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HSIC Henry Schein

Filed: 4 May 21, 4:29pm
 
 
 
 
 
 
 
 
 
 
 
 
 
 
1
Form 3
3/21
 
 
Exhibit
 
10.2
FORM
 
OF
2021
 
SPECIAL
 
PANDEMIC
 
RECOGNITION
 
AWARD
 
RESTRICTED
 
STOCK
 
UNIT
 
AGREEMENT
PURSUANT
 
TO
 
THE
 
HENRY
 
SCHEIN,
 
INC.
 
2020
 
STOCK
 
INCENTIVE
 
PLAN
 
(AS
 
AMENDED
 
AND
 
RESTATED
 
EFFECTIVE
 
AS
 
OF
 
MAY
 
21,
 
2020)
 
 
THIS AGREEMENT (the “Agreement”) is made as of [Grant
 
Date] (the “Grant Date”), by and between Henry Schein,
 
Inc. (the “Company”) and
[Participant Name] (the “Participant”). Additional country-specific
 
terms and conditions that govern the grant made hereunder
 
are attached hereto on Annex 1,
which terms and conditions are incorporated by reference
 
herein and made a part of the Agreement.
 
W
 
I
 
T
 
N
 
E
 
S
 
S
 
E
 
T
 
H:
WHEREAS
, the Company has adopted the Henry Schein, Inc.
 
2020 Stock Incentive Plan (as amended and restated effective as
 
of May 21, 2020),
as amended from time to time (the “Plan”) (a copy
 
of which is on file with the Company’s Corporate Human Resources Department and is available
 
for
Participant to review upon request at reasonable intervals
 
as determined by the Company), which is administered
 
by a Committee appointed by the Company’s
Board of Directors (the “Committee”);
 
WHEREAS,
 
pursuant to Section 9(d) of the Plan, the Committee may
 
grant Restricted Stock Units to Key Employees under
 
the Plan;
 
WHEREAS
, the shares of the Company’s common stock are traded on the Nasdaq Stock
 
Market under the symbol “HSIC”; and
WHEREAS
, the Participant is a Key Employee of the Company
 
or a Subsidiary.
NOW,
 
THEREFORE
, for and in consideration of the mutual promises herein
 
contained, and for other good and valuable consideration,
 
the receipt
and sufficiency of which are hereby acknowledged, the parties agree
 
as follows:
1.
 
Grant
 
of
 
Restricted
 
Stock
 
Units
.
Subject to the restrictions and other conditions set forth
 
herein, in the Plan and Annex 1, the Committee has authorized
 
this grant of [Shares
Granted] Restricted Stock Units to the Participant on the Grant
 
Date.
2.
 
Vesting
 
and
 
Payment
.
(a)
 
Except as set forth in Sections 2(c) and 2(d), fifty percent (50%)
 
of the Restricted Stock Units shall vest on the first
anniversary of the Grant Date, and fifty percent (50%)
 
of the Restricted Stock Units shall vest on the second anniversary
 
of the Grant Date (each, a “Scheduled
Payment Date”); in each case, provided that the Participant
 
has not had a Termination of Employment at any time prior to
 
the applicable Scheduled Payment
Date.
(b)
 
Except as set forth in Section 2(c), there shall be no
 
proportionate or partial vesting in the periods prior to the vesting
 
date
and all vesting shall occur only on the vesting date; provided
 
that no Termination of Employment has occurred prior to such date.
(c)
 
The Restricted Stock Units shall vest on a pro-rated basis upon
 
the Participant’s Retirement, unless otherwise provided
expressly in a written agreement between the Participant and
 
the Company (or a Subsidiary).
 
For purposes of this Section 2(c), the Participant shall
 
qualify for
“Retirement” if (i) the Participant’s age (minimum 55) plus years of service with
 
the Company and its Subsidiaries equal or exceed 70, (ii)
 
the Participant has
provided written notice of the Participant’s retirement to the Company at least
 
30 days prior to the date of such retirement, and (iii) no Termination of
Employment has occurred prior to the date of such retirement.
 
For purposes of determining the age and service requirement
 
under Section 2(c)(i), the
Participant’s age and years of service shall be determined by the Participant’s most recent birthday and employment
 
anniversary, respectively.
 
For purposes of
this Section 2(c), vesting on a pro-rated basis shall be calculated
 
as the difference between (x) the product of (A) the number
 
of Restricted Stock Units set forth
under Section 1 and (B) a fraction, the numerator of which
 
is the number of days from the Grant Date to the
 
date of the Participant’s Retirement and the
denominator of which is the number of days from the Grant
 
Date to the second anniversary of the Grant Date, minus
 
(y) the number of Restricted Stock Units
that have previously
 
vested as of the date of the Participant’s Retirement (if any).
 
(d)
 
The Restricted Stock Units shall become fully vested
 
on the earliest of (i) a Termination of Employment by the Company (or
a Subsidiary) without Cause occurring within the 2-year
 
period following a Change of Control, (ii) the Participant’s Disability and (iii) the Participant’s death;
provided that no Termination of Employment has occurred prior to any such event, unless otherwise
 
provided expressly in a written agreement between the
Participant and the Company (or a Subsidiary).
 
For purposes of this Agreement, “Cause” shall have
 
the meaning set forth in Section 7(b) of the Plan, but shall
also include any breach by Participant of any agreement
 
with the Company or any of its Subsidiaries.
 
For purposes of this Agreement, a “Change of Control”
shall mean a Change of Control as defined in the Plan.
 
For purposes of this Agreement, “Disability” shall mean
 
the approval of, and receiving benefits for,
long term disability by the disability insurance carrier under
 
the Company’s (or if applicable, Subsidiary’s) long term disability plan.
 
(e)
 
The Participant shall be entitled to receive one share of Common
 
Stock with respect to one vested Restricted Stock Unit.
 
The
Participant shall be paid one share of Common Stock with respect
 
to each vested Restricted Stock Unit within thirty (30)
 
days of the Scheduled Payment Date;
except that, in the event of (i) Retirement, (ii) a Termination of Employment by the Company
 
(or a Subsidiary) without Cause occurring within the
 
2-year
period following a Change of Control, (iii) death or (iv)
 
Disability, the Participant shall be paid within thirty (30) days of such Retirement, Termination of
Employment, death or Disability, subject to Section 18 set forth in Annex 1 to the extent
 
applicable, including with respect to a Participant who
 
qualifies for
Retirement at any time following the Grant Date.
 
3.
 
Forfeiture
 
and
 
Recoupment.
(a)
 
Subject to Section 2 above, all unvested Restricted Stock Units will
 
be forfeited on the Participant’s Termination of
Employment.
(b)
 
Notwithstanding anything herein or in the Plan to the
 
contrary, the grant of Restricted Stock Units (including any dividends
credited thereupon) provided for under this Agreement is conditioned
 
on the Participant not engaging in any Competitive Activity
 
(as defined below) from the
date that is twelve (12) months prior to the applicable settlement
 
date set forth in Section 2(a) or Section 2(e) above, as
 
applicable (such applicable settlement
date, the “Payment Date”) through the first anniversary
 
of such Payment Date. If, on or after the date that is
 
twelve (12) months prior to the Payment Date but
prior to the Payment Date, the Participant engages in
 
a Competitive Activity, the Committee shall have the right, in its sole discretion, to cause
 
the immediate
 
 
 
 
 
 
 
2
Form 3
3/21
 
 
forfeiture of all of the Restricted Stock Units (including any
 
dividends credited thereupon) (whether or not vested) shall
 
be immediately forfeited in their
entirety, in which case the Participant shall have no further rights or interests with respect
 
to such Restricted Stock Units (including any such
 
dividends).
 
In the
event that the Participant engages in a Competitive Activity
 
on or after the Payment Date but on or prior to the first anniversary
 
of such Payment Date, the
Company shall have the right to recoup from the Participant,
 
and the Participant shall repay to the Company, within thirty (30) days following demand
 
by the
Company, a payment equal to the Fair Market Value of the aggregate shares of Common Stock payable in respect of such Restricted
 
Stock Units (including
any dividends credited thereupon) on the Payment Date (including
 
any dividends or other distributions thereafter paid thereon);
 
provided, that, the Company
may require the Participant to satisfy such payment obligations
 
hereunder either by forfeiting and returning to the Company such
 
shares of Common Stock,
Restricted Stock Units, dividends or any other Shares,
 
or making a cash payment or any combination of these methods,
 
as determined by the Company in its
sole discretion.
 
The Company and its Subsidiaries, in their sole
 
discretion, shall have the right to set off (or cause to be set off) any amounts
 
otherwise due to
the Participant from the Company (or the applicable Subsidiary)
 
in satisfaction of such repayment obligation, provided
 
that any such amounts are exempt from,
or set off in a manner intended to comply with, the requirements
 
of any applicable law (including, without limitation, Section
 
409A of the Code).
(c)
 
The Participant hereby acknowledges and agrees that the forfeiture
 
and recoupment conditions set forth in this Section
 
3, in
view of the nature of the business in which the Company
 
and its affiliates are engaged, are reasonable in scope and necessary
 
in order to protect the legitimate
business interests of the Company and its affiliates, and that any violation
 
thereof would result in irreparable harm to the Company and
 
its affiliates. The
Participant also acknowledges and agrees that (i) it is a material
 
inducement and condition to the Company’s issuance of the Restricted Stock Units
 
(including
any dividends credited thereupon) that such Participant agrees
 
to be bound by such forfeiture and recoupment conditions and, further, that the amounts
 
required
to be forfeited or repaid to the Company pursuant to forfeiture
 
and recoupment conditions set forth above are reasonable,
 
and (ii) nothing in this Agreement or
the Plan is intended to preclude the Company (or any
 
affiliate thereof) from seeking any remedies available at law, in equity, under contract to the Company or
otherwise, and the Company (or any affiliate thereof) shall have
 
the right to seek any such remedy with respect
 
to the Restricted Stock Units, any dividends
credited thereupon, or otherwise.
(d)
 
For purposes of this Agreement, the Participant will be deemed
 
to engage in a “Competitive Activity” if, either directly
 
or
indirectly, without the express prior written consent of the Company, the Participant (i) takes other employment
 
with, renders services to, or otherwise engages
in any business activities with, companies or other entities
 
that are competitors of the Company or any of its affiliates, (ii) solicits
 
or induces, or in any manner
attempts to solicit or induce, any person employed by or otherwise
 
providing services to the Company or any of its
 
affiliates, to terminate such person’s
employment or service relationship, as the case may be, with
 
the Company or any of its affiliates, (iii) diverts, or
 
attempts to divert, any person or entity from
doing business with the Company or any of its affiliates or induces,
 
or attempts to induce, any such person or entity from
 
ceasing to be a customer or other
business partner of the Company or any of its affiliates, (iv) violates
 
any agreement between the Participant and the Company or any
 
of its affiliates relating to
the non-disclosure of proprietary or confidential information
 
of the Company or any of its affiliates, and/or (v) conducts himself
 
or herself in a manner
adversely affecting the Company or any of its affiliates, including, without limitation,
 
making false, misleading or negative statements, either
 
orally or in
writing, about the Company or any of its affiliates. The determination
 
as to whether the Participant has engaged in a Competitive Activity
 
shall be made by the
Committee in its sole discretion.
(e)
 
This Section 3(e) applies solely with respect to Participants
 
who are members of the Company’s Executive Management
Committee.
 
Notwithstanding anything herein to the contrary, Participant agrees and acknowledges
 
that the Restricted Stock Units awarded under this
Agreement and the underlying shares shall be subject to the terms
 
and conditions of the Company’s Incentive Compensation Recoupment Policy
 
approved by
the Board.
 
Notwithstanding the foregoing, Participant agrees that
 
incentive compensation, as defined under of the Dodd-Frank Wall Street Reform and
Consumer Protection Act of 2010 and such regulations as
 
are promulgated thereunder from time to time (“Dodd-Frank”),
 
payable to Participant under this
Agreement shall be subject to any clawback policy adopted
 
or implemented by the Company in respect of Dodd-Frank,
 
or in respect of any other applicable
law or regulation.
4.
 
Dividend
 
Equivalents.
 
Cash dividends on Shares shall be credited to a
 
dividend book entry account on behalf of the Participant with respect
 
to
each Restricted Stock Unit granted to a Participant, provided
 
that such cash dividends shall not be deemed to be reinvested
 
in Shares and will be held
uninvested and without interest and paid in cash if and when the
 
Restricted Stock Unit vests.
 
Stock dividends on Shares shall be credited to a dividend
 
book
entry account on behalf of the Participant with respect to each
 
Restricted Stock Unit granted to a Participant, provided
 
that the Participant shall not be entitled
to such dividend unless and until the Restricted Stock Unit vests.
5.
 
Rights
 
as
 
a
 
Stockholder
.
 
The Participant shall have no rights as a stockholder with
 
respect to any shares covered by any Restricted Stock
 
Unit
unless and until the Participant has become the holder
 
of record of the shares, and no adjustments shall be made
 
for dividends in cash or other property,
distributions or other rights in respect of any such shares,
 
except as otherwise specifically provided for in
 
this Agreement or the Plan.
6.
 
Withholding
.
 
Participant shall pay, or make arrangements to pay, in a manner satisfactory to the Company, an amount equal to the amount of all
applicable foreign, federal, state, provincial and local taxes that
 
the Company is required to withhold at any time.
 
In the absence of such arrangements, the
Company or one of its Subsidiaries shall have the right to withhold
 
such taxes from the Participant’s normal pay or other amounts payable to the Participant.
 
In addition, any statutorily required withholding obligation may
 
be satisfied, in whole or in part, at the Participant’s election, in the form
 
and manner
prescribed by the Committee, by delivery of shares of Common
 
Stock (including shares issuable under this Agreement).
7.
 
Provisions
 
of
 
Plan
 
Control
.
 
This Agreement is subject to all the terms, conditions
 
and provisions of the Plan, including, without limitation,
 
the
amendment provisions thereof, and to such rules, regulations
 
and interpretations relating to the Plan as may be
 
adopted by the Committee and as may be in
effect from time to time.
 
The Plan is incorporated herein by reference.
 
Capitalized terms in this Agreement that are not otherwise
 
defined shall have the same
meaning as set forth in the Plan.
 
Subject to Section 3, if and to the extent that this Agreement
 
conflicts or is inconsistent with the terms, conditions
 
and
provisions of the Plan, the Plan shall control, and this Agreement
 
shall be deemed to be modified accordingly.
 
This Agreement contains the entire
understanding of the parties with respect to the subject matter
 
hereof and supersedes any prior agreements between the
 
Company and the Participant with
respect to the subject matter hereof.
 
8.
 
Amendment.
 
To the extent applicable, the Board or the Committee may at any time and from time
 
to time amend, in whole or in part, any or all of
the provisions of this Agreement to comply with any applicable
 
laws and stock exchange rules and regulations (including,
 
without limitation, Section 409A of
the Code and the regulations thereunder) and may also amend,
 
suspend or terminate this Agreement subject to the
 
terms of the Plan.
 
Except as otherwise
provided in the Plan, no modification or waiver of any of
 
the provisions of this Agreement shall be effective unless in writing
 
and signed by the party against
whom it is sought to be enforced.
 
9.
 
Notices.
 
Any notice or communication given hereunder shall be in writing
 
and shall be deemed to have been duly given when delivered in
 
person,
or by regular United States mail or similar foreign mail
 
or post, first class and prepaid, to the appropriate party
 
at the address set forth below (or such other
address as the party shall from time to time specify):
 
If to the Company, to:
 
 
 
 
 
 
 
 
3
Form 3
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Henry Schein, Inc.
135 Duryea Road
Melville, New York
 
11747
Attention:
 
General Counsel
If to the Participant, to the address on file with the Company.
10.
 
 
No
 
Obligation
 
to
 
Continue
 
Employment
 
or
 
Services
.
 
This Agreement is not an agreement of employment,
 
consultancy or directorship.
 
This
Agreement does not guarantee that the Company or its Subsidiaries
 
will employ or retain, or continue to employ or retain,
 
the Participant during the entire, or
any portion of the, term of this Agreement, including
 
but not limited to any period during which any Restricted Stock
 
Unit is outstanding, nor does it modify in
any respect the Company or its Subsidiaries’ right to terminate
 
or modify the Participant’s employment, service relationship or compensation.
 
11.
 
 
Legend
.
 
The Company may at any time place legends referencing any
 
applicable federal, state or foreign securities law restrictions on all
certificates representing Shares issued pursuant to this Agreement.
 
The Participant shall, at the request of the Company, promptly present to the Company any
and all certificates representing Shares acquired pursuant
 
to this Agreement in the possession of the Participant
 
in order to carry out the provisions of this
Section.
12.
 
 
Securities
 
Representations
.
 
The grant of the Restricted Stock Units and issuance of Shares
 
upon vesting of the Restricted Stock Units shall be
subject to, and in compliance with, all applicable requirements
 
of federal, state or foreign securities law.
 
No Shares may be
 
issued hereunder if the issuance of
such Shares would constitute a violation of any applicable federal,
 
state or foreign securities laws or other law or regulations
 
or the requirements of any stock
exchange or market system upon which the Shares may
 
then be listed.
 
As a condition to the settlement of the Restricted Stock
 
Units, the Company may
require the Participant to satisfy any qualifications that may
 
be necessary or appropriate, to evidence compliance with any
 
applicable law or regulation.
 
The Shares are being issued to the Participant and this Agreement
 
is being made by the Company in reliance upon the following
 
express
representations and warranties of the Participant.
 
The Participant acknowledges, represents and warrants
 
that:
(a)
 
He or she has been advised that he or she may be an “affiliate” within
 
the meaning of Rule 144 under the Securities Act
 
of
1933, as amended (the “Act”) and in this connection the Company
 
is relying in part on his or her representations set forth in
 
this section.
(b)
 
If he or she is deemed an affiliate within the meaning of Rule
 
144 of the Act, the Shares must be held indefinitely
 
unless an
exemption from any applicable resale restrictions is available
 
or the Company files an additional registration statement
 
(or a “re-offer prospectus”) with regard
to such Shares and the Company is under no obligation to register
 
the Shares (or to file a “re-offer prospectus”).
(c)
 
If he or she is deemed an affiliate within the meaning of Rule
 
144 of the Act, he or she understands that the exemption from
registration under Rule 144 will not be available unless (i)
 
a public trading market then exists for the Common Stock
 
of the Company, (ii) adequate information
concerning the Company is then available to the public, and
 
(iii) other terms and conditions of Rule 144 or any exemption
 
therefrom are complied with; and
that any sale of the Shares may be made only in limited
 
amounts in accordance with such terms and conditions.
13.
 
 
Transfer
 
of
 
Personal
 
Data.
 
The Participant authorizes, agrees and unambiguously
 
consents to the transmission and processing by the Company
(or any Subsidiary) of any personal data information related
 
to Restricted Stock Units awarded under this Agreement,
 
for legitimate business purposes
(including, without limitation, the administration of the Plan)
 
out of the Participant’s home country and including to countries with less data protection
 
laws
than the data protection laws provided by the Participant’s home country.
 
This authorization/consent is freely given by the Participant.
14.
 
 
Delivery
 
Delay.
 
The delivery of any certificate representing the Common
 
Stock may be postponed by the Company for such period as
 
may be
required for it to comply with any applicable foreign,
 
federal, state or provincial securities law, or any national securities
 
exchange listing requirements and the
Company is not obligated to issue or deliver any securities
 
if, in the opinion of counsel for the Company, the issuance of such Shares shall constitute
 
a
violation by the Participant or the Company of any provisions
 
of any applicable foreign, federal, state or provincial law
 
or of any regulations of any
governmental authority or any national securities exchange.
 
The Participant acknowledges and understands that
 
the Company intends to meet its delivery
obligations in Common Stock with respect to Restricted Stock
 
Units, except as may be prohibited by law or described
 
in this Agreement, the Plan or
supplementary materials.
 
15.
 
 
Miscellaneous.
 
This Agreement shall inure to the benefit of and be binding
 
upon the parties hereto and their respective heirs, legal representatives,
 
successors and
assigns.
(a)
 
This Agreement shall be governed and construed in accordance
 
with the laws of New York (regardless of the law that might
otherwise govern under applicable New York principles of conflict of laws).
(b)
 
This Agreement may be executed in one or more counterparts,
 
all of which taken together shall constitute one contract.
(c)
 
The failure of any party hereto at any time to require performance
 
by another party of any provision of this Agreement shall
not affect the right of such party to require performance of that
 
provision, and any waiver by any party of any breach of
 
any provision of this Agreement shall
not be construed as a waiver of any continuing or succeeding
 
breach of such provision, a waiver of the provision itself,
 
or a waiver of any right under this
Agreement.
(d)
 
This Agreement and the Plan do not create a joint venture
 
or partnership between the Company and any Subsidiary.
 
(e)
 
Notwithstanding any provisions in this Agreement, this
 
grant of Restricted Stock Units shall be subject to any additional
country-specific terms and conditions set forth in Annex 1 to
 
the Agreement for the Participant’s country to the extent applicable. Moreover, if Participant
relocates to one of the countries included in Annex 1, the additional
 
country-specific terms and conditions for such country, if any, will apply to Participant to
the extent that the Company determines that the application
 
of such terms and conditions is necessary or advisable for legal
 
or administrative reasons.
16.
 
 
ACQUIRED
 
RIGHTS
.
 
THE PARTICIPANT
 
ACKNOWLEDGES AND AGREES THAT: (A) THE COMPANY MAY
 
TERMINATE OR
AMEND THE PLAN AT ANY TIME; (B) THE AWARD
 
OF RESTRICTED STOCK UNITS MADE UNDER THIS
 
AGREEMENT IS COMPLETELY
INDEPENDENT OF ANY OTHER AWARD OR GRANT AND IS MADE AT THE SOLE DISCRETION OF THE COMPANY;
 
AND (C) NO PAST
GRANTS OR AWARDS
 
(INCLUDING, WITHOUT LIMITATION, THE RESTRICTED STOCK UNITS AWARDED
 
HEREUNDER) GIVE THE
PARTICIPANT
 
ANY RIGHT TO ANY GRANTS OR AWARDS IN THE FUTURE WHATSOEVER.
 
 
 
 
 
 
 
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IN
 
WITNESS
 
WHEREOF
, the parties hereto have executed this Agreement as of
 
the day and year first set forth above.
HENRY
 
SCHEIN,
 
INC.
 
___________________________
Michael S. Ettinger
Senior Vice President, Corporate & Legal Affairs and Chief of Staff
 
 
 
PARTICIPANT
 
[Electronic Signature]
 
 
 
 
 
 
 
[Participant Name]
 
 
 
 
[Acceptance Date]
ANNEX
 
1
Additional
 
Country
 
Specific
 
Terms
 
and
 
Conditions
 
for
 
the
 
Restricted
 
Stock
 
Unit
 
Agreement
 
This Annex 1 includes additional terms and conditions that govern
 
the Restricted Stock Units granted to the Participant
 
under the Plan if the
Participant works or resides in, or is otherwise subject to
 
the taxes imposed by, one of the countries listed below. This Annex 1 also includes other information
that may impact the Participant’s participation in the Plan. Certain capitalized terms
 
used but not defined in this Annex 1 have the meanings set forth
 
in the
Plan and/or the Agreement. This Annex 1 forms part
 
of the Agreement and should be read in conjunction with
 
the Agreement and the Plan.
 
The Participant agrees to sign any additional agreements
 
or undertakings that may be necessary or advisable in order
 
to comply with applicable law
or facilitate the administration of the Plan. Furthermore,
 
the Participant acknowledges that the applicable law of the
 
country in which the Participant is subject
to taxes or is residing or working at the time of grant or
 
vesting of the Restricted Stock Units or the sale
 
of shares of Common Stock received pursuant to the
Restricted Stock Units (including any rules or regulations
 
governing securities, foreign exchange, tax, labor, employment, or other matters)
 
may restrict or
prevent the issuance of shares of Common Stock or subject the Participant
 
to additional terms and conditions or procedural or regulatory
 
requirements that the
Participant is or will be solely responsible for and must
 
fulfill. Such requirements may be outlined in but are
 
not limited to items listed below in this Annex 1.
 
 
If the Participant is a citizen or resident of a country other
 
than the country in which he or she is subject to
 
taxes or is residing and/or working, or if
the Participant transfers employment or residency after the Restricted
 
Stock Units are granted to him or her, the information contained in this Annex
 
1 may not
be applicable to the Participant. Tax laws are often complex and outcomes can vary
 
depending on individual circumstances. Accordingly, the Participant is
advised to seek appropriate professional advice as to
 
how tax and other relevant laws in the applicable country may
 
apply to his or her situation.
 
 
UNITED STATES
 
The second to last sentence of Section 2(d) of Agreement
 
is hereby deleted in its entirety and replaced with the following:
“For the purposes of this Agreement, a “Change of Control”
 
shall mean the occurrence of a Section 409A Change
 
of Control (as defined in Section
17).”
 
As of the Grant Date, if the Participant either (i) qualifies
 
for Retirement (as defined in Section 2(c) of the Agreement)
 
or (ii) may become eligible to qualify
for Retirement prior to the Scheduled Payment Date, Section
 
4 of the Agreement is hereby deleted in its entirety and replaced
 
with the following:
 
 
“Dividend Equivalents.
 
Cash dividends on Shares shall be credited to a
 
dividend book entry account on behalf of the Participant with
 
respect to
each Restricted Stock Unit granted to the Participant, provided
 
that such cash dividends shall not be deemed to be reinvested
 
in Shares and will be held
uninvested and without interest.
 
The Participant’s right to receive any such cash dividends shall vest if
 
and when the related Restricted Stock Unit vests, and
such cash dividends shall be paid in cash to the Participant if and
 
when the related Restricted Stock Unit is paid to the
 
Participant.
 
Stock dividends on Shares
shall be credited to a dividend book entry account on behalf
 
of the Participant with respect to each Restricted Stock Unit
 
granted to the Participant.
 
The
Participant’s right to receive any such stock dividends shall vest if and when the
 
related Restricted Stock Unit vests, and such stock dividends
 
shall be paid in
stock to the Participant if and when the related Restricted Stock
 
Unit is paid to the Participant.”
 
The following shall be added to the Agreement as a new Section
 
17:
 
“Change of Control Defined.
 
For purposes of this Agreement, a “Section 409A
 
Change of Control” shall be deemed to have occurred upon:
 
 
(i) an acquisition by any Person of beneficial ownership (within
 
the meaning of Rule 13d-3 promulgated under the Act) of (A)
 
50% or more of the
then outstanding Shares or (B) 33% or more of the total combined
 
voting power of the then outstanding voting securities of HSI
 
entitled to vote
generally in the election of directors (the “Outstanding HSI
 
Voting
 
Securities”); excluding, however, the following: (w) any acquisition directly
from the Company, other than an acquisition by virtue of the exercise of a conversion privilege
 
unless the security being so converted was itself
acquired directly from the Company, (x) any acquisition by the Company, (y) any acquisition by an employee benefit
 
plan (or related trust)
sponsored or maintained by the Company or (z) any acquisition
 
by any corporation pursuant to a reorganization, merger, consolidation or similar
corporate transaction (in each case, a “Corporate Transaction”), if, pursuant
 
to such Corporate Transaction, the conditions described in clauses (A),
(B) and (C) of paragraph (iii) below are satisfied; or
 
(ii) within any 12-month period beginning on or after the date
 
of the Agreement, the individuals who constitute the Board immediately
 
before the
beginning of such period (the Board as of the date hereof shall
 
be hereinafter referred to as the “Incumbent Board”)
 
cease for any reason to
 
 
5
Form 3
3/21
 
 
constitute at least a majority of the Board; provided that for
 
purposes of this Subsection any individual who becomes a
 
member of the Board
subsequent to the date hereof whose election, or nomination
 
for election by HSI’s stockholders, was approved by a vote of at least a majority of
those individuals who are members of the Board and who are
 
also members of the Incumbent Board (or deemed to
 
be such pursuant to this proviso)
shall be considered as though such individual were a member
 
of the Incumbent Board; but, provided further, that any such individual whose
 
initial
assumption of office occurs as a result of either an actual or threatened
 
election contest (as such terms are used in Rule 14a-11 of Regulation 14A
promulgated under the Act) or other actual or threatened solicitation
 
of proxies or consents by or on behalf of a Person other than
 
the Board shall
not be so considered as a member of the Incumbent Board;
 
or
 
(iii) the consummation of a Corporate Transaction or, if consummation of such Corporate Transaction is subject
 
to the consent of any government
or governmental agency, the obtaining of such consent (either explicitly or implicitly by consummation);
 
excluding, however, such a Corporate
Transaction pursuant to which (A) all or substantially all of the individuals
 
and entities who are the beneficial owners, respectively, of the
outstanding Shares and Outstanding HSI Voting Securities immediately prior to such Corporate Transaction will beneficially
 
own, directly or
indirectly, more than 60% of, respectively, the outstanding shares of common stock of the corporation resulting from
 
such Corporate Transaction
and the combined voting power of the outstanding voting securities
 
of such corporation entitled to vote generally in the election of directors,
 
in
substantially the same proportions as their ownership, immediately
 
prior to such Corporate Transaction, of the outstanding Shares and Outstanding
HSI Voting Securities, as the case may be, (B) no Person (other than the Company, any employee benefit plan (or related trust) of the Company or
the corporation resulting from such Corporate Transaction and any Person
 
beneficially owning, immediately prior to such Corporate Transaction,
directly or indirectly, 33% or more of the outstanding Shares or Outstanding HSI
 
Voting
 
Securities, as the case may be, will beneficially own,
directly or indirectly, 33% or more of, respectively, the outstanding shares of common stock of the corporation resulting
 
from such Corporate
Transaction or the combined voting power of the then outstanding securities
 
of such corporation entitled to vote generally in the election
 
of
directors and (C) individuals who were members of the Incumbent
 
Board will constitute at least a majority of the members
 
of the board of directors
of the corporation resulting from such Corporate Transaction; or
 
(iv) the sale or other disposition of all or substantially all
 
of the assets of the Company; excluding, however, such sale or other
 
disposition to a
corporation with respect to which, following such sale or
 
other disposition, (x) more than 60% of, respectively, the then outstanding shares of
common stock of such corporation and the combined
 
voting power of the then outstanding voting securities
 
of such corporation entitled to vote
generally in the election of directors will be then beneficially
 
owned, directly or indirectly, by all or substantially all of the individuals and entities
who were the beneficial owners, respectively, of the outstanding
 
Common Stock and Outstanding HSI Voting Securities immediately prior to such
sale or other disposition in substantially the same proportion
 
as their ownership, immediately prior to such sale or
 
other disposition, of the
outstanding Common Stock and Outstanding HSI Voting Securities, as the case may be, (y) no Person (other than
 
the Company and any employee
benefit plan (or related trust) of the Company or such corporation
 
and any Person beneficially owning, immediately prior to such
 
sale or other
disposition, directly or indirectly, 33% or more of the outstanding Common Stock or Outstanding
 
HSI Voting Securities, as the case may be) will
beneficially own, directly or indirectly, 33% or more of, respectively, the then outstanding shares of common stock
 
of such corporation and the
combined voting power of the then outstanding voting securities
 
of such corporation entitled to vote generally in the election
 
of directors and (z)
individuals who were members of the Incumbent Board will
 
constitute at least a majority of the members of the board
 
of directors of such
corporation.
 
(v) No event set forth herein shall constitute a “Section
 
409A Change of Control” unless such event also qualifies
 
as a “change in control event” for
purposes of Treasury Regulation § 1.409A-3(i)(5).
 
Accordingly, the definition of “Section 409A Change of Control” set forth herein shall
 
be
limited, construed and interpreted in accordance with Section
 
409A and the regulations issued thereunder.”
 
The following shall be added to the Agreement as a new Section
 
18:
 
 
“Section 409A.
 
This Agreement is subject to Section 16(i) of the
 
Plan, and any provisions in this Agreement providing
 
for the payment of
“nonqualified deferred compensation” (as defined in Section
 
409A of the Code and the Treasury regulations thereunder) to the Participant
 
are intended to
comply with, or be exempt from, the requirements of Section
 
409A of the Code, and this Agreement shall be interpreted in
 
accordance therewith.
 
Neither
party individually or in combination may accelerate or defer the
 
timing of the payment of any such nonqualified deferred
 
compensation, except in compliance
with Section 409A of the Code and this Agreement, and no amount
 
shall be paid prior to the earliest date on which
 
it is permitted to be paid under Section
409A of the Code and this Agreement.
 
In no event whatsoever shall the Company be liable
 
for any additional tax, interest or penalty that may be imposed
 
on
the Participant as a result of Section 409A of the Code or
 
any damages for failing to comply with Section 409A
 
of the Code.
 
A Termination of Employment or
Retirement shall not be deemed to have occurred for
 
purposes of any provision of this Agreement providing for
 
the payment of any amounts or benefits subject
to Section 409A of the Code upon or following a Termination of Employment or Retirement,
 
as applicable, unless such Termination of Employment or
Retirement, as applicable, is also a “separation from service”
 
within the meaning of Section 409A of the Code and, for
 
purposes of any such provision of this
Agreement, references to a “termination,” “termination of employment”
 
or like terms shall mean “separation from service.” If
 
the Participant is a “specified
employee,” upon his or her “separation from service” (as defined
 
under Section 409A of the Code under such definitions
 
and procedures as established by the
Company in accordance with Section 409A of the Code), any
 
portion of a payment, settlement, or other distribution made
 
upon such a “separation from
service” that would cause the acceleration of, or an addition
 
to, any taxes pursuant to Section 409A of the Code will
 
not commence or be paid until a date that
is six (6) months and one (1) day following the applicable
 
“separation from service.” Any payments, settlements,
 
or other distributions that are delayed
pursuant to this Section 18 following the applicable “separation
 
from service” shall be accumulated and paid to the Participant
 
in a lump sum without interest
on the first business day immediately following the required
 
delay period.
 
Any amounts payable hereunder that satisfy the short-term deferral
 
exception in
Treas. Reg. §1.409A-1(b)(4) shall not be subject to Section 409A of the Code.
 
Whenever a payment under this Agreement may be
 
paid within a specified
period, the actual date of payment within the specified period shall
 
be within the Company’s sole discretion.”