delivery of Shares to the Grantee (or the Grantee’s estate) hereunder will not occur prior to the fulfilment of all of the following conditions: (a) if at any time the Company will determine, in its sole and absolute discretion, that the listing, registration, qualification or rule compliance of the Shares upon any securities exchange or under Applicable Law is necessary or desirable as a condition to the issuance or delivery, unless and until such listing, registration, qualification, rule compliance, clearance, consent or approval will have been completed, effected or obtained free of any conditions not acceptable to the Company. The Company has sole and absolute discretion in its efforts to meet the requirements of Applicable Law and to obtain any consent or approval required under Applicable Law; and (b) where required by Applicable Law, the receipt by the Company of full payment for such Shares in accordance with Applicable Law, which may be in one or more of the forms of consideration approved by the Committee from time to time.
14.Recoupment. Notwithstanding any other provision herein, the RSUs and any Shares or other amount or property that may be issued, delivered or paid in respect of the RSUs, as well as any consideration that may be received in respect of a sale or other disposition of any such Shares or property, will be subject to recoupment under the Plan, in accordance with any clawback policy that the Company is required to adopt pursuant to the listing standards of any national securities exchange, national market system or automated quotation system on which the Company’s securities are listed, quoted or traded or as is otherwise required by the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010, including but not limited to Section 10D of the Exchange Act, or any other Applicable Law, as well as any recoupment or “clawback” policies of any member of the Group that may be in effect from time to time.
15.Electronic Delivery and Acceptance; Counterparts. The Company may, in its sole and absolute discretion, decide to deliver any documents related to the RSUs awarded under the Plan or future RSUs that may be awarded under the Plan by electronic means or request the Grantee’s consent to participate in the Plan by electronic means. The Grantee hereby consents to receive such documents by electronic delivery and agrees to participate in the Plan through any online or electronic system established and maintained by the Company or a third party designated by the Company. The Grantee will not raise the use of electronic delivery as a defense to the formation of a contract. This RSU Award Agreement may be executed in one or more counterparts, including by way of any electronic signature, subject to Applicable Law, each of which shall be deemed an original and all of which together shall constitute one instrument.
16.No Waiver. Either party’s failure to enforce any provision or provisions of this RSU Award Agreement will not in any way be construed as a waiver of any such provision or provisions, nor prevent that party from thereafter enforcing each and every other provision of this RSU Award Agreement. The rights granted both parties herein are cumulative and will not constitute a waiver of either party’s right to assert all other legal remedies available to it under the circumstances.
17.Successors and Assigns. The Company may assign any of its rights under this RSU Award Agreement to single or multiple assignees, and this RSU Award Agreement will inure to the benefit of the successors and assigns of the Company. Subject to the restrictions on
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transfer herein set forth, this RSU Award Agreement will be binding upon the Grantee and his or her heirs, executors, administrators, successors and assigns. The rights and obligations of the Grantee under this RSU Award Agreement may only be assigned with the prior written consent of the Company.
18.Section 409A. It is the intent of this RSU Award Agreement that it and all payments and benefits to U.S. taxpayers hereunder be exempt from, or comply with, the requirements of Section 409A, and this RSU Award Agreement will be construed to the maximum extent possible in accordance with this intent. Notwithstanding anything to the contrary contained in this RSU Award Agreement, to the extent that any payment under this RSU Award Agreement is determined by the Company to constitute “non-qualified deferred compensation” subject to Section 409A and is payable to the Grantee by reason of termination of the Grantee’s Employment, then (i) such payment will be made to the Grantee only upon a “separation from service” as defined under Section 409A and (ii) if the Grantee is a “specified employee” (within the meaning of Section 409A and as determined by the Company), such payment will not be made before the date that is six months after the date of the Grantee’s separation from service (or, if earlier, the Grantee’s death). Each payment payable under this RSU Award Agreement is intended to constitute a separate payment for purposes of Treasury Regulation Section 1.409A-2(b)(2).
19.Dispute Resolution. The provisions of Appendix A to this RSU Award Agreement are incorporated herein by reference and will be deemed to be fully contained herein.
20.Entire Agreement. The Plan is incorporated herein by reference. The Plan and this RSU Award Agreement, including Appendix A hereto, constitute the entire agreement of the parties with respect to the RSUs and supersede in their entirety all prior undertakings and agreements of the Company and the Grantee with respect to the subject matter hereof and may not be modified adversely to the Grantee’s interest except by means of a writing signed by the Company and the Grantee. By accepting this RSU Award Agreement, the Grantee agrees to be subject to the terms and conditions of the Plan.
21.Titles; Headings; Sections; Agreement Severable. The titles and headings of the sections in this RSU Award Agreement are for convenience of reference only and, in the event of any conflict, the text of this RSU Award Agreement, rather than such titles or headings, will control. In the event that any provision in this RSU Award Agreement will be held invalid or unenforceable, such provision will be severable from, and such invalidity or unenforceability will not be construed to have any effect on, the remaining provisions of this RSU Award Agreement.
[Remainder of page intentionally blank]
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IN WITNESS WHEREOF, the parties have caused this RSU Award Agreement, including the mutual dispute resolution provision in Appendix A, to be duly executed and effective as of the Grant Date.
| CRH plc | ||||||||
| By: | ||||||||
| Name: | ||||||||
| Title: | ||||||||
| [Grantee] | ||
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Appendix A1
Country-Specific Dispute Resolution
This Appendix A contains additional terms and conditions that will apply to the Grantee. Capitalized terms used but not otherwise defined in this Appendix A will have the meanings provided to them in the RSU Award Agreement (including the appendices thereto) to which this Appendix A is attached. The RSU Award Agreement and its appendices together constitute one binding agreement.
I.Grantee who resides in Ireland or any country other than the United States
1.Disputes; Choice of Forum.
(a)The Company and the Grantee, as a condition to the Grantee’s participation in the Plan, hereby irrevocably submit to the exclusive jurisdiction of the courts of Ireland over any suit, action or proceeding arising out of or relating to or concerning the Plan, except to the extent that the Company refers the dispute to arbitration in accordance with Section 1(b). The Company and the Grantee, as a condition to the Grantee’s participation in the Plan, acknowledge that the forum designated by this Section 1(a) has a reasonable relation to the Plan and to the relationship between such Grantee and the Company. Notwithstanding the foregoing, nothing herein will preclude the Company from bringing any action or proceeding in any other court for the purpose of enforcing the provisions of this Section 1.
(b)Without limiting Section 1(a), any dispute in relation to the Plan may be referred by the Company alone to arbitration. To the extent permitted by Applicable Law, the costs of any arbitration in accordance with this Section 1(b) shall be borne equally by the Company and the Grantee where permitted by Applicable Law; provided, further, that, where Appliable Law imposes a cap on the amount of such costs that may be paid by the Grantee, such costs shall be borne equally by the Company and the Grantee, up until the maximum of the cap. Any award rendered by the arbitrator in accordance with this Section 1(b) shall in all cases be a reasoned award.
(i)If the Grantee resides at the time of the Grantee’s receipt of an Award under the Plan in Ireland, then the seat of any arbitration commenced in accordance with this Section 1(b) shall be Ireland. The arbitration shall be conducted pursuant to the provisions of the Arbitration Act 2010 of Ireland (as amended), to be held in Dublin before a single arbitrator.
(ii)If the Grantee resides at the time of the Grantee’s receipt of an Award under the Plan in any jurisdiction other than Ireland or the United States, then the seat of any arbitration commenced in accordance with this Section 1(b) shall be the last jurisdiction where the Grantee resided at the time of receipt of the Award
1 Appendix A is subject to update based on changes in Applicable Law.
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under the Plan. Any such arbitration will be held in Dublin before a single arbitrator and conducted pursuant to rules that are consistent with Applicable Law, as determined by the Committee.
(iii)Any Grantee so affected will submit to such arbitration and, by accepting the Award under the Plan, is deemed to have agreed to submit to such jurisdiction.
(c)The agreement by the Company and the Grantee as to forum is independent of the law that may be applied in the action, and the Company and the Grantee, as a condition to the Grantee’s participation in the Plan, (i) agree to such forum even if the forum may under Applicable Law choose to apply non-forum law, (ii) hereby waive, to the fullest extent permitted by Applicable Law, any objection which the Company or such Grantee now or hereafter may have to personal jurisdiction or to the laying of venue of any such suit, action or proceeding in any court referred to in Section 1(a), (iii) undertake not to commence any action arising out of or relating to or concerning the Plan in any forum other than the forum described in Section 1(a) and (iv) agree that, to the fullest extent permitted by Applicable Law, a final and non-appealable judgment in any such suit, action or proceeding in any such court will be conclusive and binding upon the Company and the Grantee.
(d)The Grantee, as a condition to such Grantee’s participation in the Plan, hereby irrevocably appoints the Group General Counsel of the Company as the Grantee’s agent for service of process in connection with any action, suit or proceeding arising out of or relating to or concerning the Plan, who will promptly advise such Grantee of any such service of process.
(e)The Grantee, as a condition to such Grantee’s participation in the Plan, agrees to keep confidential the existence of, and any information concerning, any dispute or controversy or any claim waived under Section 2. Notwithstanding the foregoing, the Grantee may disclose information concerning such dispute, controversy or claim to the court that is considering such dispute, controversy or claim or to such Grantee’s legal counsel (provided that such counsel agrees not to disclose any such information other than as necessary to the prosecution or defense of the dispute, controversy or claim). In addition, the Grantee may provide information to, file a charge with or participate in an investigation conducted by any governmental entity, and the Grantee does not need any member of the Group’s permission to do so. Furthermore, the Grantee is not required to notify any member of the Group of a request for information from any governmental entity or of such Grantee’s decision to file a charge with or participate in an investigation conducted by any governmental entity.
2.Waiver of Claims. The Grantee recognizes and agrees that, before being selected by the Committee to receive an Award, the Grantee has no right to any benefits under the Plan. Accordingly, in consideration of the Grantee’s receipt of the Award, the Grantee expressly waives any right to contest the amount of any Award, the terms of any Award Agreement, any determination, action or omission hereunder or under any Award Agreement by the Committee, any member of the Group or the Board, or any amendment to the Plan or any Award Agreement (other than an amendment to the Plan or an Award Agreement to which the Grantee’s consent is expressly required by the express terms of an Award Agreement).
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II.Grantee who resides in the United States
1.Mutual Dispute Resolution and Arbitration. By entering into this RSU Award Agreement, the Company and the Grantee agree, to the furthest extent permitted by the Federal Arbitration Act (“FAA”) and Applicable Law, that any past, present, or future claim arising out of relating to this RSU Award Agreement that could otherwise be raised in court shall instead be raised and adjudicated through binding arbitration (“Covered Claims”) to be held in Atlanta, Georgia. Arbitration is the process by which a neutral third party, such as a retired judge, resolves a dispute through a binding decision rather than a judge or jury in court.
2.Covered Claims. Covered Claims include, but are not limited to, claims for wages and other compensation, breach of contract, discrimination, wrongful termination, tort, and violation of any federal, state, or local law, to the maximum extent permitted by Applicable Law. Further, Covered Claims include claims that (i) the Company has against the Grantee, (ii) the Grantee has against the Company, and (iii) the Grantee has against the Company’s past, present, and future owners, directors, officers, employees, agents, affiliates, subsidiaries, and/or alleged joint employers. The only claims excluded from the definition of Covered Claims are (i) claims for workers’ compensation and unemployment benefits, (ii) claims covered by the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 (9 U.S.C. § 402(a)), (iii) charges, complaints, or petitions to a federal, state, or local government agency, such as the National Labor Relations Board, Equal Employment Opportunity Commission, or Securities Exchange Commission, (iv) claims for temporary relief in court to maintain the status quo pending arbitration if the arbitration award would be rendered ineffectual absent such relief, and (v) claims that, after application of the FAA and FAA preemption principles or any other Applicable Law, are not subject to arbitration or pre-dispute arbitration agreements as a matter of law.
3.Class Action Waiver. The Company and the Grantee agree, to the furthest extent permitted by Applicable Law, that (i) all Covered Claims shall be raised and adjudicated on an individual basis only; and (ii) there shall be no right or authority to bring, adjudicate, or participate in a multi-plaintiff/claimant, class, collective, or non-individual action involving Covered Claims. To the extent that the Company or the Grantee seeks to bring a claim under the California Labor Code Private Attorneys General Act or other private attorneys general act statute, the individual claims shall be arbitrated on an individual basis and the non-individual claims shall be dismissed, stayed, or litigated in court in accordance with Applicable Law.
4.Initiating Arbitration. To initiate arbitration, a party must submit a demand for arbitration. The demand for arbitration must be in writing, personally signed by the person initiating the claim, and initiated within the time period required under the statute of limitations applicable to the claims had the claims been raised in court. To initiate arbitration, the Grantee must deliver the written and personally-signed demand to the Company, via certified mail, at the address provided in Section 11 of the RSU Award Agreement. For the Company to initiate arbitration, it must deliver the written demand for arbitration, signed by the Company, to the Grantee via certified mail at the last known address recorded in the Grantee’s personnel records. The party initiating arbitration also must, within the time period required under the applicable
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statute(s) of limitations, initiate the arbitration with JAMS (see https://www.jamsadr.com for instructions).
5.Arbitration Procedures. Absent further mutual agreement by the parties, the arbitration shall be conducted by a single arbitrator and administered by JAMS pursuant to the JAMS employment arbitration rules then in effect (available at https://www.jamsadr.com/rules-employment-arbitration/) to the extent that the JAMS employment rules are consistent with the provisions of the RSU Award Agreement. The arbitrator shall (i) have the authority to issue any type of discovery available to the parties had the claims been asserted in a court with jurisdiction (including third-party subpoenas), (ii) decide dispositive motions, including motions to dismiss and motions for summary judgment, (iii) apply the same substantive law that would have applied to the claims and defenses had the dispute been raised and heard in a court with jurisdiction, (iv) have the authority to grant any relief available to the parties under Applicable Law, and (v) issue a written decision, with factual and legal reasons provided. The Company shall pay for the arbitrator’s fees and any costs or fees unique to arbitration.
6.Survival. The arbitration provisions and agreement in this Appendix A shall survive any termination of the RSU Award Agreement or termination of the Grantee’s employment with the Company; however, in California, the arbitration provisions and agreement in this Appendix A shall expire once all of the following events have occurred: (i) the Grantee’s employment with the Company terminates; and (ii) thereafter, all statutes of limitations (and any tolling periods) for all Covered Claims have all expired.
7.Amendment to Arbitration Provisions in this Appendix A. Notwithstanding Section 7 of the RSU Award Agreement, the parties acknowledge and agree that arbitration provisions set forth in this Appendix A may not be amended or modified without the Grantee’s prior written consent.
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Exhibit 10.3
CRH PLC EQUITY INCENTIVE PLAN
PERFORMANCE SHARE UNIT AWARD AGREEMENT
This Performance Share Unit Award Agreement (including all appendices thereto, this “PSU Award Agreement”) evidences an award of Performance Share Units (“PSUs”) by CRH plc, a corporation organized under the laws of Ireland (the “Company”) under the CRH plc Equity Incentive Plan[, including the [●] Sub-Plan)] (the “Plan”). Capitalized terms not defined in the PSU Award Agreement have the meanings given to them in the Plan. All provisions of this PSU Award Agreement should be read carefully, including the mutual dispute resolution provision in Appendix B.
Name of Grantee: [Participant Name] (the “Grantee”).
Date of Grant: [Grant Date] (the “Grant Date”).
Target Number of PSUs: [Target Number of Awards Granted]
Performance Period: [Performance period] (the “Performance Period”).
1.Grant of PSUs. The Company hereby grants to the Grantee an Award of the target number of PSUs set forth above, subject to all of the terms and conditions in this PSU Award Agreement and the Plan, which is incorporated herein by reference.
2.Vesting. The PSUs will vest to the extent earned in accordance with Appendix A attached hereto, subject to Section 2(e), on the date on which the Committee certifies the actual performance level achieved (the date on which the Committee finally certifies performance, a “Vesting Date”), subject to the Grantee’s continuous Employment through the Vesting Date unless otherwise determined by the Committee in its sole discretion. Except as otherwise provided in this Section 2, in the event that the Grantee’s Employment terminates for any reason prior to the Vesting Date, any unvested PSUs will immediately be forfeited as of the date of such termination.
(a)[Treatment upon Termination due to Retirement. Upon a termination of the Grantee’s Employment due to Retirement, the Grantee will remain eligible to vest in a pro rata portion (based on the number of completed calendar months of Employment during the Performance Period) of the PSUs that are earned (if any) based on the actual performance level as determined by the Committee in accordance with Appendix A following the end of the Performance Period, as if the Grantee had remained continuously Employed through the Vesting Date. For purposes of this PSU Award Agreement, “Retirement” means a voluntary termination of Employment by the Grantee after the Grantee has (x) reached age 60 and (y) provided five years of service to any member of the Group.]
(b)Treatment upon Death or Disability. Upon the Grantee’s death or Disability, the PSUs will be deemed earned at the target level of performance (or such greater
level of performance as determined by the Committee in its sole discretion) and accelerate and become fully vested, in each case as of the date of such death or Disability. For purposes of this PSU Award Agreement, “Disability” means the Grantee’s substantial inability to perform the essential functions of the Grantee’s role, with or without a reasonable accommodation, for a continuous period of 180 days due to physical or mental illness.
(c)Vesting upon Termination without Cause or for Good Reason Other than During the CIC Protection Period. Upon a termination of the Grantee’s Employment by any member of the Group without Cause or due to the Grantee’s resignation for Good Reason, in either case, other than during the CIC Protection Period, the Grantee will remain eligible to vest in a pro rata portion (based on the number of completed calendar months of Employment during the Performance Period) of the PSUs that are earned (if any) based on the actual performance level as determined by the Committee in accordance with Appendix A following the end of the Performance Period, as if the Grantee had remained continuously Employed through the Vesting Date.
(d)Treatment upon Change in Control.
(i)Upon a Change in Control, if the PSUs are assumed, continued or substituted in connection with the Change in Control in accordance with the Plan, the level of performance of the PSUs will be deemed earned in accordance with Appendix A at the greater of the target level and the actual performance level as determined by the Committee as of the date of the Change in Control. Any PSUs that are earned in accordance with the immediately preceding sentence will cease to be subject to any further performance conditions but will continue to be subject to time-based vesting following the Change in Control through the end of the Performance Period (the “Converted RSUs”). Upon a termination of the Grantee’s Employment by any member of the Group without Cause or due to the Grantee’s resignation for Good Reason, in either case, during the CIC Protection Period, the Converted RSUs will accelerate and become fully vested.
(ii)For the avoidance of doubt, if the PSUs are not assumed, continued or substituted in connection with such Change in Control, the PSUs will vest immediately prior to the Change in Control in accordance with the Plan, and the level of performance of the PSUs will be deemed earned in accordance with Appendix A at the greater of the target level and the actual performance level as of the date of the Change in Control.
(e)Dealing Restriction. If on the date on which the Committee finally certifies performance (or any other date on which an Award is due to vest under this PSU Award Agreement) a Dealing Restriction applies to the Award, the Award shall vest on the date on which such Dealing Restriction lifts. For purposes of this PSU Award Agreement, “Dealing
2
Restriction” means restrictions imposed by the Company’s Insider Trading Policy or any other share dealing code adopted by the Company from time to time, or any Applicable Law which imposes restrictions on share dealing.
3.Delivery after Vesting. As soon as administratively practicable following the date upon which the PSUs vest pursuant to Section 2 hereof, the Company will deliver to the Grantee (or in the event of Grantee’s death, to the Grantee’s estate) one Share for each vested PSU; provided, however, that if the Grantee is a U.S. taxpayer, such delivery will in any event occur no later than March 15th of the calendar year following the year in which vesting occurred (the date on which the Shares are so issued, the “Delivery Date”).
4.Dividend Equivalents. On each date that a cash dividend or other distribution (other than cash dividends or other distributions pursuant to which the PSUs were adjusted pursuant to Section 1.6.3 of the Plan), if any, is paid to holders of Shares from the Grant Date through the date immediately prior to the Delivery Date, an amount (the “Dividend Equivalent Amount”) equal to the cash dividend that is paid on each Share, multiplied by the total number of PSUs and any Dividend Equivalent Units (as defined below) that remain unvested and outstanding as of the dividend payment record date, will be credited to the Grantee, and such credited amount will be converted into an additional number of PSUs (“Dividend Equivalent Units”) determined by dividing the Dividend Equivalent Amount by the Fair Market Value of a Share on the date of the dividend payment. Dividend Equivalent Units will be subject to the same conditions as the underlying PSUs with respect to which Dividend Equivalent Units were credited, including without limitation, vesting provisions and the provisions governing the timing and form of settlement.
5.Rights as a Shareholder. The Grantee or any person claiming under or through the Grantee will have no voting rights with respect to any of the Shares underlying any PSUs unless and until such Shares (which may be in registered, book-entry or such other form as the Committee may approve) have been issued to the Grantee or at the Grantee’s direction in accordance with this PSU Award Agreement and recorded in the register of members and such other books and records of the Company or its transfer agents or registrar as may be required and delivered to the Grantee or at its direction (including through electronic delivery to a brokerage account).
6.Withholding. Any member of the Group is permitted to withhold from any Shares delivered under this PSU Award Agreement or from any other compensation owed by any member of the Group to the Grantee any amounts required to be withheld for the payment of any taxes arising from the grant, vesting and/or settlement of the PSUs, including the payment of any dividends or dividend equivalents. The Committee, in its sole and absolute discretion and pursuant to such procedures as it may specify from time to time, may require the Grantee to satisfy any such tax liability, in whole or in part, to the extent permitted by Applicable Law, by (i) paying cash, (ii) electing to have the Company withhold otherwise deliverable Shares equal to the amount required to be withheld, (iii) withholding from Grantee’s wages or other cash compensation paid to the Grantee by any member of the Group, (iv) delivering to any member of the Group Shares having a Fair Market Value equal to the amount required to be withheld, (v)
3
selling a sufficient number of such Shares otherwise deliverable to the Grantee through a broker-assisted (or other) cashless exercise program implemented by the Company equal to the amount required to be withheld or (vi) through any combination of the foregoing. Further, if the Grantee is subject to tax in more than one jurisdiction between the Grant Date and a date of any relevant taxable or tax withholding event, as applicable, the Grantee acknowledges and agrees that any member of the Group may be required to withhold or account for tax in more than one jurisdiction. If the Grantee fails to make satisfactory arrangements for the payment of such taxes hereunder at the time any applicable PSUs otherwise are scheduled to vest and be settled pursuant to Sections 2 and 3 hereof, the Grantee will forfeit such PSUs and any right to receive Shares thereunder and the PSUs. The Grantee acknowledges and agrees that the Company may refuse to deliver the Shares if such tax obligations are not delivered at the time they are due.
7.Amendments to this PSU Award Agreement. The Committee reserves the right at any time to amend this PSU Award Agreement; provided, however, that the Committee will not make any amendment that materially and adversely affects the Grantee’s rights under this PSU Award Agreement without the Grantee’s consent. Notwithstanding anything to the contrary in the Plan or this PSU Award Agreement, the Company reserves the right to revise this PSU Award Agreement as it deems necessary or advisable, in its sole and absolute discretion and without the consent of the Grantee, to comply with Section 409A or to otherwise avoid imposition of any additional taxation under Section 409A in connection with the PSUs.
8.No Guarantee of Continued Service. The Grantee acknowledges and agrees that this PSU Award Agreement, the transactions contemplated hereunder and the vesting schedule set forth herein do not constitute an express or implied promise of continued engagement as an Employee or Consultant, as applicable, for the vesting period, for any period or at all.
9.Nature of Grant. In accepting the Award, the Grantee acknowledges, understands and agrees that:
(a)the grant of the PSUs is voluntary and occasional and does not create any contractual or other right to receive future grants of PSUs, or benefits in lieu of PSUs, even if PSUs have been granted in the past;
(b)all decisions with respect to future PSUs or other grants, if any, will be at the sole and absolute discretion of the Company;
(c)the Grantee is voluntarily participating in the Plan;
(d)the PSUs and any Shares acquired under the Plan are extraordinary items that do not constitute regular compensation for services rendered to any member of the Group, and are outside the scope of the Grantee’s employment agreement, offer letter, consulting agreement or similar agreement, if any;
(e)the PSUs and the Shares subject to the PSUs are not intended to replace any pension rights or compensation;
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(f)the future value of the underlying Shares is unknown, indeterminable and cannot be predicted with certainty;
(g)unless otherwise provided in the Plan or by the Company in its sole and absolute discretion, the PSUs and the benefits evidenced by this PSU Award Agreement do not create any entitlement to have the PSUs or any such benefits transferred to, or assumed by, another company nor to be exchanged, cashed out or substituted for, in connection with any Business Combination or other corporate transaction affecting the Shares; and
(h)the following provisions apply only if the Grantee is providing services outside the United States:
(i)the PSUs and the Shares subject to the PSUs are not part of normal or expected compensation or salary for any purpose;
(ii)the Grantee acknowledges and agrees that none of the Company or any of its Affiliates will be liable for any foreign exchange rate fluctuation between the Grantee’s local currency and the United States Dollar that may affect the value of the PSUs or of any amounts due to the Grantee pursuant to the settlement of the PSUs or the subsequent sale of any Shares acquired upon settlement; and
(iii)no claim or entitlement to compensation or damages will arise from forfeiture of the PSUs resulting from the termination of the Grantee’s status as an Employee or Consultant, as applicable (for any reason whatsoever whether or not later found to be invalid or in breach of employment laws in the jurisdiction where the Grantee is an Employee or Consultant, as applicable, or the terms of the Grantee’s employment or service agreement, if any), and in consideration of the grant of the PSUs to which the Grantee is otherwise not entitled, the Grantee irrevocably agrees never to institute any claim against any member of the Group or any other Affiliate, waives the Grantee’s ability, if any, to bring any such claim, and releases the Company and its Affiliates 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 Grantee will 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 claim.
10.No Advice Regarding Grant. The Company is not providing any tax, legal or financial advice, nor is the Company making any recommendations regarding the Grantee’s participation in the Plan or the Grantee’s acquisition or sale of the underlying Shares. The Grantee is hereby advised to consult with his or her own personal tax, legal and financial advisors regarding his or her participation in the Plan before taking any action related to the Plan. The Grantee understands that the Grantee (and not the Company) will be responsible for the
5
Grantee’s own tax liability that may arise as a result of this investment or the transactions contemplated by this PSU Award Agreement.
11.Address for Notices. Any notice to be given to the Company under the terms of this PSU Award Agreement will be addressed to the Company at:
CRH plc
[*****]
[*****]
Attn: [*****] ([[*****]]),
or at such other address as the Company may hereafter designate in writing. Any notice to be given to the Grantee under the terms of this PSU Award Agreement will be addressed to the Grantee at the address that he or she most recently provided to the Company.
12.Grant is Not Transferable. This Award and the rights and privileges conferred hereby will not be transferred, assigned, pledged or hypothecated in any way (whether by operation of law or otherwise) and will not be subject to sale under execution, attachment or similar process. Upon any attempt to transfer, assign, pledge, hypothecate or otherwise dispose of this grant, or any right or privilege conferred hereby, or upon any attempted sale under any execution, attachment or similar process, this grant and the rights and privileges conferred hereby immediately will become null and void.
13.Additional Conditions to Delivery of Shares. The issuance or delivery of Shares to the Grantee (or the Grantee’s estate) hereunder will not occur prior to the fulfilment of all of the following conditions: (a) if at any time the Company will determine, in its sole and absolute discretion, that the listing, registration, qualification or rule compliance of the Shares upon any securities exchange or under Applicable Law is necessary or desirable as a condition to the issuance or delivery, unless and until such listing, registration, qualification, rule compliance, clearance, consent or approval will have been completed, effected or obtained free of any conditions not acceptable to the Company. The Company has sole and absolute discretion in its efforts to meet the requirements of Applicable Law and to obtain any consent or approval required under Applicable Law; and (b) where required by Applicable Law, the receipt by the Company of full payment for such Shares in accordance with Applicable Law, which may be in one or more of the forms of consideration approved by the Committee from time to time.
14.Recoupment. Notwithstanding any other provision herein, the PSUs and any Shares or other amount or property that may be issued, delivered or paid in respect of the PSUs, as well as any consideration that may be received in respect of a sale or other disposition of any such Shares or property, will be subject to recoupment under the Plan, in accordance with any clawback policy that the Company is required to adopt pursuant to the listing standards of any national securities exchange, national market system or automated quotation system on which the Company’s securities are listed, quoted or traded or as is otherwise required by the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010, including but not limited to
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Section 10D of the Exchange Act, or any other Applicable Law, as well as any recoupment or “clawback” policies of any member of the Group that may be in effect from time to time.
15.Electronic Delivery and Acceptance; Counterparts. The Company may, in its sole and absolute discretion, decide to deliver any documents related to the PSUs awarded under the Plan or future PSUs that may be awarded under the Plan by electronic means or request the Grantee’s consent to participate in the Plan by electronic means. The Grantee hereby consents to receive such documents by electronic delivery and agrees to participate in the Plan through any online or electronic system established and maintained by the Company or a third party designated by the Company. The Grantee will not raise the use of electronic delivery as a defense to the formation of a contract. This PSU Award Agreement may be executed in one or more counterparts, including by way of any electronic signature, subject to Applicable Law, each of which shall be deemed an original and all of which together shall constitute one instrument.
16.No Waiver. Either party’s failure to enforce any provision or provisions of this PSU Award Agreement will not in any way be construed as a waiver of any such provision or provisions, nor prevent that party from thereafter enforcing each and every other provision of this PSU Award Agreement. The rights granted both parties herein are cumulative and will not constitute a waiver of either party’s right to assert all other legal remedies available to it under the circumstances.
17.Successors and Assigns. The Company may assign any of its rights under this PSU Award Agreement to single or multiple assignees, and this PSU Award Agreement will inure to the benefit of the successors and assigns of the Company. Subject to the restrictions on transfer herein set forth, this PSU Award Agreement will be binding upon the Grantee and his or her heirs, executors, administrators, successors and assigns. The rights and obligations of the Grantee under this PSU Award Agreement may only be assigned with the prior written consent of the Company.
18.Section 409A. It is the intent of this PSU Award Agreement that it and all payments and benefits to U.S. taxpayers hereunder be exempt from, or comply with, the requirements of Section 409A, and this PSU Award Agreement will be construed to the maximum extent possible in accordance with this intent. Notwithstanding anything to the contrary contained in this PSU Award Agreement, to the extent that any payment under this PSU Award Agreement is determined by the Company to constitute “non-qualified deferred compensation” subject to Section 409A and is payable to the Grantee by reason of termination of the Grantee’s Employment, then (i) such payment will be made to the Grantee only upon a “separation from service” as defined under Section 409A and (ii) if the Grantee is a “specified employee” (within the meaning of Section 409A and as determined by the Company), such payment will not be made before the date that is six months after the date of the Grantee’s separation from service (or, if earlier, the Grantee’s death). Each payment payable under this PSU Award Agreement is intended to constitute a separate payment for purposes of Treasury Regulation Section 1.409A-2(b)(2).
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19.Dispute Resolution. The provisions of Appendix B to this PSU Award Agreement are incorporated herein by reference and will be deemed to be fully contained herein.
20.Entire Agreement. The Plan is incorporated herein by reference. The Plan and this PSU Award Agreement, including Appendix A and Appendix B hereto, constitute the entire agreement of the parties with respect to the PSUs and supersede in their entirety all prior undertakings and agreements of the Company and the Grantee with respect to the subject matter hereof and may not be modified adversely to the Grantee’s interest except by means of a writing signed by the Company and the Grantee. By accepting this PSU Award Agreement, the Grantee agrees to be subject to the terms and conditions of the Plan.
21.Titles; Headings; Sections; Agreement Severable. The titles and headings of the sections in this PSU Award Agreement are for convenience of reference only and, in the event of any conflict, the text of this PSU Award Agreement, rather than such titles or headings, will control. In the event that any provision in this PSU Award Agreement will be held invalid or unenforceable, such provision will be severable from, and such invalidity or unenforceability will not be construed to have any effect on, the remaining provisions of this PSU Award Agreement.
[Remainder of page intentionally blank]
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IN WITNESS WHEREOF, the parties have caused this PSU Award Agreement, including the mutual dispute resolution provision in Appendix B, to be duly executed and effective as of the Grant Date.
| CRH plc | ||||||||
| By: | ||||||||
| Name: | ||||||||
| Title: | ||||||||
| [Grantee] | ||
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Appendix A
Performance Goals
[Intentionally Omitted]
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Appendix B1
Country-Specific Dispute Resolution
This Appendix B contains additional terms and conditions that will apply to the Grantee. Capitalized terms used but not otherwise defined in this Appendix B will have the meanings provided to them in the PSU Award Agreement (including the appendices thereto) to which this Appendix B is attached. The PSU Award Agreement and its appendices together constitute one binding agreement.
I.Grantee who resides in Ireland or any country other than the United States
1.Disputes; Choice of Forum.
(a)The Company and the Grantee, as a condition to the Grantee’s participation in the Plan, hereby irrevocably submit to the exclusive jurisdiction of the courts of Ireland over any suit, action or proceeding arising out of or relating to or concerning the Plan, except to the extent that the Company refers the dispute to arbitration in accordance with Section 1(b). The Company and the Grantee, as a condition to the Grantee’s participation in the Plan, acknowledge that the forum designated by this Section 1(a) has a reasonable relation to the Plan and to the relationship between such Grantee and the Company. Notwithstanding the foregoing, nothing herein will preclude the Company from bringing any action or proceeding in any other court for the purpose of enforcing the provisions of this Section 1.
(b)Without limiting Section 1(a), any dispute in relation to the Plan may be referred by the Company alone to arbitration. To the extent permitted by Applicable Law, the costs of any arbitration in accordance with this Section 1(b) shall be borne equally by the Company and the Grantee where permitted by Applicable Law; provided, further, that, where Appliable Law imposes a cap on the amount of such costs that may be paid by the Grantee, such costs shall be borne equally by the Company and the Grantee, up until the maximum of the cap. Any award rendered by the arbitrator in accordance with this Section 1(b) shall in all cases be a reasoned award.
(i)If the Grantee resides at the time of the Grantee’s receipt of an Award under the Plan in Ireland, then the seat of any arbitration commenced in accordance with this Section 1(b) shall be Ireland. The arbitration shall be conducted pursuant to the provisions of the Arbitration Act 2010 of Ireland (as amended), to be held in Dublin before a single arbitrator.
(ii)If the Grantee resides at the time of the Grantee’s receipt of an Award under the Plan in any jurisdiction other than Ireland or the United States, then the seat of any arbitration commenced in accordance with this Section 1(b) shall be the last jurisdiction where the Grantee resided at the time of receipt of the Award
1 Appendix B is subject to update based on changes in Applicable Law.
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under the Plan. Any such arbitration will be held in Dublin before a single arbitrator and conducted pursuant to rules that are consistent with Applicable Law, as determined by the Committee.
(iii)Any Grantee so affected will submit to such arbitration and, by accepting the Award under the Plan, is deemed to have agreed to submit to such jurisdiction.
(c)The agreement by the Company and the Grantee as to forum is independent of the law that may be applied in the action, and the Company and the Grantee, as a condition to the Grantee’s participation in the Plan, (i) agree to such forum even if the forum may under Applicable Law choose to apply non-forum law, (ii) hereby waive, to the fullest extent permitted by Applicable Law, any objection which the Company or such Grantee now or hereafter may have to personal jurisdiction or to the laying of venue of any such suit, action or proceeding in any court referred to in Section 1(a), (iii) undertake not to commence any action arising out of or relating to or concerning the Plan in any forum other than the forum described in Section 1(a) and (iv) agree that, to the fullest extent permitted by Applicable Law, a final and non-appealable judgment in any such suit, action or proceeding in any such court will be conclusive and binding upon the Company and the Grantee.
(d)The Grantee, as a condition to such Grantee’s participation in the Plan, hereby irrevocably appoints the Group General Counsel of the Company as the Grantee’s agent for service of process in connection with any action, suit or proceeding arising out of or relating to or concerning the Plan, who will promptly advise such Grantee of any such service of process.
(e)The Grantee, as a condition to such Grantee’s participation in the Plan, agrees to keep confidential the existence of, and any information concerning, any dispute or controversy or any claim waived under Section 2. Notwithstanding the foregoing, the Grantee may disclose information concerning such dispute, controversy or claim to the court that is considering such dispute, controversy or claim or to such Grantee’s legal counsel (provided that such counsel agrees not to disclose any such information other than as necessary to the prosecution or defense of the dispute, controversy or claim). In addition, the Grantee may provide information to, file a charge with or participate in an investigation conducted by any governmental entity, and the Grantee does not need any member of the Group’s permission to do so. Furthermore, the Grantee is not required to notify any member of the Group of a request for information from any governmental entity or of such Grantee’s decision to file a charge with or participate in an investigation conducted by any governmental entity.
2.Waiver of Claims. The Grantee recognizes and agrees that, before being selected by the Committee to receive an Award, the Grantee has no right to any benefits under the Plan. Accordingly, in consideration of the Grantee’s receipt of the Award, the Grantee expressly waives any right to contest the amount of any Award, the terms of any Award Agreement, any determination, action or omission hereunder or under any Award Agreement by the Committee, any member of the Group or the Board, or any amendment to the Plan or any Award Agreement (other than an amendment to the Plan or an Award Agreement to which the Grantee’s consent is expressly required by the express terms of an Award Agreement).
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II.Grantee who resides in the United States
1.Mutual Dispute Resolution and Arbitration. By entering into this PSU Award Agreement, the Company and the Grantee agree, to the furthest extent permitted by the Federal Arbitration Act (“FAA”) and Applicable Law, that any past, present, or future claim arising out of relating to this PSU Award Agreement that could otherwise be raised in court shall instead be raised and adjudicated through binding arbitration (“Covered Claims”) to be held in Atlanta, Georgia. Arbitration is the process by which a neutral third party, such as a retired judge, resolves a dispute through a binding decision rather than a judge or jury in court.
2.Covered Claims. Covered Claims include, but are not limited to, claims for wages and other compensation, breach of contract, discrimination, wrongful termination, tort, and violation of any federal, state, or local law, to the maximum extent permitted by Applicable Law. Further, Covered Claims include claims that (i) the Company has against the Grantee, (ii) the Grantee has against the Company, and (iii) the Grantee has against the Company’s past, present, and future owners, directors, officers, employees, agents, affiliates, subsidiaries, and/or alleged joint employers. The only claims excluded from the definition of Covered Claims are (i) claims for workers’ compensation and unemployment benefits, (ii) claims covered by the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 (9 U.S.C. § 402(a)), (iii) charges, complaints, or petitions to a federal, state, or local government agency, such as the National Labor Relations Board, Equal Employment Opportunity Commission, or Securities Exchange Commission, (iv) claims for temporary relief in court to maintain the status quo pending arbitration if the arbitration award would be rendered ineffectual absent such relief, and (v) claims that, after application of the FAA and FAA preemption principles or any other Applicable Law, are not subject to arbitration or pre-dispute arbitration agreements as a matter of law.
3.Class Action Waiver. The Company and the Grantee agree, to the furthest extent permitted by Applicable Law, that (i) all Covered Claims shall be raised and adjudicated on an individual basis only; and (ii) there shall be no right or authority to bring, adjudicate, or participate in a multi-plaintiff/claimant, class, collective, or non-individual action involving Covered Claims. To the extent that the Company or the Grantee seeks to bring a claim under the California Labor Code Private Attorneys General Act or other private attorneys general act statute, the individual claims shall be arbitrated on an individual basis and the non-individual claims shall be dismissed, stayed, or litigated in court in accordance with Applicable Law.
4.Initiating Arbitration. To initiate arbitration, a party must submit a demand for arbitration. The demand for arbitration must be in writing, personally signed by the person initiating the claim, and initiated within the time period required under the statute of limitations applicable to the claims had the claims been raised in court. To initiate arbitration, the Grantee must deliver the written and personally-signed demand to the Company, via certified mail, at the address provided in Section 11 of the PSU Award Agreement. For the Company to initiate arbitration, it must deliver the written demand for arbitration, signed by the Company, to the Grantee via certified mail at the last known address recorded in the Grantee’s personnel records. The party initiating arbitration also must, within the time period required under the applicable
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statute(s) of limitations, initiate the arbitration with JAMS (see https://www.jamsadr.com for instructions).
5.Arbitration Procedures. Absent further mutual agreement by the parties, the arbitration shall be conducted by a single arbitrator and administered by JAMS pursuant to the JAMS employment arbitration rules then in effect (available at https://www.jamsadr.com/rules-employment-arbitration/) to the extent that the JAMS employment rules are consistent with the provisions of the PSU Award Agreement. The arbitrator shall (i) have the authority to issue any type of discovery available to the parties had the claims been asserted in a court with jurisdiction (including third-party subpoenas), (ii) decide dispositive motions, including motions to dismiss and motions for summary judgment, (iii) apply the same substantive law that would have applied to the claims and defenses had the dispute been raised and heard in a court with jurisdiction, (iv) have the authority to grant any relief available to the parties under Applicable Law, and (v) issue a written decision, with factual and legal reasons provided. The Company shall pay for the arbitrator’s fees and any costs or fees unique to arbitration.
6.Survival. The arbitration provisions and agreement in this Appendix B shall survive any termination of the PSU Award Agreement or termination of the Grantee’s employment with the Company; however, in California, the arbitration provisions and agreement in this Appendix B shall expire once all of the following events have occurred: (i) the Grantee’s employment with the Company terminates; and (ii) thereafter, all statutes of limitations (and any tolling periods) for all Covered Claims have all expired.
7.Amendment to Arbitration Provisions in this Appendix B. Notwithstanding Section 7 of the PSU Award Agreement, the parties acknowledge and agree that arbitration provisions set forth in this Appendix B may not be amended or modified without the Grantee’s prior written consent.
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Exhibit 10.4
CRH PLC EQUITY INCENTIVE PLAN
RESTRICTED SHARE UNIT AWARD AGREEMENT
(NON-MANAGEMENT DIRECTOR)
This Restricted Share Unit Award Agreement (including all appendices thereto, this “RSU Award Agreement”) evidences an award of Restricted Share Units (“RSUs”) by CRH plc, a corporation organized under the laws of Ireland (the “Company”) under the CRH plc Equity Incentive Plan, including the Non-Employee Sub-Plan (the “Plan”). Capitalized terms not defined in the RSU Award Agreement have the meanings given to them in the Plan. All provisions of this RSU Award Agreement should be read carefully, including the mutual dispute resolution provision in Appendix A.
Name of Grantee: [Participant Name] (the “Grantee”).
Date of Grant: [Grant Date] (the “Grant Date”).
Number of RSUs: [Number of Awards Granted]
1.Grant of RSUs. The Company hereby grants to the Grantee an Award of the number of RSUs set forth above, subject to all of the terms and conditions in this RSU Award Agreement and the Plan, which is incorporated herein by reference.
2.Vesting. The RSUs will vest, subject to Section 2(c), in full on the earlier of (x) one year following the Grant Date and (y) the date of the Company’s next annual general meeting of shareholders following the Grant Date (such date, the “Vesting Date”), subject to the Grantee’s continuous service as a Non-Management Director through the Vesting Date. Except as otherwise provided in this Section 2, in the event that the Grantee’s service as a Non-Management Director terminates for any reason prior to the Vesting Date, any unvested RSUs will immediately be forfeited as of the date of such termination.
(a)[Treatment upon Voluntary Termination of Service. Upon the Grantee’s Voluntary Termination of Service as a Non-Management Director that occurs at least six months after the Grant Date, a pro rata portion of the RSUs that would have become vested on the Vesting Date (based on the number of calendar days elapsed from the Grant Date through the date of the Voluntary Termination of Service) will remain outstanding and eligible to vest on the Vesting Date, as if the Grantee had remained a Non-Management Director continuously through the Vesting Date. For purposes of this RSU Award Agreement, “Voluntary Termination of Service” means a voluntary termination of the Grantee’s service as a Non-Management Director, as determined by the Chair of the Board in the Chair’s sole and absolute discretion.]
(b)Treatment upon Death or Disability. Upon the Grantee’s death or Disability, the unvested RSUs will accelerate and become fully vested. For purposes of this RSU Award Agreement, “Disability” means the Grantee’s substantial inability to perform the
essential functions of the Grantee’s role, with or without a reasonable accommodation, for a continuous period of 180 days due to physical or mental illness.
(c)Dealing Restriction. If on the date on which an Award is due to vest under this RSU Award Agreement a Dealing Restriction applies to the Award, the Award shall vest on the date on which such Dealing Restriction lifts. For purposes of this RSU Award Agreement, “Dealing Restriction” means restrictions imposed by the Company’s Insider Trading Policy or any other share dealing code adopted by the Company from time to time, or any Applicable Law which imposes restrictions on share dealing.
3.Delivery after Vesting. As soon as administratively practicable following the date upon which the RSUs vest pursuant to Section 2 hereof, the Company will deliver to the Grantee (or in the event of Grantee’s death, to the Grantee’s estate) one Share for each vested RSU; provided, however, that if the Grantee is a U.S. taxpayer, such delivery will in any event occur no later than March 15th of the calendar year following the year in which vesting occurred (the date on which the Shares are so issued, the “Delivery Date”).
4.Dividend Equivalents. On each date that a cash dividend or other distribution (other than cash dividends or other distributions pursuant to which the RSUs were adjusted pursuant to Section 1.6.3 of the Plan), if any, is paid to holders of Shares from the Grant Date through the date immediately prior to the Delivery Date, an amount (the “Dividend Equivalent Amount”) equal to the cash dividend that is paid on each Share, multiplied by the total number of RSUs and any Dividend Equivalent Units (as defined below) that remain unvested and outstanding as of the dividend payment record date, will be credited to the Grantee, and such credited amount will be converted into an additional number of RSUs (“Dividend Equivalent Units”) determined by dividing the Dividend Equivalent Amount by the Fair Market Value of a Share on the date of the dividend payment. Dividend Equivalent Units will be subject to the same conditions as the underlying RSUs with respect to which Dividend Equivalent Units were credited, including without limitation, vesting provisions and the provisions governing the timing and form of settlement.
5.Rights as a Shareholder. The Grantee or any person claiming under or through the Grantee will have no voting rights with respect to any of the Shares underlying any RSUs unless and until such Shares (which may be in registered, book-entry or such other form as the Committee may approve) have been issued to the Grantee or at the Grantee’s direction in accordance with this RSU Award Agreement and recorded in the register of members and such other books and records of the Company or its transfer agents or registrar as may be required and delivered to the Grantee or at its direction (including through electronic delivery to a brokerage account).
6.Withholding. Any member of the Group is permitted to withhold from any Shares delivered under this RSU Award Agreement or from any other compensation owed by any member of the Group to the Grantee any amounts required to be withheld for the payment of any taxes arising from the grant, vesting and/or settlement of the RSUs, including the payment of any dividends or dividend equivalents. The Committee, in its sole and absolute discretion and pursuant to such procedures as it may specify from time to time, may require the Grantee to
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satisfy any such tax liability, in whole or in part, to the extent permitted by Applicable Law, by (i) paying cash, (ii) electing to have the Company withhold otherwise deliverable Shares equal to the amount required to be withheld, (iii) withholding from Grantee’s wages or other cash compensation paid to the Grantee by any member of the Group, (iv) delivering to any member of the Group Shares having a Fair Market Value equal to the amount required to be withheld, (v) selling a sufficient number of such Shares otherwise deliverable to the Grantee through a broker-assisted (or other) cashless exercise program implemented by the Company equal to the amount required to be withheld or (vi) through any combination of the foregoing. Further, if the Grantee is subject to tax in more than one jurisdiction between the Grant Date and a date of any relevant taxable or tax withholding event, as applicable, the Grantee acknowledges and agrees that any member of the Group may be required to withhold or account for tax in more than one jurisdiction. If the Grantee fails to make satisfactory arrangements for the payment of such taxes hereunder at the time any applicable RSUs otherwise are scheduled to vest and be settled pursuant to Sections 2 and 3 hereof, the Grantee will forfeit such RSUs and any right to receive Shares thereunder and the RSUs. The Grantee acknowledges and agrees that the Company may refuse to deliver the Shares if such tax obligations are not delivered at the time they are due.
7.Amendments to this RSU Award Agreement. The Committee reserves the right at any time to amend this RSU Award Agreement; provided, however, that the Committee will not make any amendment that materially and adversely affects the Grantee’s rights under this RSU Award Agreement without the Grantee’s consent. Notwithstanding anything to the contrary in the Plan or this RSU Award Agreement, the Company reserves the right to revise this RSU Award Agreement as it deems necessary or advisable, in its sole and absolute discretion and without the consent of the Grantee, to comply with Section 409A or to otherwise avoid imposition of any additional taxation under Section 409A in connection with the RSUs.
8.No Guarantee of Continued Service. The Grantee acknowledges and agrees that this RSU Award Agreement, the transactions contemplated hereunder and the vesting schedule set forth herein do not constitute an express or implied promise of continued service or re-appointment as a Non-Management Director for the vesting period, for any period or at all.
9.Nature of Grant. In accepting the Award, the Grantee acknowledges, understands and agrees that:
(a)the grant of the RSUs is voluntary and occasional and does not create any contractual or other right to receive future grants of RSUs, or benefits in lieu of RSUs, even if RSUs have been granted in the past;
(b)all decisions with respect to future RSUs or other grants, if any, will be at the sole and absolute discretion of the Company;
(c)the Grantee is voluntarily participating in the Plan;
(d)the RSUs and any Shares acquired under the Plan are extraordinary items that do not constitute regular compensation for services rendered to any member of the Group,
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and are outside the scope of the Grantee’s service agreement, offer letter, consulting agreement or similar agreement, if any;
(e)the RSUs and the Shares subject to the RSUs are not intended to replace any pension rights or compensation;
(f)the future value of the underlying Shares is unknown, indeterminable and cannot be predicted with certainty;
(g)unless otherwise provided in the Plan or by the Company in its sole and absolute discretion, the RSUs and the benefits evidenced by this RSU Award Agreement do not create any entitlement to have the RSUs or any such benefits transferred to, or assumed by, another company nor to be exchanged, cashed out or substituted for, in connection with any Business Combination or other corporate transaction affecting the Shares; and
(h)the following provisions apply only if the Grantee is providing services outside the United States:
(i)the RSUs and the Shares subject to the RSUs are not part of normal or expected compensation or salary for any purpose;
(ii)the Grantee acknowledges and agrees that none of the Company or any of its Affiliates will be liable for any foreign exchange rate fluctuation between the Grantee’s local currency and the United States Dollar that may affect the value of the RSUs or of any amounts due to the Grantee pursuant to the settlement of the RSUs or the subsequent sale of any Shares acquired upon settlement; and
(iii)no claim or entitlement to compensation or damages will arise from forfeiture of the RSUs resulting from the termination of the Grantee’s status as a Non-Management Director (for any reason whatsoever whether or not later found to be invalid or in breach of employment laws in the jurisdiction where the Grantee is a Non-Management Director or the terms of the Grantee’s service agreement, if any), and in consideration of the grant of the RSUs to which the Grantee is otherwise not entitled, the Grantee irrevocably agrees never to institute any claim against any member of the Group or any other Affiliate, waives the Grantee’s ability, if any, to bring any such claim, and releases the Company and its Affiliates 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 Grantee will 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 claim.
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10.No Advice Regarding Grant. The Company is not providing any tax, legal or financial advice, nor is the Company making any recommendations regarding the Grantee’s participation in the Plan or the Grantee’s acquisition or sale of the underlying Shares. The Grantee is hereby advised to consult with his or her own personal tax, legal and financial advisors regarding his or her participation in the Plan before taking any action related to the Plan. The Grantee understands that the Grantee (and not the Company) will be responsible for the Grantee’s own tax liability that may arise as a result of this investment or the transactions contemplated by this RSU Award Agreement.
11.Address for Notices. Any notice to be given to the Company under the terms of this RSU Award Agreement will be addressed to the Company at:
CRH plc
[*****]
[*****]
Attn: [*****] ([*****]),
or at such other address as the Company may hereafter designate in writing. Any notice to be given to the Grantee under the terms of this RSU Award Agreement will be addressed to the Grantee at the address that he or she most recently provided to the Company.
12.Grant is Not Transferable. This Award and the rights and privileges conferred hereby will not be transferred, assigned, pledged or hypothecated in any way (whether by operation of law or otherwise) and will not be subject to sale under execution, attachment or similar process. Upon any attempt to transfer, assign, pledge, hypothecate or otherwise dispose of this grant, or any right or privilege conferred hereby, or upon any attempted sale under any execution, attachment or similar process, this grant and the rights and privileges conferred hereby immediately will become null and void.
13.Additional Conditions to Delivery of Shares. The issuance or delivery of Shares to the Grantee (or the Grantee’s estate) hereunder will not occur prior to the fulfilment of all of the following conditions: (a) if at any time the Company will determine, in its sole and absolute discretion, that the listing, registration, qualification or rule compliance of the Shares upon any securities exchange or under Applicable Law is necessary or desirable as a condition to the issuance or delivery, unless and until such listing, registration, qualification, rule compliance, clearance, consent or approval will have been completed, effected or obtained free of any conditions not acceptable to the Company. The Company has sole and absolute discretion in its efforts to meet the requirements of Applicable Law and to obtain any consent or approval required under Applicable Law; and (b) where required by Applicable Law, the receipt by the Company of full payment for such Shares in accordance with Applicable Law, which may be in one or more of the forms of consideration approved by the Committee from time to time.
14.Recoupment. Notwithstanding any other provision herein, the RSUs and any Shares or other amount or property that may be issued, delivered or paid in respect of the RSUs, as well as any consideration that may be received in respect of a sale or other disposition of any such Shares or property, will be subject to recoupment under the Plan, in accordance with any
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clawback policy that the Company is required to adopt pursuant to the listing standards of any national securities exchange, national market system or automated quotation system on which the Company’s securities are listed, quoted or traded or as is otherwise required by the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010, including but not limited to Section 10D of the Exchange Act, or any other Applicable Law, as well as any recoupment or “clawback” policies of any member of the Group that may be in effect from time to time.
15.Electronic Delivery and Acceptance; Counterparts. The Company may, in its sole and absolute discretion, decide to deliver any documents related to the RSUs awarded under the Plan or future RSUs that may be awarded under the Plan by electronic means or request the Grantee’s consent to participate in the Plan by electronic means. The Grantee hereby consents to receive such documents by electronic delivery and agrees to participate in the Plan through any online or electronic system established and maintained by the Company or a third party designated by the Company. The Grantee will not raise the use of electronic delivery as a defense to the formation of a contract. This RSU Award Agreement may be executed in one or more counterparts, including by way of any electronic signature, subject to Applicable Law, each of which shall be deemed an original and all of which together shall constitute one instrument.
16.No Waiver. Either party’s failure to enforce any provision or provisions of this RSU Award Agreement will not in any way be construed as a waiver of any such provision or provisions, nor prevent that party from thereafter enforcing each and every other provision of this RSU Award Agreement. The rights granted both parties herein are cumulative and will not constitute a waiver of either party’s right to assert all other legal remedies available to it under the circumstances.
17.Successors and Assigns. The Company may assign any of its rights under this RSU Award Agreement to single or multiple assignees, and this RSU Award Agreement will inure to the benefit of the successors and assigns of the Company. Subject to the restrictions on transfer herein set forth, this RSU Award Agreement will be binding upon the Grantee and his or her heirs, executors, administrators, successors and assigns. The rights and obligations of the Grantee under this RSU Award Agreement may only be assigned with the prior written consent of the Company.
18.Section 409A. It is the intent of this RSU Award Agreement that it and all payments and benefits to U.S. taxpayers hereunder be exempt from, or comply with, the requirements of Section 409A, and this RSU Award Agreement will be construed to the maximum extent possible in accordance with this intent. Notwithstanding anything to the contrary contained in this RSU Award Agreement, to the extent that any payment under this RSU Award Agreement is determined by the Company to constitute “non-qualified deferred compensation” subject to Section 409A and is payable to the Grantee by reason of termination of the Grantee’s service as a Non-Management Director, then (i) such payment will be made to the Grantee only upon a “separation from service” as defined under Section 409A and (ii) if the Grantee is a “specified employee” (within the meaning of Section 409A and as determined by the Company), such payment will not be made before the date that is six months after the date of the Grantee’s separation from service (or, if earlier, the Grantee’s death). Each payment payable
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under this RSU Award Agreement is intended to constitute a separate payment for purposes of Treasury Regulation Section 1.409A-2(b)(2).
19.Dispute Resolution. The provisions of Appendix A to this RSU Award Agreement are incorporated herein by reference and will be deemed to be fully contained herein.
20.Entire Agreement. The Plan is incorporated herein by reference. The Plan and this RSU Award Agreement, including Appendix A hereto, constitute the entire agreement of the parties with respect to the RSUs and supersede in their entirety all prior undertakings and agreements of the Company and the Grantee with respect to the subject matter hereof and may not be modified adversely to the Grantee’s interest except by means of a writing signed by the Company and the Grantee. By accepting this RSU Award Agreement, the Grantee agrees to be subject to the terms and conditions of the Plan.
21.Titles; Headings; Sections; Agreement Severable. The titles and headings of the sections in this RSU Award Agreement are for convenience of reference only and, in the event of any conflict, the text of this RSU Award Agreement, rather than such titles or headings, will control. In the event that any provision in this RSU Award Agreement will be held invalid or unenforceable, such provision will be severable from, and such invalidity or unenforceability will not be construed to have any effect on, the remaining provisions of this RSU Award Agreement.
[Remainder of page intentionally blank]
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IN WITNESS WHEREOF, the parties have caused this RSU Award Agreement, including the mutual dispute resolution provision in Appendix A, to be duly executed and effective as of the Grant Date.
| CRH plc | ||||||||
| By: | ||||||||
| Name: | ||||||||
| Title: | ||||||||
| [Grantee] | ||
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Appendix A1
Country-Specific Dispute Resolution
This Appendix A contains additional terms and conditions that will apply to the Grantee. Capitalized terms used but not otherwise defined in this Appendix A will have the meanings provided to them in the RSU Award Agreement (including the appendices thereto) to which this Appendix A is attached. The RSU Award Agreement and its appendices together constitute one binding agreement.
I.Grantee who resides in Ireland or any country other than the United States
1.Disputes; Choice of Forum.
(a)The Company and the Grantee, as a condition to the Grantee’s participation in the Plan, hereby irrevocably submit to the exclusive jurisdiction of the courts of Ireland over any suit, action or proceeding arising out of or relating to or concerning the Plan, except to the extent that the Company refers the dispute to arbitration in accordance with Section 1(b). The Company and the Grantee, as a condition to the Grantee’s participation in the Plan, acknowledge that the forum designated by this Section 1(a) has a reasonable relation to the Plan and to the relationship between such Grantee and the Company. Notwithstanding the foregoing, nothing herein will preclude the Company from bringing any action or proceeding in any other court for the purpose of enforcing the provisions of this Section 1.
(b)Without limiting Section 1(a), any dispute in relation to the Plan may be referred by the Company alone to arbitration. To the extent permitted by Applicable Law, the costs of any arbitration in accordance with this Section 1(b) shall be borne equally by the Company and the Grantee where permitted by Applicable Law; provided, further, that, where Appliable Law imposes a cap on the amount of such costs that may be paid by the Grantee, such costs shall be borne equally by the Company and the Grantee, up until the maximum of the cap. Any award rendered by the arbitrator in accordance with this Section 1(b) shall in all cases be a reasoned award.
(i)If the Grantee resides at the time of the Grantee’s receipt of an Award under the Plan in Ireland, then the seat of any arbitration commenced in accordance with this Section 1(b) shall be Ireland. The arbitration shall be conducted pursuant to the provisions of the Arbitration Act 2010 of Ireland (as amended), to be held in Dublin before a single arbitrator.
(ii)If the Grantee resides at the time of the Grantee’s receipt of an Award under the Plan in any jurisdiction other than Ireland or the United States, then the seat of any arbitration commenced in accordance with this Section 1(b) shall be the last jurisdiction where the Grantee resided at the time of receipt of the Award
1 Appendix A is subject to update based on changes in Applicable Law.
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under the Plan. Any such arbitration will be held in Dublin before a single arbitrator and conducted pursuant to rules that are consistent with Applicable Law, as determined by the Committee.
(iii)Any Grantee so affected will submit to such arbitration and, by accepting the Award under the Plan, is deemed to have agreed to submit to such jurisdiction.
(c)The agreement by the Company and the Grantee as to forum is independent of the law that may be applied in the action, and the Company and the Grantee, as a condition to the Grantee’s participation in the Plan, (i) agree to such forum even if the forum may under Applicable Law choose to apply non-forum law, (ii) hereby waive, to the fullest extent permitted by Applicable Law, any objection which the Company or such Grantee now or hereafter may have to personal jurisdiction or to the laying of venue of any such suit, action or proceeding in any court referred to in Section 1(a), (iii) undertake not to commence any action arising out of or relating to or concerning the Plan in any forum other than the forum described in Section 1(a) and (iv) agree that, to the fullest extent permitted by Applicable Law, a final and non-appealable judgment in any such suit, action or proceeding in any such court will be conclusive and binding upon the Company and the Grantee.
(d)The Grantee, as a condition to such Grantee’s participation in the Plan, hereby irrevocably appoints the Group General Counsel of the Company as the Grantee’s agent for service of process in connection with any action, suit or proceeding arising out of or relating to or concerning the Plan, who will promptly advise such Grantee of any such service of process.
(e)The Grantee, as a condition to such Grantee’s participation in the Plan, agrees to keep confidential the existence of, and any information concerning, any dispute or controversy or any claim waived under Section 2. Notwithstanding the foregoing, the Grantee may disclose information concerning such dispute, controversy or claim to the court that is considering such dispute, controversy or claim or to such Grantee’s legal counsel (provided that such counsel agrees not to disclose any such information other than as necessary to the prosecution or defense of the dispute, controversy or claim). In addition, the Grantee may provide information to, file a charge with or participate in an investigation conducted by any governmental entity, and the Grantee does not need any member of the Group’s permission to do so. Furthermore, the Grantee is not required to notify any member of the Group of a request for information from any governmental entity or of such Grantee’s decision to file a charge with or participate in an investigation conducted by any governmental entity.
2.Waiver of Claims. The Grantee recognizes and agrees that, before being selected by the Committee to receive an Award, the Grantee has no right to any benefits under the Plan. Accordingly, in consideration of the Grantee’s receipt of the Award, the Grantee expressly waives any right to contest the amount of any Award, the terms of any Award Agreement, any determination, action or omission hereunder or under any Award Agreement by the Committee, any member of the Group or the Board, or any amendment to the Plan or any Award Agreement (other than an amendment to the Plan or an Award Agreement to which the Grantee’s consent is expressly required by the express terms of an Award Agreement).
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II.Grantee who resides in the United States
1.Mutual Dispute Resolution and Arbitration. By entering into this RSU Award Agreement, the Company and the Grantee agree, to the furthest extent permitted by the Federal Arbitration Act (“FAA”) and Applicable Law, that any past, present, or future claim arising out of relating to this RSU Award Agreement that could otherwise be raised in court shall instead be raised and adjudicated through binding arbitration (“Covered Claims”) to be held in Atlanta, Georgia. Arbitration is the process by which a neutral third party, such as a retired judge, resolves a dispute through a binding decision rather than a judge or jury in court.
2.Covered Claims. Covered Claims include, but are not limited to, claims for wages and other compensation, breach of contract, discrimination, wrongful termination, tort, and violation of any federal, state, or local law, to the maximum extent permitted by Applicable Law. Further, Covered Claims include claims that (i) the Company has against the Grantee, (ii) the Grantee has against the Company, and (iii) the Grantee has against the Company’s past, present, and future owners, directors, officers, employees, agents, affiliates, subsidiaries, and/or alleged joint employers. The only claims excluded from the definition of Covered Claims are (i) claims for workers’ compensation and unemployment benefits, (ii) claims covered by the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 (9 U.S.C. § 402(a)), (iii) charges, complaints, or petitions to a federal, state, or local government agency, such as the National Labor Relations Board, Equal Employment Opportunity Commission, or Securities Exchange Commission, (iv) claims for temporary relief in court to maintain the status quo pending arbitration if the arbitration award would be rendered ineffectual absent such relief, and (v) claims that, after application of the FAA and FAA preemption principles or any other Applicable Law, are not subject to arbitration or pre-dispute arbitration agreements as a matter of law.
3.Class Action Waiver. The Company and the Grantee agree, to the furthest extent permitted by Applicable Law, that (i) all Covered Claims shall be raised and adjudicated on an individual basis only; and (ii) there shall be no right or authority to bring, adjudicate, or participate in a multi-plaintiff/claimant, class, collective, or non-individual action involving Covered Claims. To the extent that the Company or the Grantee seeks to bring a claim under the California Labor Code Private Attorneys General Act or other private attorneys general act statute, the individual claims shall be arbitrated on an individual basis and the non-individual claims shall be dismissed, stayed, or litigated in court in accordance with Applicable Law.
4.Initiating Arbitration. To initiate arbitration, a party must submit a demand for arbitration. The demand for arbitration must be in writing, personally signed by the person initiating the claim, and initiated within the time period required under the statute of limitations applicable to the claims had the claims been raised in court. To initiate arbitration, the Grantee must deliver the written and personally-signed demand to the Company, via certified mail, at the address provided in Section 11 of the RSU Award Agreement. For the Company to initiate arbitration, it must deliver the written demand for arbitration, signed by the Company, to the Grantee via certified mail at the last known address recorded in the Grantee’s personnel records. The party initiating arbitration also must, within the time period required under the applicable
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statute(s) of limitations, initiate the arbitration with JAMS (see https://www.jamsadr.com for instructions).
5.Arbitration Procedures. Absent further mutual agreement by the parties, the arbitration shall be conducted by a single arbitrator and administered by JAMS pursuant to the JAMS employment arbitration rules then in effect (available at https://www.jamsadr.com/rules-employment-arbitration/) to the extent that the JAMS employment rules are consistent with the provisions of the RSU Award Agreement. The arbitrator shall (i) have the authority to issue any type of discovery available to the parties had the claims been asserted in a court with jurisdiction (including third-party subpoenas), (ii) decide dispositive motions, including motions to dismiss and motions for summary judgment, (iii) apply the same substantive law that would have applied to the claims and defenses had the dispute been raised and heard in a court with jurisdiction, (iv) have the authority to grant any relief available to the parties under Applicable Law, and (v) issue a written decision, with factual and legal reasons provided. The Company shall pay for the arbitrator’s fees and any costs or fees unique to arbitration.
6.Survival. The arbitration provisions and agreement in this Appendix A shall survive any termination of the RSU Award Agreement or termination of the Grantee’s employment with the Company; however, in California, the arbitration provisions and agreement in this Appendix A shall expire once all of the following events have occurred: (i) the Grantee’s employment with the Company terminates; and (ii) thereafter, all statutes of limitations (and any tolling periods) for all Covered Claims have all expired.
7.Amendment to Arbitration Provisions in this Appendix A. Notwithstanding Section 7 of the RSU Award Agreement, the parties acknowledge and agree that arbitration provisions set forth in this Appendix A may not be amended or modified without the Grantee’s prior written consent.
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