Form 10-Q
Table of Contents

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

 

FORM 10-Q

 

 

(Mark One)

QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934

For the quarterly period ended November 30, 2018

or

 

TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934

For the transition period from                      to                     

Commission File Number: 001-14063

 

 

 

 

LOGO

JABIL INC.

(Exact name of registrant as specified in its charter)

 

 

 

Delaware   38-1886260

(State or other jurisdiction of

incorporation or organization)

 

(I.R.S. Employer

Identification No.)

10560 Dr. Martin Luther King, Jr. Street North, St. Petersburg, Florida 33716

(Address of principal executive offices) (Zip Code)

(727) 577-9749

(Registrant’s telephone number, including area code)

 

 

Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days.    Yes  ☒    No  ☐

Indicate by check mark whether the registrant has submitted electronically every Interactive Data File required to be submitted pursuant to Rule 405 of Regulation S-T (§232.405 of this chapter) during the preceding 12 months (or for such shorter period that the registrant was required to submit such files).    Yes  ☒    No  ☐

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company” and “emerging growth company” in Rule 12b-2 of the Exchange Act.

 

Large accelerated filer      Accelerated filer  
Non-accelerated filer      Smaller reporting company  
     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(a) of the Exchange Act.  ☐

Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act).    Yes  ☐    No  ☒

As of January 3, 2019, there were 154,715,128 shares of the registrant’s Common Stock outstanding.

 

 

 


Table of Contents

JABIL INC. AND SUBSIDIARIES INDEX

 

Part I – Financial Information

  

Item 1.

  Financial Statements   
 

Condensed Consolidated Balance Sheets as of November  30, 2018 and August 31, 2018

     1  
 

Condensed Consolidated Statements of Operations for the three months ended November 30, 2018 and 2017

     2  
 

Condensed Consolidated Statements of Comprehensive Income for the three months ended November 30, 2018 and 2017

     3  
 

Condensed Consolidated Statements of Stockholders’ Equity as of November 30, 2018 and August 31, 2018

     4  
 

Condensed Consolidated Statements of Cash Flows for the three months ended November 30, 2018 and 2017

     5  
 

Notes to Condensed Consolidated Financial Statements

     6  

Item 2.

  Management’s Discussion and Analysis of Financial Condition and Results of Operations      25  

Item 3.

  Quantitative and Qualitative Disclosures About Market Risk      37  

Item 4.

  Controls and Procedures      37  

Part II – Other Information

  

Item 1.

  Legal Proceedings      38  

Item 1A.

  Risk Factors      38  

Item 2.

  Unregistered Sales of Equity Securities and Use of Proceeds      38  

Item 3.

  Defaults Upon Senior Securities      38  

Item 4.

  Mine Safety Disclosures      38  

Item 5.

  Other Information      38  

Item 6.

  Exhibits      39  
 

Signatures

     41  

 


Table of Contents

PART I—FINANCIAL INFORMATION

 

Item 1. Financial Statements

JABIL INC. AND SUBSIDIARIES

CONDENSED CONSOLIDATED BALANCE SHEETS

(in thousands, except for share data)

 

     November 30,
2018
(Unaudited)
    August 31,
2018
 
ASSETS

 

Current assets:

    

Cash and cash equivalents

   $ 804,409     $ 1,257,949  

Accounts receivable, net of allowance for doubtful accounts of $14,401 as of November 30, 2018 and $15,181 as of August 31, 2018

     2,777,601       1,693,268  

Contract assets

     761,405       —    

Inventories, net

     3,214,513       3,457,706  

Prepaid expenses and other current assets

     662,811       1,141,000  
  

 

 

   

 

 

 

Total current assets

     8,220,739       7,549,923  

Property, plant and equipment, net of accumulated depreciation of $3,761,554 as of November 30, 2018 and $3,646,945 as of August 31, 2018

     3,271,559       3,198,016  

Goodwill

     625,431       627,745  

Intangible assets, net of accumulated amortization of $314,219 as of November 30, 2018 and $307,178 as of August 31, 2018

     270,684       279,131  

Deferred income taxes

     216,209       218,252  

Other assets

     173,715       172,574  
  

 

 

   

 

 

 

Total assets

   $ 12,778,337     $ 12,045,641  
  

 

 

   

 

 

 
LIABILITIES AND EQUITY

 

Current liabilities:

    

Current installments of notes payable and long-term debt

   $ 25,193     $ 25,197  

Accounts payable

     5,458,398       4,942,932  

Accrued expenses

     2,551,720       2,262,744  
  

 

 

   

 

 

 

Total current liabilities

     8,035,311       7,230,873  

Notes payable and long-term debt, less current installments

     2,487,912       2,493,502  

Other liabilities

     96,317       94,617  

Income tax liabilities

     136,480       148,884  

Deferred income taxes

     116,804       114,385  
  

 

 

   

 

 

 

Total liabilities

     10,872,824       10,082,261  
  

 

 

   

 

 

 

Commitments and contingencies

    

Equity:

    

Jabil Inc. stockholders’ equity:

    

Preferred stock, $0.001 par value, authorized 10,000,000 shares; no shares issued and no shares outstanding

     —         —    

Common stock, $0.001 par value, authorized 500,000,000 shares; 258,816,662 and 257,130,145 shares issued and 157,986,896 and 164,588,172 shares outstanding as of November 30, 2018 and August 31, 2018, respectively

     259       257  

Additional paid-in capital

     2,235,827       2,218,673  

Retained earnings

     1,911,451       1,760,097  

Accumulated other comprehensive loss

     (31,948     (19,399

Treasury stock at cost, 100,829,766 and 92,541,973 shares as of November 30, 2018 and August 31, 2018, respectively

     (2,223,673     (2,009,371
  

 

 

   

 

 

 

Total Jabil Inc. stockholders’ equity

     1,891,916       1,950,257  

Noncontrolling interests

     13,597       13,123  
  

 

 

   

 

 

 

Total equity

     1,905,513       1,963,380  
  

 

 

   

 

 

 

Total liabilities and equity

   $ 12,778,337     $ 12,045,641  
  

 

 

   

 

 

 

See accompanying notes to Condensed Consolidated Financial Statements.

 

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Table of Contents

JABIL INC. AND SUBSIDIARIES

CONDENSED CONSOLIDATED STATEMENTS OF OPERATIONS

(in thousands, except for per share data)

(Unaudited)

 

     Three months ended  
     November 30,
2018
    November 30,
2017
 

Net revenue

   $ 6,506,275     $ 5,585,532  

Cost of revenue

     5,986,625       5,116,247  
  

 

 

   

 

 

 

Gross profit

     519,650       469,285  

Operating expenses:

    

Selling, general and administrative

     278,126       293,055  

Research and development

     11,143       9,109  

Amortization of intangibles

     7,646       9,979  

Restructuring and related charges

     6,025       11,388  
  

 

 

   

 

 

 

Operating income

     216,710       145,754  

Other expense

     13,550       5,882  

Interest income

     (4,379     (3,813

Interest expense

     42,652       36,246  
  

 

 

   

 

 

 

Income before income tax

     164,887       107,439  

Income tax expense

     40,813       43,520  
  

 

 

   

 

 

 

Net income

     124,074       63,919  

Net income attributable to noncontrolling interests, net of tax

     474       124  
  

 

 

   

 

 

 

Net income attributable to Jabil Inc.

   $ 123,600     $ 63,795  
  

 

 

   

 

 

 

Earnings per share attributable to the stockholders of Jabil Inc.:

    

Basic

   $ 0.77     $ 0.36  
  

 

 

   

 

 

 

Diluted

   $ 0.76     $ 0.35  
  

 

 

   

 

 

 

Weighted average shares outstanding:

    

Basic

     161,557       176,936  
  

 

 

   

 

 

 

Diluted

     163,670       180,203  
  

 

 

   

 

 

 

See accompanying notes to Condensed Consolidated Financial Statements.

 

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Table of Contents

JABIL INC. AND SUBSIDIARIES

CONDENSED CONSOLIDATED STATEMENTS OF COMPREHENSIVE INCOME

(in thousands)

(Unaudited)

 

     Three months ended  
     November 30,
2018
    November 30,
2017
 

Net income

   $ 124,074     $ 63,919  

Other comprehensive income (loss):

    

Foreign currency translation adjustment

     377       (3,801

Derivative instruments

     (4,284     2,553  

Available for sale securities

     (8,745     (1,465

Actuarial gain (loss)

     103       (423
  

 

 

   

 

 

 

Total other comprehensive loss

     (12,549     (3,136
  

 

 

   

 

 

 

Comprehensive income

   $ 111,525     $ 60,783  

Comprehensive income attributable to noncontrolling interests

     474       124  
  

 

 

   

 

 

 

Comprehensive income attributable to Jabil Inc.

   $ 111,051     $ 60,659  
  

 

 

   

 

 

 

See accompanying notes to Condensed Consolidated Financial Statements.

 

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Table of Contents

JABIL INC. AND SUBSIDIARIES

CONDENSED CONSOLIDATED STATEMENTS OF STOCKHOLDERS’ EQUITY

(in thousands, except for share data)

(Unaudited)

 

     Jabil Inc. Stockholders’ Equity               
     Common Stock                  Accumulated
Other
Comprehensive
(Loss) Income
                    
     Shares
Outstanding
    Par
Value
     Additional
Paid-in
Capital
    Retained
Earnings
    Treasury
Stock
    Noncontrolling
Interests
     Total
Equity
 

Balance as of August 31, 2018

     164,588,172     $ 257      $ 2,218,673     $ 1,760,097     $ (19,399   $ (2,009,371   $ 13,123      $ 1,963,380  

Shares issued under employee stock purchase plan

     354       —          8       —         —         —         —          8  

Vesting of restricted stock awards

     1,686,163       2        (2     —         —         —         —          —    

Purchases of treasury stock under employee stock plans

     (407,447     —          —         —         —         (9,715     —          (9,715

Treasury shares purchased

     (7,880,346     —          —         —         —         (204,587     —          (204,587

Recognition of stock-based compensation

     —         —          17,148       —         —         —         —          17,148  

Declared dividends

     —         —          —         (13,101     —         —         —          (13,101

Cumulative effect adjustment for adoption of new accounting standards

     —         —          —         40,855         —         —          40,855  

Comprehensive income

     —         —          —         123,600       (12,549     —         474        111,525  
  

 

 

   

 

 

    

 

 

   

 

 

   

 

 

   

 

 

   

 

 

    

 

 

 

Balance as of November 30, 2018

     157,986,896     $ 259      $ 2,235,827     $ 1,911,451     $ (31,948   $ (2,223,673   $ 13,597      $ 1,905,513  
  

 

 

   

 

 

    

 

 

   

 

 

   

 

 

   

 

 

   

 

 

    

 

 

 

 

     Jabil Inc. Stockholders’ Equity              
     Common Stock                  Accumulated
Other
Comprehensive
Income
                   
     Shares
Outstanding
    Par
Value
     Additional
Paid-in
Capital
    Retained
Earnings
    Treasury
Stock
    Noncontrolling
Interests
    Total
Equity
 

Balance as of August 31, 2017

     177,727,653     $ 253      $ 2,104,203     $ 1,730,893     $ 54,620     $ (1,536,455   $ 14,830     $ 2,368,344  

Shares issued upon exercise of stock options

     29,534       —          —         —         —         —         —         —    

Vesting of restricted stock awards

     2,474,125       3        (3     —         —         —         —         —    

Purchases of treasury stock under employee stock plans

     (724,323     —          —         —         —         (20,745     —         (20,745

Treasury shares purchased

     (3,201,329     —          —         —         —         (93,309     —         (93,309

Recognition of stock-based compensation

     —         —          44,973       —         —         —         —         44,973  

Declared dividends

     —         —          —         (15,353     —         —         —         (15,353

Comprehensive income

     —         —          —         63,795       (3,136     —         124       60,783  

Foreign currency adjustments attributable to noncontrolling interests

     —         —          —         —         —         —         (1     (1
  

 

 

   

 

 

    

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Balance as of November 30, 2017

     176,305,660     $ 256      $ 2,149,173     $ 1,779,335     $ 51,484     $ (1,650,509   $ 14,953     $ 2,344,692  
  

 

 

   

 

 

    

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

See accompanying notes to Condensed Consolidated Financial Statements.

 

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Table of Contents

JABIL INC. AND SUBSIDIARIES

CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS

(in thousands)

(Unaudited)

 

     Three months ended  
     November 30,
2018
    November 30,
2017
 

Cash flows provided by (used in) operating activities:

    

Net income

   $ 124,074     $ 63,919  

Adjustments to reconcile net income to net cash provided by (used in) operating activities:

    

Depreciation and amortization

     188,836       194,633  

Restructuring and related charges

     184       6,812  

Recognition of stock-based compensation expense and related charges

     17,249       44,974  

Deferred income taxes

     4,371       (11,507

Other, net

     44,282       3,812  

Change in operating assets and liabilities, exclusive of net assets acquired:

    

Accounts receivable

     (600,630     (872,907

Contract assets

     (761,910     —    

Inventories

     242,506       (320,814

Prepaid expenses and other current assets

     (103,040     (99,635

Other assets

     (2,528     (13,549

Accounts payable, accrued expenses and other liabilities

     754,913       354,617  
  

 

 

   

 

 

 

Net cash used in operating activities

     (91,693     (649,645
  

 

 

   

 

 

 

Cash flows provided by (used in) investing activities:

    

Acquisition of property, plant and equipment

     (231,513     (218,617

Proceeds and advances from sale of property, plant and equipment

     10,227       20,330  

Cash paid for business and intangible asset acquisitions, net of cash

     —         (95,858

Cash receipts on sold receivables

     96,846       596,058  

Other, net

     (6,812     (1,067
  

 

 

   

 

 

 

Net cash (used in) provided by investing activities

     (131,252     300,846  
  

 

 

   

 

 

 

Cash flows provided by (used in) financing activities:

    

Borrowings under debt agreements

     3,071,559       1,792,000  

Payments toward debt agreements

     (3,078,197     (1,748,599

Payments to acquire treasury stock

     (204,587     (93,309

Dividends paid to stockholders

     (14,528     (16,231

Treasury stock minimum tax withholding related to vesting of restricted stock

     (9,715     (20,745

Other, net

     8       (3,912
  

 

 

   

 

 

 

Net cash used in financing activities

     (235,460     (90,796
  

 

 

   

 

 

 

Effect of exchange rate changes on cash and cash equivalents

     4,865       (4,066
  

 

 

   

 

 

 

Net decrease in cash and cash equivalents

     (453,540     (443,661

Cash and cash equivalents at beginning of period

     1,257,949       1,189,919  
  

 

 

   

 

 

 

Cash and cash equivalents at end of period

   $ 804,409     $ 746,258  
  

 

 

   

 

 

 

See accompanying notes to Condensed Consolidated Financial Statements.

 

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Table of Contents

JABIL INC. AND SUBSIDIARIES

NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS

(Unaudited)

1. Basis of Presentation

The accompanying unaudited Condensed Consolidated Financial Statements have been prepared in accordance with U.S. generally accepted accounting principles (“U.S. GAAP”) for interim financial information and with the instructions to Form 10-Q and Article 10 of Regulation S-X. Accordingly, they do not include all of the information and footnotes required by U.S. GAAP for complete financial statements. In the opinion of management, all adjustments (consisting of normal recurring accruals) necessary to present fairly the information set forth therein have been included. Jabil Inc. (the “Company”) has made certain reclassification adjustments to conform prior periods’ Condensed Consolidated Financial Statements to the current presentation. The accompanying unaudited Condensed Consolidated Financial Statements should be read in conjunction with the Consolidated Financial Statements and footnotes included in the Annual Report on Form 10-K of the Company for the fiscal year ended August 31, 2018. Results for the three months ended November 30, 2018 are not necessarily an indication of the results that may be expected for the full fiscal year ending August 31, 2019.

2. Earnings Per Share and Dividends

Earnings Per Share

The Company calculates its basic earnings per share by dividing net income attributable to the Company by the weighted average number of common shares outstanding during the period. The Company’s diluted earnings per share is calculated in a similar manner, but includes the effect of dilutive securities. The difference between the weighted average number of basic shares outstanding and the weighted average number of diluted shares outstanding is primarily due to dilutive unvested restricted stock awards and dilutive stock appreciation rights.

Potential shares of common stock are excluded from the computation of diluted earnings per share when their effect would be antidilutive. Performance-based restricted stock awards are considered dilutive when the related performance criteria have been met assuming the end of the reporting period represents the end of the performance period. All potential shares of common stock are antidilutive in periods of net loss. Potential shares of common stock not included in the computation of earnings per share because their effect would have been antidilutive or because the performance criterion was not met were as follows (in thousands):

 

     Three months ended  
     November 30,
2018
     November 30,
2017
 

Restricted stock awards

     2,157        2,549  

Dividends

The following table sets forth cash dividends declared by the Company to common stockholders during the three months ended November 30, 2018 and 2017 (in thousands, except for per share data):

 

     Dividend
Declaration Date
     Dividend
per Share
     Total of Cash
Dividends
Declared
     Date of Record for
Dividend Payment
     Dividend Cash
Payment Date
 

Fiscal Year 2019:

     October 18, 2018      $ 0.08      $ 13,226        November 15, 2018        December 3, 2018  

Fiscal Year 2018:

     October 19, 2017      $ 0.08      $ 14,588        November 15, 2017        December 1, 2017  

3. Inventories

Inventories consist of the following (in thousands):

 

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     November 30,
2018
    August 31,
2018
 

Raw materials

   $ 2,293,803     $ 2,070,569  

Work in process

     502,723       788,742  

Finished goods

     492,172       659,335  

Reserve for excess and obsolete inventory

     (74,185     (60,940
  

 

 

   

 

 

 

Inventories, net

   $ 3,214,513     $ 3,457,706  
  

 

 

   

 

 

 

4. Accrued Expenses

Accrued expenses consist of the following (in thousands):

 

     November 30,
2018
     August 31,
2018
 

Contract liabilities

   $ 709,258      $ —    

Deferred income

     —          691,365  

Accrued compensation and employee benefits

     585,585        570,400  

Other accrued expenses

     1,256,877        1,000,979  
  

 

 

    

 

 

 

Accrued expenses

   $ 2,551,720      $ 2,262,744  
  

 

 

    

 

 

 

5. Stock-Based Compensation and Share Repurchases

The Company recognized stock-based compensation expense within selling, general and administrative expense as follows (in thousands):

 

     Three months ended  
     November 30,
2018
     November 30,
2017
 

Restricted stock and stock appreciation rights

   $ 15,051      $ 43,507  

Employee stock purchase plan

     2,198        1,700  

Other(1)

     —          7,538  
  

 

 

    

 

 

 

Total

   $ 17,249      $ 52,745  
  

 

 

    

 

 

 

 

(1)

Represents a one-time cash-settled stock award that vested on November 30, 2017.

As of November 30, 2018, the shares available to be issued under the 2011 Stock Award and Incentive Plan were 11,936,088.

Restricted Stock Awards

Certain key employees have been granted time-based, performance-based and market-based restricted stock unit awards. The time-based restricted stock units generally vest on a graded vesting schedule over three years. The performance-based restricted stock units generally vest on a cliff vesting schedule over three years and up to a maximum of 150%, depending on the specified performance condition and the level of achievement obtained. The performance-based restricted stock units have a vesting condition that is based upon the Company’s cumulative adjusted core earnings per share during the performance period. The market-based restricted stock units generally vest on a cliff vesting schedule over three years and up to a maximum of 200%, depending on the specified performance condition and the level of achievement obtained. The market-based restricted stock units have a vesting condition that is tied to the Company’s total shareholder return based on the Company’s stock performance in relation to the companies in the Standard and Poor’s (S&P) Super Composite Technology Hardware and Equipment Index excluding the Company. During the three months ended November 30, 2018 and 2017, the Company awarded approximately 1.5 million and 1.3 million time-based restricted stock units, respectively, 0.4 million and 0.4 million performance-based restricted stock units, respectively and 0.4 million and 0.4 million market-based stock units, respectively.

The following represents the stock-based compensation information for the period indicated (in thousands):

 

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     Three months ended
November 30, 2018
 

Unrecognized stock-based compensation expense—restricted stock

   $ 78,158  

Remaining weighted-average period for restricted stock expense

     1.5 years  

Share Repurchases

In June 2018, the Company’s Board of Directors authorized the repurchase of up to $350.0 million of the Company’s common stock (the “2018 Share Repurchase Program”). The 2018 Share Repurchase Program expires August 31, 2019. As of November 30, 2018, 7.9 million shares had been repurchased for $204.5 million and $145.5 million remains available under the 2018 Share Repurchase Program.

6. Concentration of Risk and Segment Data

Concentration of Risk

Sales of the Company’s products are concentrated among specific customers. During the three months ended November 30, 2018, the Company’s five largest customers accounted for approximately 48% of its net revenue and 75 customers accounted for approximately 90% of its net revenue. Sales to these customers were reported in the Electronics Manufacturing Services (“EMS”) and Diversified Manufacturing Services (“DMS”) operating segments.

The Company procures components from a broad group of suppliers. Some of the products manufactured by the Company require one or more components that are available from only a single source.

Segment Data

Net revenue for the operating segments is attributed to the segment in which the service is performed. An operating segment’s performance is evaluated based on its pre-tax operating contribution, or segment income. Segment income is defined as net revenue less cost of revenue, segment selling, general and administrative expenses, segment research and development expenses and an allocation of corporate manufacturing expenses and selling, general and administrative expenses. Segment income does not include amortization of intangibles, stock-based compensation expense and related charges, restructuring and related charges, distressed customer charges, acquisition and integration charges, loss on disposal of subsidiaries, settlement of receivables and related charges, impairment of notes receivable and related charges, goodwill impairment charges, business interruption and impairment charges, net, income (loss) from discontinued operations, gain (loss) on sale of discontinued operations, other expense, interest income, interest expense, income tax expense or adjustment for net income (loss) attributable to noncontrolling interests. Transactions between operating segments are generally recorded at amounts that approximate those at which we would transact with third parties.

The following table sets forth operating segment information (in thousands):

 

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     Three months ended  
     November 30,
2018
    November 30,
2017
 

Net revenue

    

EMS

   $ 3,503,103     $ 2,862,060  

DMS

     3,003,172       2,723,472  
  

 

 

   

 

 

 
   $ 6,506,275     $ 5,585,532  
  

 

 

   

 

 

 

Segment income and reconciliation of income before income tax

    

EMS

   $ 84,095     $ 85,710  

DMS

     169,565       141,510  
  

 

 

   

 

 

 

Total segment income

   $ 253,660     $ 227,220  

Reconciling items:

    

Amortization of intangibles

     (7,646     (9,979

Stock-based compensation expense and related charges

     (17,249     (52,745

Restructuring and related charges

     (6,025     (11,388

Acquisition and integration charges

     (8,890     —    

Business interruption and impairment charges, net(1)

     2,860       (7,354

Other expense

     (13,550     (5,882

Interest income

     4,379       3,813  

Interest expense

     (42,652     (36,246
  

 

 

   

 

 

 

Income before income tax

   $ 164,887     $ 107,439  
  

 

 

   

 

 

 

 

(1)

Charges, net of insurance proceeds of $2.9 million and $10.3 million, for the three months ended November 30, 2018 and 2017, respectively, relate to business interruption and asset impairment costs associated with damage from Hurricane Maria, which impacted our operations in Cayey, Puerto Rico.

As of November 30, 2018, the Company operated in 29 countries worldwide. Sales to unaffiliated customers are based on the Company’s location that maintains the customer relationship and transacts the external sale.

The following table sets forth, for the periods indicated, foreign source revenue expressed as a percentage of net revenue:

 

     Three months ended  
     November 30,
2018
    November 30,
2017
 

Foreign source revenue

     92.7     92.3

7. Notes Payable and Long-Term Debt

Notes payable and long-term debt outstanding as of November 30, 2018 and August 31, 2018 are summarized below (in thousands):

 

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     Maturity
Date
     November 30,
2018
     August 31,
2018
 

5.625% Senior Notes

     Dec 15, 2020      $ 398,218      $ 397,995  

4.700% Senior Notes

     Sep 15, 2022        497,514        497,350  

4.900% Senior Notes

     Jul 14, 2023        298,875        298,814  

3.950% Senior Notes

     Jan 12, 2028        494,362        494,208  

Borrowings under credit facilities(1)

     Nov 8, 2022 and Aug 24, 2020        —          —    

Borrowings under loans

     Nov 8, 2022 and Aug 24, 2020        824,136        830,332  
     

 

 

    

 

 

 

Total notes payable and long-term debt

        2,513,105        2,518,699  

Less current installments of notes payable and long-term debt

        25,193        25,197  
     

 

 

    

 

 

 

Notes payable and long-term debt, less current installments

      $ 2,487,912      $ 2,493,502  
     

 

 

    

 

 

 

 

(1)

As of November 30, 2018, the Company has $2.3 billion in available unused borrowing capacity under its revolving credit facilities.

Debt Covenants

Borrowings under the Company’s debt agreements are subject to various covenants that limit the Company’s ability to: incur additional indebtedness, sell assets, effect mergers and certain transactions, and effect certain transactions with subsidiaries and affiliates. In addition, the revolving credit facilities and the 4.900% Senior Notes contain debt leverage and interest coverage covenants. The Company is also subject to certain covenants requiring the Company to offer to repurchase the 5.625%, 4.700%, 4.900% or 3.950% Senior Notes upon a change of control. As of November 30, 2018 and August 31, 2018, the Company was in compliance with its debt covenants.

Fair Value

The estimated fair values of the Company’s publicly traded debt, including the 5.625%, 4.700% and 3.950% Senior Notes, were approximately $410.2 million, $503.7 million and $449.5 million, respectively, as of November 30, 2018. The fair value estimates are based upon observable market data (Level 2 criteria). The estimated fair value of the Company’s private debt, the 4.900% Senior Notes, was approximately $299.0 million, as of November 30, 2018. This fair value estimate is based on the Company’s indicative borrowing cost derived from discounted cash flows (Level 3 criteria). The carrying amounts of borrowings under credit facilities and under loans approximate fair value as interest rates on these instruments approximate current market rates.

8. Trade Accounts Receivable Securitization and Sale Programs

The Company regularly sells designated pools of trade accounts receivable under a foreign asset-backed securitization program, a North American asset-back securitization program and nine uncommitted trade accounts receivable sale programs (collectively referred to herein as the “programs”). The Company continues servicing the receivables sold and in exchange receives a servicing fee under each of the programs. Servicing fees related to each of the programs recognized during the three months ended November 30, 2018 and 2017 were not material. The Company does not record a servicing asset or liability on the Condensed Consolidated Balance Sheets as the Company estimates that the fee it receives to service these receivables approximates the fair market compensation to provide the servicing activities.

Transfers of the receivables under the programs are accounted for as sales and, accordingly, net receivables sold under the programs are excluded from accounts receivable on the Condensed Consolidated Balance Sheets and are reflected as cash provided by operating activities on the Condensed Consolidated Statements of Cash Flows. The adoption of ASU 2016-15 described in Note 14, New Accounting Guidance, resulted in a reclassification of cash flows from operating activities to investing activities in the Company’s Condensed Consolidated Statement of Cash Flows for cash receipts related to collections on the deferred purchase price receivable on asset-backed securitization transactions. In addition, the beneficial interest of $162.2 million and $747.3 million for the three months ended November 30, 2018 and 2017, respectively, obtained in exchange for securitized receivables are reported as non-cash investing activities.

 

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Asset-Backed Securitization Programs

The Company continuously sells designated pools of trade accounts receivable under its foreign asset-backed securitization program to a special purpose entity, which in turn sells certain of the receivables to an unaffiliated financial institution and a conduit administered by an unaffiliated financial institution on a monthly basis. Effective October 1, 2018, the foreign asset-backed securitization program terms were amended and the program was extended to September 30, 2021. In connection with this amendment, there is no longer a deferred purchase price receivable for the foreign asset-backed securitization program as the entire purchase price is paid in cash when the receivables are sold.

As of October 1, 2018, approximately $734.2 million of accounts receivable sold under the foreign asset-backed securitization program was exchanged for the outstanding deferred purchase price receivable of $335.5 million. The remaining amount due to the financial institution of $398.7 million was subsequently settled for $25.2 million of cash and $373.5 million of trade accounts receivable sold to the financial institution. The previously sold trade accounts receivable were recorded at fair market value. Prior to the amendment, any portion of the purchase price for the receivables not paid in cash upon the sale occurring was recorded as a deferred purchase price receivable, which was paid from available cash as payments on the receivables were collected.

The special purpose entity in the foreign asset-backed securitization program is a separate bankruptcy-remote entity whose assets would be first available to satisfy the creditor claims of the unaffiliated financial institution. The Company is deemed the primary beneficiary of this special purpose entity as the Company has both the power to direct the activities of the entity that most significantly impact the entity’s economic performance and the obligation to absorb losses or the right to receive the benefits that could potentially be significant to the entity from the transfer of the trade accounts receivable into the special purpose entity. Accordingly, the special purpose entity associated with the foreign asset-backed securitization program is included in the Company’s Condensed Consolidated Financial Statements.

The North American asset-backed securitization program was terminated on October 9, 2018 and as of this date approximately $500.0 million of accounts receivable sold under the program was exchanged for the outstanding deferred purchase price receivable of $300.0 million and $200.0 million of cash. The previously sold trade accounts receivable were recorded at fair market value.

On November 27, 2018, the Company entered into a new North American asset-backed securitization program. The Company continuously sells designated pools of trade accounts receivable under its new North American asset-backed securitization program to a special purpose entity, which in turn sells certain of the receivables to conduits administered by unaffiliated financial institutions on a monthly basis. The special purpose entity in the North American asset-backed securitization program is a wholly-owned subsidiary of the Company and is included in the Company’s Condensed Consolidated Financial Statements. There is no longer a deferred purchase price receivable for the North American asset-backed securitization program as the entire purchase price is paid in cash when the receivables are sold. Additionally, certain receivables are pledged as collateral to the unaffiliated financial institution.

Following is a summary of the asset-backed securitization programs and key terms:

 

     Maximum Amount of
Net Cash Proceeds (in  millions)(1)
     Expiration
Date
 

North American

   $ 390.0        November 22, 2021  

Foreign

   $ 400.0        September 30, 2021  

 

 

(1)

Maximum amount available at any one time.

In connection with the asset-backed securitization programs, the Company recognized the following (in millions):

 

     Three months ended  
     November 30,
2018 (4)
     November 30,
2017
 

Trade accounts receivable sold

   $ 750      $ 2,392  

Cash proceeds received(1)

   $ 744      $ 1,628  

Pre-tax losses on sale of receivables(2)

   $ 6      $ 4  

Deferred purchase price receivables as of November 30(3)

   $ —        $ 760  

 

 

(1)

For the three months ended November 30, 2018 and 2017, the amount represented proceeds from collections reinvested in revolving-period transfers.

 

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(2)

Recorded to other expense within the Condensed Consolidated Statements of Operations.

(3)

Recorded initially at fair value as prepaid expenses and other current assets on the Condensed Consolidated Balance Sheets and are valued using unobservable inputs (Level 3 inputs), primarily discounted cash flows, and due to their credit quality and short-term maturity the fair values approximated book values. The unobservable inputs consist of estimated credit losses and estimated discount rates, which both have an immaterial impact on the fair value calculations.

(4)

Excludes $650.3 million of trade accounts receivable sold, $488.1 million of cash and $13.9 million of net cash received prior to the amendment of the foreign asset-backed securitization program and under the previous North American asset-backed securitization program.

The asset-backed securitization programs require compliance with several covenants. The North American asset-based securitization program covenants include compliance with the interest ratio and debt to EBITDA ratio of the Credit Facility. The foreign asset-backed securitization program covenants include limitations on certain corporate actions such as mergers and consolidations. As of November 30, 2018 and August 31, 2018, the Company was in compliance with all covenants under the asset-backed securitization programs.

Trade Accounts Receivable Sale Programs

The following is a summary of the nine trade accounts receivable sale programs with unaffiliated financial institutions where the Company may elect to sell receivables and the unaffiliated financial institution may elect to purchase, at a discount, on an ongoing basis:

 

Program    Maximum
Amount
(in millions)(1)
            Type of
Facility
     Expiration
Date

A

   $ 875.0           Uncommitted      August 31, 2022(2)(3)

B

   $ 150.0           Uncommitted      November 30, 2019(4)

C

     800.0        CNY        Uncommitted      February 13, 2019

D

   $ 100.0           Uncommitted      May 4, 2023(5)

E

   $ 50.0           Uncommitted      August 25, 2019

F

   $ 150.0           Uncommitted      January 25, 2019(6)

G

   $ 50.0           Uncommitted      February 23, 2023(3)

H

   $ 100.0           Uncommitted      August 10, 2019(7)

I

   $ 100.0           Uncommitted      July 21, 2019(8)

 

 

(1)

Maximum amount available at any one time.

(2)

The maximum amount under the program will reduce to $650.0 million on February 1, 2019.

(3)

Any party may elect to terminate the agreement upon 15 days prior notice.

(4)

The program will automatically extend for one year at each expiration date unless either party provides 10 days notice of termination.

(5)

Any party may elect to terminate the agreement upon 30 days prior notice.

(6)

The program will be automatically extended through January 25, 2023 unless either party provides 30 days notice of termination.

(7)

The program will be automatically extended through August 10, 2023 unless either party provides 30 days notice of termination.

(8)

The program will be automatically extended through August 21, 2023 unless either party provides 30 days notice of termination.

In connection with the trade accounts receivable sale programs, the Company recognized the following (in millions):

 

     Three months ended  
     November 30, 2018      November 30, 2017  

Trade accounts receivable sold

   $ 1,834      $ 1,095  

Cash proceeds received

   $ 1,826      $ 1,092  

Pre-tax losses on sale of receivables(1)

   $ 8      $ 3  

 

 

(1)

Recorded to other expense within the Condensed Consolidated Statement of Operations.

 

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9. Accumulated Other Comprehensive Income

The following table sets forth the changes in accumulated other comprehensive income (“AOCI”), net of tax, by component for the periods indicated (in thousands):

 

     Foreign
Currency
Translation
Adjustment
    Derivative
Instruments
    Actuarial
(Loss) Gain
    Prior
Service Cost
    Available for
Sale Securities
    Total  

Balance as of August 31, 2017

   $ 57,582     $ 29,967     $ (33,215   $ 889     $ (603   $ 54,620  

Other comprehensive (loss) income before reclassifications

     (3,801     7,744 (1)       (423     —         (1,465     2,055  

Amounts reclassified from AOCI

     —         (5,191 )(2)      —         —         —         (5,191
  

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Other comprehensive (loss) income

     (3,801 )(4)      2,553 (2)       (423 )(4)      —         (1,465 )(4)      (3,136
  

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Balance as of November 30, 2017

   $ 53,781     $ 32,520     $ (33,638   $ 889     $ (2,068   $ 51,484  
  

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 
     Foreign
Currency
Translation
Adjustment
    Derivative
Instruments
    Actuarial
(Loss) Gain
    Prior
Service Cost
    Available for
Sale Securities
    Total  

Balance as of August 31, 2018

   $ 7,431     $ 8,116     $ (25,021   $ (643   $ (9,282     (19,399

Other comprehensive income (loss) before reclassifications

     377       (18,469 )(1)      103       —         (8,745     (26,734

Amounts reclassified from AOCI

     —         14,185 (3)       —         —         —         14,185  
  

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Other comprehensive income (loss) (4)

     377       (4,284     103       —         (8,745     (12,549
  

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Balance as of November 30, 2018

   $ 7,808     $ 3,832     $ (24,918   $ (643   $ (18,027   $ (31,948
  

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

 

(1)

Represents changes in fair value of derivative instruments.

(2)

Represents reclassifications of net (gains) losses realized and included in net income related to derivative instruments. During the three months ended November 30, 2017, $3.5 million was classified into net income as a reduction of income tax expense related to derivative instruments. The remaining amount for the three months ended November 30, 2017 was primarily classified as a component of cost of revenue.

(3)

Represents reclassifications of net (gains) losses realized and included in net income related to derivative instruments. The amount for the three months ended November 30, 2018 was primarily classified as a component of cost of revenue. The Company expects to reclassify $9.2 million into earnings during the next twelve months, which will primarily be classified as a component of cost of revenue.

(4)

Amounts are net of tax, which is immaterial.

10. Commitments and Contingencies

The Company is party to certain lawsuits in the ordinary course of business. The Company does not believe that these proceedings, individually or in the aggregate, will have a material adverse effect on the Company’s financial position, results of operations or cash flows.

The Internal Revenue Service (“IRS”) completed its field examination of the Company’s tax returns for fiscal years 2009 through 2011 and issued a Revenue Agent’s Report (“RAR”) on May 27, 2015, which was updated on June 22, 2016. The IRS completed its field examination of the Company’s tax returns for fiscal years 2012 through 2014 and issued an RAR on April 19, 2017. The proposed adjustments in the RAR from both examination periods relate primarily to U.S. taxation of certain intercompany transactions. If the IRS ultimately prevails in its positions, the Company’s income tax payment due for the fiscal years 2009 through 2011 and 2012 through 2014 would be approximately $28.6 million and $5.3 million, respectively, after utilization of tax loss carry forwards available through fiscal year 2014. Also, the IRS has proposed interest and penalties with respect to fiscal years 2009 through 2011. The IRS may make similar claims in future audits with respect to these types of transactions. At this time, anticipating the amount of any future IRS proposed adjustments, interest and penalties is not practicable.

 

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The Company disagrees with and intends to contest the proposed income tax payments assessed. As the final resolution of the proposed adjustments remains uncertain, the Company continues to provide for the uncertain tax positions based on the more likely than not standard. While the resolution of the issues may result in tax liabilities, interest and penalties, which may be significantly higher than the amounts accrued for these matters, management currently believes that the resolution will not have a material adverse effect on the Company’s financial position, results of operations or cash flows. However, there can be no assurance that management’s beliefs will be realized.

11. Derivative Financial Instruments and Hedging Activities

The Company is directly and indirectly affected by changes in certain market conditions. These changes in market conditions may adversely impact the Company’s financial performance and are referred to as market risks. The Company, where deemed appropriate, uses derivatives as risk management tools to mitigate the potential impact of certain market risks. The primary market risks managed by the Company through the use of derivative instruments are foreign currency risk and interest rate risk.

Foreign Currency Risk Management

Forward contracts are put in place to manage the foreign currency risk associated with the anticipated foreign currency denominated revenues and expenses. A hedging relationship existed with an aggregate notional amount outstanding of $451.3 million and $293.4 million as of November 30, 2018 and August 31, 2018, respectively. The related forward foreign exchange contracts have been designated as hedging instruments and are accounted for as cash flow hedges. The forward foreign exchange contract transactions will effectively lock in the value of anticipated foreign currency denominated revenues and expenses against foreign currency fluctuations. The anticipated foreign currency denominated revenues and expenses being hedged are expected to occur between December 3, 2018 and August 31, 2019.

In addition to derivatives that are designated as hedging instruments and qualify for hedge accounting, the Company also enters into forward contracts to economically hedge transactional exposure associated with commitments arising from trade accounts receivable, trade accounts payable, fixed purchase obligations and intercompany transactions denominated in a currency other than the functional currency of the respective operating entity. The aggregate notional amount of these outstanding contracts as of November 30, 2018 and August 31, 2018, was $3.8 billion and $3.4 billion, respectively.

The following table presents the fair values of the Company’s derivative instruments recorded in the Condensed Consolidated Balance Sheets utilized for foreign currency risk management purposes as of November 30, 2018 and August 31, 2018 (in thousands):

 

     Fair Values of Derivative Instruments  
     Asset Derivatives      Liability Derivatives  
     Balance Sheet
Location
   Fair Value as of
November 30,
2018(1)
     Fair Value as of
August 31,
2018(1)
     Balance Sheet
Location
     Fair Value as of
November 30,

2018(1)
     Fair Value as of
August 31,
2018(1)
 

Derivatives designated as hedging instruments:

                 

Forward foreign exchange contracts

   Prepaid expenses

and other current

assets

   $ 915      $ 225       

Accrued

expenses

 

 

   $ 12,922      $ 13,364  

Derivatives not designated as hedging instruments:

                 

Forward foreign exchange contracts

   Prepaid expenses

and other current

assets

   $ 4,364      $ 10,125       

Accrued

expenses

 

 

   $ 23,948      $ 46,171  

 

 

(1) 

Classified as Level 2 in the fair-value hierarchy.

The Company’s forward foreign exchange contracts are measured on a recurring basis at fair value, based on foreign currency spot rates and forward rates quoted by banks or foreign currency dealers.

 

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The gains and losses recognized in earnings due to hedge ineffectiveness and the amount excluded from effectiveness testing were not material for all periods presented and are included as components of net revenue, cost of revenue and selling, general and administrative expense, which are the same line items in which the hedged items are recorded.

During the three months ended November 30, 2018, the Company recognized $21.9 million in foreign currency gains, which were offset by $38.6 million of losses from related forward contracts. Both the foreign currency losses and gains from forward contracts were recognized in cost of revenue. For the three months ended November 30, 2017, the amounts were immaterial and were recognized as components of cost of revenue.

Interest Rate Risk Management

The Company periodically enters into interest rate swaps to manage interest rate risk associated with the Company’s borrowings.

Cash Flow Hedges

During the first quarter of fiscal year 2019, the Company entered into forward interest rate swap transactions to hedge the fixed interest rate payments for an anticipated debt issuance. The forward starting swaps have an aggregate notional amount of $200.0 million and have been designated as hedging instruments and accounted for as cash flow hedges. The forward starting swaps are scheduled to expire on December 15, 2020. If the anticipated debt issuance occurs before December 15, 2020, the contracts will be terminated simultaneously with the debt issuance. The contracts will be settled with the respective counterparties on a net basis at the time of termination or expiration. Changes in the fair value of the forward starting swap transactions are recorded on the Company’s Condensed Consolidated Balance Sheets as a component of AOCI.

During the first quarter of fiscal year 2019, the Company entered into interest rate swap transactions to hedge the variable interest rate payments for the $500.0 million Term Loan Facility which expires on November 8, 2022 (the “2017 Term Loan Facility”). In connection with this transaction, the Company pays interest based upon a fixed rate as agreed upon with the respective counterparties and receives variable rate interest payments based on the one-month LIBOR. The interest rate swaps have an aggregate notional amount of $200.0 million and have been designated as hedging instruments and accounted for as cash flow hedges. The interest rate swaps were effective on October 11, 2018 and are scheduled to expire on August 31, 2020. The contracts will be settled with the respective counterparties on a net basis at each settlement date.

During fiscal year 2018, the Company entered into interest rate swap transactions to hedge the variable interest rate payments for the $350.0 million Term Loan Facility which expires on August 24, 2020 (the “2018 Term Loan Facility”). In connection with this transaction, the Company pays interest based upon a fixed rate as agreed upon with the respective counterparties and receives variable rate interest payments based on the three-month LIBOR. The interest rate swaps have an aggregate notional amount of $350.0 million and have been designated as hedging instruments and accounted for as cash flow hedges. The interest rate swaps were effective on August 24, 2018 and are scheduled to expire on August 24, 2020. The contracts will be settled with the respective counterparties on a net basis at each settlement date.

During fiscal year 2016, the Company entered into interest rate swap transactions to hedge the variable interest rate payments for the 2017 Term Loan Facility. In connection with this transaction, the Company pays interest based upon a fixed rate as agreed upon with the respective counterparties and receives variable rate interest payments based on the one-month LIBOR. The interest rate swaps have an aggregate notional amount of $200.0 million and have been designated as hedging instruments and accounted for as cash flow hedges. The interest rate swaps were effective on September 30, 2016 and are scheduled to expire on June 30, 2019. The contracts will be settled with the respective counterparties on a net basis at each settlement date.

During fiscal year 2016, the Company entered into forward interest rate swap transactions to hedge the fixed interest rate payments for an anticipated debt issuance (the 3.950% Senior Notes). The swaps were accounted for as a cash flow hedge and had a notional amount of $200.0 million. Concurrently with the pricing of the 3.950% Senior Notes in the second quarter of fiscal year 2018, the Company settled the swaps. The fair value of the cash received for the swaps at settlement was $17.2 million. The effective portion of the swaps is recorded in the Company’s Consolidated Balance Sheets as a component of AOCI and is amortized as a reduction to interest expense in the Company’s Consolidated Statements of Operations through January 2028.

 

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12. Restructuring and Related Charges

Following is a summary of the Company’s restructuring and related charges (in thousands):

 

     Three months ended  
     November 30,
2018
     November 30,
2017
 

Employee severance and benefit costs

   $ 5,179      $ 3,977  

Lease costs

     9        —    

Asset write-off costs

     184        6,812  

Other related costs

     653        599  
  

 

 

    

 

 

 

Total restructuring and related charges(1)

   $ 6,025      $ 11,388  
  

 

 

    

 

 

 

 

 

(1)

Includes $4.4 million and $5.9 million recorded in the EMS segment, $1.6 million and $4.6 million recorded to the DMS segment and $0.0 million and $0.9 million of non-allocated charges for the three months ended November 30, 2018 and 2017, respectively. Except for asset write-off costs, all restructuring and related charges are cash costs.

2017 Restructuring Plan

On September 15, 2016, the Company’s Board of Directors formally approved a restructuring plan to better align the Company’s global capacity and administrative support infrastructure to further optimize organizational effectiveness. This action includes headcount reductions across the Company’s selling, general and administrative cost base and capacity realignment in higher cost locations (the “2017 Restructuring Plan”).

Upon completion of the 2017 Restructuring Plan, the Company expects to recognize approximately $195.0 million in restructuring and other related costs. The Company has incurred $188.4 million in costs-to-date as of November 30, 2018. The remaining costs for employee severance and benefit costs, asset write-off costs and other related costs are anticipated to be incurred through the first half of fiscal year 2019.

The tables below summarize the Company’s liability activity, primarily associated with the 2017 Restructuring Plan (in thousands):

 

     Employee Severance
and Benefit Costs
    Lease Costs     Asset Write-off
Costs
    Other
Related Costs
    Total  

Balance as of August 31, 2018

   $ 18,131     $ 2,684     $ —       $ 522     $ 21,337  

Restructuring related charges

     5,179       9       184       653       6,025  

Asset write-off charge and other non-cash activity

     (270     —         (184     (8     (462

Cash payments

     (10,049     (157     —         (770     (10,976
  

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Balance as of November 30, 2018

   $ 12,991     $ 2,536     $ —       $ 397     $ 15,924  
  

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

13. Business Acquisitions

Fiscal year 2018

Binding offer

On December 12, 2018, the Company’s binding offer submitted on July 18, 2018 to form a strategic collaboration with Johnson & Johnson Medical Devices Companies, was accepted. This collaboration will significantly expand the Company’s medical device manufacturing portfolio, diversification and capabilities in the DMS segment. Completion of this transaction, which is subject to regulatory clearance and customary closing conditions, is expected to occur during fiscal years 2019 and 2020.

Fiscal year 2017

Acquisition

On September 1, 2017, the Company completed the acquisition of True-Tech Corporation (“True-Tech”) for approximately $95.9 million in cash. True-Tech is a manufacturer specializing in aerospace, semiconductor and medical machined components.

 

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The acquisition of True-Tech assets has been accounted for as a business combination using the acquisition method of accounting. Assets acquired of $114.7 million, including $25.9 million in intangible assets and $22.6 million in goodwill, and liabilities assumed of $18.8 million were recorded at their estimated fair values as of the acquisition date. The excess of the purchase price over the fair value of the acquired assets and assumed liabilities was recorded to goodwill and was fully allocated to the EMS segment. The majority of the goodwill is currently expected to be deductible for income tax purposes. The results of operations were included in the Company’s condensed consolidated financial results beginning on September 1, 2017. Pro forma information has not been provided as the acquisition of True-Tech is not deemed to be significant.

14. New Accounting Guidance

Recently Adopted Accounting Guidance

During fiscal year 2014, the Financial Accounting Standards Board (“FASB”) issued an accounting standard, which is a comprehensive new revenue recognition model that requires a company to recognize revenue to depict the transfer of goods or services to a customer at an amount that reflects the consideration it expects to receive in exchange for those goods or services. The accounting standard became effective for the Company in the first quarter of fiscal year 2019. The Company implemented changes to its processes, policies and internal controls to meet the impact of the new standard and disclosure requirements. Refer to Note 16 – “Revenue” to the Condensed Consolidated Financial Statements for further details.

During fiscal year 2016, the FASB issued a new accounting standard to address certain aspects of recognition, measurement, presentation and disclosure of financial instruments. This guidance became effective for the Company in the first quarter of fiscal year 2019, and was applied prospectively by means of a cumulative-effect adjustment to the Consolidated Balance Sheet as of September 1, 2018 to equity investments that existed as of the date of adoption of the standard. The adoption of this standard did not have a material impact on the Company’s Consolidated Financial Statements; however, the impact on future periods will depend on the facts and circumstances of future transactions.

During fiscal year 2016, the FASB issued a new accounting standard to address the presentation of certain transactions within the statement of cash flows with the objective of reducing the existing diversity in practice. This standard was adopted on September 1, 2018 on a retrospective basis and resulted in a reclassification of cash flows from operating activities to investing activities in the Company’s Consolidated Statement of Cash Flows for cash receipts related to collections on the deferred purchase price receivable on asset-backed securitization transactions. The increase in cash flow from investing activities and the corresponding decrease to cash flow from operating activities upon adoption of the standard was $96.8 million and $596.1 million for the three months ended November 30, 2018 and 2017, respectively.

During fiscal year 2017, the FASB issued a new accounting standard to improve the accounting for the income tax consequences of intra-entity transfers of assets other than inventory. The new standard eliminates the exception for an intra-entity transfer of an asset other than inventory and requires an entity to recognize the income tax consequences when the transfer occurs. This guidance became effective for the Company beginning in the first quarter of fiscal year 2019. This guidance was adopted on a modified retrospective basis and an immaterial cumulative-effect adjustment was recorded, which reduced retained earnings as of September 1, 2018.

During fiscal year 2017, the FASB issued a new accounting standard which clarifies the scope of accounting for asset derecognition and adds further guidance for recognizing gains and losses from the transfer of non-financial assets in contracts with non-customers. This guidance became effective for the Company beginning in the first quarter of fiscal year 2019 coincident with the new revenue recognition guidance. The adoption of this standard did not have a material impact on the Company’s Consolidated Financial Statements; however, the impact on future periods will depend on the facts and circumstances of future transactions.

During fiscal year 2017, the FASB issued a new accounting standard to improve the presentation of net periodic pension benefit cost. The Company adopted the standard on September 1, 2018 on a retrospective basis which results in reclassifications for the service cost component of net periodic benefit cost from selling, general and administrative expense to cost of revenue and for the other components from selling, general and administrative expense to other expense. Prior periods have not been reclassified due to immateriality.

During the second quarter of fiscal year 2018, the Securities and Exchange Commission (“SEC”) staff issued Staff Accounting Bulletin No. 118, Income Tax Accounting Implications of the Tax Cut and Jobs Act (“SAB 118”), which provides guidance on accounting for the tax effects of the Tax Cuts and Jobs Act of 2017 (“Tax Act”). SAB 118 provides a measurement period that should not extend beyond one year from the Tax Act enactment date for companies to complete the accounting under ASC 740. In accordance with SAB 118, a company must reflect the income tax effects of those aspects of the Tax Act for

 

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which the accounting under ASC 740 is complete. To the extent that a company’s accounting for certain income tax effects of the Tax Act is incomplete, but it is able to determine a reasonable estimate, it must record a provisional estimate in its financial statements. If a company cannot determine a provisional estimate to be included in the financial statements, it should continue to apply ASC 740 on the basis of the provisions of the tax laws that were in effect immediately before the enactment of the Tax Act. The Company has applied SAB 118 and provided required disclosures in Note 15 - “Income Taxes.”

Recently Issued Accounting Guidance

During fiscal year 2016, the FASB issued a new accounting standard revising lease accounting. The new guidance requires organizations to recognize lease assets and lease liabilities on the Consolidated Balance Sheet and disclose key information regarding leasing arrangements. This guidance is effective for the Company beginning in the first quarter of fiscal year 2020. Early application of the new standard is permitted and the standard must be adopted using a modified retrospective approach. In preparation for the adoption, the Company is implementing a new lease accounting system. The adoption of this standard will impact the Company’s Consolidated Balance Sheet. The Company is currently evaluating practical expedients and accounting policy elections, and assessing overall impacts this new standard will have on its Consolidated Financial Statements.

During fiscal year 2016, the FASB issued an accounting standard, which replaces the existing incurred loss impairment methodology with a methodology that reflects expected credit losses and requires consideration of a broader range of reasonable and supportable information to inform credit loss estimates. This guidance is effective for the Company beginning in the first quarter of fiscal year 2021 and early adoption is permitted beginning in the first quarter of fiscal year 2020. This guidance must be applied using a modified retrospective or prospective transition method, depending on the area covered by this accounting standard. The Company is currently assessing the impact this new standard may have on its Consolidated Financial Statements.

During fiscal year 2017, the FASB issued a new accounting standard to improve the financial reporting of hedging relationships to better portray the economic results of an entity’s risk management activities by simplifying the application of hedge accounting and improving the related disclosures in its financial statements. This guidance is effective for the Company beginning in the first quarter of fiscal year 2020, with early adoption permitted. The guidance must be applied using a modified retrospective approach. The adoption of this standard is not expected to have a material impact on the Company’s Consolidated Financial Statements; however, the impact on future periods will depend on the facts and circumstances of future transactions.

During fiscal year 2018, the FASB issued a new accounting standard which allows a reclassification from AOCI to retained earnings for stranded tax effects resulting from the Tax Act. This guidance is effective for the Company beginning in the first quarter of fiscal year 2020, with early adoption permitted. The adoption of this standard is not expected to have a material impact on the Company’s Consolidated Financial Statements.

During fiscal year 2018, the FASB issued a new accounting standard which aligns the requirements for capitalizing implementation costs incurred in a hosting arrangement that is a service contract with the requirements for capitalizing implementation costs incurred to develop or obtain internal-use software. This guidance is effective for the Company beginning in the first quarter of fiscal year 2021, with early adoption permitted. The Company is currently assessing the impact this new standard may have on its Consolidated Financial Statements.

Recently issued accounting guidance not discussed above is not applicable or did not have, or is not expected to have, a material impact to the Company.

15. Income Taxes

On December 22, 2017, the U.S. government enacted comprehensive tax legislation commonly referred to as the Tax Act. The Tax Act reduced the corporate tax rate, limited or eliminated certain tax deductions, and changed the taxation of foreign earnings of U.S. multinational companies. The enacted changes include a mandatory income inclusion of the historically untaxed foreign earnings of a U.S. company’s foreign subsidiaries and will effectively tax such income at reduced tax rates (“transition tax”). During fiscal year 2018, the Company made reasonable estimates related to certain impacts of the Tax Act and, in accordance with SAB 118, recorded a net provisional income tax expense of $142.3 million for the fiscal year ended August 31, 2018. This net provisional expense was mainly comprised of $65.9 million related to the one-time transition tax inclusive of unrecognized tax benefits, $(10.5) million related to the re-measurement of the Company’s U.S. deferred tax attributes, and $85.0 million related to the foreign tax impact of a change in indefinite reinvestment assertion on certain earnings from the Company’s foreign subsidiaries.

 

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During the first quarter of 2019, the Company recorded an income tax benefit of $13.3 million, inclusive of unrecognized tax benefits, associated with the Tax Act. The income tax benefit was mainly related to the one-time transition tax to adjust the amount previously recorded during the fiscal year ended August 31, 2018. The adjustment to the one-time transition tax for the three months ended November 30, 2018 was primarily related to further analysis of the Company’s utilization of foreign tax credits and applicable limitations. The calculation of the one-time transition tax is based upon estimates of post-1986 earnings and profits, applicable foreign tax credits and relevant limitations, utilization of U.S. federal net operating losses and tax credits and the amount of foreign earnings held in cash and non-cash assets. As of November 30, 2018, the Company believes $129.0 million is a reasonable net estimate of income tax expense related to the Tax Act based on the analysis, interpretations and guidance available at this time. In addition to the adjustment recorded during the first quarter of fiscal year 2019, the Company has elected to record the Global Intangible Low-Taxed Income effects as a period cost.

As a result of the one-time transition tax, the Company will have a substantial amount of previously taxed earnings that can be distributed to the U.S. without additional U.S. taxation. Additionally, the Tax Act provides for a 100% dividends received deduction for dividends received by U.S. corporations from 10-percent or more owned foreign corporations. During the fiscal year ended August 31, 2018, the Company recorded liabilities of $85.0 million from a change in the indefinite reinvestment assertion on certain earnings from its foreign subsidiaries, primarily associated with foreign withholding taxes that would be incurred upon such future remittances of cash. The Company intends to indefinitely reinvest the remaining earnings from the Company’s foreign subsidiaries for which a deferred tax liability has not already been recorded. The accumulated earnings are the most significant component of the basis differences which are indefinitely reinvested.

The Company has substantially completed its accounting for the following Tax Act provisions: post-1986 earnings and profits calculations, utilization of U.S. federal net operating losses and tax credits, the amount of foreign earnings held in cash and non-cash assets, the re-measurement of the Company’s deferred tax balances, and the impact of the Tax Act to the existing valuation allowance assessments from both a federal and state tax perspective. As the Company finalizes the accounting for the utilization of foreign tax credits and applicable limitations, the Company will reflect any adjustments to the amounts previously recorded in the period such adjustments are identified. At this time, the Company does not anticipate a material change to the net estimate recorded as of November 30, 2018 related to the Tax Act. Changes could be driven in part by additional regulatory guidance that may be issued or changes in interpretations and assumptions related to existing guidance.

The effective tax rate differed from the U.S. federal statutory rate of 21.0% during the three months ended November 30, 2018 primarily due to: (i) losses in tax jurisdictions with existing valuation allowances; (ii) tax incentives granted to sites in Brazil, China, Malaysia, Singapore and Vietnam; and (iii) adjustments to amounts previously recorded for the Tax Act.

The effective tax rate differed from the U.S. federal statutory rate of 35.0% during the three months ended November 30, 2017 primarily due to: (i) income in tax jurisdictions with lower statutory tax rates than the U.S.; (ii) tax incentives granted to sites in Brazil, China, Malaysia, Singapore and Vietnam; and (iii) losses in tax jurisdictions with existing valuation allowances, including losses from stock based compensation.

16. Revenue

Effective September 1, 2018, the Company adopted Accounting Standards Update No. 2014-09 (“ASU 2014-09”), Revenue Recognition (Topic 606). The new standard is a comprehensive new revenue recognition model that requires the Company to recognize revenue in a manner which depicts the transfer of goods or services to its customers at an amount that reflects the consideration the Company expects to receive in exchange for those goods or services.

Prior to the adoption of the new standard, the Company recognized substantially all of its revenue from contracts with customers at a point in time, which was generally when the goods were shipped to or received by the customer, title and risk of ownership had passed, the price to the buyer was fixed or determinable and collectability was reasonably assured (net of estimated returns). Under the new standard, the Company will recognize revenue over time for the majority of its contracts with customers which will result in revenue for those customers being recognized earlier than under the previous guidance. Revenue for all other contracts with customers will continue to be recognized at a point in time, similar to recognition prior to the adoption of the standard.

Additionally, the new standard impacts the Company’s accounting for certain fulfillment costs, which include upfront costs to prepare for manufacturing activities that are expected to be recovered. Under the new standard, such upfront costs will be recognized as an asset and amortized on a systematic basis consistent with the pattern of the transfer of control of the products or services to which to the asset relates.

The Company adopted ASU 2014-09 using the modified retrospective method by applying the guidance to all open contracts upon adoption and recorded a cumulative effect adjustment as of September 1, 2018, net of tax, of $42.6 million. No adjustments have been made to prior periods. Following is a summary of the cumulative effect adjustment (in thousands):

 

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     Balance as of
August 31, 2018
     Adjustments due to
adoption of ASU 2014-09
    Balance as of
September 1, 2018
 

Assets

       

Contract assets (1)

   $ —        $ 591,616     $ 591,616  

Inventories, net (1)

   $ 3,457,706      $ (461,271   $ 2,996,435  

Prepaid expenses and other current assets (1)(2)

   $ 1,141,000      $ (37,271   $ 1,103,729  

Deferred income taxes (1)(2)

   $ 218,252      $ (8,325   $ 209,927  

Liabilities

       

Contract liabilities(2)(3)

   $ —        $ 852,102     $ 852,102  

Deferred income(2)(3)(4)

   $ 691,365      $ (691,365   $ —    

Other accrued expenses (3)(4)

   $ 1,000,979      $ (121,568   $ 879,411  

Deferred income taxes(1)

   $ 114,385      $ 2,977     $ 117,362  

Equity

       

Retained earnings (1)(2)

   $ 1,760,097      $ 42,602     $ 1,802,699  

 

(1)

Differences primarily relate to the timing of revenue recognition for over time customers and certain balance sheet reclassifications.

(2)

Differences primarily relate to the timing of recognition and recovery of fulfillment costs and certain balance sheet reclassifications.

(3)

Included within accrued expenses on the Condensed Consolidated Balance Sheets.

(4)

Differences included in contract liabilities as of September 1, 2018.

Significant Judgments

The Company is one of the leading providers of worldwide manufacturing services and solutions. The Company provides comprehensive electronics design, production and product management services to companies in various industries and end markets. The Company derives substantially all of its revenue from production and product management services (collectively referred to as “manufacturing services”), which encompasses the act of producing tangible products that are built to customer specifications, which are then provided to the customer.

The Company generally enters into manufacturing service contracts with its customers that provide the framework under which business will be conducted and customer purchase orders will be received for specific quantities and with predominantly fixed pricing. As a result, the Company considers its contract with a customer to be the combination of the manufacturing service contract and the purchase order, or any agreements or other similar documents.

The majority of our manufacturing service contracts relate to manufactured products which have no alternative use and for which the Company has an enforceable right to payment for the work completed to date. As a result, revenue is recognized over time when or as the Company transfers control of the promised products or services (known as performance obligations) to its customers. For certain other contracts with customers that do not meet the over time revenue recognition criteria, transfer of control occurs at a point in time which generally occurs upon delivery and transfer of risk and title to the customer.

Most of our contracts have a single performance obligation as the promise to transfer the individual manufactured product or service is capable of being distinct and is distinct within the context of the contract. For the majority of customers, performance obligations are satisfied over time based on the continuous transfer of control as manufacturing services are performed and are generally completed in less than one year.

The Company also derives revenue to a lesser extent from electronic design services to certain customers. Revenue from electronic design services is generally recognized over time as the services are performed.

For the Company’s over time customers, it believes the measure of progress which best depicts the transfer of control is based on costs incurred to date, relative to total estimated cost at completion (i.e., an input method). This method is a faithful depiction of the transfer of goods or services because it results in the recognition of revenue on the basis of our to-date efforts in the satisfaction of a performance obligation relative to the total expected efforts in the satisfaction of the performance obligation. The Company believes that the use of an input method best depicts the transfer of control to the customer, which occurs as we incur costs on our contracts. The transaction price of each performance obligation is generally based upon the contractual stand-alone selling price of the product or service.

 

 

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Certain contracts with customers include variable consideration, such as rebates, discounts, or returns. The Company recognizes estimates of this variable consideration that are not expected to result in a significant revenue reversal in the future, primarily based on the most likely level of consideration to be paid to the customer under the specific terms of the underlying programs.

Taxes collected from the Company’s customers and remitted to governmental authorities are presented within the Company’s Consolidated Statement of Operations on a net basis and are excluded from the transaction price. The Company has elected to account for shipping and handling activities related to contracts with customers as costs to fulfill the promise to transfer the goods. Accordingly, the Company records customer payments of shipping and handling costs as a component of net revenue, and classifies such costs as a component of cost of revenue.

The following table presents the effect of the adoption of the new revenue guidance on the Condensed Consolidated Balance Sheets as of November 30, 2018 (in thousands):

 

     As of November 30, 2018  
     As reported      Balance without the adoption of
ASU 2014-09
 

Assets

     

Contract assets (1)

   $ 761,405      $ —    

Inventories, net (1)

   $ 3,214,513      $ 3,860,306  

Prepaid expenses and other current assets (1)(2)

   $ 662,811      $ 666,992  

Deferred income taxes (1)(2)

   $ 216,209      $ 223,949  

Liabilities

     

Contract liabilities(2)(3)

   $ 709,258      $ —    

Deferred income(2)(3)(4)

   $ —        $ 526,496  

Other accrued expenses (3)(4)

   $ 1,256,877      $ 1,418,483  

Deferred income taxes(1)

   $ 116,804      $ 112,346  

Equity

     

Retained earnings (1)(2)

   $ 1,911,451      $ 1,833,374  

 

(1)

Differences primarily relate to the timing of revenue recognition for over time customers and certain balance sheet reclassifications.

(2)

Differences primarily relate to the timing of recognition and recovery of fulfillment costs and certain balance sheet reclassifications.

(3)

Included within accrued expenses on the Condensed Consolidated Balances Sheets.

(4)

Differences included in contract liabilities as of September 1, 2018.

The following table presents the effect of the adoption of the new revenue guidance on the Consolidated Statement of Operations for the three months ended November 30, 2018 (in thousands):

 

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     Three months ended November 30, 2018  
     As reported      Balance without the
adoption of ASU
2014-09
 

Net revenue (1)

   $ 6,506,275      $ 6,243,735  

Cost of revenue (2)

   $ 5,986,625      $ 5,760,456  

Operating income

   $ 216,710      $ 180,339  

Income tax expense

   $ 40,813      $ 39,916  

Net income

   $ 124,074      $ 88,600  

 

(1)

Differences primarily relate to the timing of revenue recognition for over-time customers and to the recovery of fulfillment costs.

(2)

Differences primarily relate to the timing of cost recognition for over-time customers and the recognition of fulfillment costs.

The following table presents the Company’s revenues disaggregated by segment (in thousands):

 

     Three months ended  
     November 30, 2018  
     EMS      DMS      Total  

Timing of transfer

        

Point in time

   $ 420,661      $ 2,101,651      $ 2,522,312  

Over time

   $ 3,082,442      $ 901,521      $ 3,983,963  
  

 

 

    

 

 

    

 

 

 

Total

   $ 3,503,103      $ 3,003,172      $ 6,506,275  
  

 

 

    

 

 

    

 

 

 

Contract Balances

Timing of revenue recognition may differ from the timing of invoicing to customers. The Company records an asset when revenue is recognized prior to invoicing a customer (“contract assets”) while a liability is recognized when a customer pays an invoice prior to the Company transferring control of the goods or services (“contract liabilities”). Contract assets are classified separately on the Condensed Consolidated Balances Sheets and transferred to receivables when right to payment becomes unconditional.

The Company reviews contract assets for impairment whenever events or changes in circumstances indicate that the carrying amount of the asset may not be recoverable after considering factors such as the age of the balances and the financial stability of the customer. No impairment costs related to contract assets were recognized during the three months ended November 30, 2018.

The change in contract liabilities that existed at the beginning of the reporting period was primarily due to revenue recognized during the three months ended November 30, 2018.

Fulfillment Costs    

The Company capitalizes costs incurred to fulfill its contracts that i) relate directly to the contract or anticipated contracts, ii) are expected to generate or enhance the Company’s resources that will be used to satisfy the performance obligation under the contract, and iii) are expected to be recovered through revenue generated from the contract. Prior to the adoption of the new guidance, unless explicit reimbursement contracts existed, these costs were expensed as incurred. Capitalized fulfillment costs

 

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are amortized to cost of revenue as the Company satisfies the related performance obligations under the contract with approximate lives ranging from 1-3 years. These costs, which are included in prepaid expenses and other current assets and other assets on the Consolidated Balance Sheets, generally represent upfront costs incurred to prepare for manufacturing activities.

The Company assesses the capitalized fulfillment costs for impairment at the end of each reporting period. The Company will recognize an impairment loss to the extent the carrying amount of the capitalized costs exceeds the recoverable amount. Recoverability is assessed by considering the capitalized fulfillment costs in relation to the forecasted profitability of the related manufacturing performance obligations. As of November 30, 2018, capitalized costs to fulfill are $33.2 million. Amortization of $15.5 million and no impairment costs related to fulfillments costs were recognized during the three months ended November 30, 2018.

Remaining Performance Obligations

The Company applied the practical expedient and did not disclose the value of unsatisfied performance obligations for contracts with an original expected length of one year or less.

 

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JABIL INC. AND SUBSIDIARIES

References in this report to “the Company,” “Jabil,” “we,” “our,” or “us” mean Jabil Inc. together with its subsidiaries, except where the context otherwise requires. This Quarterly Report on Form 10-Q contains certain statements that are, or may be deemed to be, forward-looking statements within the meaning of Section 27A of the Securities Act of 1933, as amended (the “Securities Act”) and Section 21E of the Securities Exchange Act of 1934, as amended (the “Exchange Act”). These forward-looking statements (such as when we describe what “will,” “may,” or “should” occur, what we “plan,” “intend,” “estimate,” “believe,” “expect” or “anticipate” will occur, and other similar statements) include, but are not limited to, statements regarding future sales and operating results, potential risks pertaining to these future sales and operating results, future prospects, anticipated benefits of proposed (or future) acquisitions, dispositions and new facilities, growth, the capabilities and capacities of business operations, any financial or other guidance, expected capital expenditures and dividends, expected restructuring charges and related savings and all statements that are not based on historical fact, but rather reflect our current expectations concerning future results and events. We make certain assumptions when making forward-looking statements, any of which could prove inaccurate, including assumptions about our future operating results and business plans. Therefore, we can give no assurance that the results implied by these forward-looking statements will be realized. Furthermore, the inclusion of forward-looking information should not be regarded as a representation by the Company or any other person that future events, plans or expectations contemplated by the Company will be achieved. The following important factors, among others, could affect future results and events, causing those results and events to differ materially from those expressed or implied in our forward-looking statements:

 

   

fluctuation in our operating results;

 

   

our dependence on a limited number of customers;

 

   

our ability to manage growth effectively;

 

   

competitive factors affecting our customers’ businesses and ours;

 

   

the susceptibility of our production levels to the variability of customer requirements;

 

   

our ability to keep pace with technological changes and competitive conditions;

 

   

our reliance on a limited number of suppliers for critical components;

 

   

exposure to financially troubled customers and suppliers;

 

   

our exposure to the risks of a substantial international operation; and

 

   

our ability to achieve the expected profitability from our acquisitions.

For a further list and description of various risks, factors and uncertainties that could cause future results or events to differ materially from those expressed or implied in our forward-looking statements, see the “Risk Factors” and “Management’s Discussion and Analysis of Financial Condition and Results of Operations” sections contained in our Annual Report on Form 10-K for the fiscal year ended August 31, 2018, any subsequent reports on Form 10-Q and Form 8-K, and other filings we make with the Securities and Exchange Commission (“SEC”). Given these risks and uncertainties, the reader should not place undue reliance on these forward-looking statements.

All forward-looking statements included in this Quarterly Report on Form 10-Q are made only as of the date of this Quarterly Report on Form 10-Q, and we do not undertake any obligation to publicly update or correct any forward-looking statements to reflect events or circumstances that subsequently occur, or of which we hereafter become aware. You should read this document completely and with the understanding that our actual future results or events may be materially different from what we expect. All forward-looking statements attributable to us are expressly qualified by these cautionary statements.

 

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Item 2. Management’s Discussion and Analysis of Financial Condition and Results of Operations

Overview

We are one of the leading providers of worldwide manufacturing services and solutions. We provide comprehensive electronics design, production and product management services to companies in various industries and end markets. Our services enable our customers to reduce manufacturing costs, improve supply-chain management, reduce inventory obsolescence, lower transportation costs and reduce product fulfillment time. Our manufacturing and supply chain management services and solutions include innovation, design, planning, fabrication and assembly, delivery and managing the flow of resources and products. We derive substantially all of our revenue from production and product management services (collectively referred to as “manufacturing services”), which encompasses the act of producing tangible products that are built to customer specifications, which are then provided to the customer.

We serve our customers primarily through dedicated business units that combine highly automated, continuous flow manufacturing with advanced electronic design and design for manufacturability. We depend, and expect to continue to depend, upon a relatively small number of customers for a significant percentage of our net revenue, which in turn depends upon their growth, viability and financial stability. Based on net revenue for the three months ended November 30, 2018, our largest customers include Apple, Inc., Cisco Systems, Inc., GoPro, Inc., Hewlett-Packard Company, Keysight Technologies, LM Ericsson Telephone Company, NetApp, Inc., Nokia Networks, Valeo S.A. and Zebra Technologies Corporation.

We conduct our operations in facilities that are located worldwide, including but not limited to, China, Hungary, Malaysia, Mexico, Singapore and the United States. We derived a substantial majority, 92.7% of net revenue from our international operations for the three months ended November 30, 2018. Our global manufacturing production sites allow customers to manufacture products simultaneously in the optimal locations for their products. Our global presence is key to assessing and executing on our business opportunities.

We have two reporting segments: Electronics Manufacturing Services (“EMS”) and Diversified Manufacturing Services (“DMS”), which are organized based on the economic profiles of the services performed, including manufacturing capabilities, market strategy, margins, return on capital and risk profiles. Our EMS segment is focused around leveraging IT, supply chain design and engineering, technologies largely centered on core electronics, utilizing our large scale manufacturing infrastructure and our ability to serve a broad range of end markets. Our EMS segment is typically a lower-margin but high volume business that produces product at a quicker rate (i.e. cycle time) and in larger quantities and includes customers primarily in the automotive and transportation, capital equipment, computing and storage, defense and aerospace, digital home, industrial and energy, networking and telecommunications, point of sale and printing industries. Our DMS segment is focused on providing engineering solutions, with an emphasis on material sciences and technologies. Our DMS segment is typically a higher-margin business and includes customers primarily in the consumer wearables, healthcare, mobility and packaging industries.

We monitor the current economic environment and its potential impact on both the customers we serve as well as our end-markets and closely manage our costs and capital resources so that we can respond appropriately as circumstances change.

Summary of Results

The following table sets forth, for the three months ended November 30, 2018 and 2017, certain key operating results and other financial information (in thousands, except per share data):

 

     Three months ended  
     November 30,
2018
     November 30,
2017
 

Net revenue

   $ 6,506,275      $ 5,585,532  

Gross profit

   $ 519,650      $ 469,285  

Operating income

   $ 216,710      $ 145,754  

Net income attributable to Jabil Inc.

   $ 123,600      $ 63,795  

Earnings per share—basic

   $ 0.77      $ 0.36  

Earnings per share—diluted

   $ 0.76      $ 0.35  

 

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Key Performance Indicators

Management regularly reviews financial and non-financial performance indicators to assess the Company’s operating results. The following table sets forth, for the quarterly periods indicated, certain of management’s key financial performance indicators:

 

     Three months ended  
     November 30,
2018
     August 31, 2018      May 31, 2018      February 28,
2018
 

Sales cycle(1)

     16 days        1 day        9 days        3 days  

Inventory turns (annualized)(2)

     6 turns        6 turns        6 turns        6 turns  

Days in accounts receivable(3)

     38 days        26 days        26 days        26 days  

Days in inventory(4)

     60 days        58 days        60 days        62 days  

Days in accounts payable(5)

     82 days        83 days        77 days        85 days  

 

(1)

The sales cycle is calculated as the sum of days in accounts receivable and days in inventory, less the days in accounts payable; accordingly, the variance in the sales cycle quarter over quarter is a direct result of changes in these indicators.

(2)

In connection with the adoption Accounting Standards Update No. 2014-09 (“ASU 2014-09”), Revenue Recognition (Topic 606), inventory turns are calculated based on inventory and contract asset balances for the three months ended November 30, 2018.

(3)

During the three months ended November 30, 2018, the increase in days in accounts receivable from the prior sequential quarter was primarily due to an increase in accounts receivable primarily driven by the amended and new securitization programs and higher sales and timing of collections.

(4)

In connection with the adoption of ASU 2014-09, days in inventory are calculated based on inventory and contract asset balances for the three months ended November 30, 2018. During the three months ended November 30, 2018, days in inventory increased from the prior sequential quarter to support expected sales levels in the second quarter of fiscal year 2019. During the three months ended August 31, 2018 and May 31, 2018, the decrease in days in inventory from the prior sequential quarter was primarily due to increased sales activity during the quarter.

(5)

During the three months ended August 31, 2018, the increase in days in accounts payable from the prior sequential quarter was primarily due to higher materials purchases during the quarter and the timing of purchases and cash payments for purchases during the quarter. During the three months ended May 31, 2018, the decrease in days in accounts payable from the prior sequential quarter was primarily due to the timing of purchases and cash payments for purchases during the quarter.

Critical Accounting Policies and Estimates

The preparation of our Condensed Consolidated Financial Statements and related disclosures in conformity with U.S. generally accepted accounting principles (“U.S. GAAP”) requires management to make estimates and judgments that affect our reported amounts of assets and liabilities, revenues and expenses, and related disclosures of contingent assets and liabilities. On an on-going basis, we evaluate our estimates and assumptions based upon historical experience and various other factors and circumstances. Management believes that our estimates and assumptions are reasonable under the circumstances; however, actual results may vary from these estimates and assumptions under different future circumstances. For further discussion of our significant accounting policies, refer to Note 1 — “Description of Business and Summary of Significant Accounting Policies” to the Consolidated Financial Statements and “Management’s Discussion and Analysis of Financial Condition and Results of Operations – Critical Accounting Policies and Estimates” in our Annual Report on Form 10-K for the fiscal year ended August 31, 2018.

Revenue Recognition

Effective September 1, 2018, our revenue recognition accounting policies changed in conjunction with the adoption of the new revenue recognition standard. Upon adoption, we recognize revenue over time as manufacturing services are completed for the majority of our contracts with customers, which results in revenue being recognized earlier than under the previous guidance. Revenue for all other contracts with customers will be recognized at a point in time, upon transfer of control of the product to the customer, which is effectively no change to our historical accounting. For further discussion of the new revenue recognition standard, refer to Note 16—“Revenue” to the Condensed Consolidated Financial Statements.

 

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Recent Accounting Pronouncements

See Note 14 – “New Accounting Guidance” to the Condensed Consolidated Financial Statements for a discussion of recent accounting guidance.

Results of Operations

Net Revenue

Generally, we assess revenue on a global customer basis regardless of whether the growth is associated with organic growth or as a result of an acquisition. Accordingly, we do not differentiate or separately report revenue increases generated by acquisitions as opposed to existing business. In addition, the added cost structures associated with our acquisitions have historically been relatively insignificant when compared to our overall cost structure.

The distribution of revenue across our segments has fluctuated, and will continue to fluctuate, as a result of numerous factors, including the following: fluctuations in customer demand; efforts to diversify certain portions of our business; seasonality in our business; business growth from new and existing customers; specific product performance; and any potential termination, or substantial winding down, of significant customer relationships.

 

     Three months ended         
(dollars in millions)    November 30, 2018      November 30, 2017      Change  

Net revenue

   $ 6,506.3      $ 5,585.5        16.5

Net revenue increased during the three months ended November 30, 2018, compared to the three months ended November 30, 2017. Specifically, the DMS segment revenues increased 10% due to (i) a 6% increase in revenues from customers within our mobility business as a result of increased end user product demand and (ii) a 4% increase in revenues from existing customers in our healthcare business. EMS segment revenues increased 22% primarily due to (i) a 11% increase in revenues from customers within our networking and telecommunications business, (ii) a 9% increase in revenues from existing customers within our industrial and energy business, (iii) a 4% increase in revenues for customers within our computing and storage business and (iv) a 4% increase in revenues for customers within our printing business. The increase is partially offset by (i) a 4% decrease in revenue for customers within our digital home business and (ii) a 2% decrease in revenues spread across various industries within the EMS segment.

Effective September 1, 2018, our revenue recognition accounting policies changed in conjunction with the adoption of the new revenue recognition standard. Upon adoption, we recognize revenue over time as manufacturing services are completed for the majority of our contracts with customers, which results in revenue being recognized earlier than under the previous guidance. Revenue for all other contracts with customers will be recognized at a point in time, upon transfer of control of the product to the customer, which is effectively no change to our historical accounting. For further discussion of the new revenue recognition standard, refer to Note 16—“Revenue” to the Condensed Consolidated Financial Statements.

The following table sets forth, for the periods indicated, revenue by segment expressed as a percentage of net revenue:

 

     Three months ended  
     November 30, 2018     November 30, 2017  

EMS

     54     51

DMS

     46     49
  

 

 

   

 

 

 

Total

     100     100
  

 

 

   

 

 

 

The following table sets forth, for the periods indicated, foreign source revenue expressed as a percentage of net revenue:

 

     Three months ended  
     November 30, 2018     November 30, 2017  

Foreign source revenue

     92.7     92.3

 

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Gross Profit

 

     Three months ended  
(dollars in millions)    November 30, 2018     November 30, 2017  

Gross profit

   $ 519.7     $ 469.3  

Percent of net revenue

     8.0     8.4

Gross profit decreased as a percent of net revenue during the three months ended November 30, 2018, compared to the three months ended November 30, 2017, primarily due to higher costs in our capital equipment business and ramp costs associated with new business awards in our EMS segment.

Selling, General and Administrative

 

     Three months ended         
(dollars in millions)    November 30, 2018      November 30, 2017      Change  

Selling, general and administrative

   $ 278.1      $ 293.1      $ (15.0

Selling, general and administrative expenses decreased during the three months ended November 30, 2018, compared to the three months ended November 30, 2017. The decrease is primarily due to an additional $32.4 million of stock-based compensation expense recognized during the three months ended November 30, 2017 as a result of the modification of certain performance-based restricted stock awards and a one-time cash-settled award. The decrease is partially offset by (i) an increase in salary and salary related expenses and other costs to support new business growth and development and (ii) $8.9 million in acquisition and integration charges related to our strategic collaboration with a healthcare company.

Research and Development

 

     Three months ended  
(dollars in millions)    November 30, 2018     November 30, 2017  

Research and development

   $ 11.1     $ 9.1  

Percent of net revenue

     0.2     0.2

Research and development expenses remained consistent as a percentage of net revenue during the three months ended November 30, 2018, compared to the three months ended November 30, 2017.

Amortization of Intangibles

 

     Three months ended         
(dollars in millions)    November 30, 2018      November 30, 2017      Change  

Amortization of intangibles

   $ 7.6      $ 10.0      $ (2.4

Amortization of intangibles decreased during the three months ended November 30, 2018, compared to the three months ended November 30, 2017, primarily due to intangible assets related to the Nypro acquisition, which were fully amortized during fiscal year 2018.

Restructuring and Related Charges

Following is a summary of the Company’s restructuring and related charges (in millions):

 

     Three months ended  
     November 30, 2018      November 30, 2017  

Employee severance and benefit costs

   $ 5.2      $ 4.0  

Lease costs

     —          —    

Asset write-off costs

     0.2        6.8  

Other related costs

     0.6        0.6  
  

 

 

    

 

 

 

Total restructuring and related charges(1)

   $ 6.0      $ 11.4  
  

 

 

    

 

 

 

 

(1)

Includes $4.4 million and $5.9 million recorded in the EMS segment, $1.6 million and $4.6 million recorded in the DMS segment and $0.0 million and $0.9 million of non-allocated charges for the three months ended November 30, 2018 and 2017, respectively. Except for asset write-off costs, all restructuring and related charges are cash costs.

 

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2017 Restructuring Plan

On September 15, 2016, our Board of Directors formally approved a restructuring plan to better align our global capacity and administrative support infrastructure to further optimize organizational effectiveness. This action includes headcount reductions across our selling, general and administrative cost base and capacity realignment in higher cost locations (the “2017 Restructuring Plan”).

Upon completion of the 2017 Restructuring Plan, we expect to recognize approximately $195.0 million in restructuring and other related costs. We have incurred $188.4 million of costs-to-date as of November 30, 2018. The remaining costs for employee severance and benefits costs, asset write-off costs and other related costs are anticipated to be incurred through the first half of fiscal year 2019.

The 2017 Restructuring Plan, once complete, is expected to yield annualized cost savings beginning in fiscal year 2019 of approximately $90.0 million. The annual cost savings are expected to be reflected as a reduction in cost of revenue as well as reduction of selling, general and administrative expense.

See Note 12 – “Restructuring and Related Charges” to the Condensed Consolidated Financial Statements for further discussion of restructuring and related charges for the 2017 Restructuring Plan.

Other Expense

 

     Three months ended         
(dollars in millions)    November 30, 2018      November 30, 2017      Change  

Other expense

   $ 13.6      $ 5.9      $ 7.7  

Other expense increased for the three months ended November 30, 2018, compared to the three months ended November 30, 2017, primarily due to: (i) additional fees incurred for the amendment of the foreign asset-backed securitization program and the new North American asset-backed securitization program entered into during the three months ended November 30, 2018 and (ii) an increase in fees associated with the utilization of the asset-backed securitization programs and trade accounts receivable sales programs.

Interest Income

 

     Three months ended         
(dollars in millions)    November 30, 2018      November 30, 2017      Change  

Interest income

   $ 4.4      $ 3.8      $ 0.6  

Interest income increased during the three months ended November 30, 2018, compared to the three months ended November 30, 2017, due to higher interest rates.

Interest Expense

 

     Three months ended         
(dollars in millions)    November 30, 2018      November 30, 2017      Change  

Interest expense

   $ 42.7      $ 36.2      $ 6.5  

Interest expense increased during the three months ended November 30, 2018, compared to the three months ended November 30, 2017, due to additional borrowings on our credit facilities and higher interest rates.

 

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Income Tax Expense

 

     Three months ended        
     November 30, 2018     November 30, 2017     Change  

Effective tax rate

     24.8     40.5     (15.7 )% 

The effective tax rate decreased for the three months ended November 30, 2018 compared to the three months ended November 30, 2017, primarily due to $13.3 million of income tax benefit associated with Tax Act adjustments, mainly related to the one-time transition tax. Refer to Note 15 – “Income Taxes” to the Condensed Consolidated Financial Statements for further information on the Tax Act.

Non-GAAP (Core) Financial Measures

The following discussion and analysis of our financial condition and results of operations include certain non-GAAP financial measures as identified in the reconciliations below. The non-GAAP financial measures disclosed herein do not have standard meaning and may vary from the non-GAAP financial measures used by other companies or how we may calculate those measures in other instances from time to time. Non-GAAP financial measures should not be considered a substitute for, or superior to, measures of financial performance prepared in accordance with U.S. GAAP. Also, our “core” financial measures should not be construed as an inference by us that our future results will be unaffected by those items that are excluded from our “core” financial measures.

Management believes that the non-GAAP “core” financial measures set forth below are useful to facilitate evaluating the past and future performance of our ongoing manufacturing operations over multiple periods on a comparable basis by excluding the effects of the amortization of intangibles, stock-based compensation expense and related charges, restructuring and related charges, distressed customer charges, acquisition and integration charges, loss on disposal of subsidiaries, settlement of receivables and related charges, impairment of notes receivable and related charges, goodwill impairment charges, business interruption and impairment charges, net, other than temporary impairment on securities, income (loss) from discontinued operations, gain (loss) on sale of discontinued operations and certain other expenses, net of tax and certain deferred tax valuation allowance charges. Among other uses, management uses non-GAAP “core” financial measures to make operating decisions, assess business performance and as a factor in determining certain employee performance when evaluating incentive compensation.

We determine the tax effect of the items excluded from “core” earnings and “core” basic and diluted earnings per share based upon evaluation of the statutory tax treatment and the applicable tax rate of the jurisdiction in which the pre-tax items were incurred, and for which realization of the resulting tax benefit, if any, is expected. In certain jurisdictions where we do not expect to realize a tax benefit (due to existing tax incentives or a history of operating losses or other factors resulting in a valuation allowance related to deferred tax assets), a reduced or 0% tax rate is applied.

We are reporting “core” operating income, “core” earnings, “core” return on invested capital and adjusted free cash flow to provide investors with an additional method for assessing operating income, earnings and free cash flow by presenting what we believe are our “core” manufacturing operations. A significant portion (based on the respective values) of the items that are excluded for purposes of calculating “core” operating income and “core” earnings also impacted certain balance sheet assets, resulting in a portion of an asset being written off without a corresponding recovery of cash we may have previously spent with respect to the asset. In the case of restructuring and related charges, we may make associated cash payments in the future. In addition, although, for purposes of calculating “core” operating income and “core” earnings, we exclude stock-based compensation expense (which we anticipate continuing to incur in the future) because it is a non-cash expense, the associated stock issued may result in an increase in our outstanding shares of stock, which may result in the dilution of our stockholders’ ownership interest. We encourage you to consider these matters when evaluating the utility of these non-GAAP financial measures.

Included in the tables below is a reconciliation of the non-GAAP financial measures to the most directly comparable U.S. GAAP financial measures as provided in our Condensed Consolidated Financial Statements (in thousands, except for per share data):

 

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     Three months ended  
(in thousands, except for per share data)    November 30, 2018     November 30, 2017  

Operating income (U.S. GAAP)

   $ 216,710     $ 145,754  
  

 

 

   

 

 

 

Amortization of intangibles

     7,646       9,979  

Stock-based compensation expense and related charges

     17,249       52,745  

Restructuring and related charges

     6,025       11,388  

Business interruption and impairment charges, net(1)

     (2,860     7,354  

Acquisition and integration charges(2)

     8,890       —    
  

 

 

   

 

 

 

Adjustments to operating income

     36,950       81,466  
  

 

 

   

 

 

 

Core operating income (Non-GAAP)

   $ 253,660     $ 227,220  
  

 

 

   

 

 

 

Net income attributable to Jabil Inc. (U.S. GAAP)

   $ 123,600     $ 63,795  

Adjustments to operating income

     36,950       81,466  

Adjustments for taxes(3)

     (13,743     (717
  

 

 

   

 

 

 

Core earnings (Non-GAAP)

   $ 146,807     $ 144,544  
  

 

 

   

 

 

 

Earnings per share (U.S. GAAP):

    

Basic

   $ 0.77     $ 0.36  
  

 

 

   

 

 

 

Diluted

   $ 0.76     $ 0.35  
  

 

 

   

 

 

 

Core earnings per share (Non-GAAP):

    

Basic

   $ 0.91     $ 0.82  
  

 

 

   

 

 

 

Diluted

   $ 0.90     $ 0.80  
  

 

 

   

 

 

 

Weighted average shares outstanding used in the calculations of earnings per share (U.S. GAAP and Non-GAAP):

    

Basic

     161,557       176,936  
  

 

 

   

 

 

 

Diluted

     163,670       180,203  
  

 

 

   

 

 

 

 

(1)

Charges, net of insurance proceeds of $2.9 million and $10.3 million for the three months ended November 30, 2018 and 2017, respectively, relate to business interruptions and asset impairment costs associated with damage from Hurricane Maria, which impacted our operations in Cayey, Puerto Rico.

(2)

Charges related to our strategic collaboration with a healthcare company.

(3)

Includes a $13.3 million income tax benefit for the effects of the Tax Act for the three months ended November 30, 2018.

 

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     Three months ended  
(in thousands)    November 30, 2018     November 30, 2017  

Numerator:

    

Operating income (U.S. GAAP)

   $ 216,710     $ 145,754  

Tax effect (1)

     (43,083     (44,362
  

 

 

   

 

 

 

After-tax operating income

     173,627       101,392  
     x4       x4  
  

 

 

   

 

 

 

Annualized after-tax operating income

   $ 694,508     $ 405,568  
  

 

 

   

 

 

 

Core operating income (Non-GAAP)

   $ 253,660     $ 227,220  

Tax effect (2)

     (57,035     (44,726
  

 

 

   

 

 

 

After-tax core operating income

     196,625       182,494  
     x4       x4  
  

 

 

   

 

 

 

Annualized after-tax core operating income

   $ 786,500     $ 729,976  
  

 

 

   

 

 

 

Denominator:

    

Average total Jabil Inc. stockholders’ equity (3)

   $ 1,921,086     $ 2,341,627  

Average notes payable and long-term debt, less current installments (3)

     2,490,707       1,663,013  

Average current installments of notes payable and long-term debt (3)

     25,195       436,259  

Average cash and cash equivalents (3)

     (1,031,179     (968,089
  

 

 

   

 

 

 

Net invested capital base

   $ 3,405,809     $ 3,472,810  
  

 

 

   

 

 

 

Return on Invested Capital (U.S. GAAP)

     20.4     11.7

Adjustments noted above

     2.7     9.3

Core Return on Invested Capital (Non-GAAP)

     23.1     21.0

 

(1) 

This amount is calculated by adding the amount of income taxes attributable to operating income (U.S. GAAP) and interest expense.

(2) 

This amount is calculated by adding the amount of income taxes attributable to core operating income (Non-GAAP) and interest expense.

(3) 

The average is based on the addition of the account balance at the end of the most recently-ended quarter to the account balance at the end of the prior quarter and dividing by two.

Acquisitions and Expansion

On December 12, 2018, the Company’s binding offer submitted on July 18, 2018 to form a strategic collaboration with Johnson & Johnson Medical Devices Companies, was accepted. This collaboration will significantly expand the Company’s medical device manufacturing portfolio, diversification and capabilities in the DMS segment. Completion of this transaction, which is subject to regulatory clearance and customary closing conditions, is expected to occur during fiscal years 2019 and 2020.

Seasonality

Production levels for a portion of the DMS segment are subject to seasonal influences. We may realize greater net revenue during our first fiscal quarter, which ends on November 30, due to higher demand for consumer related products during the holiday selling season. Therefore, quarterly results should not be relied upon as necessarily being indicative of results for the entire fiscal year.

 

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Liquidity and Capital Resources

We believe that our level of liquidity sources, which includes available borrowings under our revolving credit facilities, additional proceeds available under our asset-backed securitization programs and under our uncommitted trade accounts receivable sale programs, cash on hand, funds provided by operations and the access to the capital markets, will be adequate to fund our capital expenditures, the payment of any declared quarterly dividends, share repurchases, any potential acquisitions and our working capital requirements for the next 12 months. We continue to assess our capital structure and evaluate the merits of redeploying available cash to reduce existing debt or repurchase common stock.

Cash and Cash Equivalents

As of November 30, 2018, we had approximately $804.4 million in cash and cash equivalents. As our growth remains predominantly outside of the United States, a significant portion of such cash and cash equivalents are held by our foreign subsidiaries.

As a result of the Tax Act and after the one-time transition tax on our historically untaxed foreign earnings, the cash and cash equivalents held by our foreign subsidiaries will no longer be subject to U.S. federal income tax consequences upon subsequent repatriation to the United States. As a result, most of our cash and cash equivalents as of November 30, 2018 could be repatriated to the United States without potential tax consequences.

Notes Payable and Credit Facilities

Following is summary of principal debt payments and debt issuance for our notes payable and credit facilities:

 

(in thousands)    5.625%
Senior
Notes
     4.700%
Senior
Notes
     4.900%
Senior
Notes
     3.950%
Senior
Notes
     Borrowings
under
revolving
credit
facilities(1)
    Borrowings
under
loans
    Total notes
payable
and
credit
facilities
 

Balance as of August 31, 2018

   $ 397,995      $ 497,350      $ 298,814      $ 494,208      $ —       $ 830,332     $ 2,518,699  

Borrowings

     —          —          —          —          3,071,559       —         3,071,559  

Payments

     —          —          —          —          (3,071,559     (6,321     (3,077,880

Other

     223        164        61        154        —         125       727  
  

 

 

    

 

 

    

 

 

    

 

 

    

 

 

   

 

 

   

 

 

 

Balance as of November 30, 2018

   $ 398,218      $ 497,514      $ 298,875      $ 494,362      $ —       $ 824,136     $ 2,513,105  
  

 

 

    

 

 

    

 

 

    

 

 

    

 

 

   

 

 

   

 

 

 

Maturity Date

     Dec 15, 2020        Sep 15, 2022        Jul 14, 2023        Jan 12, 2028       
Nov 8, 2022 and
Aug 24, 2020
 
(1)  
   
Nov 8, 2022
and Aug 24, 2020
 
 
 

Original Facility/ Maximum Capacity

   $ 400.0 million      $ 500.0 million      $ 300.0 million      $ 500.0 million      $ 2.3 billion (1)     $ 851.8 million    

 

(1)

As of November 30, 2018, we had $2.3 billion in available unused borrowing capacity under our revolving credit facilities.

We have a shelf registration statement with the SEC registering the potential sale of an indeterminate amount of debt and equity securities in the future to augment our liquidity and capital resources.

Our Senior Notes and our credit facilities contain various financial and nonfinancial covenants. A violation of these covenants could negatively impact our liquidity by restricting our ability to borrow under the notes payable and credit facilities and potentially causing acceleration of amounts due under these notes payable and credit facilities. As of November 30, 2018, we were in compliance with our debt covenants. Refer to Note 7 – “Notes Payable and Long-Term Debt” to the Condensed Consolidated Financial Statements for further details.

Asset-Backed Securitization and Trade Accounts Receivable Sale Programs

Asset-Backed Securitization Programs

We continuously sell designated pools of trade accounts receivable under our foreign asset-backed securitization program to a special purpose entity, which in turn sells certain of the receivables to an unaffiliated financial institution and a conduit administered by an unaffiliated financial institution on a monthly basis. Effective October 1, 2018, the foreign asset-backed securitization program terms were amended and the program was extended to September 30, 2021. In connection with this amendment, there is no longer a deferred purchase price receivable for the foreign asset-backed securitization program as the entire purchase price is paid in cash when the receivables are sold.

 

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As of October 1, 2018, approximately $734.2 million of accounts receivable sold under the foreign asset-backed securitization program was exchanged for the outstanding deferred purchase price receivable of $335.5 million. The remaining amount due to the financial institution of $398.7 million was subsequently settled for $25.2 million of cash and $373.5 million of trade accounts receivable sold to the financial institution. Prior to the amendment, any portion of the purchase price for the receivables not paid in cash upon the sale occurring was recorded as a deferred purchase price receivable, which was paid from available cash as payments on the receivables were collected.

The North American asset-backed securitization program was terminated on October 9, 2018 and as of this date approximately $500.0 million of accounts receivable sold under the program was exchanged for the outstanding deferred purchase price receivable of $300.0 million and $200.0 million of cash. The previously sold trade accounts receivable were recorded at fair market value.

On November 27, 2018, we entered into a new North American asset-backed securitization program. We continuously sell designated pools of trade accounts receivable under our new North American asset-backed securitization program to a special purpose entity, which in turn sells certain of the receivables to conduits administered by unaffiliated financial institutions on a monthly basis. There is no longer a deferred purchase price receivable for the North American asset-backed securitization program as the entire purchase price is paid in cash when the receivables are sold. Additionally, certain receivables are pledged as collateral to the unaffiliated financial institution.

Following is a summary of our asset-backed securitization programs and key terms:

 

     Maximum Amount of
Net Cash Proceeds (in millions)(1)
     Expiration
Date
 

North American

   $ 390.0        November 22, 2021  

Foreign

   $ 400.0        September 30, 2021  

 

(1)

Maximum amount available at any one time.

In connection with our asset-backed securitization programs, during the three months ended November 30, 2018, we sold $750.4 million of trade accounts receivable and we received cash proceeds of $744.0 million. As of November 30, 2018, we had up to $83.4 million in available liquidity under our asset-backed securitization programs.

Our asset-backed securitization programs contain various financial and nonfinancial covenants. As of November 30, 2018 and August 31, 2018, we were in compliance with all covenants under our asset-backed securitization programs. Refer to Note 8 – “Trade Accounts Receivable Securitization and Sale Programs” to the Condensed Consolidated Financial Statements for further details on the programs.

Trade Accounts Receivable Sale Programs

Following is a summary of the nine trade accounts receivable sale programs with unaffiliated financial institutions. Under the programs we may elect to sell receivables and the unaffiliated financial institutions may elect to purchase, at a discount, on an ongoing basis:

 

Program    Maximum
Amount
(in millions)(1)
            Type of
Facility
     Expiration
Date
 

A

   $ 875.0           Uncommitted        August 31, 2022 (2)(3)  

B

   $ 150.0           Uncommitted        November 30, 2019 (4)  

C

     800.0        CNY        Uncommitted        February 13, 2019  

D

   $ 100.0           Uncommitted        May 4, 2023 (5)  

E

   $ 50.0           Uncommitted        August 25, 2019  

F

   $ 150.0           Uncommitted        January 25, 2019 (6)  

G

   $ 50.0           Uncommitted        February 23, 2023 (3)  

H

   $ 100.0           Uncommitted        August 10, 2019 (7)  

I

   $ 100.0           Uncommitted        July 21, 2019 (8)  

 

(1)

Maximum amount available at any one time.

(2)

The maximum amount under the program will reduce to $650.0 million on February 1, 2019.

 

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(3)

Any party may elect to terminate the agreement upon 15 days prior notice.

(4)

The program will automatically extend for one year at each expiration date unless either party provides 10 days notice of termination.

(5)

Any party may elect to terminate the agreement upon 30 days prior notice.

(6)

The program will be automatically extended through January 25, 2023 unless either party provides 30 days notice of termination.

(7)

The program will be automatically extended through August 10, 2023 unless either party provides 30 days notice of termination.

(8)

The program will be automatically extended through August 21, 2023 unless either party provides 30 days notice of termination.

During the three months ended November 30, 2018, we sold $1.8 billion of trade accounts receivable under these programs and we received cash proceeds of $1.8 billion. As of November 30, 2018, we had up to $322.1 million in available liquidity under our trade accounts receivable sale programs.

Capital Expenditures

For fiscal year 2019, we anticipate our net capital expenditures will be approximately $800.0 million. Our capital expenditures will support investments in new markets and ongoing maintenance in our DMS and EMS segments. The amount of actual capital expenditures may be affected by general economic, financial, competitive, legislative and regulatory factors, among other things.

Cash Flows    

The following table sets forth selected consolidated cash flow information (in thousands):

 

     Three months ended  
     November 30,
2018
    November 30,
2017
 

Net cash used in operating activities

   $ (91,693   $ (649,645

Net cash (used in) provided by investing activities

     (131,252     300,846  

Net cash used in financing activities

     (235,460     (90,796

Effect of exchange rate changes on cash and cash equivalents

     4,865       (4,066
  

 

 

   

 

 

 

Net decrease in cash and cash equivalents

   $ (453,540   $ (443,661
  

 

 

   

 

 

 

Operating Activities

Net cash used in operating activities during the three months ended November 30, 2018 was primarily due to increased contract assets and accounts receivable, partially offset by increased accounts payable, accrued expenses and other liabilities and decreased inventories. The increase in contract assets is due to the adoption of ASU 2014-09 and the timing of revenue recognition for over time customers. The increase in accounts receivable is primarily driven by the amended and new securitization programs and higher sales and timing of collections. The increase in accounts payable, accrued expenses and other liabilities is primarily due to the timing of collections on accounts receivable sold under the securitization programs, an increase in materials purchases due to increased demand in the mobility business and the timing of purchases and cash payments. The decrease in inventories is primarily due to the adoption of ASU 2014-09 and the reclassification to contract assets for revenue recognized for over time customers, partially offset by an increase to support expected sales levels in the second quarter of fiscal year 2019.

Investing Activities

Net cash used in investing activities during the three months ended November 30, 2018 consisted primarily of capital expenditures principally to support ongoing business in the DMS and EMS segments, partially offset by cash receipts on sold receivables under the asset-backed securitization programs.

Financing Activities

Net cash used in financing activities during the three months ended November 30, 2018 was primarily due to: (i) payments for debt agreements, (ii) the repurchase of our common stock, (iii) dividend payments and (iv) treasury stock minimum tax withholding related to vesting of restricted stock. Net cash used in financing activities was partially offset by: (i) borrowings under debt agreements.

 

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Contractual Obligations

As of the date of this report there were no material changes outside the ordinary course of business since August 31, 2018 to our contractual obligations and commitments.

Dividends and Share Repurchases

We currently expect to continue to declare and pay regular quarterly dividends of an amount similar to our past declarations. However, the declaration and payment of future dividends are discretionary and will be subject to determination by our Board of Directors each quarter following its review of our financial performance.

In June 2018, the Board of Directors authorized the repurchase of up to $350.0 million of our common stock (the “2018 Share Repurchase Program”). This authorization expires on August 31, 2019. As of November 30, 2018, 7.9 million shares had been repurchased for $204.5 million and $145.5 million remains available under the 2018 Share Repurchase Program.

 

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Item 3. Quantitative and Qualitative Disclosures About Market Risk

There have been no material changes in our primary risk exposures or management of market risks from those disclosed in our Annual Report on Form 10-K for the fiscal year ended August 31, 2018.

Item 4. Controls and Procedures

Evaluation of Disclosure Controls and Procedures

We carried out an evaluation required by Rules 13a-15 and 15d-15 under the Exchange Act (the “Evaluation”), under the supervision and with the participation of our Chief Executive Officer (“CEO”) and Chief Financial Officer (“CFO”), of the effectiveness of our disclosure controls and procedures as defined in Rules 13a-15 and 15d-15 under the Exchange Act as of November 30, 2018. Based on the Evaluation, our CEO and CFO concluded that the design and operation of our disclosure controls were effective to ensure that information required to be disclosed by us in reports that we file or submit under the Exchange Act is (i) recorded, processed, summarized and reported within the time periods specified in SEC rules and forms, and (ii) accumulated and communicated to our senior management, including our CEO and CFO, to allow timely decisions regarding required disclosure.

Changes in Internal Control over Financial Reporting

For our fiscal quarter ended November 30, 2018, other than explained below, we did not identify any modifications to our internal control over financial reporting that have materially affected, or are reasonably likely to materially affect, our internal control over financial reporting.

Effective September 1, 2018, we adopted the new revenue standard under ASC Topic 606, Revenue from Contracts with Customers, using the modified retrospective method of adoption. The adoption of this guidance required changes to our processes, policies and internal controls, including controls around information used in disclosures, to meet the impact of the new standard and disclosure requirements.

 

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PART II—OTHER INFORMATION

Item 1. Legal Proceedings

We are party to certain lawsuits in the ordinary course of business. We do not believe that these proceedings, individually or in the aggregate, will have a material adverse effect on our financial position, results of operations or cash flows.

Item 1A. Risk Factors

For information regarding risk factors that could affect our business, results of operations, financial condition or future results, see Part I, “Item 1A. Risk Factors” of our Annual Report on Form 10-K for the fiscal year ended August 31, 2018. For further information on our forward-looking statements see Part I of this Quarterly Report on Form 10-Q.

Item 2. Unregistered Sales of Equity Securities and Use of Proceeds

The following table provides information relating to our repurchase of common stock during the three months ended November 30, 2018:

 

Period

   Total Number
of Shares
Purchased(1)
     Average Price
Paid per Share
     Total Number of
Shares Purchased
as Part of Publicly
Announced Program(2)
     Approximate
Dollar Value of
Shares that May
Yet Be Purchased
Under  the Program
 

September 1, 2018 - September 30, 2018

     1,946,835      $ 29.17        1,946,811      $ 293,211,162  

October 1, 2018 - October 31, 2018

     3,589,750      $ 24.74        3,182,327      $ 214,101,747  

November 1, 2018 - November 30, 2018

     2,751,208      $ 24.95        2,751,208      $ 145,452,016  
  

 

 

       

 

 

    

Total

     8,287,793      $ 25.85        7,880,346     

 

(1)

The purchases include amounts that are attributable to shares surrendered to us by employees to satisfy, in connection with the vesting of restricted stock awards and the exercise of stock appreciation rights, their tax withholding obligations.

(2)

In June 2018, our Board of Directors authorized the repurchase of up to $350.0 million of our common stock as publicly announced in a press release issued on June 14, 2018. The share repurchase program expires on August 31, 2019.

Item 3. Defaults Upon Senior Securities

None.

Item 4. Mine Safety Disclosures

Not applicable.

Item 5. Other Information

None.

 

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Item 6. Exhibits

Index to Exhibits

 

         

Incorporated by Reference Herein

Exhibit No.

  

Description

  

Form

  

Exhibit

  

Filing

Date/Period

End Date

    1.1    Underwriting Agreement, dated as of January  9, 2018, between the Company and BNP Paribas Securities Corp., Citigroup Global Markets Inc., J.P. Morgan Securities LLC and Mizuho Securities USA LLC, as representatives of the several underwriters listed therein.    8-K    1.1    1/17/2018
    3.1    Registrant’s Certificate of Incorporation, as amended.    10-Q    3.1    5/31/2017
    3.2    Registrant’s Bylaws, as amended.    10-Q    3.2    5/31/2017
    4.1    Form of Certificate for Shares of the Registrant’s Common Stock. (P)    S-1       3/17/1993
    4.2    Indenture, dated January  16, 2008, with respect to Senior Debt Securities of the Registrant, between the Registrant and The Bank of New York Mellon Trust Company, N.A. (formerly known as The Bank of New York Trust Company, N.A.), as trustee.    8-K    4.2    1/17/2008
    4.3    Form of 7.750% Registered Senior Notes issued on August 11, 2009.    8-K    4.1    8/12/2009
    4.4    Form of 5.625% Registered Senior Notes issued on November 2, 2010.    8-K    4.1    11/2/2010
    4.5    Form of 4.700% Registered Senior Notes issued on August 3, 2012.    8-K    4.1    8/6/2012
    4.6    Form of 3.950% Senior Notes due 2028 (included in the Officers’ Certificate filed as Exhibit 4.10).    8-K    4.1    1/17/2018
    4.7    Officers’ Certificate of the Registrant pursuant to the Indenture, dated August 11, 2009.    8-K    4.3    8/12/2009
    4.8    Officers’ Certificate of the Registrant pursuant to the Indenture, dated November 2, 2010.    8-K    4.3    11/2/2010
    4.9    Officers’ Certificate of the Registrant pursuant to the Indenture, dated August 3, 2012.    8-K    4.3    8/6/2012
    4.10    Officers’ Certificate, dated as of January 17, 2018, establishing the 3.950% Senior Notes due 2028.    8-K    4.1    1/17/2018
  10.1†*    Form of Jabil Inc. Restricted Stock Unit Award Agreement (PBRSU EPS—Executive-EU).         
  10.2†*    Form of Jabil Inc. Restricted Stock Unit Award Agreement (PBRSU EPS - Executive - Non-EU).         
  10.3†*    Form of Jabil Inc. Restricted Stock Unit Award Agreement (PBRSU TSR - ONEU).         
  10.4†*    Form of Jabil Inc. Restricted Stock Unit Award Agreement (PBRSU TSR - OEU).         
  10.5†*    Form of Jabil Inc. Restricted Stock Unit Award Agreement (TBRSU-ONEU)         
  10.6†*    Form of Jabil Inc. Restricted Stock Unit Award Agreement (TBRSU-OEU).         
  10.7†*    Form of Jabil Inc. Restricted Stock Unit Award Agreement (TBRSU-DIR).         
  10.8†*    Jabil Inc. 2011 Employee Stock Purchase Plan, as amended         
  31.1*    Rule 13a-14(a)/15d-14(a) Certification by the Chief Executive Officer.         

 

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Incorporated by Reference Herein

Exhibit No.

  

Description

  

Form

  

Exhibit

  

Filing

Date/Period

End Date

  31.2*    Rule 13a-14(a)/15d-14(a) Certification by the Chief Financial Officer.         
  32.1*    Section 1350 Certification by the Chief Executive Officer.         
  32.2*    Section 1350 Certification by the Chief Financial Officer.         
101.INS**    XBRL Instance Document.         
101.SCH**    XBRL Taxonomy Extension Schema Document.         
101.CAL**    XBRL Taxonomy Extension Calculation Linkbase Document.         
101.DEF**    XBRL Taxonomy Extension Definitions Linkbase Document.         
101.LAB**    XBRL Taxonomy Extension Label Linkbase Document.         
101.PRE**    XBRL Taxonomy Extension Presentation Linkbase Document.         

 

Indicates management compensatory plan, contract or arrangement

*

Filed or furnished herewith

**

XBRL (Extensible Business Reporting Language) Filed Electronically with this report.

Certain instruments with respect to long-term debt of the Registrant and its consolidated subsidiaries are not filed herewith pursuant to Item 601(b)(4)(iii) of Regulation S-K since the total amount of securities authorized under each such instrument does not exceed 10% of the total assets of the Registrant and its subsidiaries on a consolidated basis. The Registrant agrees to furnish a copy of any such instrument to the Securities and Exchange Commission upon request.

 

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Table of Contents

SIGNATURES

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized.

 

   

JABIL INC.

Registrant

Date: January 9, 2019     By:  

/s/ MARK T. MONDELLO

     

Mark T. Mondello

Chief Executive Officer

Date: January 9, 2019     By:  

/s/ MICHAEL DASTOOR

     

Michael Dastoor

Chief Financial Officer

 

 

41

EX-10.1

Exhibit 10.1

JABIL INC.

RESTRICTED STOCK UNIT AWARD AGREEMENT

(PBRSU EPS - Executive-EU)

This RESTRICTED STOCK UNIT AWARD AGREEMENT (the “Agreement”) is made as of October 18, 2018 (the “Grant Date”) between JABIL INC. a Delaware corporation (the “Company”) and                                  (the “Grantee”).

Background Information

A. The Board of Directors (the “Board”) and stockholders of the Company previously adopted the 2011 Stock Award and Incentive Plan (the “Plan”).

B. Section 8 of the Plan provides that the Administrator shall have the discretion and right to grant Stock Awards, including Stock Awards denominated in units representing rights to receive shares, to any Employees or Consultants or Non-Employee Directors, subject to the terms and conditions of the Plan and any additional terms provided by the Administrator. The Administrator has made a Stock Award grant denominated in units to the Grantee as of the Grant Date pursuant to the terms of the Plan and this Agreement.

C. The Grantee desires to accept the Stock Award grant and agrees to be bound by the terms and conditions of the Plan and this Agreement.

D. Unless otherwise defined herein, the terms defined in the Plan shall have the same defined meanings in this Agreement.

Agreement

1. Restricted Stock Units. Subject to the terms and conditions provided in this Agreement and the Plan, the Company hereby grants to the Grantee                  restricted stock units (the “Restricted Stock Units”) as of the Grant Date. Each Restricted Stock Unit represents the right to receive a Share of Common Stock if the Restricted Stock Unit becomes vested and non-forfeitable in accordance with Section 2 or Section 3 of this Agreement. The Grantee shall have no rights as a stockholder of the Company, no dividend rights and no voting rights with respect to the Restricted Stock Units or the Shares underlying the Restricted Stock Units unless and until the Restricted Stock Units become vested and non-forfeitable and such Shares are delivered to the Grantee in accordance with Section 4 of this Agreement. The Grantee is required to pay no cash consideration for the grant of the Restricted Stock Units. The Grantee acknowledges and agrees that (i) the Restricted Stock Units and related rights are nontransferable as provided in Section 5 of this Agreement, (ii) the Restricted Stock Units are subject to forfeiture in the event the Grantee’s Continuous Status as an Employee or Consultant or Non-Employee Director terminates in certain circumstances, as specified in Section 6 of this Agreement, (iii) sales of Shares of Common Stock delivered in settlement of the Restricted Stock Units will be subject to the Company’s policies regulating trading by Employees and Consultants, including any applicable “blackout” or other designated periods in which sales of Shares are not permitted, (iv) Shares delivered in settlement will be subject to any recoupment or “clawback” policy of the Company, regardless of whether such recoupment or “clawback” policy is applied with prospective or retroactive effect, and (v) any entitlement to dividend equivalents will be in accordance with Section 7 of this Agreement. The extent to which the Grantee’s rights and interest in the Restricted Stock Units becomes vested and non-forfeitable shall be determined in accordance with the provisions of Sections 2 and 3 of this Agreement.


2. Vesting.

(a) Except as may be otherwise provided in Section 3 or Section 6 of this Agreement, the vesting of the Grantee’s rights and interest in the Restricted Stock Units shall be determined in accordance with this Section 2. The extent to which the Grantee’s interest in the Restricted Stock Units becomes vested and non-forfeitable shall be based upon the satisfaction of the performance goal specified in this Section 2 (the “Performance Goal”), subject to Section 3. The Performance Goal shall be based upon the Cumulative EPS (“Cumulative EPS”) of the Company’s adjusted core earnings per share (as defined below) during the three-year period beginning September 1, 2018 and ending on August 31, 2021 (the “Performance Period”). The Cumulative EPS for the Performance Period shall be measured on August 31, 2021 (“Measurement Date”) (subject to adjustment under Section 7(b)). For purposes of this Agreement, “adjusted core earnings per share” means the Company’s net income determined under U.S. generally accepted accounting principles (“GAAP”), adjusted to exclude the following: (1) amortization of intangible assets, (2) stock-based compensation expense and related charges, (3) goodwill impairment charges, net of any tax related implications, (4) the cumulative effect of changes in GAAP and/or tax laws and regulations not previously contemplated in the Company’s Cumulative EPS target and (5) any other unusual or nonrecurring gains or losses which are separately identified and quantified, including the acquisition and integration costs associated with Project Dayton and charges associated with the previously approved Board restructuring plans, divided by the weighted average number of outstanding shares determined in accordance with GAAP. Notwithstanding anything to the contrary contained in the preceding sentence, in the event that, as determined in the sole discretion of the Compensation Committee of the Board (the “Committee”) and due to a required change in GAAP, tax laws and regulations or an extraordinary and material event in the Company’s business (each of the foregoing events being referred to herein as a “Material Event”), “adjusted core earnings per share” determined after the occurrence of a Material Event would be materially different as a result of the occurrence thereof, the Committee may instruct the Company to determine “adjusted core earnings per share” for such period, solely for purposes of this Agreement, as if the Material Event had not happened or was not effective. Such instruction may be limited to apply to fiscal years in which the cumulative effect did not account for the occurrence of the Material Event.

(b) The portion of the Grantee’s rights and interest in the Restricted Stock Units, if any, that becomes vested and non-forfeitable on the Determination Date (as defined below) following the Performance Period shall be determined at the Measurement Date in accordance with the following schedule:

 

Cumulative EPS for Three Fiscal

Years Beginning September 1,

2018 and Ending August 31, 2021

   Percentage of
Shares Vested
 

Below [$X]

     0

[$X]

     20

[$X]

     100

[$X]

     150

Notwithstanding the foregoing schedule, no fractional Shares shall be issued, and subject to the preceding limitation on the number of Shares available under this Agreement (that is, 150 percent of the related Shares), any fractional Share that would have resulted from the foregoing calculations shall be rounded up to the next whole Share.

(c) The applicable portion of the Restricted Stock Units shall become vested and non-forfeitable in accordance with this Section 2, subject to the Committee determining that the corresponding Performance Goal and all other conditions for the vesting of the Restricted Stock Units have been satisfied; provided the Grantee’s Continuous Status as an Employee or Consultant or Non-Employee Director has not terminated before the Determination Date, as defined herein. This determination shall be made within ninety (90) days after the last day

 

2


of the Performance Period (“Determination Date”). The Committee shall make this determination, provided that, for any Grantee who is not an “officer” of the Company for purposes of Section 16 of the Securities Exchange Act of 1934, as amended, the determination may be made by such Grantee’s divisional Executive Vice President or Chief Executive Officer, by the Chief Operating Officer of the Company or by the President of the Company (each, an “Authorized Officer”). The Committee’s or Authorized Officer’s good faith determination shall be final, binding and conclusive on all persons, including, but not limited to, the Company and the Grantee. The Committee or such Authorized Officer may, in its discretion, reduce the amount of compensation otherwise to be paid or earned in connection with this award, notwithstanding the level of achievement of the Performance Goal or any contrary provision of the Plan; provided no such reduction may be made after a Change in Control. The Grantee shall not be entitled to any claim or recourse if any action or inaction by the Company, or any other circumstance or event, including any circumstance or event outside the control of the Grantee, adversely affects the ability of the Grantee to satisfy the Performance Goal or in any way prevents the satisfaction of the Performance Goal.

3. Change in Control. In the event of a Change in Control, any portion of the Restricted Stock Units that is not yet vested on the date such Change in Control is determined to have occurred:

(a) shall become fully vested on the first anniversary of the date of such Change in Control (the “Change in Control Anniversary”) if the Grantee’s Continuous Status as an Employee or Consultant or Non-Employee Director does not terminate prior to the Change in Control Anniversary;

(b) shall become fully vested on the Date of Termination if the Grantee’s Continuous Status as an Employee or Consultant or Non-Employee Director terminates prior to the Change in Control Anniversary as a result of termination by the Company without Cause or resignation by the Grantee for Good Reason; or

(c) shall not become fully vested if the Grantee’s Continuous Status as an Employee or Consultant or Non-Employee Director terminates prior to the Change in Control Anniversary as a result of termination by the Company for Cause or resignation by the Grantee without Good Reason, but only to the extent such Restricted Stock Units have not previously become vested.

For purposes of this Agreement, the references to “fully vested” refer to vesting of the number of Restricted Stock Units that would vest upon achievement of the maximum level of achievement of the Performance Goal under Section 2 at the Measurement Date. This Section 3 shall supersede the standard vesting provision contained in Section 2 of this Agreement only to the extent that it results in accelerated vesting of the Restricted Stock Units, and it shall not result in a delay of any vesting or non-vesting of any Restricted Stock Units that otherwise would occur at the Measurement Date during the Performance Period under the terms of the standard vesting provision contained in Section 2 of this Agreement.

For purposes of this Section 3, the following definitions shall apply:

(d) “Cause” means:

(i) The Grantee’s conviction of a crime involving fraud or dishonesty; or

(ii) The Grantee’s continued willful or reckless material misconduct in the performance of the Grantee’s duties after receipt of written notice from the Company concerning such misconduct;

provided, however, that for purposes of Section 3(d)(ii), Cause shall not include any one or more of the following: bad judgment, negligence or any act or omission believed by the Grantee in good faith to have been in or not opposed to the interest of the Company (without intent of the Grantee to gain, directly or indirectly, a profit to which the Grantee was not legally entitled).

 

3


(e) “Good Reason” means:

(i) The assignment to the Grantee of any duties adverse to the Grantee and materially inconsistent with the Grantee’s position (including status, titles and reporting requirement), authority, duties or responsibilities, or any other action by the Company that results in a material diminution in such position, authority, duties or responsibilities, excluding for this purpose an isolated, insubstantial and inadvertent action that is not taken in bad faith;

(ii) Any material reduction in the Grantee’s compensation; or

(iii) Change in location of the Grantee’s assigned office of more than 35 miles without prior consent of the Grantee.

The Grantee’s resignation will not constitute a resignation for Good Reason unless the Grantee first provides written notice to the Company of the existence of the Good Reason within 90 days following the effective date of the occurrence of the Good Reason, and the Good Reason remains uncorrected by the Company for more than 30 days following receipt of such written notice of the Good Reason from the Grantee to the Company, and the effective date of the Grantee’s resignation is within one year following the effective date of the occurrence of the Good Reason.

4. Timing and Manner of Settlement of Restricted Stock Units.

(a) Settlement Timing. Unless and until the Restricted Stock Units become vested and non-forfeitable in accordance with Section 2, Section 3 or Section 6 of this Agreement, the Grantee will have no right to settlement of any such Restricted Stock Units. Restricted Stock Units will be settled under this Section 4 by the Company delivering to the Grantee (or his beneficiary in the event of death) a number of Shares equal to the number of Restricted Stock Units that have become vested and non-forfeitable and are to be settled at the applicable settlement date. In the case of Restricted Stock Units that become vested and non-forfeitable at the Determination Date in accordance with Section 2 of this Agreement (including Restricted Stock Units not forfeited by operation of Section 6(a) or 6(c)), such Restricted Stock Units will be settled at a date that is as prompt as practicable after the Determination Date but in no event later than two and one-half (2-1/2) months after the Determination Date (settlement that is prompt but in no event later than two and one-half (2-1/2) months after the applicable vesting date is referred to herein as “Prompt Settlement”). The settlement of Restricted Stock Units that become vested and non-forfeitable in circumstances governed by Section 3 or Section 6(b) will be as follows:

(i) Restricted Stock Units that do not constitute a deferral of compensation under Code Section 409A will be settled as follows:

(A) Restricted Stock Units that become vested in accordance with Section 6(b) (due to the Grantee’s death) will be settled within the period extending to not later than two and one-half (2-1/2) months after the later of the end of calendar year or the end of the Company’s fiscal year in which death occurred; and

(B) Restricted Stock Units that become vested in accordance with Section 3(a) (on the Change in Control Anniversary) or Section 3(b) (during the year following a Change in Control) will be settled in a Prompt Settlement following the applicable vesting date under Section 3(a) or 3(b).

 

4


(ii) Restricted Stock Units that constitute a deferral of compensation under Code Section 409A (“409A RSUs”) will be settled as follows:

(A) 409A RSUs that become vested in accordance with Section 6(b) (due to the Grantee’s death) will be settled on the 30th day after the date of the Grantee’s death;

(B) 409A RSUs that become vested in accordance with Section 3(a) (on the Change in Control Anniversary), if in connection with the Change in Control there occurred a change in the ownership of the Company, a change in effective control of the Company or a change in the ownership of a substantial portion of the assets of the Company as defined in Treasury Regulation § 1.409A-3(i)(5) (a “409A Change in Control”), will be settled in a Prompt Settlement following the first anniversary of the 409A Change in Control, and if there occurred no 409A Change in Control in connection with the Change in Control, such 409A RSUs will be settled in a Prompt Settlement following the earliest of the Determination Date, one year after a 409A Change in Control not related to the Change in Control or the termination of the Grantee’s Continuous Status as an Employee or Consultant or Non-Employee Director, subject to Section 9(b) (including the six-month delay rule); and

(C) 409A RSUs that become vested in accordance with Section 3(b) (during the year following a Change in Control) will be settled in a Prompt Settlement following termination of the Grantee’s Continuous Status as an Employee or Consultant or Non-Employee Director, subject to Section 9(b) (including the six-month delay rule).

(b) Manner of Settlement. The Company may make delivery of shares of Common Stock in settlement of Restricted Stock Units by either delivering one or more certificates representing such Shares to the Grantee (or his beneficiary in the event of death), registered in the name of the Grantee (and any joint name, if so directed by the Grantee), or by depositing such Shares into a stock brokerage account maintained for the Grantee (or of which the Grantee is a joint owner, with the consent of the Grantee). In no event will the Company issue fractional Shares.

(c) Effect of Settlement. Neither the Grantee nor any of the Grantee’s successors, heirs, assigns or personal representatives shall have any further rights or interests in any Restricted Stock Units that have been paid and settled. Although a settlement date or range of dates for settlement are specified above in order to comply with Code Section 409A, the Company retains discretion to determine the settlement date, and no Grantee or beneficiary of a Grantee shall have any claim for damages or loss by virtue of the fact that the market price of Common Stock was higher on a given date upon which settlement could have been made as compared to the market price on or after the actual settlement date (any claim relating to settlement will be limited to a claim for delivery of Shares and related dividend equivalents).

5. Restrictions on Transfer. The Grantee shall not have the right to make or permit to occur any transfer, assignment, pledge, hypothecation or encumbrance of all or any portion of the Restricted Stock Units, related rights to dividend equivalents or any other rights relating thereto, whether outright or as security, with or without consideration, voluntary or involuntary, and the Restricted Stock Units, related rights to dividend equivalents and other rights relating thereto, shall not be subject to execution, attachment, lien, or similar process; provided, however, the Grantee will be entitled to designate a beneficiary or beneficiaries to receive any settlement in respect of the Restricted Stock Units upon the death of the Grantee, in the manner and to the extent permitted by the Administrator. Any purported transfer or other transaction not permitted under this Section 5 shall be deemed null and void.

 

5


6. Forfeiture. Except as may be otherwise provided in this Section 6, the Grantee shall forfeit all of his rights and interest in the Restricted Stock Units and related dividend equivalents if his Continuous Status as an Employee or Consultant or Non-Employee Director terminates for any reason before the Restricted Stock Units become vested in accordance with Section 2 or Section 3 of this Agreement.

(a) Retirement. In the event of the Grantee’s Retirement in accordance with the terms and conditions set forth in this Section 6(a), the Grantee’s Continuous Status as an Employee or Consultant or Non-Employee Director shall be treated as not having terminated for a number of years determined in accordance with this Section 6(a) for purposes of application of the vesting provisions of this Agreement. For purposes of this Section 6(a), “Retirement” means termination of the Grantee’s Continuous Status as an Employee or Consultant or Non-Employee Director after the Grant Date or the end of the Company fiscal year in the Performance Period at which the Grantee has completed twenty (20) Full Years of Continuous Status as an Employee or Consultant or Non-Employee Director.

For purposes of this Section 6(a), “Full Year” means a twelve-month period beginning on the date of the Grantee’s commencement of service for the Company or a Subsidiary and each anniversary thereof. Except as otherwise provided in this Section 6(a), the time period of Continuous Status as an Employee or Consultant or Non-Employee Director for a Grantee whose service with the Company or a Subsidiary terminates and who subsequently returns to service with the Company or a Subsidiary shall include all time periods of the Grantee’s service for the Company or a Subsidiary for purposes of this Section 6(a). This Section 6(a) will only apply to a Retirement if the Grantee’s Continuous Status as an Employee or Consultant or Non-Employee Director does not terminate due to Cause as defined in this Agreement. In addition, this Section 6(a) will only apply to a Retirement if the Grantee executes the agreement, if any, required under Section 6(d). For a Grantee who became an Employee or Consultant or Non-Employee Director of the Company or a Subsidiary following the acquisition of his or her employer by the Company or a Subsidiary, service with the acquired employer shall not count toward the number of years of the Grantee’s Continuous Status as an Employee or Consultant or Non-Employee Director for purposes of this Section 6(a), and Continuous Status as an Employee or Consultant or Non-Employee Director shall be measured from the commencement of the Grantee ’s service for the Company or a Subsidiary following such acquisition. For purposes of this Section 6(a), the number of years of the Grantee’s Continuous Status as an Employee or Consultant or Non-Employee Director shall also include service with Jabil Circuit Co., a Michigan corporation and predecessor to the Company, and any Predecessor Subsidiary. For purposes of this Section 6(a), “Predecessor Subsidiary” means a company of which not less than fifty percent (50%) of the voting shares were held by Jabil Circuit Co. or a Predecessor Subsidiary. For purposes of this Section 6(a), for a Grantee who subsequent to the Grant Date performs service for the Company or a Subsidiary in a role as an employee of the Company or a Subsidiary that no longer includes being a state law officer of the Company or an employee of the Company with a title that is at least the equivalent of Vice President, or a substantially equivalent position of a Subsidiary (“Subsequent Non-Officer Service”), the time period of such Grantee’s Continuous Status as an Employee or Consultant or Non-Employee Director shall not include the time period of any such Subsequent Non-Officer Service, but shall include any time period during which such Grantee subsequently resumes service for the Company or a Subsidiary in a role as an employee of the Company or a Subsidiary that includes being a state law officer of the Company or an employee of the Company with a title that is at least the equivalent of Vice President, or a substantially equivalent position of a Subsidiary.

If this Section 6(a) applies to the Grantee’s Retirement, the Grantee’s Continuous Status as an Employee or Consultant or Non-Employee Director shall be treated as not having terminated for the number of years beginning on the effective date of the Retirement, or the remaining portion of the vesting period, whichever is applicable, in accordance with the following table based on the Grantee’s age and full years of Continuous Status as an Employee or Consultant or Non-Employee Director at the later of the Grant Date or the Company’s fiscal year-end next preceding the effective date of the Retirement:

 

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Full Years of Continuous Status as an Employee or Consultant or Non-Employee Director

20 Years

  

25 Years

  

30 or More Years

2 years    3 years    Full vesting period

Accordingly, upon such Retirement, Restricted Stock Units that otherwise would be forfeited because such Restricted Stock Units remain unvested (and not previously forfeited) at the effective date of the Retirement will not be forfeited if the Determination Date would have been reached had the Grantee remained in Continuous Status as an Employee or Consultant or Non-Employee Director for the additional period specified in the table above. Vesting of such Restricted Stock Units will remain subject to Section 2, and settlement of such Restricted Stock Units will remain subject to Section 4. Any portion of the Restricted Stock Units that could not potentially become vested under Section 2 assuming the Grantee’s Continuous Status as an Employee or Consultant or Non-Employee Director as set forth in the above table will be forfeited upon Retirement. The death of the Grantee following Retirement or a Change in Control following Retirement shall not affect the application of this Section 6(a), although such events will trigger a settlement of the Restricted Stock Units not forfeited by operation of this Section 6(a) in accordance with Section 4.

(b) Death. In the event that the Grantee’s Continuous Status as an Employee or Consultant or Non-Employee Director terminates due to death at a time that the Grantee’s Restricted Stock Units have not yet vested, a pro rata portion of the Grantee’s Restricted Stock Units shall vest as follows: First, for purposes of Section 2, the Company shall determine the actual level of the Performance Goal achieved (such determination may be by means of a good faith estimate) as of the Company’s fiscal quarter-end coincident with or next preceding the Grantee’s death (or, if the Grantee’s death occurs in the first fiscal quarter of the Performance Period, then the Company’s fiscal quarter-end coincident with or next following the Grantee’s death) and calculating, on a preliminary basis, the resulting number of Restricted Stock Units that would have become vested (based on such calculation) as of the Determination Date. Second, a pro rata portion of that number of Restricted Stock Units will be calculated by multiplying that number by a fraction, the numerator of which is the number of months from the first day of the Performance Period through the date of death (rounding any partial month to the next whole month) and the denominator of which is 36. No fractional Shares shall be issued, and subject to the limitation under Section 2(b) on the number of related Shares available under this Agreement (that is, 150 percent of the related Shares), any fractional Share that would have resulted from the foregoing calculations shall be rounded up to the next whole Share. Any Restricted Stock Units that were unvested at the date of death and that exceed the pro rata portion of the Restricted Stock Units that become vested under this Section 6(b) shall be forfeited.

(c) Disability. In the event that the Grantee’s Continuous Status as an Employee or Consultant or Non-Employee Director terminates due to Disability at a time that the Grantee’s Restricted Stock Units have not yet vested, a pro rata portion of the Grantee’s Restricted Stock Units shall remain outstanding and shall be eligible for future vesting based on the actual level of achievement in the Performance Period, provided, however, that non-forfeiture of such Restricted Stock Units will only apply if the Grantee executes the agreement, if any, required under Section 6(d). The pro rata portion shall be calculated by multiplying the number of Restricted Stock Units originally granted by a fraction, the numerator of which is the number of months from the first day of the Performance Period through the date of termination (rounding any partial month to the next whole month) and the denominator of which is 36. No fractional Shares shall be issued, and subject to the limitation under Section 2(b) on the number of related Shares available under this Agreement (that is, 150 percent of the related Shares), any fractional Share that would have resulted from the foregoing calculations shall be rounded up to the next

 

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whole Share. Vesting of such Restricted Stock Units will remain subject to Section 2, and settlement of such Restricted Stock Units will remain subject to Section 4. The death of the Grantee following a termination governed by this Section 6(c), or a Change in Control following such termination, shall not increase or decrease the number of Restricted Stock Units forfeited or not forfeited under this Section 6(c), although such events will trigger a settlement of the Restricted Stock Units not forfeited by operation of this Section 6(c) in accordance with Section 4. Any Restricted Stock Units that at any time after the date of a termination governed by this Section 6(c) exceed the pro rata portion of the Restricted Stock Units that remain outstanding and potentially subject to future vesting under this Section 6(c) shall be forfeited.

(d) Execution of Separation Agreement and Release. Unless otherwise determined by the Administrator, as a condition to the non-forfeiture of Restricted Stock Units upon Retirement under Section 6(a) or upon a termination due to Disability under Section 6(c), the Grantee shall be required to execute a separation agreement and release, in a form prescribed by the Administrator, setting forth covenants relating to noncompetition, nonsolicitation, nondisparagement, confidentiality and similar covenants for the protection of the Company’s business, and releasing the Company from liability in connection with the Grantee’s termination. Such agreement shall provide for the forfeiture and/or clawback of the Restricted Stock Units subject to Section 6(a) or 6(c), and the Shares of Common Stock issued or issuable in settlement of the Restricted Stock Units, and related dividend equivalents and any other related rights, in the event of the Grantee’s failure to comply with the terms of such agreement. The Administrator will provide the form of such agreement to the Grantee at the date of termination, and the Grantee must execute and return such form within the period specified by law or, if no such period is specified, within 21 days after receipt of the form of agreement, and not revoke such agreement within any permitted revocation period (the end of these periods being the “Agreement Effectiveness Deadline”). If any Restricted Stock Units subject to Section 6(a) or 6(c) or related rights would be required to be settled before the Agreement Effectiveness Deadline, the settlement shall not be delayed pending the receipt and effectiveness of the agreement, but any such Restricted Stock Units or related rights settled before such receipt and effectiveness shall be subject to a “clawback” (repaying to the Company the Shares and cash paid upon settlement) in the event that the agreement is not received and effective and not revoked by the Agreement Effectiveness Deadline.

7. Dividend Equivalents; Adjustments.

(a) Dividend Equivalents. During the period beginning on the Grant Date and ending on the date that Shares are issued in settlement of a Restricted Stock Unit, the Grantee will accrue dividend equivalents on Restricted Stock Units equal to the cash dividend or distribution that would have been paid on the Restricted Stock Unit had the Restricted Stock Unit been an issued and outstanding Share of Common Stock on the record date for the dividend or distribution. Such accrued dividend equivalents (i) will vest and become payable upon the same terms and at the same time of settlement as the Restricted Stock Units to which they relate, and (ii) will be denominated and payable solely in cash. Dividend equivalent payments, at settlement, will be net of applicable federal, state, local and foreign income and social insurance withholding taxes (subject to Section 8).

(b) Adjustments. The number of Restricted Stock Units credited to the Grantee, and each adjusted core earnings per share amount and Cumulative EPS amount specified for purposes of the Performance Goal, shall be subject to adjustment by the Company, in accordance with Section 13 of the Plan, in order to preserve without enlarging the Grantee’s rights with respect to such Restricted Stock Units. Any such adjustment shall be made taking into account any crediting of cash dividend equivalents to the Grantee under Section 7(a) in connection with such transaction or event. In the case of an extraordinary cash dividend, the Committee may determine to adjust Grantee’s Restricted Stock Units under this Section 7(b) in lieu of crediting cash dividend equivalents under Section 7(a). Restricted Stock Units credited to the Grantee as a result of an adjustment shall be subject to the same forfeiture and settlement terms as applied to the related Restricted Stock Units prior to the adjustment.

 

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8. Responsibility for Taxes and Withholding. Regardless of any action the Company, any of its Subsidiaries and/or the Grantee’s employer takes with respect to any or all income tax, social insurance, payroll tax, payment on account or other tax-related items related to the Grantee’s participation in the Plan and legally applicable to the Grantee (“Tax-Related Items”), the Grantee acknowledges that the ultimate liability for all Tax-Related Items is and remains the Grantee’s responsibility and may exceed the amount actually withheld by the Company or any of its affiliates. The Grantee further acknowledges that the Company and/or its Subsidiaries (i) make no representations or undertakings regarding the treatment of any Tax-Related Items in connection with any aspect of the Restricted Stock Units, including, but not limited to, the grant or vesting of the Restricted Stock Units, the delivery of Shares, the subsequent sale of Shares acquired pursuant to such delivery and the receipt of any dividends and/or dividend equivalents; and (ii) do not commit to and are under no obligation to structure the terms of any award to reduce or eliminate the Grantee’s liability for Tax-Related Items or achieve any particular tax result. Further, if the Grantee becomes subject to tax in more than one jurisdiction between the Grant Date and the date of any relevant taxable event, the Grantee acknowledges that the Company and/or its Subsidiaries may be required to withhold or account for Tax-Related Items in more than one jurisdiction.

Prior to any relevant taxable or tax withholding event, as applicable, the Grantee will pay or make adequate arrangements satisfactory to the Company and/or its Subsidiaries to satisfy all Tax-Related Items. In this regard, the Grantee authorizes the Company and/or its Subsidiaries, or their respective agents, at their discretion, to satisfy the obligations with regard to all Tax-Related Items by one or a combination of the following:

(a) withholding from the Grantee’s wages or other cash compensation paid to the Grantee by the Company and/or its Subsidiaries; or

(b) withholding in Shares to be delivered upon settlement; or

(d) withholding from dividend equivalent payments (payable in cash) related to the Shares to be delivered at settlement.

To avoid negative accounting treatment, the Company and/or its Subsidiaries may withhold or account for Tax-Related Items by considering applicable withholding rates but not exceeding the maximum statutory withholding rates. If the obligation for Tax-Related Items is satisfied by withholding in Shares, for tax purposes, the Grantee is deemed to have been issued the full number of Shares attributable to the awarded Restricted Stock Units, notwithstanding that a number of Shares are held back solely for the purpose of paying the Tax-Related Items due as a result of any aspect of the Grantee’s participation in the Plan.

Finally, the Grantee shall pay to the Company and/or its Subsidiaries any amount of Tax-Related Items that the Company and/or its Subsidiaries may be required to withhold or account for as a result of the Grantee’s participation in the Plan that are not satisfied by the means previously described. The Company may refuse to issue or deliver the Shares if the Grantee fails to comply with the Grantee’s obligations in connection with the Tax-Related Items.

9. Code Section 409A.

(a) General. Payments made pursuant to this Agreement are intended to be exempt from Section 409A of the Code or to otherwise comply with Section 409A of the Code. Accordingly, other provisions of the Plan or this Agreement notwithstanding, the provisions of this Section 9 will apply in order that the Restricted Stock Units, and related dividend equivalents and any other related rights, will be exempt from or otherwise comply with Code Section 409A. In addition, the Company reserves the right, to the extent the Company deems necessary or advisable in its sole discretion, to unilaterally amend or modify the Plan and/or this Agreement to ensure that all Restricted Stock Units, and related dividend equivalents and any other related rights, are exempt from or otherwise comply, and in operation comply, with Code Section 409A (including, without limitation, the

 

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avoidance of penalties thereunder). Other provisions of the Plan and this Agreement notwithstanding, the Company makes no representations that the Restricted Stock Units, and related dividend equivalents and any other related rights, will be exempt from or avoid any penalties that may apply under Code Section 409A, makes no undertaking to preclude Code Section 409A from applying to the Restricted Stock Units and related dividend equivalents and any other related rights, and will not indemnify or provide a gross up payment to a Grantee (or his beneficiary) for any taxes, interest or penalties imposed under Code Section 409A.

(b) Restrictions on 409A RSUs. In the case of any 409A RSUs, the following restrictions will apply:

(i) Separation from Service. Any payment in settlement of the 409A RSUs that is triggered by a termination of Continuous Status as an Employee or Consultant or Non-Employee Director (or other termination of employment) hereunder will occur only if the Grantee has had a “separation from service” within the meaning of Treasury Regulation § 1.409A-1(h), with such separation from service treated as the termination for purposes of determining the timing of any settlement based on such termination.

(ii) Six-Month Delay Rule. The “six-month delay rule” will apply to 409A RSUs if these four conditions are met:

(A) the Grantee has a separation from service (within the meaning of Treasury Regulation § 1.409A-1(h)) for a reason other than death;

(B) a payment in settlement is triggered by such separation from service; and

(C) the Grantee is a “specified employee” under Code Section 409A.

If it applies, the six-month delay rule will delay a settlement of 409A RSUs triggered by separation from service where the settlement otherwise would occur within six months after the separation from service, subject to the following:

(D) any delayed payment shall be made on the date six months and one day after separation from service;

(E) during the six-month delay period, accelerated settlement will be permitted in the event of the Grantee’s death and for no other reason (including no acceleration upon a Change in Control) except to the extent permitted under Code Section 409A; and

(F) any settlement that is not triggered by a separation from service, or is triggered by a separation from service but would be made more than six months after separation (without applying this six-month delay rule), shall be unaffected by the six-month delay rule.

(c) Other Compliance Provisions. The following provisions apply to Restricted Stock Units:

(i) Each tranche of Restricted Stock Units (including dividend equivalents accrued thereon) that potentially could vest at or following a Determination Date under Section 2 shall be deemed a separate payment for purposes of Code Section 409A.

(ii) The settlement of 409A RSUs may not be accelerated by the Company except to the extent permitted under Code Section 409A. The Company may, however, accelerate vesting (i.e., may waive the risk of forfeiture tied to termination of the Grantee’s Continuous Status as an Employee or Consultant or Non-Employee Director) of 409A RSUs, without changing the settlement terms of such 409A RSUs.

 

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(iii) It is understood that Good Reason for purposes of this Agreement is limited to circumstances that qualify under Treasury Regulation § 1.409A-1(n)(2).

(iv) Any restriction imposed on 409A RSUs hereunder or under the terms of other documents solely to ensure compliance with Code Section 409A shall not be applied to a Restricted Stock Unit that is not a 409A RSU except to the extent necessary to preserve the status of such Restricted Stock Unit as not being a “deferral of compensation” under Code Section 409A.

(v) If any mandatory term required for 409A RSUs or other RSUs, or related dividend equivalents or other related rights, to avoid tax penalties under Code Section 409A is not otherwise explicitly provided under this document or other applicable documents, such term is hereby incorporated by reference and fully applicable as though set forth at length herein.

(vi) In the case of any settlement of Restricted Stock Units during a specified period following the Determination Date or other date triggering a right to settlement, the Grantee shall have no influence on any determination as to the tax year in which the settlement will be made.

(vii) In the case of any Restricted Stock Unit that is not a 409A RSU, if the circumstances arise constituting a Disability but termination of the Grantee’s Continuous Status as an Employee or Consultant or Non-Employee Director has not in fact resulted immediately without an election by the Grantee, then only the Company or a Subsidiary may elect to terminate the Grantee’s Continuous Status as an Employee or Consultant or Non-Employee Director due to such Disability.

(viii) If the Company has a right of setoff that could apply to a 409A RSU, such right may only be exercised at the time the 409A RSU would have been settled, and may be exercised only as a setoff against an obligation that arose not more than 30 days before and within the same year as the settlement date if application of such setoff right against an earlier obligation would not be permitted under Code Section 409A.

10. No Effect on Employment or Rights under Plan. Nothing in the Plan or this Agreement shall confer upon the Grantee the right to continue in the employment of the Company or any Subsidiary or affect any right which the Company or any Subsidiary may have to terminate the employment of the Grantee regardless of the effect of such termination of employment on the rights of the Grantee under the Plan or this Agreement. If the Grantee’s employment is terminated for any reason whatsoever (and whether lawful or otherwise), he will not be entitled to claim any compensation for or in respect of any consequent diminution or extinction of his rights or benefits (actual or prospective) under this Agreement or any Award or otherwise in connection with the Plan. The rights and obligations of the Grantee under the terms of his employment with the Company or any Subsidiary will not be affected by his participation in the Plan or this Agreement, and neither the Plan nor this Agreement form part of any contract of employment between the Grantee and the Company or any Subsidiary. The granting of Awards under the Plan is entirely at the discretion of the Administrator, and the Grantee shall not in any circumstances have any right to be granted an Award.

11. Governing Laws. This Agreement shall be construed and enforced in accordance with the laws of the State of Florida.

12. Successors; Severability; Entire Agreement; Headings. This Agreement shall inure to the benefit of, and be binding upon, the Company and the Grantee and their heirs, legal representatives, successors and permitted assigns. In the event that any one or more of the provisions or portion thereof contained in this Agreement shall for any reason be held to be invalid, illegal or unenforceable in any respect, the same shall not invalidate or otherwise

 

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affect any other provisions of this Agreement, and this Agreement shall be construed as if the invalid, illegal or unenforceable provision or portion thereof had never been contained herein. Subject to the terms and conditions of the Plan and any rules adopted by the Company or the Administrator and applicable to this Agreement, which are incorporated herein by reference, this Agreement expresses the entire understanding and agreement of the parties hereto with respect to such terms, restrictions and limitations. Section headings used herein are for convenience of reference only and shall not be considered in construing this Agreement.

13. Grantee Acknowledgements and Consents.

(a) Data Privacy. As communicated in Jabil’s Notice of Data Collection, Processing and Transfer of Employee Personal Data, as updated from time to time.

Data Collection and Usage. The Company collects, processes and uses personal data about the Grantee, including but not limited to, the Grantee’s name, home address, email address and telephone number, date of birth, social insurance number, passport or other identification number, salary, nationality, job title, any shares or directorships held in the Company, details of all awards, rights or any other entitlement to shares awarded, canceled, exercised, vested, unvested or outstanding in the Grantee’s favor, which the Company receives from the Grantee or the Grantee’s employer. In order for the Grantee to participate in the Plan, the Company will collect his or her personal data for purposes of allocating Shares and implementing, administering and managing the Plan. The Company’s legal basis for the processing of the Grantee’s personal data is based on the necessity for Company’s performance of its obligations under the Plan and pursuant to the Company’s legitimate business interests.

Stock Plan Administration and Service Providers. The Company may transfer the Grantee’s data to one or more third party stock plan service providers based in the United States (“U.S.”), which may assist the Company with the implementation, administration and management of the Plan. Such service provider(s) may open an account for the Grantee to receive and trade Shares. The Grantee may be asked to acknowledge, or agree to, separate terms and data processing practices with the service provider(s).

International Data Transfers. The Grantee’s personal data will be transferred from the Grantee’s country to the U.S., where the Company and its service providers are based. The Company’s legal basis for the transfer of the Grantee’s data to the U.S. is that it is authorized by the Company’s participation in the EU-U.S. Privacy Shield and/or its use of the standard data protection clauses adopted by the EU Commission.

Data Retention. The Company will use the Grantee’s personal data only as long as necessary to implement, administer and manage the Grantee’s participation in the Plan or as required to comply with legal or regulatory obligations, including under tax and securities laws. When the Company no longer needs the Grantee’s personal data, which will generally be seven (7) years after the Grantee participates in the Plan, the Company will remove it from its systems. If the Company keeps the data longer, it would be to satisfy legal or regulatory obligations and the Company’s legal basis would be relevant laws or regulations.

Data Subject Rights. The Grantee understands that he or she may have a number of rights under data privacy laws in the Grantee’s jurisdiction. Depending on where the Grantee is based, such rights may include the right to (i) request access or copies of personal data processed by the Company, (ii) rectification of incorrect data, (iii) deletion of data, (iv) restrictions on processing of data, (v) portability of data, (vi) lodge complaints with competent authorities in the Grantee’s jurisdiction, and/or (vii) receive a list with the names and addresses of any potential recipients of the Grantee’s personal data. To receive clarification regarding these rights or to exercise these rights, the Grantee can contact his or her local human resources department.

(b) Voluntary Participation. The Grantee’s participation in the Plan is voluntary. The value of the Restricted Stock Units is an extraordinary item of compensation. Unless otherwise expressly provided in a separate agreement between the Grantee and the Company or a Subsidiary, the Restricted Stock Units are not part of normal or expected compensation for purposes of calculating any severance, resignation, redundancy, end-of-service payments, bonuses, long-service awards, pension or retirement benefits or similar payments.

 

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(c) Electronic Delivery and Acceptance. BY ACCEPTING THIS AGREEMENT ELECTRONICALLY, THE GRANTEE HEREBY CONSENTS TO ELECTRONIC DELIVERY OF THE PLAN, THE PROSPECTUS FOR THE PLAN AND OTHER DOCUMENTS RELATED TO THE PLAN (COLLECTIVELY, THE “PLAN DOCUMENTS”). THE COMPANY WILL DELIVER THE PLAN DOCUMENTS ELECTRONICALLY TO THE GRANTEE BY E-MAIL, BY POSTING SUCH DOCUMENTS ON ITS INTRANET WEBSITE OR BY ANOTHER MODE OF ELECTRONIC DELIVERY AS DETERMINED BY THE COMPANY IN ITS SOLE DISCRETION. BY ACCEPTING THIS AGREEMENT ELECTRONICALLY, THE GRANTEE CONSENTS AND AGREES THAT SUCH PROCEDURES AND DELIVERY MAY BE EFFECTED BY A BROKER OR THIRD PARTY ENGAGED BY THE COMPANY TO PROVIDE ADMINISTRATIVE SERVICES RELATED TO THE PLAN. BY ACCEPTING THIS AGREEMENT ELECTRONICALLY, THE GRANTEE HEREBY CONSENTS TO ANY AND ALL PROCEDURES THE COMPANY HAS ESTABLISHED OR MAY ESTABLISH FOR ANY ELECTRONIC SIGNATURE SYSTEM FOR DELIVERY AND ACCEPTANCE OF ANY PLAN DOCUMENTS, INCLUDING THIS AGREEMENT, THAT THE COMPANY MAY ELECT TO DELIVER AND AGREES THAT HIS ELECTRONIC SIGNATURE IS THE SAME AS, AND WILL HAVE THE SAME FORCE AND EFFECT AS, HIS MANUAL SIGNATURE. THE COMPANY WILL SEND TO THE GRANTEE AN E-MAIL ANNOUNCEMENT WHEN THE PLAN DOCUMENTS ARE AVAILABLE ELECTRONICALLY FOR THE GRANTEE’S REVIEW, DOWNLOAD OR PRINTING AND WILL PROVIDE INSTRUCTIONS ON WHERE THE PLAN DOCUMENTS CAN BE FOUND. UNLESS OTHERWISE SPECIFIED IN WRITING BY THE COMPANY, THE GRANTEE WILL NOT INCUR ANY COSTS FOR RECEIVING THE PLAN DOCUMENTS ELECTRONICALLY THROUGH THE COMPANY’S COMPUTER NETWORK. THE GRANTEE WILL HAVE THE RIGHT TO RECEIVE PAPER COPIES OF ANY PLAN DOCUMENT BY SENDING A WRITTEN REQUEST FOR A PAPER COPY TO THE ADMINISTRATOR. THE GRANTEE’S CONSENT TO ELECTRONIC DELIVERY OF THE PLAN DOCUMENTS WILL BE VALID AND REMAIN EFFECTIVE UNTIL THE EARLIER OF (i) THE TERMINATION OF THE GRANTEE’S PARTICIPATION IN THE PLAN AND (ii) THE WITHDRAWAL OF THE GRANTEE’S CONSENT TO ELECTRONIC DELIVERY AND ACCEPTANCE OF THE PLAN DOCUMENTS. THE COMPANY ACKNOWLEDGES AND AGREES THAT THE GRANTEE HAS THE RIGHT AT ANY TIME TO WITHDRAW HIS CONSENT TO ELECTRONIC DELIVERY AND ACCEPTANCE OF THE PLAN DOCUMENTS BY SENDING A WRITTEN NOTICE OF WITHDRAWAL TO THE ADMINISTRATOR. IF THE GRANTEE WITHDRAWS HIS CONSENT TO ELECTRONIC DELIVERY AND ACCEPTANCE, THE COMPANY WILL RESUME SENDING PAPER COPIES OF THE PLAN DOCUMENTS WITHIN TEN (10) BUSINESS DAYS OF ITS RECEIPT OF THE WITHDRAWAL NOTICE. BY ACCEPTING THIS AGREEMENT ELECTRONICALLY, THE GRANTEE ACKNOWLEDGES THAT HE IS ABLE TO ACCESS, VIEW AND RETAIN AN E-MAIL ANNOUNCEMENT INFORMING THE GRANTEE THAT THE PLAN DOCUMENTS ARE AVAILABLE IN EITHER HTML, PDF OR SUCH OTHER FORMAT AS THE COMPANY DETERMINES IN ITS SOLE DISCRETION.

(d) Unfunded Plan. The Grantee acknowledges and agrees that any rights of the Grantee relating to the Grantee’s Restricted Stock Units and related dividend equivalents and any other related rights shall constitute bookkeeping entries on the books of the Company and shall not create in the Grantee any right to, or claim against, any specific assets of the Company or any Subsidiary, nor result in the creation of any trust or escrow account for the Grantee. With respect to the Grantee’s entitlement to any payment hereunder, the Grantee shall be a general creditor of the Company.

14. Additional Acknowledgements. By accepting this Agreement electronically, the Grantee and the Company agree that the Restricted Stock Units are granted under and governed by the terms and conditions of the Plan and this Agreement. The Grantee has reviewed in its entirety the prospectus that summarizes the terms of

 

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the Plan and this Agreement, has had an opportunity to request a copy of the Plan in accordance with the procedure described in the prospectus, has had an opportunity to obtain the advice of counsel prior to electronically accepting this Agreement and fully understands all provisions of the Plan and this Agreement. The Grantee hereby agrees to accept as binding, conclusive and final all decisions or interpretations of the Administrator upon any questions relating to the Plan and this Agreement.

15. Country Appendix. Notwithstanding any provision of this Agreement to the contrary, this Restricted Stock Unit grant and any Shares issued pursuant to this Agreement shall be subject to the applicable terms and provisions as set forth in the Country Appendix attached hereto and incorporated herein, if any, for the Grantee’s country of residence (and country of employment or engagement as a Consultant, if different).

Acceptance by the Grantee

By selecting the “I accept” box on the website of the Company’s administrative agent, the Grantee acknowledges acceptance of, and consents to be bound by, the Plan and this Agreement and any other rules, agreements or other terms and conditions incorporated herein by reference.

 

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COUNTRY APPENDIX

ADDITIONAL TERMS AND CONDITIONS TO RESTRICTED STOCK UNIT AWARD AGREEMENT

(EU)

This Country Appendix (“Appendix”) includes the following additional terms and conditions that govern the Grantee’s Stock Award for all Grantees that reside and/or work in a European Union jurisdiction.

Notifications

This Country Appendix also includes information regarding exchange controls and certain other issues of which the Grantee should be aware with respect to the Grantee’s participation in the Plan. The information is based on the securities, exchange control and other laws in effect in the respective countries as of October 2018. Such laws are often complex and change frequently. As a result, the Company strongly recommends that the Grantee not rely on the information in this Country Appendix as the only source of information relating to the consequences of the Grantee’s participation in the Plan because the information may be out of date at the time that the Restricted Stock Units vest, or Shares are delivered in settlement of the Restricted Stock Units, or the Grantee sells any Shares acquired under the Plan.

In addition, the information contained herein is general in nature and may not apply to the Grantee’s particular situation, and none of the Company, its Subsidiaries, nor the Administrator is in a position to assure the Grantee of a particular result. Accordingly, the Grantee is advised to seek appropriate professional advice as to how the relevant laws in the Grantee’s country of residence and/or work may apply to the Grantee’s situation.

Finally, if the Grantee transfers employment after the Grant Date, or is considered a resident of another country for local law purposes following the Grant Date, the notifications contained herein may not be applicable to the Grantee, and the Administrator shall, in its discretion, determine to what extent the terms and conditions contained herein shall be applicable to the Grantee.

Terms and Conditions Applicable to All EU Jurisdictions

English Language. The Grantee acknowledges and agrees that it is the Grantee’s express intent that this Agreement, the Plan and all other documents, rules, procedures, forms, notices and legal proceedings entered into, given or instituted pursuant to the Stock Award, be drawn up in English. If the Grantee has received this Agreement, the Plan or any other rules, procedures, forms or documents related to the Stock Award translated into a language other than English, and if the meaning of the translated version is different than the English version, the English version will control.

Repatriation; Compliance with Laws. The Grantee agrees, as a condition of the grant of the Stock Award, to repatriate all payments attributable to the Award and/or cash acquired under the Plan (including, but not limited to, dividends, dividend equivalents, and any proceeds derived from the sale of the Shares acquired pursuant to the Agreement) in accordance with all foreign exchange rules and regulations applicable to the Grantee. The Company and the Administrator reserve the right to impose other requirements on the Grantee’s participation in the Plan, on the Restricted Stock Units and on any Shares acquired or cash payments made pursuant to the Agreement, to the extent the Company, its Subsidiaries or the Administrator determines it is necessary or advisable in order to comply with local law or to facilitate the administration of the Plan, and to require the Grantee to sign any additional agreements or undertakings that may be necessary to accomplish the foregoing. Finally, the Grantee agrees to take any and all actions as may be required to comply with the Grantee’s personal legal and tax obligations under all laws, rules and regulations applicable to the Grantee.

 

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Commercial Relationship. The Grantee expressly recognizes that the Grantee’s participation in the Plan and the Company’s Stock Award grant does not constitute an employment relationship between the Grantee and the Company. The Grantee has been granted Stock Awards as a consequence of the commercial relationship between the Company and the Company’s Subsidiary that employs the Grantee, and the Company’s Subsidiary is the Grantee’s sole employer. Based on the foregoing, the Grantee expressly recognizes that (a) the Plan and the benefits the Grantee may derive from participation in the Plan do not establish any rights between the Grantee and the Subsidiary that employs the Grantee, (b) the Plan and the benefits the Grantee may derive from participation in the Plan are not part of the employment conditions and/or benefits provided by the Subsidiary that employs the Grantee, and (c) any modifications or amendments of the Plan by the Company or the Administrator, or a termination of the Plan by the Company, shall not constitute a change or impairment of the terms and conditions of the Grantee’s employment with the Subsidiary that employs the Grantee.

Private Placement. The grant of the Stock Award is not intended to be a public offering of securities in the Grantee’s country of residence and/or employment but instead is intended to be a private placement. As a private placement, the Company has not submitted any registration statement, prospectus or other filings with the local securities authorities (unless otherwise required under local law), and the grant of the Stock Award is not subject to the supervision of the local securities authorities.

Additional Acknowledgements. The GRANTEE also acknowledges and agrees to the following:

 

   

The grant of the Stock Award is voluntary and occasional and does not create any contractual or other right to receive future grants of Stock Awards or benefits in lieu of the Stock Award even if Stock Awards have been granted repeatedly in the past.

 

   

The future value of the Shares and any related dividend equivalents is unknown and cannot be predicted with certainty.

 

   

No claim or entitlement to compensation or damages arises from the forfeiture of the Stock Award or any of the Restricted Stock Units or related dividend equivalents, the termination of the Plan, or the diminution in value of the Restricted Stock Units or Shares, and the Grantee irrevocably releases the Company, its Subsidiaries, the Administrator and their affiliates from any such claim that may arise.

 

   

None of the Company, its Subsidiaries, nor the Administrator is providing any tax, legal or financial advice or making any recommendations regarding the Grantee’s participation in the Plan, the grant, vesting or settlement of the Grantee’s Restricted Stock Units, or the Grantee’s acquisition or sale of the Shares delivered in settlement of the Restricted Stock Units. The Grantee is hereby advised to consult with his own personal tax, legal and financial advisors regarding his participation in the Plan before taking any action related to the Plan.

Notifications Applicable to Austria

Consumer Protection Information. If the provisions of the Austrian Consumer Protection Act are applicable to the Agreement and the Plan, the Grantee may be entitled to revoke the Grantee’s acceptance of the Agreement (and thereby revoke his acceptance of the Restricted Stock Units) under the conditions listed below:

(i) If the Grantee accepts the Stock Award, the Grantee may be entitled to revoke the Grantee’s acceptance; provided the revocation is made within one week after such electronic acceptance of the Agreement.

(ii) The revocation must be in written form to be valid and will revoke both acceptance of the Agreement and acceptance of the Restricted Stock Units awarded thereunder. It is sufficient if the Grantee returns the Agreement to the Administrator or a Company representative with language which can be understood as a refusal to conclude or honor the Agreement; provided the revocation is sent within the period discussed above.

 

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Exchange Control Information. The Grantee may be required to comply with certain exchange control obligations if the Grantee holds securities (including Shares) or cash (including proceeds from the sale of such Shares) outside of Austria. If the transaction volume of all of the Grantee’s accounts abroad meets or exceeds €10,000,000, the movement and balance of all accounts must be reported monthly to the Austrian National Bank, as of the last day of the month, on or before the fifteenth day of the following month using the prescribed form “Meldungen SI-Forderungen und/oder SI-Verpflichturngen.”

Terms and Conditions Applicable to Denmark

Treatment of Stock Awards Upon Termination of Employment. Notwithstanding any provision in the Agreement or the Plan to the contrary, if the Grantee is determined to be an “Employee,” as defined in Section 2 of the Danish Act on the Use of Rights to Purchase or Subscribe for Shares etc. in Employment Relationships (the “Stock Option Act”), the treatment of the Stock Award upon the Grantee’s termination of employment may be governed by Sections 4 and 5 of the Stock Option Act. However, if the provisions in the Agreement or the Plan governing the treatment of the Stock Award upon termination of employment are more favorable, then the provisions of the Agreement or the Plan shall govern.

Foreign Asset / Account Reporting Information. If the Grantee holds Shares acquired under the Plan with a foreign broker or bank, the Grantee is required to inform the Danish Tax Administration about the bank or brokerage account. The Grantee must file the Form V (Erklaering V). By signing the Form V, the Grantee undertakes an obligation, without further request each year, to forward information to the Danish Tax Administration concerning the content of the brokerage-deposit account as part of the Grantee’s annual income tax return. By signing the Form V, the Grantee authorizes the Danish Tax Administration to examine the brokerage-deposit account. The Grantee may authorize the broker/bank to forward the information on the Grantee’s behalf by having the broker/bank sign a letter of commitment obligating them to forward the information each year. The letter of commitment must be forwarded to the Danish Tax Authorities together with the Form V. A sample of the Form V can be found at the following website: www.skat.dk/SKAT.aspx?oId=90030&vId=0.

In addition, if the Grantee opens a brokerage account (or a bank account) with a U.S. bank, the brokerage account (or bank account, as applicable) will be treated as a deposit account because cash can be held in the account. Therefore, the Grantee must also file a Form K (Erklaering K) with the Danish Tax Administration. By signing the Form K, the Grantee undertakes an obligation, without further request each year, to forward information to the Danish Tax Administration concerning the content of the deposit account as part of the Grantee’s annual income tax return. By signing the Form K, the Grantee authorizes the Danish Tax Administration to examine the account. The Grantee may authorize the broker/bank to forward the information on the Grantee’s behalf by having the broker/bank sign a letter of commitment obligating them to forward the information each year. The letter of commitment must be forwarded to the Danish Tax Authorities together with the Form K. A sample of Form K can be found at the following website: www.skat.dk/SKAT.aspx?oId=73346&vId=0

 

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Terms and Conditions Applicable to France

Tax Information. The Stock Award is not intended to be a French-qualified award.

Language Consent. By accepting the Award and the Agreement, which provides for the terms and conditions of the Award, the Grantee confirms having read and understood the documents relating to this grant (the Plan and the Agreement, including this Appendix) which were provided in English language. The Grantee accepts the terms of those documents accordingly. En acceptant l’Attribution et ce Contrat qui contient les termes et conditions de l’Attribution, le Bénéficiaire confirmez avoir lu et compris les documents relatifs à cette attribution (le Plan et le Contrat, ainsi que la présente Annexe) qui vous ont été transmis en langue anglaise. Le Bénéficiaire acceptez ainsi les conditions et termes de ces documents.

Foreign Asset / Account Reporting Information. The Grantee should report all foreign accounts (whether open, current or closed) to the French tax authorities when filing his / her annual tax return. The Grantee should consult his / her personal advisor to ensure compliance with applicable reporting obligations.

Notifications Applicable to Ireland

Director Notification Requirement. If the Grantee is a director, shadow director or secretary of the Company’s Irish subsidiaries or affiliates whose interests meet or exceed 1% of the Company’s voting rights, pursuant to Section 53 of the Irish Company Act 1990, the Grantee must notify the Irish subsidiary or affiliate in writing within five business days of receiving or disposing of an interest in the Company (e.g., Restricted Stock Units or Shares), or within five business days of becoming aware of the event giving rise to the notification requirement, or within five business days of becoming a director or secretary if such an interest exists at the time. This notification requirement also applies with respect to the interests of a spouse or minor children (whose interests will be attributed to the director, shadow director, or secretary).

Terms and Conditions Applicable to Italy

Foreign Asset/Account Reporting Information. If the Grantee is an Italian resident and holds investments or financial assets outside of Italy (such as cash or Restricted Stock Units) during any fiscal year which may generate income taxable in Italy (or if the Grantee is the beneficial owner of such an investment or asset even if the Grantee does not directly hold the investment or asset), the Grantee is required to report such investments or assets on his / her annual tax return for such fiscal year (on UNICO Form, RW Schedule, or on a special form if the Grantee is not required to file a tax return). The Grantee should consult with his / her personal tax advisor as to whether the reporting obligation applies to the Grantee and whether he / she will be required to report details of any outstanding Stock Awards or Shares held by the Grantee outside of Italy in the Grantee’s relevant annual tax return.

Foreign Asset Tax Information. The value of the financial assets held outside of Italy by Italian residents is subject to a foreign asset tax at an annual rate of 2 per thousand (0.2%). The taxable amount will be the fair market value of the financial assets (e.g., Shares) assessed at the end of the calendar year. No tax payment duties arise if the amount of the foreign financial assets held abroad does not exceed €6,000.

Terms and Conditions Applicable to the Netherlands

Waiver of Termination Rights. The Grantee hereby waives any and all rights to compensation or damages as a result of the Grantee’s termination of employment with the Company or any Subsidiary of the Company whatsoever, insofar as those rights result or may result from (i) the loss or diminution in value of such rights or entitlements under the Plan, or (ii) the Employee’s ceasing to have rights under, or ceasing to be entitled to any awards under the Plan as a result of such termination.

 

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Terms and Conditions Applicable to Sweden

There are no country-specific provisions.

Terms and Conditions Applicable to the United Kingdom

Tax Loan. Notwithstanding any provisions in the Agreement, the Grantee hereby agrees that he / she is liable for payment or withholding of the income tax due in connection with the Restricted Stock Units and hereby covenants to pay all such taxes, as and when requested by the Company or (if different) the Grantee’s employer or by Her Majesty’s Revenue & Customs (“HMRC”) (or any other tax authority or any other relevant authority). The Grantee also hereby agrees to indemnify and keep indemnified the Company and (if different) the Grantee’s employer against any such taxes that they are required to pay or withhold on the Grantee’s behalf or have paid or will pay to the HMRC (or any other tax authority or any other relevant authority).

Notwithstanding the foregoing, if the Grantee is a director or executive officer (as within the meaning of Section 13(k) of the Exchange Act), the terms of the immediately foregoing provision will not apply. In the event that the Grantee is a director or executive officer and income tax due is not collected from or paid by the Grantee within 90 days after the U.K. tax year in which an event giving rise to the indemnification described above occurs, the amount of any uncollected tax may constitute a benefit to the Grantee on which additional income tax and national insurance contributions may be payable. The Grantee acknowledges that the Grantee ultimately will be responsible for reporting and paying any income tax due on this additional benefit directly to HMRC under the self-assessment regime and for reimbursing the Company or (if different) the Grantee’s employer for the value of any employee national insurance contributions due on this additional benefit, which the Company or (if different) the Grantee’s employer may recover from the Grantee at any time thereafter by any of the means referred to in the Agreement.

 

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EX-10.2

Exhibit 10.2

JABIL INC.

RESTRICTED STOCK UNIT AWARD AGREEMENT

(PBRSU EPS – Executive – Non-EU)

This RESTRICTED STOCK UNIT AWARD AGREEMENT (the “Agreement”) is made as of October 18, 2018 (the “Grant Date”) between JABIL INC. a Delaware corporation (the “Company”) and                          (the “Grantee”).

Background Information

A. The Board of Directors (the “Board”) and stockholders of the Company previously adopted the 2011 Stock Award and Incentive Plan (the “Plan”).

B. Section 8 of the Plan provides that the Administrator shall have the discretion and right to grant Stock Awards, including Stock Awards denominated in units representing rights to receive shares, to any Employees or Consultants or Non-Employee Directors, subject to the terms and conditions of the Plan and any additional terms provided by the Administrator. The Administrator has made a Stock Award grant denominated in units to the Grantee as of the Grant Date pursuant to the terms of the Plan and this Agreement.

C. The Grantee desires to accept the Stock Award grant and agrees to be bound by the terms and conditions of the Plan and this Agreement.

D. Unless otherwise defined herein, the terms defined in the Plan shall have the same defined meanings in this Agreement.

Agreement

1. Restricted Stock Units. Subject to the terms and conditions provided in this Agreement and the Plan, the Company hereby grants to the Grantee              restricted stock units (the “Restricted Stock Units”) as of the Grant Date. Each Restricted Stock Unit represents the right to receive a Share of Common Stock if the Restricted Stock Unit becomes vested and non-forfeitable in accordance with Section 2 or Section 3 of this Agreement. The Grantee shall have no rights as a stockholder of the Company, no dividend rights and no voting rights with respect to the Restricted Stock Units or the Shares underlying the Restricted Stock Units unless and until the Restricted Stock Units become vested and non-forfeitable and such Shares are delivered to the Grantee in accordance with Section 4 of this Agreement. The Grantee is required to pay no cash consideration for the grant of the Restricted Stock Units. The Grantee acknowledges and agrees that (i) the Restricted Stock Units and related rights are nontransferable as provided in Section 5 of this Agreement, (ii) the Restricted Stock Units are subject to forfeiture in the event the Grantee’s Continuous Status as an Employee or Consultant or Non-Employee Director terminates in certain circumstances, as specified in Section 6 of this Agreement, (iii) sales of Shares of Common Stock delivered in settlement of the Restricted Stock Units will be subject to the Company’s policies regulating trading by Employees and Consultants, including any applicable “blackout” or other designated periods in which sales of Shares are not permitted, (iv) Shares delivered in settlement will be subject to any recoupment or “clawback” policy of the Company, regardless of whether such recoupment or “clawback” policy is applied with prospective or retroactive effect, and (v) any entitlement to dividend equivalents will be in accordance with Section 7 of this Agreement. The extent to which the Grantee’s rights and interest in the Restricted Stock Units becomes vested and non-forfeitable shall be determined in accordance with the provisions of Sections 2 and 3 of this Agreement.

 


2. Vesting.

(a) Except as may be otherwise provided in Section 3 or Section 6 of this Agreement, the vesting of the Grantee’s rights and interest in the Restricted Stock Units shall be determined in accordance with this Section 2. The extent to which the Grantee’s interest in the Restricted Stock Units becomes vested and non-forfeitable shall be based upon the satisfaction of the performance goal specified in this Section 2 (the “Performance Goal”), subject to Section 3. The Performance Goal shall be based upon the Cumulative EPS (“Cumulative EPS”) of the Company’s adjusted core earnings per share (as defined below) during the three-year period beginning September 1, 2018 and ending on August 31, 2021 (the “Performance Period”). The Cumulative EPS for the Performance Period shall be measured on August 31, 2021 (“Measurement Date”) (subject to adjustment under Section 7(b)). For purposes of this Agreement, “adjusted core earnings per share” means the Company’s net income determined under U.S. generally accepted accounting principles (“GAAP”), adjusted to exclude the following: (1) amortization of intangible assets, (2) stock-based compensation expense and related charges, (3) goodwill impairment charges, net of any tax related implications, (4) the cumulative effect of changes in GAAP and/or tax laws and regulations not previously contemplated in the Company’s Cumulative EPS target and (5) any other unusual or nonrecurring gains or losses which are separately identified and quantified, including the acquisition and integration costs associated with Project Dayton and charges associated with the previously approved Board restructuring plans, divided by the weighted average number of outstanding shares determined in accordance with GAAP. Notwithstanding anything to the contrary contained in the preceding sentence, in the event that, as determined in the sole discretion of the Compensation Committee of the Board (the “Committee”) and due to a required change in GAAP, tax laws and regulations or an extraordinary and material event in the Company’s business (each of the foregoing events being referred to herein as a “Material Event”), “adjusted core earnings per share” determined after the occurrence of a Material Event would be materially different as a result of the occurrence thereof, the Committee may instruct the Company to determine “adjusted core earnings per share” for such period, solely for purposes of this Agreement, as if the Material Event had not happened or was not effective. Such instruction may be limited to apply to fiscal years in which the cumulative effect did not account for the occurrence of the Material Event.

(b) The portion of the Grantee’s rights and interest in the Restricted Stock Units, if any, that becomes vested and non-forfeitable on the Determination Date (as defined below) following the Performance Period shall be determined at the Measurement Date in accordance with the following schedule:

 

Cumulative EPS for Three Fiscal

Years Beginning September 1,

2018 and Ending August 31, 2021

   Percentage of
Shares Vested
 

Below [$X]

     0

[$X]

     20

[$X]

     100

[$X]

     150

Notwithstanding the foregoing schedule, no fractional Shares shall be issued, and subject to the preceding limitation on the number of related Shares available under this Agreement (that is, 150 percent of the related Shares), any fractional Share that would have resulted from the foregoing calculations shall be rounded up to the next whole Share.

 

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(c) The applicable portion of the Restricted Stock Units shall become vested and non-forfeitable in accordance with this Section 2, subject to the Committee determining that the corresponding Performance Goal and all other conditions for the vesting of the Restricted Stock Units have been satisfied; provided the Grantee’s Continuous Status as an Employee or Consultant or Non-Employee Director has not terminated before the Determination Date, as defined herein. This determination shall be made within ninety (90) days after the last day of the Performance Period (“Determination Date”). The Committee shall make this determination, provided that, for any Grantee who is not an “officer” of the Company for purposes of Section 16 of the Securities Exchange Act of 1934, as amended, the determination may be made by such Grantee’s divisional Executive Vice President or Chief Executive Officer, by the Chief Operating Officer of the Company or by the President of the Company (each, an “Authorized Officer”). The Committee’s or Authorized Officer’s good faith determination shall be final, binding and conclusive on all persons, including, but not limited to, the Company and the Grantee. The Committee or such Authorized Officer may, in its discretion, reduce the amount of compensation otherwise to be paid or earned in connection with this award, notwithstanding the level of achievement of the Performance Goal or any contrary provision of the Plan; provided, no such reduction may be made after a Change in Control. The Grantee shall not be entitled to any claim or recourse if any action or inaction by the Company, or any other circumstance or event, including any circumstance or event outside the control of the Grantee, adversely affects the ability of the Grantee to satisfy the Performance Goal or in any way prevents the satisfaction of the Performance Goal.

3. Change in Control. In the event of a Change in Control, any portion of the Restricted Stock Units that is not yet vested on the date such Change in Control is determined to have occurred:

(a) shall become fully vested on the first anniversary of the date of such Change in Control (the “Change in Control Anniversary”) if the Grantee’s Continuous Status as an Employee or Consultant or Non-Employee Director does not terminate prior to the Change in Control Anniversary;

(b) shall become fully vested on the Date of Termination if the Grantee’s Continuous Status as an Employee or Consultant or Non-Employee Director terminates prior to the Change in Control Anniversary as a result of termination by the Company without Cause or resignation by the Grantee for Good Reason; or

(c) shall not become fully vested if the Grantee’s Continuous Status as an Employee or Consultant or Non-Employee Director terminates prior to the Change in Control Anniversary as a result of termination by the Company for Cause or resignation by the Grantee without Good Reason, but only to the extent such Restricted Stock Units have not previously become vested.

For purposes of this Agreement, the references to “fully vested” refer to vesting of the number of Restricted Stock Units that would vest upon achievement of the maximum level of achievement of the Performance Goal under Section 2 at the Measurement Date. This Section 3 shall supersede the standard vesting provision contained in Section 2 of this Agreement only to the extent that it results in accelerated vesting of the Restricted Stock Units, and it shall not result in a delay of any vesting or non-vesting of any Restricted Stock Units that otherwise would occur at the Measurement Date during the Performance Period under the terms of the standard vesting provision contained in Section 2 of this Agreement.

For purposes of this Section 3, the following definitions shall apply:

(d) “Cause” means:

(i) The Grantee’s conviction of a crime involving fraud or dishonesty; or

 

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(ii) The Grantee’s continued willful or reckless material misconduct in the performance of the Grantee’s duties after receipt of written notice from the Company concerning such misconduct;

provided, however, that for purposes of Section 3(d)(ii), Cause shall not include any one or more of the following: bad judgment, negligence or any act or omission believed by the Grantee in good faith to have been in or not opposed to the interest of the Company (without intent of the Grantee to gain, directly or indirectly, a profit to which the Grantee was not legally entitled).

(e) “Good Reason” means:

(i) The assignment to the Grantee of any duties adverse to the Grantee and materially inconsistent with the Grantee’s position (including status, titles and reporting requirement), authority, duties or responsibilities, or any other action by the Company that results in a material diminution in such position, authority, duties or responsibilities, excluding for this purpose an isolated, insubstantial and inadvertent action that is not taken in bad faith;

(ii) Any material reduction in the Grantee’s compensation; or

(iii) Change in location of the Grantee’s assigned office of more than 35 miles without prior consent of the Grantee.

The Grantee’s resignation will not constitute a resignation for Good Reason unless the Grantee first provides written notice to the Company of the existence of the Good Reason within 90 days following the effective date of the occurrence of the Good Reason, and the Good Reason remains uncorrected by the Company for more than 30 days following receipt of such written notice of the Good Reason from the Grantee to the Company, and the effective date of the Grantee’s resignation is within one year following the effective date of the occurrence of the Good Reason.

4. Timing and Manner of Settlement of Restricted Stock Units.

(a) Settlement Timing. Unless and until the Restricted Stock Units become vested and non-forfeitable in accordance with Section 2, Section 3 or Section 6 of this Agreement, the Grantee will have no right to settlement of any such Restricted Stock Units. Restricted Stock Units will be settled under this Section 4 by the Company delivering to the Grantee (or his beneficiary in the event of death) a number of Shares equal to the number of Restricted Stock Units that have become vested and non-forfeitable and are to be settled at the applicable settlement date. In the case of Restricted Stock Units that become vested and non-forfeitable at the Determination Date in accordance with Section 2 of this Agreement (including Restricted Stock Units not forfeited by operation of Section 6(a) or 6(c)), such Restricted Stock Units will be settled at a date that is as prompt as practicable after the Determination Date but in no event later than two and one-half (2-1/2) months after the Determination Date (settlement that is prompt but in no event later than two and one-half (2-1/2) months after the applicable vesting date is referred to herein as “Prompt Settlement”). The settlement of Restricted Stock Units that become vested and non-forfeitable in circumstances governed by Section 3 or Section 6(b) will be as follows:

(i) Restricted Stock Units that do not constitute a deferral of compensation under Code Section 409A will be settled as follows:

(A) Restricted Stock Units that become vested in accordance with Section 6(b) (due to the Grantee’s death) will be settled within the period extending to not later than two and one-half (2-1/2) months after the later of the end of calendar year or the end of the Company’s fiscal year in which death occurred; and

 

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(B) Restricted Stock Units that become vested in accordance with Section 3(a) (on the Change in Control Anniversary) or Section 3(b) (during the year following a Change in Control) will be settled in a Prompt Settlement following the applicable vesting date under Section 3(a) or 3(b).

(ii) Restricted Stock Units that constitute a deferral of compensation under Code Section 409A (“409A RSUs”) will be settled as follows:

(A) 409A RSUs that become vested in accordance with Section 6(b) (due to the Grantee’s death) will be settled on the 30th day after the date of the Grantee’s death;

(B) 409A RSUs that become vested in accordance with Section 3(a) (on the Change in Control Anniversary), if in connection with the Change in Control there occurred a change in the ownership of the Company, a change in effective control of the Company or a change in the ownership of a substantial portion of the assets of the Company as defined in Treasury Regulation § 1.409A-3(i)(5) (a “409A Change in Control”), will be settled in a Prompt Settlement following the first anniversary of the 409A Change in Control, and if there occurred no 409A Change in Control in connection with the Change in Control, such 409A RSUs will be settled in a Prompt Settlement following the earliest of the Determination Date, one year after a 409A Change in Control not related to the Change in Control or the termination of the Grantee’s Continuous Status as an Employee or Consultant or Non-Employee Director, subject to Section 9(b) (including the six-month delay rule); and

(C) 409A RSUs that become vested in accordance with Section 3(b) (during the year following a Change in Control) will be settled in a Prompt Settlement following termination of the Grantee’s Continuous Status as an Employee or Consultant or Non-Employee Director, subject to Section 9(b) (including the six-month delay rule).

(b) Manner of Settlement. The Company may make delivery of shares of Common Stock in settlement of Restricted Stock Units by either delivering one or more certificates representing such Shares to the Grantee (or his beneficiary in the event of death), registered in the name of the Grantee (and any joint name, if so directed by the Grantee), or by depositing such Shares into a stock brokerage account maintained for the Grantee (or of which the Grantee is a joint owner, with the consent of the Grantee). In no event will the Company issue fractional Shares.

(c) Effect of Settlement. Neither the Grantee nor any of the Grantee’s successors, heirs, assigns or personal representatives shall have any further rights or interests in any Restricted Stock Units that have been paid and settled. Although a settlement date or range of dates for settlement are specified above in order to comply with Code Section 409A, the Company retains discretion to determine the settlement date, and no Grantee or beneficiary of a Grantee shall have any claim for damages or loss by virtue of the fact that the market price of Common Stock was higher on a given date upon which settlement could have been made as compared to the market price on or after the actual settlement date (any claim relating to settlement will be limited to a claim for delivery of Shares and related dividend equivalents).

5. Restrictions on Transfer. The Grantee shall not have the right to make or permit to occur any transfer, assignment, pledge, hypothecation or encumbrance of all or any portion of the Restricted Stock Units, related rights to dividend equivalents or any other rights relating thereto, whether outright or as security, with or

 

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without consideration, voluntary or involuntary, and the Restricted Stock Units, related rights to dividend equivalents and other rights relating thereto, shall not be subject to execution, attachment, lien, or similar process; provided, however, the Grantee will be entitled to designate a beneficiary or beneficiaries to receive any settlement in respect of the Restricted Stock Units upon the death of the Grantee, in the manner and to the extent permitted by the Administrator. Any purported transfer or other transaction not permitted under this Section 5 shall be deemed null and void.

6. Forfeiture. Except as may be otherwise provided in this Section 6, the Grantee shall forfeit all of his rights and interest in the Restricted Stock Units and related dividend equivalents if his Continuous Status as an Employee or Consultant or Non-Employee Director terminates for any reason before the Restricted Stock Units become vested in accordance with Section 2 or Section 3 of this Agreement.

(a) Retirement. In the event of the Grantee’s Retirement in accordance with the terms and conditions set forth in this Section 6(a), the Grantee’s Continuous Status as an Employee or Consultant or Non-Employee Director shall be treated as not having terminated for a number of years determined in accordance with this Section 6(a) for purposes of application of the vesting provisions of this Agreement. For purposes of this Section 6(a), “Retirement” means termination of the Grantee’s Continuous Status as an Employee or Consultant or Non-Employee Director after the earliest of:

(i) The Grant Date or the end of the Company fiscal year in the Performance Period at which the Grantee has attained age fifty (50) and completed fifteen (15) Full Years of Continuous Status as an Employee or Consultant or Non-Employee Director;

(ii) The Grant Date or the end of the Company fiscal year in the Performance Period at which the Grantee has attained age fifty-eight (58) and completed ten (10) Full Years of Continuous Status as an Employee or Consultant or Non-Employee Director; or

(iii) The Grant Date or the end of the Company fiscal year in the Performance Period at which the Grantee has attained age sixty-two (62) and completed five (5) Full Years of Continuous Status as an Employee or Consultant or Non-Employee Director.

For purposes of this Section 6(a), “Full Year” means a twelve-month period beginning on the date of the Grantee’s commencement of service for the Company or a Subsidiary and each anniversary thereof. Except as otherwise provided in this Section 6(a), the time period of Continuous Status as an Employee or Consultant or Non-Employee Director for a Grantee whose service with the Company or a Subsidiary terminates and who subsequently returns to service with the Company or a Subsidiary shall include all time periods of the Grantee’s service for the Company or a Subsidiary for purposes of this Section 6(a). This Section 6(a) will only apply to a Retirement if the Grantee’s Continuous Status as an Employee or Consultant or Non-Employee Director does not terminate due to Cause as defined in this Agreement. In addition, this Section 6(a) will only apply to a Retirement if the Grantee executes the agreement, if any, required under Section 6(d). For a Grantee who became an Employee or Consultant or Non-Employee Director of the Company or a Subsidiary following the acquisition of his or her employer by the Company or a Subsidiary, service with the acquired employer shall not count toward the number of years of the Grantee’s Continuous Status as an Employee or Consultant or Non-Employee Director for purposes of this Section 6(a), and Continuous Status as an Employee or Consultant or Non-Employee Director shall be measured from the commencement of the Grantee ’s service for the Company or a Subsidiary following such acquisition. For purposes of this Section 6(a), the number of years of the Grantee’s Continuous Status as an Employee or Consultant or Non-Employee Director shall also include service with Jabil Circuit Co., a Michigan corporation and predecessor to the Company, and any Predecessor Subsidiary. For purposes of this Section 6(a), “Predecessor Subsidiary” means a company of which not less than fifty percent (50%) of the voting shares were held by Jabil Circuit Co. or a

 

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Predecessor Subsidiary. For purposes of this Section 6(a), for a Grantee who subsequent to the Grant Date performs service for the Company or a Subsidiary in a role as an employee of the Company or a Subsidiary that no longer includes being a state law officer of the Company or an employee of the Company with a title that is at least the equivalent of Vice President, or a substantially equivalent position of a Subsidiary (“Subsequent Non-Officer Service”), the time period of such Grantee’s Continuous Status as an Employee or Consultant or Non-Employee Director shall not include the time period of any such Subsequent Non-Officer Service, but shall include any time period during which such Grantee subsequently resumes service for the Company or a Subsidiary in a role as an employee of the Company or a Subsidiary that includes being a state law officer of the Company or an employee of the Company with a title that is at least the equivalent of Vice President, or a substantially equivalent position of a Subsidiary.

If this Section 6(a) applies to the Grantee’s Retirement, the Grantee’s Continuous Status as an Employee or Consultant or Non-Employee Director shall be treated as not having terminated for the number of years beginning on the effective date of the Retirement, or the remaining portion of the vesting period, whichever is applicable, in accordance with the following table based on the Grantee’s age and full years of Continuous Status as an Employee or Consultant or Non-Employee Director at the later of the Grant Date or the Company’s fiscal year-end next preceding the effective date of the Retirement:

 

Age

  

Full Years of Continuous Status as an Employee or Consultant or Non-Employee Director

    

5 Years

  

10 Years

  

15 Years

  

20 or More Years

50 – 54    None    None    1 year    2 years
55 – 57    None    None    2 years    Full vesting period
58 – 61    None    2 years    3 years    Full vesting period
62 or Older    Full vesting period    Full vesting period    Full vesting period    Full vesting period

Accordingly, upon such Retirement, Restricted Stock Units that otherwise would be forfeited because such Restricted Stock Units remain unvested (and not previously forfeited) at the effective date of the Retirement will not be forfeited if the Determination Date would have been reached had the Grantee remained in Continuous Status as an Employee or Consultant or Non-Employee Director for the additional period specified in the table above. Vesting of such Restricted Stock Units will remain subject to Section 2, and settlement of such Restricted Stock Units will remain subject to Section 4. Any portion of the Restricted Stock Units that could not potentially become vested under Section 2 assuming the Grantee’s Continuous Status as an Employee or Consultant or Non-Employee Director as set forth in the above table will be forfeited upon Retirement. The death of the Grantee following Retirement or a Change in Control following Retirement shall not affect the application of this Section 6(a), although such events will trigger a settlement of the Restricted Stock Units not forfeited by operation of this Section 6(a) in accordance with Section 4.

(b) Death. In the event that the Grantee’s Continuous Status as an Employee or Consultant or Non-Employee Director terminates due to death at a time that the Grantee’s Restricted Stock Units have not yet vested, a pro rata portion of the Grantee’s Restricted Stock Units shall vest as follows: First, for purposes of Section 2, the Company shall determine the actual level of the Performance Goal achieved (such determination may be by means

 

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of a good faith estimate) as of the Company’s fiscal quarter-end coincident with or next preceding the Grantee’s death (or, if the Grantee’s death occurs in the first fiscal quarter of the Performance Period, then the Company’s fiscal quarter-end coincident with or next following the Grantee’s death) and calculating, on a preliminary basis, the resulting number of Restricted Stock Units that would have become vested (based on such calculation) as of the Determination Date. Second, a pro rata portion of that number of Restricted Stock Units will be calculated by multiplying that number by a fraction, the numerator of which is the number of months from the first day of the Performance Period through the date of death (rounding any partial month to the next whole month) and the denominator of which is 36. No fractional Shares shall be issued, and subject to the limitation under Section 2(b) on the number of related Shares available under this Agreement (that is, 150 percent of the related Shares), any fractional Share that would have resulted from the foregoing calculations shall be rounded up to the next whole Share. Any Restricted Stock Units that were unvested at the date of death and that exceed the pro rata portion of the Restricted Stock Units that become vested under this Section 6(b) shall be forfeited.

(c) Disability. In the event that the Grantee’s Continuous Status as an Employee or Consultant or Non-Employee Director terminates due to Disability at a time that the Grantee’s Restricted Stock Units have not yet vested, a pro rata portion of the Grantee’s Restricted Stock Units shall remain outstanding and shall be eligible for future vesting based on the actual level of achievement in the Performance Period, provided, however, that non-forfeiture of such Restricted Stock Units will only apply if the Grantee executes the agreement, if any, required under Section 6(d). The pro rata portion shall be calculated by multiplying the number of Restricted Stock Units originally granted by a fraction, the numerator of which is the number of months from the first day of the Performance Period through the date of termination (rounding any partial month to the next whole month) and the denominator of which is 36. No fractional Shares shall be issued, and subject to the limitation under Section 2(b) on the number of related Shares available under this Agreement (that is, 150 percent of the related Shares), any fractional Share that would have resulted from the foregoing calculations shall be rounded up to the next whole Share. Vesting of such Restricted Stock Units will remain subject to Section 2, and settlement of such Restricted Stock Units will remain subject to Section 4. The death of the Grantee following a termination governed by this Section 6(c), or a Change in Control following such termination, shall not increase or decrease the number of Restricted Stock Units forfeited or not forfeited under this Section 6(c), although such events will trigger a settlement of the Restricted Stock Units not forfeited by operation of this Section 6(c) in accordance with Section 4. Any Restricted Stock Units that at any time after the date of a termination governed by this Section 6(c) exceed the pro rata portion of the Restricted Stock Units that remain outstanding and potentially subject to future vesting under this Section 6(c) shall be forfeited.

(d) Execution of Separation Agreement and Release. Unless otherwise determined by the Administrator, as a condition to the non-forfeiture of Restricted Stock Units upon Retirement under Section 6(a) or upon a termination due to Disability under Section 6(c), the Grantee shall be required to execute a separation agreement and release, in a form prescribed by the Administrator, setting forth covenants relating to noncompetition, nonsolicitation, nondisparagement, confidentiality and similar covenants for the protection of the Company’s business, and releasing the Company from liability in connection with the Grantee’s termination. Such agreement shall provide for the forfeiture and/or clawback of the Restricted Stock Units subject to Section 6(a) or 6(c), and the Shares of Common Stock issued or issuable in settlement of the Restricted Stock Units, and related dividend equivalents and any other related rights, in the event of the Grantee’s failure to comply with the terms of such agreement. The Administrator will provide the form of such agreement to the Grantee at the date of termination, and the Grantee must execute and return such form within the period specified by law or, if no such period is specified, within 21 days after receipt of the form of agreement, and not revoke such agreement within any permitted revocation period (the end of these periods being the “Agreement Effectiveness Deadline”). If any Restricted Stock Units subject to Section 6(a) or 6(c) or related rights would be required to be settled before the Agreement Effectiveness Deadline, the settlement shall not be delayed pending the receipt and effectiveness of the agreement, but any such Restricted Stock Units or related rights settled before such receipt and effectiveness shall be subject to a “clawback” (repaying to the Company the Shares and cash paid upon settlement) in the event that the agreement is not received and effective and not revoked by the Agreement Effectiveness Deadline.

 

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7. Dividend Equivalents; Adjustments.

(a) Dividend Equivalents. During the period beginning on the Grant Date and ending on the date that Shares are issued in settlement of a Restricted Stock Unit, the Grantee will accrue dividend equivalents on Restricted Stock Units (including electively deferred 409A RSUs) equal to the cash dividend or distribution that would have been paid on the Restricted Stock Unit had the Restricted Stock Unit been an issued and outstanding Share of Common Stock on the record date for the dividend or distribution. Such accrued dividend equivalents (i) will vest and become payable upon the same terms and at the same time of settlement as the Restricted Stock Units to which they relate, and (ii) will be denominated and payable solely in cash. Dividend equivalent payments, at settlement, will be net of applicable federal, state, local and foreign income and social insurance withholding taxes (subject to Section 8).

(b) Adjustments. The number of Restricted Stock Units (including electively deferred 409A RSUs) credited to the Grantee, and each adjusted core earnings per share amount and Cumulative EPS amount specified for purposes of the Performance Goal, shall be subject to adjustment by the Company, in accordance with Section 13 of the Plan, in order to preserve without enlarging the Grantee’s rights with respect to such Restricted Stock Units. Any such adjustment shall be made taking into account any crediting of cash dividend equivalents to the Grantee under Section 7(a) in connection with such transaction or event. In the case of an extraordinary cash dividend, the Committee may determine to adjust Grantee’s Restricted Stock Units under this Section 7(b) in lieu of crediting cash dividend equivalents under Section 7(a). Restricted Stock Units credited to the Grantee as a result of an adjustment shall be subject to the same forfeiture and settlement terms as applied to the related Restricted Stock Units prior to the adjustment.

8. Responsibility for Taxes and Withholding. Regardless of any action the Company, any of its Subsidiaries and/or the Grantee’s employer takes with respect to any or all income tax, social insurance, payroll tax, payment on account or other tax-related items related to the Grantee’s participation in the Plan and legally applicable to the Grantee (“Tax-Related Items”), the Grantee acknowledges that the ultimate liability for all Tax-Related Items is and remains the Grantee’s responsibility and may exceed the amount actually withheld by the Company or any of its affiliates. The Grantee further acknowledges that the Company and/or its Subsidiaries (i) make no representations or undertakings regarding the treatment of any Tax-Related Items in connection with any aspect of the Restricted Stock Units, including, but not limited to, the grant or vesting of the Restricted Stock Units, the delivery of Shares, the subsequent sale of Shares acquired pursuant to such delivery and the receipt of any dividends and/or dividend equivalents; and (ii) do not commit to and are under no obligation to structure the terms of any award to reduce or eliminate the Grantee’s liability for Tax-Related Items or achieve any particular tax result. Further, if the Grantee becomes subject to tax in more than one jurisdiction between the Grant Date and the date of any relevant taxable event, the Grantee acknowledges that the Company and/or its Subsidiaries may be required to withhold or account for Tax-Related Items in more than one jurisdiction.

Prior to any relevant taxable or tax withholding event, as applicable, the Grantee will pay or make adequate arrangements satisfactory to the Company and/or its Subsidiaries to satisfy all Tax-Related Items. In this regard, the Grantee authorizes the Company and/or its Subsidiaries, or their respective agents, at their discretion, to satisfy the obligations with regard to all Tax-Related Items by one or a combination of the following:

(a) withholding from the Grantee’s wages or other cash compensation paid to the Grantee by the Company and/or its Subsidiaries; or

 

9


(b) withholding in Shares to be delivered upon settlement; or

(c) withholding from dividend equivalent payments (payable in cash) related to the Shares to be delivered at settlement.

To avoid negative accounting treatment, the Company and/or its Subsidiaries may withhold or account for Tax-Related Items by considering applicable withholding rates but not exceeding the maximum statutory withholding rates. If the obligation for Tax-Related Items is satisfied by withholding in Shares, for tax purposes, the Grantee is deemed to have been issued the full number of Shares attributable to the awarded Restricted Stock Units, notwithstanding that a number of Shares are held back solely for the purpose of paying the Tax-Related Items due as a result of any aspect of the Grantee’s participation in the Plan.

Finally, the Grantee shall pay to the Company and/or its Subsidiaries any amount of Tax-Related Items that the Company and/or its Subsidiaries may be required to withhold or account for as a result of the Grantee’s participation in the Plan that are not satisfied by the means previously described. The Company may refuse to issue or deliver the Shares if the Grantee fails to comply with the Grantee’s obligations in connection with the Tax-Related Items.

9. Code Section 409A.

(a) General. Payments made pursuant to this Agreement are intended to be exempt from Section 409A of the Code or to otherwise comply with Section 409A of the Code. Accordingly, other provisions of the Plan or this Agreement notwithstanding, the provisions of this Section 9 will apply in order that the Restricted Stock Units, and related dividend equivalents and any other related rights, will be exempt from or otherwise comply with Code Section 409A. In addition, the Company reserves the right, to the extent the Company deems necessary or advisable in its sole discretion, to unilaterally amend or modify the Plan and/or this Agreement to ensure that all Restricted Stock Units, and related dividend equivalents and any other related rights, are exempt from or otherwise comply, and in operation comply, with Code Section 409A (including, without limitation, the avoidance of penalties thereunder). Other provisions of the Plan and this Agreement notwithstanding, the Company makes no representations that the Restricted Stock Units, and related dividend equivalents and any other related rights, will be exempt from or avoid any penalties that may apply under Code Section 409A, makes no undertaking to preclude Code Section 409A from applying to the Restricted Stock Units and related dividend equivalents and any other related rights, and will not indemnify or provide a gross up payment to a Grantee (or his beneficiary) for any taxes, interest or penalties imposed under Code Section 409A. Other restrictions and limitations under any deferred compensation plan or general rules applicable to deferrals apply to electively deferred 409A RSUs and related dividend equivalents and, if those provisions apply and are compliant with Code Section 409A, they shall take precedence over inconsistent provisions of this Section 9.

(b) Restrictions on 409A RSUs. In the case of any 409A RSUs, the following restrictions will apply:

(i) Separation from Service. Any payment in settlement of the 409A RSUs that is triggered by a termination of Continuous Status as an Employee or Consultant or Non-Employee Director (or other termination of employment) hereunder will occur only if the Grantee has had a “separation from service” within the meaning of Treasury Regulation § 1.409A-1(h), with such separation from service treated as the termination for purposes of determining the timing of any settlement based on such termination.

(ii) Six-Month Delay Rule. The “six-month delay rule” will apply to 409A RSUs if these four conditions are met:

 

10


(A) the Grantee has a separation from service (within the meaning of Treasury Regulation § 1.409A-1(h)) for a reason other than death;

(B) a payment in settlement is triggered by such separation from service; and    

(C) the Grantee is a “specified employee” under Code Section 409A.

If it applies, the six-month delay rule will delay a settlement of 409A RSUs triggered by separation from service where the settlement otherwise would occur within six months after the separation from service, subject to the following:

(D) any delayed payment shall be made on the date six months and one day after separation from service;

(E) during the six-month delay period, accelerated settlement will be permitted in the event of the Grantee’s death and for no other reason (including no acceleration upon a Change in Control) except to the extent permitted under Code Section 409A; and

(F) any settlement that is not triggered by a separation from service, or is triggered by a separation from service but would be made more than six months after separation (without applying this six-month delay rule), shall be unaffected by the six-month delay rule.

(c) Other Compliance Provisions. The following provisions apply to Restricted Stock Units:

(i) Each tranche of Restricted Stock Units (including dividend equivalents accrued thereon) that potentially could vest at or following a Determination Date under Section 2 shall be deemed a separate payment for purposes of Code Section 409A.

(ii) The settlement of 409A RSUs may not be accelerated by the Company except to the extent permitted under Code Section 409A. The Company may, however, accelerate vesting (i.e., may waive the risk of forfeiture tied to termination of the Grantee’s Continuous Status as an Employee or Consultant or Non-Employee Director) of 409A RSUs, without changing the settlement terms of such 409A RSUs.

(iii) It is understood that Good Reason for purposes of this Agreement is limited to circumstances that qualify under Treasury Regulation § 1.409A-1(n)(2).

(iv) Any election to defer settlement of Restricted Stock Units must comply with the election timing rules under Code Section 409A.

(v) Any restriction imposed on 409A RSUs hereunder or under the terms of other documents solely to ensure compliance with Code Section 409A shall not be applied to a Restricted Stock Unit that is not a 409A RSU except to the extent necessary to preserve the status of such Restricted Stock Unit as not being a “deferral of compensation” under Code Section 409A.

(vi) If any mandatory term required for 409A RSUs or other RSUs, or related dividend equivalents or other related rights, to avoid tax penalties under Code Section 409A is not otherwise explicitly provided under this document or other applicable documents, such term is hereby incorporated by reference and fully applicable as though set forth at length herein.

 

11


(vii) In the case of any settlement of Restricted Stock Units during a specified period following the Determination Date or other date triggering a right to settlement, the Grantee shall have no influence (other than permitted deferral elections) on any determination as to the tax year in which the settlement will be made.

(viii) In the case of any Restricted Stock Unit that is not a 409A RSU, if the circumstances arise constituting a Disability but termination of the Grantee’s Continuous Status as an Employee or Consultant or Non-Employee Director has not in fact resulted immediately without an election by the Grantee, then only the Company or a Subsidiary may elect to terminate the Grantee’s Continuous Status as an Employee or Consultant or Non-Employee Director due to such Disability.

(ix) If the Company has a right of setoff that could apply to a 409A RSU, such right may only be exercised at the time the 409A RSU would have been settled, and may be exercised only as a setoff against an obligation that arose not more than 30 days before and within the same year as the settlement date if application of such setoff right against an earlier obligation would not be permitted under Code Section 409A.

10. Deferral. If permitted by the Administrator, the issuance of the Shares issuable with respect to the Restricted Stock Units may be deferred upon such terms and conditions as determined by the Administrator, subject to the Administrator’s determination that any such right of deferral or any term thereof complies with applicable laws or regulations in effect from time to time, including but not limited to Section 409A of the Code and the Employee Retirement Income Security Act of 1974, as amended. Shares issuable with respect to electively deferred 409A RSUs, and related dividend equivalents, shall remain subject to the terms and conditions of this Agreement, and for this purpose shall be considered rights related to the 409A RSUs, to the extent applicable and not otherwise superseded by any deferred compensation plan or general rules applicable to electively deferred 409A RSUs, until such 409A RSUs are settled and the Shares issued, including but not limited to Sections 5, 6(d), 7, 8, 9, 11, 12, 13, 14, 15 and 16 of this Agreement.

11. No Effect on Employment or Rights under Plan. Nothing in the Plan or this Agreement shall confer upon the Grantee the right to continue in the employment of the Company or any Subsidiary or affect any right which the Company or any Subsidiary may have to terminate the employment of the Grantee regardless of the effect of such termination of employment on the rights of the Grantee under the Plan or this Agreement. If the Grantee’s employment is terminated for any reason whatsoever (and whether lawful or otherwise), he will not be entitled to claim any compensation for or in respect of any consequent diminution or extinction of his rights or benefits (actual or prospective) under this Agreement or any Award or otherwise in connection with the Plan. The rights and obligations of the Grantee under the terms of his employment with the Company or any Subsidiary will not be affected by his participation in the Plan or this Agreement, and neither the Plan nor this Agreement form part of any contract of employment between the Grantee and the Company or any Subsidiary. The granting of Awards under the Plan is entirely at the discretion of the Administrator, and the Grantee shall not in any circumstances have any right to be granted an Award.

12. Governing Laws. This Agreement shall be construed and enforced in accordance with the laws of the State of Florida.

13. Successors; Severability; Entire Agreement; Headings. This Agreement shall inure to the benefit of, and be binding upon, the Company and the Grantee and their heirs, legal representatives, successors and permitted assigns. In the event that any one or more of the provisions or portion thereof contained in this Agreement shall for any reason be held to be invalid, illegal or unenforceable in any respect, the same shall not invalidate or otherwise affect

 

12


any other provisions of this Agreement, and this Agreement shall be construed as if the invalid, illegal or unenforceable provision or portion thereof had never been contained herein. Subject to the terms and conditions of the Plan, any rules adopted by the Company or the Administrator and applicable to this Agreement and the terms of any elective deferral of the Grantee applicable to the Restricted Stock Units, which are incorporated herein by reference, this Agreement expresses the entire understanding and agreement of the parties hereto with respect to such terms, restrictions and limitations. Section headings used herein are for convenience of reference only and shall not be considered in construing this Agreement.

14. Grantee Acknowledgements and Consents.

(a) Grantee Consent. By accepting this Agreement electronically, the Grantee voluntarily acknowledges and consents to the collection, use, processing and transfer of personal data as described in this Section 14(a). The Grantee is not obliged to consent to such collection, use, processing and transfer of personal data; however, failure to provide the consent may affect the Grantee’s ability to participate in the Plan. The Company and its subsidiaries hold, for the purpose of managing and administering the Plan, certain personal information about the Grantee, including the Grantee’s name, home address and telephone number, date of birth, social security number or other Grantee identification number, salary, nationality, job title, any shares of stock or directorships held in the Company, and details of all options or any other entitlement to Shares of Common Stock awarded, canceled, purchased, vested, unvested or outstanding in the Grantee’s favor (“Data”). The Company and/or its subsidiaries will transfer Data among themselves as necessary for the purpose of implementation, administration and management of the Grantee’s participation in the Plan and the Company and/or any of its subsidiaries may each further transfer Data to any third parties assisting the Company in the implementation, administration and management of the Plan. These recipients may be located in the European Economic Area, or elsewhere throughout the world, in countries that may have different data privacy laws and protections than the Grantee’s country, such as the United States. By accepting this Agreement electronically, the Grantee authorizes them to receive, possess, use, retain and transfer the Data, in electronic or other form, for the purposes of implementing, administering and managing the Grantee’s participation in the Plan, including any requisite transfer of such Data as may be required for the administration of the Plan and/or the subsequent holding of Shares on the Grantee’s behalf to a broker or other third party with whom the Grantee may elect to deposit any Shares acquired pursuant to the Plan. The Grantee may, at any time, review Data, require any necessary amendments to it or withdraw the consents herein in writing by contacting the Administrator; however, withdrawing consent may affect the Grantee’s ability to participate in the Plan.

(b) Voluntary Participation. The Grantee’s participation in the Plan is voluntary. The value of the Restricted Stock Units is an extraordinary item of compensation. Unless otherwise expressly provided in a separate agreement between the Grantee and the Company or a Subsidiary, the Restricted Stock Units are not part of normal or expected compensation for purposes of calculating any severance, resignation, redundancy, end-of-service payments, bonuses, long-service awards, pension or retirement benefits or similar payments.

(c) Electronic Delivery and Acceptance. BY ACCEPTING THIS AGREEMENT ELECTRONICALLY, THE GRANTEE HEREBY CONSENTS TO ELECTRONIC DELIVERY OF THE PLAN, THE PROSPECTUS FOR THE PLAN AND OTHER DOCUMENTS RELATED TO THE PLAN (COLLECTIVELY, THE “PLAN DOCUMENTS”). THE COMPANY WILL DELIVER THE PLAN DOCUMENTS ELECTRONICALLY TO THE GRANTEE BY E-MAIL, BY POSTING SUCH DOCUMENTS ON ITS INTRANET WEBSITE OR BY ANOTHER MODE OF ELECTRONIC DELIVERY AS DETERMINED BY THE COMPANY IN ITS SOLE DISCRETION. BY ACCEPTING THIS AGREEMENT ELECTRONICALLY, THE GRANTEE CONSENTS AND AGREES THAT SUCH PROCEDURES AND DELIVERY MAY BE EFFECTED BY A BROKER OR THIRD PARTY ENGAGED BY THE COMPANY TO PROVIDE ADMINISTRATIVE SERVICES RELATED TO THE PLAN. BY ACCEPTING THIS AGREEMENT

 

13


ELECTRONICALLY, THE GRANTEE HEREBY CONSENTS TO ANY AND ALL PROCEDURES THE COMPANY HAS ESTABLISHED OR MAY ESTABLISH FOR ANY ELECTRONIC SIGNATURE SYSTEM FOR DELIVERY AND ACCEPTANCE OF ANY PLAN DOCUMENTS, INCLUDING THIS AGREEMENT, THAT THE COMPANY MAY ELECT TO DELIVER AND AGREES THAT HIS ELECTRONIC SIGNATURE IS THE SAME AS, AND WILL HAVE THE SAME FORCE AND EFFECT AS, HIS MANUAL SIGNATURE. THE COMPANY WILL SEND TO THE GRANTEE AN E-MAIL ANNOUNCEMENT WHEN THE PLAN DOCUMENTS ARE AVAILABLE ELECTRONICALLY FOR THE GRANTEE’S REVIEW, DOWNLOAD OR PRINTING AND WILL PROVIDE INSTRUCTIONS ON WHERE THE PLAN DOCUMENTS CAN BE FOUND. UNLESS OTHERWISE SPECIFIED IN WRITING BY THE COMPANY, THE GRANTEE WILL NOT INCUR ANY COSTS FOR RECEIVING THE PLAN DOCUMENTS ELECTRONICALLY THROUGH THE COMPANY’S COMPUTER NETWORK. THE GRANTEE WILL HAVE THE RIGHT TO RECEIVE PAPER COPIES OF ANY PLAN DOCUMENT BY SENDING A WRITTEN REQUEST FOR A PAPER COPY TO THE ADMINISTRATOR. THE GRANTEE’S CONSENT TO ELECTRONIC DELIVERY OF THE PLAN DOCUMENTS WILL BE VALID AND REMAIN EFFECTIVE UNTIL THE EARLIER OF (i) THE TERMINATION OF THE GRANTEE’S PARTICIPATION IN THE PLAN AND (ii) THE WITHDRAWAL OF THE GRANTEE’S CONSENT TO ELECTRONIC DELIVERY AND ACCEPTANCE OF THE PLAN DOCUMENTS. THE COMPANY ACKNOWLEDGES AND AGREES THAT THE GRANTEE HAS THE RIGHT AT ANY TIME TO WITHDRAW HIS CONSENT TO ELECTRONIC DELIVERY AND ACCEPTANCE OF THE PLAN DOCUMENTS BY SENDING A WRITTEN NOTICE OF WITHDRAWAL TO THE ADMINISTRATOR. IF THE GRANTEE WITHDRAWS HIS CONSENT TO ELECTRONIC DELIVERY AND ACCEPTANCE, THE COMPANY WILL RESUME SENDING PAPER COPIES OF THE PLAN DOCUMENTS WITHIN TEN (10) BUSINESS DAYS OF ITS RECEIPT OF THE WITHDRAWAL NOTICE. BY ACCEPTING THIS AGREEMENT ELECTRONICALLY, THE GRANTEE ACKNOWLEDGES THAT HE IS ABLE TO ACCESS, VIEW AND RETAIN AN E-MAIL ANNOUNCEMENT INFORMING THE GRANTEE THAT THE PLAN DOCUMENTS ARE AVAILABLE IN EITHER HTML, PDF OR SUCH OTHER FORMAT AS THE COMPANY DETERMINES IN ITS SOLE DISCRETION.

(d) Unfunded Plan. The Grantee acknowledges and agrees that any rights of the Grantee relating to the Grantee’s Restricted Stock Units and related dividend equivalents and any other related rights shall constitute bookkeeping entries on the books of the Company and shall not create in the Grantee any right to, or claim against, any specific assets of the Company or any Subsidiary, nor result in the creation of any trust or escrow account for the Grantee. With respect to the Grantee’s entitlement to any payment hereunder, the Grantee shall be a general creditor of the Company.

15. Additional Acknowledgements. By accepting this Agreement electronically, the Grantee and the Company agree that the Restricted Stock Units are granted under and governed by the terms and conditions of the Plan and this Agreement. The Grantee has reviewed in its entirety the prospectus that summarizes the terms of the Plan and this Agreement, has had an opportunity to request a copy of the Plan in accordance with the procedure described in the prospectus, has had an opportunity to obtain the advice of counsel prior to electronically accepting this Agreement and fully understands all provisions of the Plan and this Agreement. The Grantee hereby agrees to accept as binding, conclusive and final all decisions or interpretations of the Administrator upon any questions relating to the Plan and this Agreement.

16. Country Appendix. Notwithstanding any provision of this Agreement to the contrary, this Restricted Stock Unit grant and any Shares issued pursuant to this Agreement shall be subject to the applicable terms and provisions as set forth in the Country Appendix attached hereto and incorporated herein, if any, for the Grantee’s country of residence (and country of employment or engagement as a Consultant, if different).

 

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Acceptance by the Grantee

By selecting the “I accept” box on the website of the Company’s administrative agent, the Grantee acknowledges acceptance of, and consents to be bound by, the Plan and this Agreement and any other rules, agreements or other terms and conditions incorporated herein by reference.

 

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COUNTRY APPENDIX

ADDITIONAL TERMS AND CONDITIONS TO RESTRICTED STOCK UNIT AWARD AGREEMENT

This Country Appendix (“Appendix”) includes the following additional terms and conditions that govern the Grantee’s Stock Award for all Grantees that reside and/or work outside of the United States and outside of the European Union.

Notifications

This Country Appendix also includes information regarding exchange controls and certain other issues of which the Grantee should be aware with respect to the Grantee’s participation in the Plan. The information is based on the securities, exchange control and other laws in effect in the respective countries as of October 2018. Such laws are often complex and change frequently. As a result, the Company strongly recommends that the Grantee not rely on the information in this Country Appendix as the only source of information relating to the consequences of the Grantee’s participation in the Plan because the information may be out of date at the time that the Restricted Stock Units vest, or Shares are delivered in settlement of the Restricted Stock Units, or the Grantee sells any Shares acquired under the Plan.

In addition, the information contained herein is general in nature and may not apply to the Grantee’s particular situation, and none of the Company, its Subsidiaries, nor the Administrator is in a position to assure the Grantee of a particular result. Accordingly, the Grantee is advised to seek appropriate professional advice as to how the relevant laws in the Grantee’s country of residence and/or work may apply to the Grantee’s situation.

Finally, if the Grantee transfers employment after the Grant Date, or is considered a resident of another country for local law purposes following the Grant Date, the notifications contained herein may not be applicable to the Grantee, and the Administrator shall, in its discretion, determine to what extent the terms and conditions contained herein shall be applicable to the Grantee.

Terms and Conditions Applicable to All Non-U.S. Jurisdictions

English Language. The Grantee acknowledges and agrees that it is the Grantee’s express intent that this Agreement, the Plan and all other documents, rules, procedures, forms, notices and legal proceedings entered into, given or instituted pursuant to the Stock Award, be drawn up in English. If the Grantee has received this Agreement, the Plan or any other rules, procedures, forms or documents related to the Stock Award translated into a language other than English, and if the meaning of the translated version is different than the English version, the English version will control.

Repatriation; Compliance with Laws. The Grantee agrees, as a condition of the grant of the Stock Award, to repatriate all payments attributable to the Award and/or cash acquired under the Plan (including, but not limited to, dividends, dividend equivalents, and any proceeds derived from the sale of the Shares acquired pursuant to the Agreement) in accordance with all foreign exchange rules and regulations applicable to the Grantee. The Company and the Administrator reserve the right to impose other requirements on the Grantee’s participation in the Plan, on the Restricted Stock Units and on any Shares acquired or cash payments made pursuant to the Agreement, to the extent the Company, its Subsidiaries or the Administrator determines it is necessary or advisable in order to comply with local law or to facilitate the administration of the Plan, and to require the Grantee to sign any additional agreements or undertakings that may be necessary to accomplish the foregoing. Finally, the Grantee agrees to take any and all actions as may be required to comply with the Grantee’s personal legal and tax obligations under all laws, rules and regulations applicable to the Grantee.

 

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Commercial Relationship. The Grantee expressly recognizes that the Grantee’s participation in the Plan and the Company’s Stock Award grant does not constitute an employment relationship between the Grantee and the Company. The Grantee has been granted Stock Awards as a consequence of the commercial relationship between the Company and the Company’s Subsidiary that employs the Grantee, and the Company’s Subsidiary is the Grantee’s sole employer. Based on the foregoing, the Grantee expressly recognizes that (a) the Plan and the benefits the Grantee may derive from participation in the Plan do not establish any rights between the Grantee and the Subsidiary that employs the Grantee, (b) the Plan and the benefits the Grantee may derive from participation in the Plan are not part of the employment conditions and/or benefits provided by the Subsidiary that employs the Grantee, and (c) any modifications or amendments of the Plan by the Company or the Administrator, or a termination of the Plan by the Company, shall not constitute a change or impairment of the terms and conditions of the Grantee’s employment with the Subsidiary that employs the Grantee.

Private Placement. The grant of the Stock Award is not intended to be a public offering of securities in the Grantee’s country of residence and/or employment but instead is intended to be a private placement. As a private placement, the Company has not submitted any registration statement, prospectus or other filings with the local securities authorities (unless otherwise required under local law), and the grant of the Stock Award is not subject to the supervision of the local securities authorities.

Additional Acknowledgements. The GRANTEE also acknowledges and agrees to the following:

 

   

The grant of the Stock Award is voluntary and occasional and does not create any contractual or other right to receive future grants of Stock Awards or benefits in lieu of the Stock Award even if Stock Awards have been granted repeatedly in the past.

 

   

The future value of the Shares and any related dividend equivalents is unknown and cannot be predicted with certainty.

 

   

No claim or entitlement to compensation or damages arises from the forfeiture of the Stock Award or any of the Restricted Stock Units or related dividend equivalents, the termination of the Plan, or the diminution in value of the Restricted Stock Units or Shares, and the Grantee irrevocably releases the Company, its Subsidiaries, the Administrator and their affiliates from any such claim that may arise.

 

   

None of the Company, its Subsidiaries, nor the Administrator is providing any tax, legal or financial advice or making any recommendations regarding the Grantee’s participation in the Plan, the grant, vesting or settlement of the Grantee’s Restricted Stock Units, or the Grantee’s acquisition or sale of the Shares delivered in settlement of the Restricted Stock Units. The Grantee is hereby advised to consult with his own personal tax, legal and financial advisors regarding his participation in the Plan before taking any action related to the Plan.

 

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Terms and Conditions Applicable to Canada

Settlement in Shares. Notwithstanding anything to the contrary in the Agreement, Appendix or the Plan, the Stock Award shall be settled only in Shares of the Company (and may not be settled in cash).

Securities Law Information. The Grantee is permitted to sell Shares acquired through the Plan through the designated broker appointed under the Plan, if any, provided that the resale of such Shares takes place outside of Canada through the facilities of a stock exchange on which the Shares are listed (i.e., the New York Stock Exchange).

Use of English Language. The Grantee acknowledges and agrees that it is the Grantee’s express wish that this Agreement, as well as all documents, notices and legal proceedings entered into, given or instituted pursuant hereto or relating directly or indirectly hereto, be drawn up in English.     Les parties reconnaissent avoir souhaité expressément que la convention ainsi les notices et la documentation juridique fournis ou mis en œuvre ou institués directement ou indirectement, relativement aux présentes, soient rédigés en anglais.

Tax Reporting Information. The Grantee is required to report any foreign specified property (including Shares acquired under the Plan) to the Canada Revenue Agency on Form T1135 (Foreign Income Verification Statement) if the total cost of the Grantee’s foreign specified property exceeds C$100,000 at any time in the year. The form must be filed by April 30th of the following year. Foreign specified property also includes unvested Restricted Stock Units (generally at nil cost) if the C$100,000 cost threshold is exceeded because of other foreign specified property. The Grantee should consult with his or her personal tax advisor to determine his or her reporting requirements.

Termination of Employment. For purposes of the Stock Award, except as otherwise provided under applicable law, the date of the Grantee’s termination of employment shall be the date that is the earliest of (i) the date on which the Grantee’s employment is terminated, (ii) the date on which the Grantee receives notice of termination, or (iii) the date on which the Grantee is no longer actively providing services to the Company or any Subsidiary, regardless of any notice period or period of pay in lieu of such notice required under applicable employment laws in the jurisdiction where the Grantee is employed (including, but not limited to statutory law, regulatory law and/or common law) or the terms of the Grantee’s employment agreement, if any. The Company shall have the exclusive discretion to determine when the Grantee is no longer actively providing services for purposes of the Award (including whether the Grantee may still be considered to be providing services while on a leave of absence).

Data Privacy. The Grantee hereby authorizes the Company and the Company’s representatives to discuss with and obtain all relevant information from all personnel, professional or non-professional, involved in the administration and operation of the Plan. The Grantee further authorizes the Company and any Subsidiary to disclose and discuss the Plan with their advisors and to record all relevant information and keep such information in the Grantee’s employee file.

Terms and Conditions Applicable to China

Satisfaction of Regulatory Obligations. If the Grantee is a national of the Peoples’ Republic of China (“PRC”), this Restricted Stock Unit grant is subject to additional terms and conditions, as determined by the Company in its sole discretion, in order for the Company to obtain the applicable approvals from the PRC State Administration of Foreign Exchange (“SAFE”) to permit the operation of the Plan in accordance with applicable PRC exchange control laws and regulations.

 

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Immediate Sale of Shares. If the Grantee is a PRC national, he or she may be required to immediately sell all Shares acquired upon vesting of the Restricted Stock Units (in which case, this Appendix shall give the Company the authority to issue sales instructions on the Grantee’s behalf). The Grantee agrees to sign any additional agreements, forms and/or consents that reasonably may be requested by the Company (or the Company’s designated brokerage firm) to effectuate the sale of the Shares (including, without limitation, as to the transfer of the sale proceeds and other exchange control matters noted below) and shall otherwise cooperate with the Company with respect to such matters. The Grantee acknowledges that neither the Company nor the designated brokerage firm is under any obligation to arrange for such sale of Shares at any particular price (it being understood that the sale will occur in the market) and that broker’s fees and similar expenses may be incurred in any such sale. In any event, when the Shares are sold, the sale proceeds, less any tax withholding, any broker’s fees or commissions, and any similar expenses of the sale will be remitted to the Grantee in accordance with applicable exchange control laws and regulations.

Exchange Control Restrictions. The Grantee understands and agrees that, if the Grantee is subject to exchange control laws in China, the Grantee will be required immediately to repatriate to China the proceeds from the sale of any Shares acquired under the Plan. The Grantee further understands that such repatriation of proceeds may need to be effected through a special bank account established by the Company in China, and he or she hereby consents and agrees that proceeds from the sale of Shares acquired under the Plan may be transferred to such account by the Company on his or her behalf prior to being delivered to the Grantee and that no interest shall be paid with respect to funds held in such account. The proceeds may be paid to the Grantee in U.S. dollars or local currency at the Company’s discretion. If the proceeds are paid in U.S. dollars, the Grantee understands that a U.S. dollar bank account in China must be established and maintained so that the proceeds may be deposited into such account. If the proceeds are paid in local currency, the Grantee acknowledges that the Company is under no obligation to secure any particular exchange conversion rate and that the Company may face delays in converting the proceeds to local currency due to exchange control restrictions. The Grantee agrees to bear any currency fluctuation risk between the time the Shares are sold and the net proceeds are converted into local currency and distributed to the Grantee. The Grantee further agrees to comply with any other requirements that may be imposed by the Company in the future in order to facilitate compliance with exchange control requirements in China.

Administration. The Company shall not be liable for any costs, fees, lost interest or dividends or other losses the Grantee may incur or suffer resulting from the enforcement of the terms of this Appendix or otherwise from the Company’s operation and enforcement of the Plan, the Agreement and the Stock Award in accordance with Chinese law including, without limitation, any applicable SAFE rules, regulations and requirements.

Notifications Applicable to Hong Kong

Settlement in Shares. Notwithstanding anything to the contrary in the Agreement, Appendix or the Plan, the Stock Award shall be settled only in Shares of the Company (and may not be settled in cash).

IMPORTANT NOTICE. WARNING: The Agreement, the Plan and all other materials pertaining to the Plan have not been reviewed by any regulatory authority in Hong Kong. The Grantee understands that the Grantee is hereby advised to exercise caution in relation to the offering thereunder and that if the Grantee has any doubts about any of the contents of the aforementioned materials, the Grantee should obtain independent professional advice.

Notifications Applicable to Malaysia

Director Reporting Requirement. If the Grantee is a director of the local affiliate in Malaysia, the Grantee has an obligation to notify the local affiliate in Malaysia in writing: (i) when the Grantee is granted a Stock Award under the Plan, (ii) when the Grantee’s Restricted Stock Units are settled and the Grantee receives Shares, (iii) when Shares are sold or (iv) when there is an event giving rise to a change with respect to the Grantee’s interest in the Company. The Grantee must provide this notification within 14 days of the date the interest is acquired or disposed of or the occurrence of the event giving rise to the change to enable the local affiliate in Malaysia to comply with the relevant requirements of the Malaysian authorities. The Malaysian Companies Act prescribes criminal penalties for directors who fail to provide such notice.

 

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Notifications Applicable to Mexico

Commercial Relationship. The Grantee expressly acknowledges that the Grantee’s participation in the Plan and the Company’s grant of the Stock Award does not constitute an employment relationship between the Grantee and the Company. The Grantee has been granted the Stock Award as a consequence of the commercial relationship between the Company and the Subsidiary in Mexico that employs the Grantee, and the Company’s Subsidiary in Mexico is the Grantee’s sole employer. Based on the foregoing: (a) the Grantee expressly acknowledges that the Plan and the benefits derived from participation in the Plan do not establish any rights between the Grantee and the Subsidiary in Mexico that employs the Grantee; (b) the Plan and the benefits derived from participation in the Plan are not part of the employment conditions and/or benefits provided by the Subsidiary in Mexico that employs the Grantee; and (c) any modifications or amendments of the Plan or benefits granted thereunder by the Company, or a termination of the Plan by the Company, shall not constitute a change or impairment of the terms and conditions of the Grantee’s employment with the Subsidiary in Mexico that employs the Grantee.

Extraordinary Item of Compensation. The Grantee expressly recognizes and acknowledges that the Grantee’s participation in the Plan is a result of the discretionary and unilateral decision of the Company, as well as the Grantee’s free and voluntary decision to participate in the Plan in accordance with the terms and conditions of the Plan, the Agreement and this Appendix. As such, the Grantee acknowledges and agrees that the Company, in its sole discretion, may amend and/or discontinue the Grantee’s participation in the Plan at any time and without any liability. The value of the Restricted Stock Units is an extraordinary item of compensation outside the scope of the Grantee’s employment contract, if any. The Restricted Stock Units are not part of the Grantee’s regular or expected compensation for purposes of calculating any severance, resignation, redundancy, end of service payments, bonuses, long-service awards, pension or retirement benefits, or any similar payments, which are the exclusive obligations of the Company’s Subsidiary in Mexico that employs the Grantee.

Notifications Applicable to Singapore

Chief Executive Officer and Director Notification Obligation. The Grantee acknowledges that if he / she is the Chief Executive Office (“CEO”) or a a director or shadow director of a Subsidiary in Singapore, the Grantee is subject to certain notification requirements under the Singapore Companies Act. Among these requirements is an obligation to notify the Subsidiary in Singapore in writing when the Grantee receives an interest (e.g., Restricted Stock Units, Shares) in the Company. In addition, the Grantee acknowledges that he / she must notify the Subsidiary in Singapore when he / she sells Shares. These notifications must be made within two days of acquiring or disposing of an interest in the Company. In addition, the Grantee acknowledges that he / she must make a notification of the Grantee’s interest in the Company within two days of becoming the CEO or a director.

Securities Law Information. The Restricted Stock Unit are being granted to grantees pursuant to the “Qualifying Person” exemption under section 273(1)(f) of the Singapore Securities and Futures Act (Chapter 289, 2006 Ed.) (“SFA”). The Plan has not been lodged or registered as a prospectus with the Monetary Authority of Singapore. The Grantee should note that the Restricted Stock Units are subject to section 257 of the SFA and the Grantee will not be able to make (i) any subsequent sale of the Shares in Singapore or (ii) any offer of such subsequent sale of Shares subject to the Restricted Stock Units in Singapore, unless such sale or offer is made pursuant to the exemptions under Part XIII Division 1 Subdivision (4) (other than section 280) of the SFA.

 

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Notifications Applicable to Taiwan

Securities Law Information. The offer to participate in the Plan is available only for employees of the Company and its Subsidiaries. The offer to participate in the Plan is not a public offer of securities by a Taiwanese company. Therefore, it is not subject to registration in Taiwan.

 

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EX-10.3

Exhibit 10.3

JABIL INC.

RESTRICTED STOCK UNIT AWARD AGREEMENT

(PBRSU TSR - ONEU)

This RESTRICTED STOCK UNIT AWARD AGREEMENT (the “Agreement”) is made as of October 18, 2018 (the “Grant Date”) between JABIL INC. a Delaware corporation (the “Company”) and                      (the “Grantee”).

Background Information

A. The Board of Directors (the “Board”) and stockholders of the Company previously adopted the Jabil Circuit, Inc. 2011 Stock Award and Incentive Plan (the “Plan”).

B. Section 8 of the Plan provides that the Administrator shall have the discretion and right to grant Stock Awards, including Stock Awards denominated in units representing rights to receive shares, to any Employees or Consultants or Non-Employee Directors, subject to the terms and conditions of the Plan and any additional terms provided by the Administrator. The Administrator has made a Stock Award grant denominated in units to the Grantee as of the Grant Date pursuant to the terms of the Plan and this Agreement.

C. The Grantee desires to accept the Stock Award grant and agrees to be bound by the terms and conditions of the Plan and this Agreement.

D. Unless otherwise defined herein, the terms defined in the Plan shall have the same defined meanings in this Agreement.

Agreement

1. Restricted Stock Units. Subject to the terms and conditions provided in this Agreement and the Plan, the Company hereby grants to the Grantee              restricted stock units (the “Restricted Stock Units”) as of the Grant Date. Each Restricted Stock Unit represents the right to receive a Share of Common Stock if the Restricted Stock Unit becomes vested and non-forfeitable in accordance with Section 2 or Section 3 of this Agreement. The Grantee shall have no rights as a stockholder of the Company, no dividend rights and no voting rights with respect to the Restricted Stock Units or the Shares underlying the Restricted Stock Units unless and until the Restricted Stock Units become vested and non-forfeitable and such Shares are delivered to the Grantee in accordance with Section 4 of this Agreement. The Grantee is required to pay no cash consideration for the grant of the Restricted Stock Units. The Grantee acknowledges and agrees that (i) the Restricted Stock Units and related rights are nontransferable as provided in Section 5 of this Agreement, (ii) the Restricted Stock Units are subject to forfeiture in the event the Grantee’s Continuous Status as an Employee or Consultant or Non-Employee Director terminates in certain circumstances, as specified in Section 6 of this Agreement, (iii) sales of Shares of Common Stock delivered in settlement of the Restricted Stock Units will be subject to the Company’s policies regulating trading by Employees and Consultants, including any applicable “blackout” or other designated periods in which sales of Shares are not permitted, (iv) Shares delivered in settlement will be subject to any recoupment or “clawback” policy of the Company, regardless of whether such recoupment or “clawback” policy is applied with prospective or retroactive effect, and (v) any entitlement to dividend equivalents will be in accordance with Section 7 of this Agreement. The extent to which the Grantee’s rights and interest in the Restricted Stock Units becomes vested and non-forfeitable shall be determined in accordance with the provisions of Sections 2 and 3 of this Agreement.

 


2. Vesting.

(a) Except as may be otherwise provided in Section 3 or Section 6 of this Agreement, the vesting of the Grantee’s rights and interest in the Restricted Stock Units shall be determined in accordance with this Section 2. The extent to which the Grantee’s interest in the Restricted Stock Units becomes vested and non-forfeitable shall be based upon the satisfaction of the performance goal specified in this Section 2 (the “Performance Goal”), subject to Section 3. The Performance Goal shall be based upon a comparison of the Company’s total shareholder return, as defined below (“TSR”), to the TSR of each company (other than the Company) that comprises the S&P Supercomposite Technology Hardware and Equipment Index (the “Index”) during the period beginning September 1, 2018 and ending on August 31, 2021 (the “Performance Period”), provided that only the companies that comprise the Index as of the first day of the Performance Period shall be considered and any such company shall be deemed to have a TSR of negative 100 percent upon (i) the institution by or against such company of an insolvency, receivership or bankruptcy proceeding under the United States Bankruptcy Code, 11 U.S.C. §§ 101-1532, or foreign insolvency regime, (ii) such company making an assignment for the benefit of creditors, or (iii) such company’s dissolution or ceasing to do business. The TSR for the Performance Period shall be measured at the end of the Performance Period. [                ]

(b) The portion of the Grantee’s rights and interest in the Restricted Stock Units, if any, that becomes vested and nonforfeitable on the Determination Date (as defined below) shall be determined in accordance with the following schedule, using linear interpolation, as determined by the Compensation Committee of the Board (the “Committee”):

[                ]

No fractional Shares shall be issued, and subject to the preceding limitation on the number of Shares available under this Agreement (that is, 200 percent of the related Shares), any fractional Share that would have resulted from the foregoing calculations shall be rounded up to the next whole Share.

(c) The applicable portion of the Restricted Stock Units shall become vested and non-forfeitable in accordance with this Section 2, subject to the determination that the corresponding Performance Goal and all other conditions for the vesting of the Restricted Stock Units have been satisfied; provided the Grantee’s Continuous Status as an Employee or Consultant or Non-Employee Director has not terminated before the Determination Date, as defined herein. This determination shall be made within ninety (90) days after the last day of the Performance Period (“Determination Date”). The Committee shall make this determination, provided that, for any Grantee who is not an “officer” of the Company for purposes of Section 16 of the Securities Exchange Act of 1934, as amended, the determination may be made by such Grantee’s divisional Executive Vice President or Chief Executive Officer, by the Chief Operating Officer of the Company or by the President of the Company (each, an “Authorized Officer”). The Committee’s or such Authorized Officer’s good faith determination shall be final, binding and conclusive on all persons, including, but not limited to, the Company and the Grantee. The Committee or such Authorized Officer may, in its discretion, reduce the amount of compensation otherwise to be paid or earned in connection with this award, notwithstanding the level of achievement of the Performance Goal or any contrary provision of the Plan; provided no such reduction may be made after a Change in Control. The Grantee shall not be entitled to any claim or recourse if any action or inaction by the Company, or any other circumstance or event, including any circumstance or event outside the control of the Grantee, adversely affects the ability of the Grantee to satisfy the Performance Goal or in any way prevents the satisfaction of the Performance Goal.

3. Change in Control. In the event of a Change in Control, any portion of the Restricted Stock Units that is not yet vested on the date such Change in Control is determined to have occurred:

 

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(a) shall become fully vested on the first anniversary of the date of such Change in Control (the “Change in Control Anniversary”) if the Grantee’s Continuous Status as an Employee or Consultant or Non-Employee Director does not terminate prior to the Change in Control Anniversary;

(b) shall become fully vested on the Date of Termination if the Grantee’s Continuous Status as an Employee or Consultant or Non-Employee Director terminates prior to the Change in Control Anniversary as a result of termination by the Company without Cause or resignation by the Grantee for Good Reason; or

(c) shall not become fully vested if the Grantee’s Continuous Status as an Employee or Consultant or Non-Employee Director terminates prior to the Change in Control Anniversary as a result of termination by the Company for Cause or resignation by the Grantee without Good Reason, but only to the extent such Restricted Stock Units have not previously become vested.

For purposes of this Agreement, the references to “fully vested” refer to vesting of the number of Restricted Stock Units that would vest upon achievement of the maximum level of achievement of the Performance Goal under Section 2. This Section 3 shall supersede the standard vesting provision contained in Section 2 of this Agreement only to the extent that it results in accelerated vesting of the Restricted Stock Units, and it shall not result in a delay of any vesting or non-vesting of any Restricted Stock Units that otherwise would occur during the Performance Period under the terms of the standard vesting provision contained in Section 2 of this Agreement.

For purposes of this Section 3, the following definitions shall apply:

(d) “Cause” means:

(i) The Grantee’s conviction of a crime involving fraud or dishonesty; or

(ii) The Grantee’s continued willful or reckless material misconduct in the performance of the Grantee’s duties after receipt of written notice from the Company concerning such misconduct;

provided, however, that for purposes of Section 3(d)(ii), Cause shall not include any one or more of the following: bad judgment, negligence or any act or omission believed by the Grantee in good faith to have been in or not opposed to the interest of the Company (without intent of the Grantee to gain, directly or indirectly, a profit to which the Grantee was not legally entitled).

(e) “Good Reason” means:

(i) The assignment to the Grantee of any duties adverse to the Grantee and materially inconsistent with the Grantee’s position (including status, titles and reporting requirement), authority, duties or responsibilities, or any other action by the Company that results in a material diminution in such position, authority, duties or responsibilities, excluding for this purpose an isolated, insubstantial and inadvertent action that is not taken in bad faith;

(ii) Any material reduction in the Grantee’s compensation; or

(iii) Change in location of the Grantee’s assigned office of more than 35 miles without prior consent of the Grantee.

The Grantee’s resignation will not constitute a resignation for Good Reason unless the Grantee first provides written notice to the Company of the existence of the Good Reason within 90 days following the effective date of the occurrence of the Good Reason, and the Good Reason remains uncorrected by the Company for more than 30 days following receipt of such written notice of the Good Reason from the Grantee to the Company, and the effective date of the Grantee’s resignation is within one year following the effective date of the occurrence of the Good Reason.

 

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4. Timing and Manner of Settlement of Restricted Stock Units.

(a) Settlement Timing. Unless and until the Restricted Stock Units become vested and non-forfeitable in accordance with Section 2, Section 3 or Section 6 of this Agreement, the Grantee will have no right to settlement of any such Restricted Stock Units. Restricted Stock Units will be settled under this Section 4 by the Company delivering to the Grantee (or his beneficiary in the event of death) a number of Shares equal to the number of Restricted Stock Units that have become vested and non-forfeitable and are to be settled at the applicable settlement date. In the case of Restricted Stock Units that become vested and non-forfeitable at the Determination Date in accordance with Section 2 of this Agreement (including Restricted Stock Units not forfeited by operation of Section 6(a) or 6(c)), such Restricted Stock Units will be settled at a date that is as prompt as practicable after the Determination Date but in no event later than two and one-half (2-1/2) months after the Determination Date (settlement that is prompt but in no event later than two and one-half (2-1/2) months after the applicable vesting date is referred to herein as “Prompt Settlement”). The settlement of Restricted Stock Units that become vested and non-forfeitable in circumstances governed by Section 3 or Section 6(b) will be as follows:

(i) Restricted Stock Units that do not constitute a deferral of compensation under Code Section 409A will be settled as follows:

(A) Restricted Stock Units that become vested in accordance with Section 6(b) (due to the Grantee’s death) will be settled within the period extending to not later than two and one-half (2-1/2) months after the later of the end of calendar year or the end of the Company’s fiscal year in which death occurred; and

(B) Restricted Stock Units that become vested in accordance with Section 3(a) (on the Change in Control Anniversary) or Section 3(b) (during the year following a Change in Control) will be settled in a Prompt Settlement following the applicable vesting date under Section 3(a) or 3(b).

(ii) Restricted Stock Units that constitute a deferral of compensation under Code Section 409A (“409A RSUs”) will be settled as follows:

(A) 409A RSUs that become vested in accordance with Section 6(b) (due to the Grantee’s death) will be settled on the 30th day after the date of the Grantee’s death;

(B) 409A RSUs that become vested in accordance with Section 3(a) (on the Change in Control Anniversary), if in connection with the Change in Control there occurred a change in the ownership of the Company, a change in effective control of the Company or a change in the ownership of a substantial portion of the assets of the Company as defined in Treasury Regulation § 1.409A-3(i)(5) (a “409A Change in Control”), will be settled in a Prompt Settlement following the first anniversary of the 409A Change in Control, and if there occurred no 409A Change in Control in connection with the Change in Control, such 409A RSUs will be settled in a Prompt Settlement following the earliest of the Determination Date, one year after a 409A Change in Control not related to the Change in Control or the termination of the Grantee’s Continuous Status as an Employee or Consultant or Non-Employee Director, subject to Section 9(b) (including the six-month delay rule); and

(C) 409A RSUs that become vested in accordance with Section 3(b) (during the year following a Change in Control) will be settled in a Prompt Settlement following termination of the Grantee’s Continuous Status as an Employee or Consultant or Non-Employee Director, subject to Section 9(b) (including the six-month delay rule).

 

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(b) Manner of Settlement. The Company may make delivery of shares of Common Stock in settlement of Restricted Stock Units by either delivering one or more certificates representing such Shares to the Grantee (or his beneficiary in the event of death), registered in the name of the Grantee (and any joint name, if so directed by the Grantee), or by depositing such Shares into a stock brokerage account maintained for the Grantee (or of which the Grantee is a joint owner, with the consent of the Grantee). In no event will the Company issue fractional Shares.

(c) Effect of Settlement. Neither the Grantee nor any of the Grantee’s successors, heirs, assigns or personal representatives shall have any further rights or interests in any Restricted Stock Units that have been paid and settled. Although a settlement date or range of dates for settlement are specified above in order to comply with Code Section 409A, the Company retains discretion to determine the settlement date, and no Grantee or beneficiary of a Grantee shall have any claim for damages or loss by virtue of the fact that the market price of Common Stock was higher on a given date upon which settlement could have been made as compared to the market price on or after the actual settlement date (any claim relating to settlement will be limited to a claim for delivery of Shares and related dividend equivalents).

5. Restrictions on Transfer. The Grantee shall not have the right to make or permit to occur any transfer, assignment, pledge, hypothecation or encumbrance of all or any portion of the Restricted Stock Units, related rights to dividend equivalents or any other rights relating thereto, whether outright or as security, with or without consideration, voluntary or involuntary, and the Restricted Stock Units, related rights to dividend equivalents and other rights relating thereto, shall not be subject to execution, attachment, lien, or similar process; provided, however, the Grantee will be entitled to designate a beneficiary or beneficiaries to receive any settlement in respect of the Restricted Stock Units upon the death of the Grantee, in the manner and to the extent permitted by the Administrator. Any purported transfer or other transaction not permitted under this Section 5 shall be deemed null and void.

6. Forfeiture. Except as may be otherwise provided in this Section 6, the Grantee shall forfeit all of his rights and interest in the Restricted Stock Units and related dividend equivalents if his Continuous Status as an Employee or Consultant or Non-Employee Director terminates for any reason before the Restricted Stock Units become vested in accordance with Section 2 or Section 3 of this Agreement.

(a) Retirement. In the event of the Grantee’s Retirement in accordance with the terms and conditions set forth in this Section 6(a), the Grantee’s Continuous Status as an Employee or Consultant or Non-Employee Director shall be treated as not having terminated for a number of years determined in accordance with this Section 6(a) for purposes of application of the vesting provisions of this Agreement. For purposes of this Section 6(a), “Retirement” means termination of the Grantee’s Continuous Status as an Employee or Consultant or Non-Employee Director after the earliest of:

(i) The Grant Date or the end of the Company fiscal year in the Performance Period at which the Grantee has attained age fifty (50) and completed fifteen (15) Full Years of Continuous Status as an Employee or Consultant or Non-Employee Director;

(ii) The Grant Date or the end of the Company fiscal year in the Performance Period at which the Grantee has attained age fifty-eight (58) and completed ten (10) Full Years of Continuous Status as an Employee or Consultant or Non-Employee Director; or

(iii) The Grant Date or the end of the Company fiscal year in the Performance Period at which the Grantee has attained age sixty-two (62) and completed five (5) Full Years of Continuous Status as an Employee or Consultant or Non-Employee Director.

 

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For purposes of this Section 6(a), “Full Year” means a twelve-month period beginning on the date of the Grantee’s commencement of service for the Company or a Subsidiary and each anniversary thereof. Except as otherwise provided in this Section 6(a), the time period of Continuous Status as an Employee or Consultant or Non-Employee Director for a Grantee whose service with the Company or a Subsidiary terminates and who subsequently returns to service with the Company or a Subsidiary shall include all time periods of the Grantee’s service for the Company or a Subsidiary for purposes of this Section 6(a). This Section 6(a) will only apply to a Retirement if the Grantee’s Continuous Status as an Employee or Consultant or Non-Employee Director does not terminate due to Cause as defined in this Agreement. In addition, this Section 6(a) will only apply to a Retirement if the Grantee executes the agreement, if any, required under Section 6(d). For a Grantee who became an Employee or Consultant or Non-Employee Director of the Company or a Subsidiary following the acquisition of his or her employer by the Company or a Subsidiary, service with the acquired employer shall not count toward the number of years of the Grantee’s Continuous Status as an Employee or Consultant or Non-Employee Director for purposes of this Section 6(a), and Continuous Status as an Employee or Consultant or Non-Employee Director shall be measured from the commencement of the Grantee ’s service for the Company or a Subsidiary following such acquisition. For purposes of this Section 6(a), the number of years of the Grantee’s Continuous Status as an Employee or Consultant or Non-Employee Director shall also include service with Jabil Circuit Co., a Michigan corporation and predecessor to the Company, and any Predecessor Subsidiary. For purposes of this Section 6(a), “Predecessor Subsidiary” means a company of which not less than fifty percent (50%) of the voting shares were held by Jabil Circuit Co. or a Predecessor Subsidiary. For purposes of this Section 6(a), for a Grantee who subsequent to the Grant Date performs service for the Company or a Subsidiary in a role as an employee of the Company or a Subsidiary that no longer includes being a state law officer of the Company or an employee of the Company with a title that is at least the equivalent of Vice President, or a substantially equivalent position of a Subsidiary (“Subsequent Non-Officer Service”), the time period of such Grantee’s Continuous Status as an Employee or Consultant or Non-Employee Director shall not include the time period of any such Subsequent Non-Officer Service, but shall include any time period during which such Grantee subsequently resumes service for the Company or a Subsidiary in a role as an employee of the Company or a Subsidiary that includes being a state law officer of the Company or an employee of the Company with a title that is at least the equivalent of Vice President, or a substantially equivalent position of a Subsidiary.

If this Section 6(a) applies to the Grantee’s Retirement, the Grantee’s Continuous Status as an Employee or Consultant or Non-Employee Director shall be treated as not having terminated for the number of years beginning on the effective date of the Retirement, or the remaining portion of the vesting period, whichever is applicable, in accordance with the following table based on the Grantee’s age and full years of Continuous Status as an Employee or Consultant or Non-Employee Director at the later of the Grant Date or the Company’s fiscal year-end next preceding the effective date of the Retirement:

 

Age

  

Full Years of Continuous Status as an Employee or Consultant or Non-Employee Director

  

5 Years

  

10 Years

  

15 Years

  

20 or More Years

50 – 54    None    None    1 year    2 years
55 – 57    None    None    2 years    Full vesting period
58 – 61    None    2 years    3 years    Full vesting period
62 or Older    Full vesting period    Full vesting period    Full vesting period    Full vesting period

 

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Accordingly, upon such Retirement, Restricted Stock Units that otherwise would be forfeited because such Restricted Stock Units remain unvested (and not previously forfeited) at the effective date of the Retirement will not be forfeited if the Determination Date would have been reached had the Grantee remained in Continuous Status as an Employee or Consultant or Non-Employee Director for the additional period specified in the table above. Vesting of such Restricted Stock Units will remain subject to Section 2, and settlement of such Restricted Stock Units will remain subject to Section 4. Any portion of the Restricted Stock Units that could not potentially become vested under Section 2 assuming the Grantee’s Continuous Status as an Employee or Consultant or Non-Employee Director as set forth in the above table will be forfeited upon Retirement. The death of the Grantee following Retirement or a Change in Control following Retirement shall not affect the application of this Section 6(a), although such events will trigger a settlement of the Restricted Stock Units not forfeited by operation of this Section 6(a) in accordance with Section 4.

(b) Death. In the event that the Grantee’s Continuous Status as an Employee or Consultant or Non-Employee Director terminates due to death at a time that the Grantee’s Restricted Stock Units have not yet vested, a pro rata portion of the Grantee’s Restricted Stock Units shall vest as follows: First, for purposes of Section 2, the Company shall determine the actual level of the Performance Goal achieved (such determination may be by means of a good faith estimate) as of the Company’s fiscal quarter-end coincident with or next preceding the Grantee’s death (or, if the Grantee’s death occurs in the first fiscal quarter of the Performance Period, then the Company’s fiscal quarter-end coincident with or next following the Grantee’s death) and calculating, on a preliminary basis, the resulting number of Restricted Stock Units that would have become vested (based on such calculation) as of the Determination Date. Second, a pro rata portion of that number of Restricted Stock Units will be calculated by multiplying that number by a fraction, the numerator of which is the number of months from the first day of the Performance Period through the date of death (rounding any partial month to the next whole month) and the denominator of which is 36. No fractional Shares shall be issued, and subject to the limitation under Section 2(b) on the number of related Shares available under this Agreement, any fractional Share that would have resulted from the foregoing calculations shall be rounded up to the next whole Share. Any Restricted Stock Units that were unvested at the date of death and that exceed the pro rata portion of the Restricted Stock Units that become vested under this Section 6(b) shall be forfeited.

(c) Disability. In the event that the Grantee’s Continuous Status as an Employee or Consultant or Non-Employee Director terminates due to Disability at a time that the Grantee’s Restricted Stock Units have not yet vested, a pro rata portion of the Grantee’s Restricted Stock Units shall remain outstanding and shall be eligible for future vesting based on the actual level of achievement in the Performance Period, provided, however, that non-forfeiture of such Restricted Stock Units will only apply if the Grantee executes the agreement, if any, required under Section 6(d). The pro rata portion shall be calculated by multiplying the number of Restricted Stock Units originally granted by a fraction, the numerator of which is the number of months from the first day of the Performance Period through the date of termination (rounding any partial month to the next whole month) and the denominator of which is 36. No fractional Shares shall be issued, and subject to the limitation under Section 2(b) on the number of related Shares available under this Agreement, any fractional Share that would have resulted from the foregoing calculations shall be rounded up to the next whole Share. Vesting of such Restricted Stock Units will remain subject to Section 2, and settlement of such Restricted Stock Units will remain subject to Section 4. The death of the Grantee following a termination governed by this Section 6(c), or a Change in Control following such termination, shall not increase or decrease the number of Restricted Stock Units forfeited or not forfeited under this Section 6(c), although such events will trigger a settlement of the Restricted Stock Units not forfeited by operation of this Section 6(c) in accordance with Section 4. Any Restricted Stock Units that at any time after the date of a termination governed by this Section 6(c) exceed the pro rata portion of the Restricted Stock Units that remain outstanding and potentially subject to future vesting under this Section 6(c) shall be forfeited.

 

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(d) Execution of Separation Agreement and Release. Unless otherwise determined by the Administrator, as a condition to the non-forfeiture of Restricted Stock Units upon Retirement under Section 6(a) or upon a termination due to Disability under Section 6(c), the Grantee shall be required to execute a separation agreement and release, in a form prescribed by the Administrator, setting forth covenants relating to noncompetition, nonsolicitation, nondisparagement, confidentiality and similar covenants for the protection of the Company’s business, and releasing the Company from liability in connection with the Grantee’s termination. Such agreement shall provide for the forfeiture and/or clawback of the Restricted Stock Units subject to Section 6(a) or 6(c), and the Shares of Common Stock issued or issuable in settlement of the Restricted Stock Units, and related dividend equivalents and any other related rights, in the event of the Grantee’s failure to comply with the terms of such agreement. The Administrator will provide the form of such agreement to the Grantee at the date of termination, and the Grantee must execute and return such form within the period specified by law or, if no such period is specified, within 21 days after receipt of the form of agreement, and not revoke such agreement within any permitted revocation period (the end of these periods being the “Agreement Effectiveness Deadline”). If any Restricted Stock Units subject to Section 6(a) or 6(c) or related rights would be required to be settled before the Agreement Effectiveness Deadline, the settlement shall not be delayed pending the receipt and effectiveness of the agreement, but any such Restricted Stock Units or related rights settled before such receipt and effectiveness shall be subject to a “clawback” (repaying to the Company the Shares and cash paid upon settlement) in the event that the agreement is not received and effective and not revoked by the Agreement Effectiveness Deadline.

7. Dividend Equivalents; Adjustments.

(a) Dividend Equivalents. During the period beginning on the Grant Date and ending on the date that Shares are issued in settlement of a Restricted Stock Unit, the Grantee will accrue dividend equivalents on Restricted Stock Units (including electively deferred 409A RSUs) equal to the cash dividend or distribution that would have been paid on the Restricted Stock Unit had the Restricted Stock Unit been an issued and outstanding Share of Common Stock on the record date for the dividend or distribution. Such accrued dividend equivalents (i) will vest and become payable upon the same terms and at the same time of settlement as the Restricted Stock Units to which they relate, and (ii) will be denominated and payable solely in cash. Dividend equivalent payments, at settlement, will be net of applicable federal, state, local and foreign income and social insurance withholding taxes (subject to Section 8).

(b) Adjustments. The number of Restricted Stock Units (including electively deferred 409A RSUs) credited to the Grantee shall be subject to adjustment by the Company, in accordance with Section 13 of the Plan, in order to preserve without enlarging the Grantee’s rights with respect to such Restricted Stock Units. Any such adjustment shall be made taking into account any crediting of cash dividend equivalents to the Grantee under Section 7(a) in connection with such transaction or event. In the case of an extraordinary cash dividend, the Committee may determine to adjust Grantee’s Restricted Stock Units under this Section 7(b) in lieu of crediting cash dividend equivalents under Section 7(a). Restricted Stock Units credited to the Grantee as a result of an adjustment shall be subject to the same forfeiture and settlement terms as applied to the related Restricted Stock Units prior to the adjustment.

8. Responsibility for Taxes and Withholding. Regardless of any action the Company, any of its Subsidiaries and/or the Grantee’s employer takes with respect to any or all income tax, social insurance, payroll tax, payment on account or other tax-related items related to the Grantee’s participation in the Plan and legally applicable to the Grantee (“Tax-Related Items”), the Grantee acknowledges that the ultimate liability for all Tax-Related Items is and remains the Grantee’s responsibility and may exceed the amount actually withheld by the Company or any of its affiliates. The Grantee further acknowledges that the Company and/or its Subsidiaries (i) make no representations or undertakings regarding the treatment of any Tax-Related Items in connection with any aspect of the Restricted Stock Units, including, but not limited to, the grant or vesting of the Restricted Stock Units, the delivery of Shares, the subsequent sale of Shares acquired pursuant to such delivery and the receipt of any dividends and/or dividend equivalents; and (ii) do not commit to and are under no obligation to structure the terms of any

 

8


award to reduce or eliminate the Grantee’s liability for Tax-Related Items or achieve any particular tax result. Further, if the Grantee becomes subject to tax in more than one jurisdiction between the Grant Date and the date of any relevant taxable event, the Grantee acknowledges that the Company and/or its Subsidiaries may be required to withhold or account for Tax-Related Items in more than one jurisdiction.

Prior to any relevant taxable or tax withholding event, as applicable, the Grantee will pay or make adequate arrangements satisfactory to the Company and/or its Subsidiaries to satisfy all Tax-Related Items. In this regard, the Grantee authorizes the Company and/or its Subsidiaries, or their respective agents, at their discretion, to satisfy the obligations with regard to all Tax-Related Items by one or a combination of the following:

(a) withholding from the Grantee’s wages or other cash compensation paid to the Grantee by the Company and/or its Subsidiaries; or

(b) withholding in Shares to be delivered upon settlement; or

(c) withholding from dividend equivalent payments (payable in cash) related to the Shares to be delivered at settlement.

To avoid negative accounting treatment, the Company and/or its Subsidiaries may withhold or account for Tax-Related Items by considering applicable withholding rates but not exceeding the maximum statutory withholding rates. If the obligation for Tax-Related Items is satisfied by withholding in Shares, for tax purposes, the Grantee is deemed to have been issued the full number of Shares attributable to the awarded Restricted Stock Units, notwithstanding that a number of Shares are held back solely for the purpose of paying the Tax-Related Items due as a result of any aspect of the Grantee’s participation in the Plan.

Finally, the Grantee shall pay to the Company and/or its Subsidiaries any amount of Tax-Related Items that the Company and/or its Subsidiaries may be required to withhold or account for as a result of the Grantee’s participation in the Plan that are not satisfied by the means previously described. The Company may refuse to issue or deliver the Shares if the Grantee fails to comply with the Grantee’s obligations in connection with the Tax-Related Items.

9. Code Section 409A.

(a) General. Payments made pursuant to this Agreement are intended to be exempt from Section 409A of the Code or to otherwise comply with Section 409A of the Code. Accordingly, other provisions of the Plan or this Agreement notwithstanding, the provisions of this Section 9 will apply in order that the Restricted Stock Units, and related dividend equivalents and any other related rights, will be exempt from or otherwise comply with Code Section 409A. In addition, the Company reserves the right, to the extent the Company deems necessary or advisable in its sole discretion, to unilaterally amend or modify the Plan and/or this Agreement to ensure that all Restricted Stock Units, and related dividend equivalents and any other related rights, are exempt from or otherwise comply, and in operation comply, with Code Section 409A (including, without limitation, the avoidance of penalties thereunder). Other provisions of the Plan and this Agreement notwithstanding, the Company makes no representations that the Restricted Stock Units, and related dividend equivalents and any other related rights, will be exempt from or avoid any penalties that may apply under Code Section 409A, makes no undertaking to preclude Code Section 409A from applying to the Restricted Stock Units and related dividend equivalents and any other related rights, and will not indemnify or provide a gross up payment to a Grantee (or his beneficiary) for any taxes, interest or penalties imposed under Code Section 409A. Other restrictions and limitations under any deferred compensation plan or general rules applicable to deferrals apply to electively deferred 409A RSUs and related dividend equivalents and, if those provisions apply and are compliant with Code Section 409A, they shall take precedence over inconsistent provisions of this Section 9.

(b) Restrictions on 409A RSUs. In the case of any 409A RSUs, the following restrictions will apply:

 

9


(i) Separation from Service. Any payment in settlement of the 409A RSUs that is triggered by a termination of Continuous Status as an Employee or Consultant or Non-Employee Director (or other termination of employment) hereunder will occur only if the Grantee has had a “separation from service” within the meaning of Treasury Regulation § 1.409A-1(h), with such separation from service treated as the termination for purposes of determining the timing of any settlement based on such termination.

(ii) Six-Month Delay Rule. The “six-month delay rule” will apply to 409A RSUs if these four conditions are met:

(A) the Grantee has a separation from service (within the meaning of Treasury Regulation § 1.409A-1(h)) for a reason other than death;

(B) a payment in settlement is triggered by such separation from service; and

(C) the Grantee is a “specified employee” under Code Section 409A.

If it applies, the six-month delay rule will delay a settlement of 409A RSUs triggered by separation from service where the settlement otherwise would occur within six months after the separation from service, subject to the following:

(D) any delayed payment shall be made on the date six months and one day after separation from service;

(E) during the six-month delay period, accelerated settlement will be permitted in the event of the Grantee’s death and for no other reason (including no acceleration upon a Change in Control) except to the extent permitted under Code Section 409A; and

(F) any settlement that is not triggered by a separation from service, or is triggered by a separation from service but would be made more than six months after separation (without applying this six-month delay rule), shall be unaffected by the six-month delay rule.

(c) Other Compliance Provisions. The following provisions apply to Restricted Stock Units:

(i) Each tranche of Restricted Stock Units (including dividend equivalents accrued thereon) that potentially could vest at or following a Determination Date under Section 2 shall be deemed a separate payment for purposes of Code Section 409A.

(ii) The settlement of 409A RSUs may not be accelerated by the Company except to the extent permitted under Code Section 409A. The Company may, however, accelerate vesting (i.e., may waive the risk of forfeiture tied to termination of the Grantee’s Continuous Status as an Employee or Consultant or Non-Employee Director) of 409A RSUs, without changing the settlement terms of such 409A RSUs.

(iii) It is understood that Good Reason for purposes of this Agreement is limited to circumstances that qualify under Treasury Regulation § 1.409A-1(n)(2).

(iv) Any restriction imposed on 409A RSUs hereunder or under the terms of other documents solely to ensure compliance with Code Section 409A shall not be applied to a Restricted Stock Unit that is not a 409A RSU except to the extent necessary to preserve the status of such Restricted Stock Unit as not being a “deferral of compensation” under Code Section 409A.

 

10


(v) If any mandatory term required for 409A RSUs or other RSUs, or related dividend equivalents or other related rights, to avoid tax penalties under Code Section 409A is not otherwise explicitly provided under this document or other applicable documents, such term is hereby incorporated by reference and fully applicable as though set forth at length herein.

(vi) In the case of any settlement of Restricted Stock Units during a specified period following the Determination Date or other date triggering a right to settlement, the Grantee shall have no influence (other than permitted deferral elections) on any determination as to the tax year in which the settlement will be made.

(vii) In the case of any Restricted Stock Unit that is not a 409A RSU, if the circumstances arise constituting a Disability but termination of the Grantee’s Continuous Status as an Employee or Consultant or Non-Employee Director has not in fact resulted immediately without an election by the Grantee, then only the Company or a Subsidiary may elect to terminate the Grantee’s Continuous Status as an Employee or Consultant or Non-Employee Director due to such Disability.

(viii) If the Company has a right of setoff that could apply to a 409A RSU, such right may only be exercised at the time the 409A RSU would have been settled, and may be exercised only as a setoff against an obligation that arose not more than 30 days before and within the same year as the settlement date if application of such setoff right against an earlier obligation would not be permitted under Code Section 409A.

(ix) Any election to defer settlement of Restricted Stock Units must comply with the election timing rules under Code Section 409A.

10. Deferral. If permitted by the Administrator, the issuance of the Shares issuable with respect to the Restricted Stock Units may be deferred upon such terms and conditions as determined by the Administrator, subject to the Administrator’s determination that any such right of deferral or any term thereof complies with applicable laws or regulations in effect from time to time, including but not limited to Section 409A of the Code and the Employee Retirement Income Security Act of 1974, as amended. Shares issuable with respect to electively deferred 409A RSUs, and related dividend equivalents, shall remain subject to the terms and conditions of this Agreement, and for this purpose shall be considered rights related to the 409A RSUs, to the extent applicable and not otherwise superseded by any deferred compensation plan or general rules applicable to electively deferred 409A RSUs, until such 409A RSUs are settled and the Shares issued, including but not limited to Sections 5, 6(d), 7, 8, 9, 11, 12, 13, 14, 15 and 16 of this Agreement.

11. No Effect on Employment or Rights under Plan. Nothing in the Plan or this Agreement shall confer upon the Grantee the right to continue in the employment of the Company or any Subsidiary or affect any right which the Company or any Subsidiary may have to terminate the employment of the Grantee regardless of the effect of such termination of employment on the rights of the Grantee under the Plan or this Agreement. If the Grantee’s employment is terminated for any reason whatsoever (and whether lawful or otherwise), he will not be entitled to claim any compensation for or in respect of any consequent diminution or extinction of his rights or benefits (actual or prospective) under this Agreement or any Award or otherwise in connection with the Plan. The rights and obligations of the Grantee under the terms of his employment with the Company or any Subsidiary will not be affected by his participation in the Plan or this Agreement, and neither the Plan nor this Agreement form part of any contract of employment between the Grantee and the Company or any Subsidiary. The granting of Awards under the Plan is entirely at the discretion of the Administrator, and the Grantee shall not in any circumstances have any right to be granted an Award.

12. Governing Laws. This Agreement shall be construed and enforced in accordance with the laws of the State of Florida.

 

11


13. Successors; Severability; Entire Agreement; Headings. This Agreement shall inure to the benefit of, and be binding upon, the Company and the Grantee and their heirs, legal representatives, successors and permitted assigns. In the event that any one or more of the provisions or portion thereof contained in this Agreement shall for any reason be held to be invalid, illegal or unenforceable in any respect, the same shall not invalidate or otherwise affect any other provisions of this Agreement, and this Agreement shall be construed as if the invalid, illegal or unenforceable provision or portion thereof had never been contained herein. Subject to the terms and conditions of the Plan, any rules adopted by the Company or the Administrator and applicable to this Agreement and the terms of any elective deferral of the Grantee applicable to the Restricted Stock Units, which are incorporated herein by reference, this Agreement expresses the entire understanding and agreement of the parties hereto with respect to such terms, restrictions and limitations. Section headings used herein are for convenience of reference only and shall not be considered in construing this Agreement.

14. Grantee Acknowledgements and Consents.

(a) Data Privacy. As communicated in Jabil’s Notice of Data Collection, Processing and Transfer of Employee Personal Data, as updated from time to time.

Data Collection and Usage. The Company collects, processes and uses personal data about the Grantee, including but not limited to, the Grantee’s name, home address, email address and telephone number, date of birth, social insurance number, passport or other identification number, salary, nationality, job title, any shares or directorships held in the Company, details of all awards, rights or any other entitlement to shares awarded, canceled, exercised, vested, unvested or outstanding in the Grantee’s favor, which the Company receives from the Grantee or the Grantee’s employer. In order for the Grantee to participate in the Plan, the Company will collect his or her personal data for purposes of allocating Shares and implementing, administering and managing the Plan. The Company’s legal basis for the processing of the Grantee’s personal data is based on the necessity for Company’s performance of its obligations under the Plan and pursuant to the Company’s legitimate business interests.

Stock Plan Administration and Service Providers. The Company may transfer the Grantee’s data to one or more third party stock plan service providers based in the United States (“U.S.”), which may assist the Company with the implementation, administration and management of the Plan. Such service provider(s) may open an account for the Grantee to receive and trade Shares. The Grantee may be asked to acknowledge, or agree to, separate terms and data processing practices with the service provider(s).

International Data Transfers. The Grantee’s personal data will be transferred from the Grantee’s country to the U.S., where the Company and its service providers are based. The Company’s legal basis for the transfer of the Grantee’s data to the U.S. is that it is authorized by the Company’s participation in the EU-U.S. Privacy Shield and/or its use of the standard data protection clauses adopted by the EU Commission.

Data Retention. The Company will use the Grantee’s personal data only as long as necessary to implement, administer and manage the Grantee’s participation in the Plan or as required to comply with legal or regulatory obligations, including under tax and securities laws. When the Company no longer needs the Grantee’s personal data, which will generally be seven (7) years after the Grantee participates in the Plan, the Company will remove it from its systems. If the Company keeps the data longer, it would be to satisfy legal or regulatory obligations and the Company’s legal basis would be relevant laws or regulations.

Data Subject Rights. The Grantee understands that he or she may have a number of rights under data privacy laws in the Grantee’s jurisdiction. Depending on where the Grantee is based, such rights may include the right to (i) request access or copies of personal data processed by the Company, (ii) rectification of incorrect data, (iii) deletion of data, (iv) restrictions on processing of data, (v) portability of data, (vi) lodge complaints with competent authorities in the Grantee’s jurisdiction, and/or (vii) receive a list with the names and addresses of any potential recipients of the Grantee’s personal data. To receive clarification regarding these rights or to exercise these rights, the Grantee can contact his or her local human resources department.

 

12


(b) Voluntary Participation. The Grantee’s participation in the Plan is voluntary. The value of the Restricted Stock Units is an extraordinary item of compensation. Unless otherwise expressly provided in a separate agreement between the Grantee and the Company or a Subsidiary, the Restricted Stock Units are not part of normal or expected compensation for purposes of calculating any severance, resignation, redundancy, end-of-service payments, bonuses, long-service awards, pension or retirement benefits or similar payments.

(c) Electronic Delivery and Acceptance. BY ACCEPTING THIS AGREEMENT ELECTRONICALLY, THE GRANTEE HEREBY CONSENTS TO ELECTRONIC DELIVERY OF THE PLAN, THE PROSPECTUS FOR THE PLAN AND OTHER DOCUMENTS RELATED TO THE PLAN (COLLECTIVELY, THE “PLAN DOCUMENTS”). THE COMPANY WILL DELIVER THE PLAN DOCUMENTS ELECTRONICALLY TO THE GRANTEE BY E-MAIL, BY POSTING SUCH DOCUMENTS ON ITS INTRANET WEBSITE OR BY ANOTHER MODE OF ELECTRONIC DELIVERY AS DETERMINED BY THE COMPANY IN ITS SOLE DISCRETION. BY ACCEPTING THIS AGREEMENT ELECTRONICALLY, THE GRANTEE CONSENTS AND AGREES THAT SUCH PROCEDURES AND DELIVERY MAY BE EFFECTED BY A BROKER OR THIRD PARTY ENGAGED BY THE COMPANY TO PROVIDE ADMINISTRATIVE SERVICES RELATED TO THE PLAN. BY ACCEPTING THIS AGREEMENT ELECTRONICALLY, THE GRANTEE HEREBY CONSENTS TO ANY AND ALL PROCEDURES THE COMPANY HAS ESTABLISHED OR MAY ESTABLISH FOR ANY ELECTRONIC SIGNATURE SYSTEM FOR DELIVERY AND ACCEPTANCE OF ANY PLAN DOCUMENTS, INCLUDING THIS AGREEMENT, THAT THE COMPANY MAY ELECT TO DELIVER AND AGREES THAT HIS ELECTRONIC SIGNATURE IS THE SAME AS, AND WILL HAVE THE SAME FORCE AND EFFECT AS, HIS MANUAL SIGNATURE. THE COMPANY WILL SEND TO THE GRANTEE AN E-MAIL ANNOUNCEMENT WHEN THE PLAN DOCUMENTS ARE AVAILABLE ELECTRONICALLY FOR THE GRANTEE’S REVIEW, DOWNLOAD OR PRINTING AND WILL PROVIDE INSTRUCTIONS ON WHERE THE PLAN DOCUMENTS CAN BE FOUND. UNLESS OTHERWISE SPECIFIED IN WRITING BY THE COMPANY, THE GRANTEE WILL NOT INCUR ANY COSTS FOR RECEIVING THE PLAN DOCUMENTS ELECTRONICALLY THROUGH THE COMPANY’S COMPUTER NETWORK. THE GRANTEE WILL HAVE THE RIGHT TO RECEIVE PAPER COPIES OF ANY PLAN DOCUMENT BY SENDING A WRITTEN REQUEST FOR A PAPER COPY TO THE ADMINISTRATOR. THE GRANTEE’S CONSENT TO ELECTRONIC DELIVERY OF THE PLAN DOCUMENTS WILL BE VALID AND REMAIN EFFECTIVE UNTIL THE EARLIER OF (i) THE TERMINATION OF THE GRANTEE’S PARTICIPATION IN THE PLAN AND (ii) THE WITHDRAWAL OF THE GRANTEE’S CONSENT TO ELECTRONIC DELIVERY AND ACCEPTANCE OF THE PLAN DOCUMENTS. THE COMPANY ACKNOWLEDGES AND AGREES THAT THE GRANTEE HAS THE RIGHT AT ANY TIME TO WITHDRAW HIS CONSENT TO ELECTRONIC DELIVERY AND ACCEPTANCE OF THE PLAN DOCUMENTS BY SENDING A WRITTEN NOTICE OF WITHDRAWAL TO THE ADMINISTRATOR. IF THE GRANTEE WITHDRAWS HIS CONSENT TO ELECTRONIC DELIVERY AND ACCEPTANCE, THE COMPANY WILL RESUME SENDING PAPER COPIES OF THE PLAN DOCUMENTS WITHIN TEN (10) BUSINESS DAYS OF ITS RECEIPT OF THE WITHDRAWAL NOTICE. BY ACCEPTING THIS AGREEMENT ELECTRONICALLY, THE GRANTEE ACKNOWLEDGES THAT HE IS ABLE TO ACCESS, VIEW AND RETAIN AN E-MAIL ANNOUNCEMENT INFORMING THE GRANTEE THAT THE PLAN DOCUMENTS ARE AVAILABLE IN EITHER HTML, PDF OR SUCH OTHER FORMAT AS THE COMPANY DETERMINES IN ITS SOLE DISCRETION.

(d) Unfunded Plan. The Grantee acknowledges and agrees that any rights of the Grantee relating to the Grantee’s Restricted Stock Units and related dividend equivalents and any other related rights shall constitute bookkeeping entries on the books of the Company and shall not create in the Grantee any right to, or claim against, any specific assets of the Company or any Subsidiary, nor result in the creation of any trust or escrow account for the Grantee. With respect to the Grantee’s entitlement to any payment hereunder, the Grantee shall be a general creditor of the Company.

 

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15. Additional Acknowledgements. By accepting this Agreement electronically, the Grantee and the Company agree that the Restricted Stock Units are granted under and governed by the terms and conditions of the Plan and this Agreement. The Grantee has reviewed in its entirety the prospectus that summarizes the terms of the Plan and this Agreement, has had an opportunity to request a copy of the Plan in accordance with the procedure described in the prospectus, has had an opportunity to obtain the advice of counsel prior to electronically accepting this Agreement and fully understands all provisions of the Plan and this Agreement. The Grantee hereby agrees to accept as binding, conclusive and final all decisions or interpretations of the Administrator upon any questions relating to the Plan and this Agreement.

16. Country Appendix. Notwithstanding any provision of this Agreement to the contrary, this Restricted Stock Unit grant and any Shares issued pursuant to this Agreement shall be subject to the applicable terms and provisions as set forth in the Country Appendix attached hereto and incorporated herein, if any, for the Grantee’s country of residence (and country of employment or engagement as a Consultant, if different).

Acceptance by the Grantee

By selecting the “I accept” box on the website of the Company’s administrative agent, the Grantee acknowledges acceptance of, and consents to be bound by, the Plan and this Agreement and any other rules, agreements or other terms and conditions incorporated herein by reference.

 

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COUNTRY APPENDIX

ADDITIONAL TERMS AND CONDITIONS TO RESTRICTED STOCK UNIT AWARD AGREEMENT

This Country Appendix (“Appendix”) includes the following additional terms and conditions that govern the Grantee’s Stock Award for all Grantees that reside and/or work outside of the United States and outside of the European Union.

Notifications

This Country Appendix also includes information regarding exchange controls and certain other issues of which the Grantee should be aware with respect to the Grantee’s participation in the Plan. The information is based on the securities, exchange control and other laws in effect in the respective countries as of October 2018. Such laws are often complex and change frequently. As a result, the Company strongly recommends that the Grantee not rely on the information in this Country Appendix as the only source of information relating to the consequences of the Grantee’s participation in the Plan because the information may be out of date at the time that the Restricted Stock Units vest, or Shares are delivered in settlement of the Restricted Stock Units, or the Grantee sells any Shares acquired under the Plan.

In addition, the information contained herein is general in nature and may not apply to the Grantee’s particular situation, and none of the Company, its Subsidiaries, nor the Administrator is in a position to assure the Grantee of a particular result. Accordingly, the Grantee is advised to seek appropriate professional advice as to how the relevant laws in the Grantee’s country of residence and/or work may apply to the Grantee’s situation.

Finally, if the Grantee transfers employment after the Grant Date, or is considered a resident of another country for local law purposes following the Grant Date, the notifications contained herein may not be applicable to the Grantee, and the Administrator shall, in its discretion, determine to what extent the terms and conditions contained herein shall be applicable to the Grantee.

Terms and Conditions Applicable to All Non-U.S. Jurisdictions

English Language. The Grantee acknowledges and agrees that it is the Grantee’s express intent that this Agreement, the Plan and all other documents, rules, procedures, forms, notices and legal proceedings entered into, given or instituted pursuant to the Stock Award, be drawn up in English. If the Grantee has received this Agreement, the Plan or any other rules, procedures, forms or documents related to the Stock Award translated into a language other than English, and if the meaning of the translated version is different than the English version, the English version will control.

Repatriation; Compliance with Laws. The Grantee agrees, as a condition of the grant of the Stock Award, to repatriate all payments attributable to the Award and/or cash acquired under the Plan (including, but not limited to, dividends, dividend equivalents, and any proceeds derived from the sale of the Shares acquired pursuant to the Agreement) in accordance with all foreign exchange rules and regulations applicable to the Grantee. The Company and the Administrator reserve the right to impose other requirements on the Grantee’s participation in the Plan, on the Restricted Stock Units and on any Shares acquired or cash payments made pursuant to the Agreement, to the extent the Company, its Subsidiaries or the Administrator determines it is necessary or advisable in order to comply with local law or to facilitate the administration of the Plan, and to require the Grantee to sign any additional agreements or undertakings that may be necessary to accomplish the foregoing. Finally, the Grantee agrees to take any and all actions as may be required to comply with the Grantee’s personal legal and tax obligations under all laws, rules and regulations applicable to the Grantee.

 

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Commercial Relationship. The Grantee expressly recognizes that the Grantee’s participation in the Plan and the Company’s Stock Award grant does not constitute an employment relationship between the Grantee and the Company. The Grantee has been granted Stock Awards as a consequence of the commercial relationship between the Company and the Company’s Subsidiary that employs the Grantee, and the Company’s Subsidiary is the Grantee’s sole employer. Based on the foregoing, the Grantee expressly recognizes that (a) the Plan and the benefits the Grantee may derive from participation in the Plan do not establish any rights between the Grantee and the Subsidiary that employs the Grantee, (b) the Plan and the benefits the Grantee may derive from participation in the Plan are not part of the employment conditions and/or benefits provided by the Subsidiary that employs the Grantee, and (c) any modifications or amendments of the Plan by the Company or the Administrator, or a termination of the Plan by the Company, shall not constitute a change or impairment of the terms and conditions of the Grantee’s employment with the Subsidiary that employs the Grantee.

Private Placement. The grant of the Stock Award is not intended to be a public offering of securities in the Grantee’s country of residence and/or employment but instead is intended to be a private placement. As a private placement, the Company has not submitted any registration statement, prospectus or other filings with the local securities authorities (unless otherwise required under local law), and the grant of the Stock Award is not subject to the supervision of the local securities authorities.

Additional Acknowledgements. The GRANTEE also acknowledges and agrees to the following:

 

   

The grant of the Stock Award is voluntary and occasional and does not create any contractual or other right to receive future grants of Stock Awards or benefits in lieu of the Stock Award even if Stock Awards have been granted repeatedly in the past.

 

   

The future value of the Shares and any related dividend equivalents is unknown and cannot be predicted with certainty.

 

   

No claim or entitlement to compensation or damages arises from the forfeiture of the Stock Award or any of the Restricted Stock Units or related dividend equivalents, the termination of the Plan, or the diminution in value of the Restricted Stock Units or Shares, and the Grantee irrevocably releases the Company, its Subsidiaries, the Administrator and their affiliates from any such claim that may arise.

 

   

None of the Company, its Subsidiaries, nor the Administrator is providing any tax, legal or financial advice or making any recommendations regarding the Grantee’s participation in the Plan, the grant, vesting or settlement of the Grantee’s Restricted Stock Units, or the Grantee’s acquisition or sale of the Shares delivered in settlement of the Restricted Stock Units. The Grantee is hereby advised to consult with his own personal tax, legal and financial advisors regarding his participation in the Plan before taking any action related to the Plan.

 

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Terms and Conditions Applicable to Canada

Settlement in Shares. Notwithstanding anything to the contrary in the Agreement, Appendix or the Plan, the Stock Award shall be settled only in Shares of the Company (and may not be settled in cash).

Securities Law Information. The Grantee is permitted to sell Shares acquired through the Plan through the designated broker appointed under the Plan, if any, provided that the resale of such Shares takes place outside of Canada through the facilities of a stock exchange on which the Shares are listed (i.e., the New York Stock Exchange).

Use of English Language. The Grantee acknowledges and agrees that it is the Grantee’s express wish that this Agreement, as well as all documents, notices and legal proceedings entered into, given or instituted pursuant hereto or relating directly or indirectly hereto, be drawn up in English. Les parties reconnaissent avoir souhaité expressément que la convention ainsi les notices et la documentation juridique fournis ou mis en œuvre ou institués directement ou indirectement, relativement aux présentes, soient rédigés en anglais.

Tax Reporting Information. The Grantee is required to report any foreign specified property (including Shares acquired under the Plan) to the Canada Revenue Agency on Form T1135 (Foreign Income Verification Statement) if the total cost of the Grantee’s foreign specified property exceeds C$100,000 at any time in the year. The form must be filed by April 30th of the following year. Foreign specified property also includes unvested Restricted Stock Units (generally at nil cost) if the C$100,000 cost threshold is exceeded because of other foreign specified property. The Grantee should consult with his or her personal tax advisor to determine his or her reporting requirements.

Termination of Employment. For purposes of the Stock Award, except as otherwise provided under applicable law, the date of the Grantee’s termination of employment shall be the date that is the earliest of (i) the date on which the Grantee’s employment is terminated, (ii) the date on which the Grantee receives notice of termination, or (iii) the date on which the Grantee is no longer actively providing services to the Company or any Subsidiary, regardless of any notice period or period of pay in lieu of such notice required under applicable employment laws in the jurisdiction where the Grantee is employed (including, but not limited to statutory law, regulatory law and/or common law) or the terms of the Grantee’s employment agreement, if any. The Company shall have the exclusive discretion to determine when the Grantee is no longer actively providing services for purposes of the Award (including whether the Grantee may still be considered to be providing services while on a leave of absence).

Data Privacy. The Grantee hereby authorizes the Company and the Company’s representatives to discuss with and obtain all relevant information from all personnel, professional or non-professional, involved in the administration and operation of the Plan. The Grantee further authorizes the Company and any Subsidiary to disclose and discuss the Plan with their advisors and to record all relevant information and keep such information in the Grantee’s employee file.

Terms and Conditions Applicable to China

Satisfaction of Regulatory Obligations. If the Grantee is a national of the Peoples’ Republic of China (“PRC”), this Restricted Stock Unit grant is subject to additional terms and conditions, as determined by the Company in its sole discretion, in order for the Company to obtain the applicable approvals from the PRC State Administration of Foreign Exchange (“SAFE”) to permit the operation of the Plan in accordance with applicable PRC exchange control laws and regulations.

 

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Immediate Sale of Shares. If the Grantee is a PRC national, he or she may be required to immediately sell all Shares acquired upon vesting of the Restricted Stock Units (in which case, this Appendix shall give the Company the authority to issue sales instructions on the Grantee’s behalf). The Grantee agrees to sign any additional agreements, forms and/or consents that reasonably may be requested by the Company (or the Company’s designated brokerage firm) to effectuate the sale of the Shares (including, without limitation, as to the transfer of the sale proceeds and other exchange control matters noted below) and shall otherwise cooperate with the Company with respect to such matters. The Grantee acknowledges that neither the Company nor the designated brokerage firm is under any obligation to arrange for such sale of Shares at any particular price (it being understood that the sale will occur in the market) and that broker’s fees and similar expenses may be incurred in any such sale. In any event, when the Shares are sold, the sale proceeds, less any tax withholding, any broker’s fees or commissions, and any similar expenses of the sale will be remitted to the Grantee in accordance with applicable exchange control laws and regulations.

Exchange Control Restrictions. The Grantee understands and agrees that, if the Grantee is subject to exchange control laws in China, the Grantee will be required immediately to repatriate to China the proceeds from the sale of any Shares acquired under the Plan. The Grantee further understands that such repatriation of proceeds may need to be effected through a special bank account established by the Company in China, and he or she hereby consents and agrees that proceeds from the sale of Shares acquired under the Plan may be transferred to such account by the Company on his or her behalf prior to being delivered to the Grantee and that no interest shall be paid with respect to funds held in such account. The proceeds may be paid to the Grantee in U.S. dollars or local currency at the Company’s discretion. If the proceeds are paid in U.S. dollars, the Grantee understands that a U.S. dollar bank account in China must be established and maintained so that the proceeds may be deposited into such account. If the proceeds are paid in local currency, the Grantee acknowledges that the Company is under no obligation to secure any particular exchange conversion rate and that the Company may face delays in converting the proceeds to local currency due to exchange control restrictions. The Grantee agrees to bear any currency fluctuation risk between the time the Shares are sold, and the net proceeds are converted into local currency and distributed to the Grantee. The Grantee further agrees to comply with any other requirements that may be imposed by the Company in the future in order to facilitate compliance with exchange control requirements in China.

Administration. The Company shall not be liable for any costs, fees, lost interest or dividends or other losses the Grantee may incur or suffer resulting from the enforcement of the terms of this Appendix or otherwise from the Company’s operation and enforcement of the Plan, the Agreement and the Stock Award in accordance with Chinese law including, without limitation, any applicable SAFE rules, regulations and requirements.

Notifications Applicable to Hong Kong

Settlement in Shares. Notwithstanding anything to the contrary in the Agreement, Appendix or the Plan, the Stock Award shall be settled only in Shares of the Company (and may not be settled in cash).

IMPORTANT NOTICE. WARNING: The Agreement, the Plan and all other materials pertaining to the Plan have not been reviewed by any regulatory authority in Hong Kong. The Grantee understands that the Grantee is hereby advised to exercise caution in relation to the offering thereunder and that if the Grantee has any doubts about any of the contents of the aforementioned materials, the Grantee should obtain independent professional advice.

 

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Notifications Applicable to Malaysia

Director Reporting Requirement. If the Grantee is a director of the local affiliate in Malaysia, the Grantee has an obligation to notify the local affiliate in Malaysia in writing: (i) when the Grantee is granted a Stock Award under the Plan, (ii) when the Grantee’s Restricted Stock Units are settled and the Grantee receives Shares, (iii) when Shares are sold or (iv) when there is an event giving rise to a change with respect to the Grantee’s interest in the Company. The Grantee must provide this notification within 14 days of the date the interest is acquired or disposed of or the occurrence of the event giving rise to the change to enable the local affiliate in Malaysia to comply with the relevant requirements of the Malaysian authorities. The Malaysian Companies Act prescribes criminal penalties for directors who fail to provide such notice.

Notifications Applicable to Mexico

Commercial Relationship. The Grantee expressly acknowledges that the Grantee’s participation in the Plan and the Company’s grant of the Stock Award does not constitute an employment relationship between the Grantee and the Company. The Grantee has been granted the Stock Award as a consequence of the commercial relationship between the Company and the Subsidiary in Mexico that employs the Grantee, and the Company’s Subsidiary in Mexico is the Grantee’s sole employer. Based on the foregoing: (a) the Grantee expressly acknowledges that the Plan and the benefits derived from participation in the Plan do not establish any rights between the Grantee and the Subsidiary in Mexico that employs the Grantee; (b) the Plan and the benefits derived from participation in the Plan are not part of the employment conditions and/or benefits provided by the Subsidiary in Mexico that employs the Grantee; and (c) any modifications or amendments of the Plan or benefits granted thereunder by the Company, or a termination of the Plan by the Company, shall not constitute a change or impairment of the terms and conditions of the Grantee’s employment with the Subsidiary in Mexico that employs the Grantee.

Extraordinary Item of Compensation. The Grantee expressly recognizes and acknowledges that the Grantee’s participation in the Plan is a result of the discretionary and unilateral decision of the Company, as well as the Grantee’s free and voluntary decision to participate in the Plan in accordance with the terms and conditions of the Plan, the Agreement and this Appendix. As such, the Grantee acknowledges and agrees that the Company, in its sole discretion, may amend and/or discontinue the Grantee’s participation in the Plan at any time and without any liability. The value of the Restricted Stock Units is an extraordinary item of compensation outside the scope of the Grantee’s employment contract, if any. The Restricted Stock Units are not part of the Grantee’s regular or expected compensation for purposes of calculating any severance, resignation, redundancy, end of service payments, bonuses, long-service awards, pension or retirement benefits, or any similar payments, which are the exclusive obligations of the Company’s Subsidiary in Mexico that employs the Grantee.

Notifications Applicable to Singapore

Chief Executive Officer and Director Notification Obligation. The Grantee acknowledges that if he / she is the Chief Executive Office (“CEO”) or a a director or shadow director of a Subsidiary in Singapore, the Grantee is subject to certain notification requirements under the Singapore Companies Act. Among these requirements is an obligation to notify the Subsidiary in Singapore in writing when the Grantee receives an interest (e.g., Restricted Stock Units, Shares) in the Company. In addition, the Grantee acknowledges that he / she must notify the Subsidiary in Singapore when he / she sells Shares. These notifications must be made within two days of acquiring or disposing of an interest in the Company. In addition, the Grantee acknowledges that he / she must make a notification of the Grantee’s interest in the Company within two days of becoming the CEO or a director.

Securities Law Information. The Restricted Stock Unit are being granted to grantees pursuant to the “Qualifying Person” exemption under section 273(1)(f) of the Singapore Securities and Futures Act (Chapter 289, 2006 Ed.) (“SFA”). The Plan has not been lodged or registered as a prospectus with the Monetary Authority of Singapore. The Grantee should note that the Restricted Stock Units are subject to section 257 of the SFA and the Grantee will not be able to make (i) any subsequent sale of the Shares in Singapore or (ii) any offer of such subsequent sale of Shares subject to the Restricted Stock Units in Singapore, unless such sale or offer is made pursuant to the exemptions under Part XIII Division 1 Subdivision (4) (other than section 280) of the SFA.

 

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Notifications Applicable to Taiwan

Securities Law Information. The offer to participate in the Plan is available only for employees of the Company and its Subsidiaries. The offer to participate in the Plan is not a public offer of securities by a Taiwanese company. Therefore, it is not subject to registration in Taiwan.

 

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EX-10.4

Exhibit 10.4

JABIL INC.

RESTRICTED STOCK UNIT AWARD AGREEMENT

(PBRSU TSR - OEU)

This RESTRICTED STOCK UNIT AWARD AGREEMENT (the “Agreement”) is made as of October 18, 2018 (the “Grant Date”) between JABIL INC. a Delaware corporation (the “Company”) and                          (the “Grantee”).

Background Information

A. The Board of Directors (the “Board”) and stockholders of the Company previously adopted the Jabil Circuit, Inc. 2011 Stock Award and Incentive Plan (the “Plan”).

B. Section 8 of the Plan provides that the Administrator shall have the discretion and right to grant Stock Awards, including Stock Awards denominated in units representing rights to receive shares, to any Employees or Consultants or Non-Employee Directors, subject to the terms and conditions of the Plan and any additional terms provided by the Administrator. The Administrator has made a Stock Award grant denominated in units to the Grantee as of the Grant Date pursuant to the terms of the Plan and this Agreement.

C. The Grantee desires to accept the Stock Award grant and agrees to be bound by the terms and conditions of the Plan and this Agreement.

D. Unless otherwise defined herein, the terms defined in the Plan shall have the same defined meanings in this Agreement.

Agreement

1. Restricted Stock Units. Subject to the terms and conditions provided in this Agreement and the Plan, the Company hereby grants to the Grantee              restricted stock units (the “Restricted Stock Units”) as of the Grant Date. Each Restricted Stock Unit represents the right to receive a Share of Common Stock if the Restricted Stock Unit becomes vested and non-forfeitable in accordance with Section 2 or Section 3 of this Agreement. The Grantee shall have no rights as a stockholder of the Company, no dividend rights and no voting rights with respect to the Restricted Stock Units or the Shares underlying the Restricted Stock Units unless and until the Restricted Stock Units become vested and non-forfeitable and such Shares are delivered to the Grantee in accordance with Section 4 of this Agreement. The Grantee is required to pay no cash consideration for the grant of the Restricted Stock Units. The Grantee acknowledges and agrees that (i) the Restricted Stock Units and related rights are nontransferable as provided in Section 5 of this Agreement, (ii) the Restricted Stock Units are subject to forfeiture in the event the Grantee’s Continuous Status as an Employee or Consultant or Non-Employee Director terminates in certain circumstances, as specified in Section 6 of this Agreement, (iii) sales of Shares of Common Stock delivered in settlement of the Restricted Stock Units will be subject to the Company’s policies regulating trading by Employees and Consultants, including any applicable “blackout” or other designated periods in which sales of Shares are not permitted, (iv) Shares delivered in settlement will be subject to any recoupment or “clawback” policy of the Company, regardless of whether such recoupment or “clawback” policy is applied with prospective or retroactive effect, and (v) any entitlement to dividend equivalents will be in accordance with Section 7 of this Agreement. The extent to which the Grantee’s rights and interest in the Restricted Stock Units becomes vested and non-forfeitable shall be determined in accordance with the provisions of Sections 2 and 3 of this Agreement.

 


2. Vesting.

(a) Except as may be otherwise provided in Section 3 or Section 6 of this Agreement, the vesting of the Grantee’s rights and interest in the Restricted Stock Units shall be determined in accordance with this Section 2. The extent to which the Grantee’s interest in the Restricted Stock Units becomes vested and non-forfeitable shall be based upon the satisfaction of the performance goal specified in this Section 2 (the “Performance Goal”), subject to Section 3. The Performance Goal shall be based upon a comparison of the Company’s total shareholder return, as defined below (“TSR”), to the TSR of each company (other than the Company) that comprises the S&P Supercomposite Technology Hardware and Equipment Index (the “Index”) during the period beginning September 1, 2018 and ending on August 31, 2021 (the “Performance Period”), provided that only the companies that comprise the Index as of the first day of the Performance Period shall be considered and any such company shall be deemed to have a TSR of negative 100 percent upon (i) the institution by or against such company of an insolvency, receivership or bankruptcy proceeding under the United States Bankruptcy Code, 11 U.S.C. §§ 101-1532, or foreign insolvency regime, (ii) such company making an assignment for the benefit of creditors, or (iii) such company’s dissolution or ceasing to do business. The TSR for the Performance Period shall be measured at the end of the Performance Period. [            ]

(b) The portion of the Grantee’s rights and interest in the Restricted Stock Units, if any, that becomes vested and nonforfeitable on the Determination Date (as defined below) shall be determined in accordance with the following schedule, using linear interpolation, as determined by the Compensation Committee of the Board (the “Committee”):

[                             ]

No fractional Shares shall be issued, and subject to the preceding limitation on the number of Shares available under this Agreement (that is, 200 percent of the related Shares), any fractional Share that would have resulted from the foregoing calculations shall be rounded up to the next whole Share.

(c) The applicable portion of the Restricted Stock Units shall become vested and non-forfeitable in accordance with this Section 2, subject to the determination that the corresponding Performance Goal and all other conditions for the vesting of the Restricted Stock Units have been satisfied; provided the Grantee’s Continuous Status as an Employee or Consultant or Non-Employee Director has not terminated before the Determination Date, as defined herein. This determination shall be made within ninety (90) days after the last day of the Performance Period (“Determination Date”). The Committee shall make this determination, provided that, for any Grantee who is not an “officer” of the Company for purposes of Section 16 of the Securities Exchange Act of 1934, as amended, the determination may be made by such Grantee’s divisional Executive Vice President or Chief Executive Officer, by the Chief Operating Officer of the Company or by the President of the Company (each, an “Authorized Officer”). The Committee’s or such Authorized Officer’s good faith determination shall be final, binding and conclusive on all persons, including, but not limited to, the Company and the Grantee. The Committee or such Authorized Officer may, in its discretion, reduce the amount of compensation otherwise to be paid or earned in connection with this award, notwithstanding the level of achievement of the Performance Goal or any contrary provision of the Plan; provided no such reduction may be made after a Change in Control. The Grantee shall not be entitled to any claim or recourse if any action or inaction by the Company, or any other circumstance or event, including any circumstance or event outside the control of the Grantee, adversely affects the ability of the Grantee to satisfy the Performance Goal or in any way prevents the satisfaction of the Performance Goal.

3. Change in Control. In the event of a Change in Control, any portion of the Restricted Stock Units that is not yet vested on the date such Change in Control is determined to have occurred:

 

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(a) shall become fully vested on the first anniversary of the date of such Change in Control (the “Change in Control Anniversary”) if the Grantee’s Continuous Status as an Employee or Consultant or Non-Employee Director does not terminate prior to the Change in Control Anniversary;

(b) shall become fully vested on the Date of Termination if the Grantee’s Continuous Status as an Employee or Consultant or Non-Employee Director terminates prior to the Change in Control Anniversary as a result of termination by the Company without Cause or resignation by the Grantee for Good Reason; or

(c) shall not become fully vested if the Grantee’s Continuous Status as an Employee or Consultant or Non-Employee Director terminates prior to the Change in Control Anniversary as a result of termination by the Company for Cause or resignation by the Grantee without Good Reason, but only to the extent such Restricted Stock Units have not previously become vested.

For purposes of this Agreement, the references to “fully vested” refer to vesting of the number of Restricted Stock Units that would vest upon achievement of the maximum level of achievement of the Performance Goal under Section 2. This Section 3 shall supersede the standard vesting provision contained in Section 2 of this Agreement only to the extent that it results in accelerated vesting of the Restricted Stock Units, and it shall not result in a delay of any vesting or non-vesting of any Restricted Stock Units that otherwise would occur during the Performance Period under the terms of the standard vesting provision contained in Section 2 of this Agreement.

For purposes of this Section 3, the following definitions shall apply:

(d) “Cause” means:

(i) The Grantee’s conviction of a crime involving fraud or dishonesty; or

(ii) The Grantee’s continued willful or reckless material misconduct in the performance of the Grantee’s duties after receipt of written notice from the Company concerning such misconduct;

provided, however, that for purposes of Section 3(d)(ii), Cause shall not include any one or more of the following: bad judgment, negligence or any act or omission believed by the Grantee in good faith to have been in or not opposed to the interest of the Company (without intent of the Grantee to gain, directly or indirectly, a profit to which the Grantee was not legally entitled).

(e) “Good Reason” means:

(i) The assignment to the Grantee of any duties adverse to the Grantee and materially inconsistent with the Grantee’s position (including status, titles and reporting requirement), authority, duties or responsibilities, or any other action by the Company that results in a material diminution in such position, authority, duties or responsibilities, excluding for this purpose an isolated, insubstantial and inadvertent action that is not taken in bad faith;

(ii) Any material reduction in the Grantee’s compensation; or

(iii) Change in location of the Grantee’s assigned office of more than 35 miles without prior consent of the Grantee.

The Grantee’s resignation will not constitute a resignation for Good Reason unless the Grantee first provides written notice to the Company of the existence of the Good Reason within 90 days following the effective date of the occurrence of the Good Reason, and the Good Reason remains uncorrected by the Company for more than 30 days following receipt of such written notice of the Good Reason from the Grantee to the Company, and the effective date of the Grantee’s resignation is within one year following the effective date of the occurrence of the Good Reason.

 

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4. Timing and Manner of Settlement of Restricted Stock Units.

(a) Settlement Timing. Unless and until the Restricted Stock Units become vested and non-forfeitable in accordance with Section 2, Section 3 or Section 6 of this Agreement, the Grantee will have no right to settlement of any such Restricted Stock Units. Restricted Stock Units will be settled under this Section 4 by the Company delivering to the Grantee (or his beneficiary in the event of death) a number of Shares equal to the number of Restricted Stock Units that have become vested and non-forfeitable and are to be settled at the applicable settlement date. In the case of Restricted Stock Units that become vested and non-forfeitable at the Determination Date in accordance with Section 2 of this Agreement (including Restricted Stock Units not forfeited by operation of Section 6(a) or 6(c)), such Restricted Stock Units will be settled at a date that is as prompt as practicable after the Determination Date but in no event later than two and one-half (2-1/2) months after the Determination Date (settlement that is prompt but in no event later than two and one-half (2-1/2) months after the applicable vesting date is referred to herein as “Prompt Settlement”). The settlement of Restricted Stock Units that become vested and non-forfeitable in circumstances governed by Section 3 or Section 6(b) will be as follows:

(i) Restricted Stock Units that do not constitute a deferral of compensation under Code Section 409A will be settled as follows:

(A) Restricted Stock Units that become vested in accordance with Section 6(b) (due to the Grantee’s death) will be settled within the period extending to not later than two and one-half (2-1/2) months after the later of the end of calendar year or the end of the Company’s fiscal year in which death occurred; and

(B) Restricted Stock Units that become vested in accordance with Section 3(a) (on the Change in Control Anniversary) or Section 3(b) (during the year following a Change in Control) will be settled in a Prompt Settlement following the applicable vesting date under Section 3(a) or 3(b).

(ii) Restricted Stock Units that constitute a deferral of compensation under Code Section 409A (“409A RSUs”) will be settled as follows:

(A) 409A RSUs that become vested in accordance with Section 6(b) (due to the Grantee’s death) will be settled on the 30th day after the date of the Grantee’s death;

(B) 409A RSUs that become vested in accordance with Section 3(a) (on the Change in Control Anniversary), if in connection with the Change in Control there occurred a change in the ownership of the Company, a change in effective control of the Company or a change in the ownership of a substantial portion of the assets of the Company as defined in Treasury Regulation § 1.409A-3(i)(5) (a “409A Change in Control”), will be settled in a Prompt Settlement following the first anniversary of the 409A Change in Control, and if there occurred no 409A Change in Control in connection with the Change in Control, such 409A RSUs will be settled in a Prompt Settlement following the earliest of the Determination Date, one year after a 409A Change in Control not related to the Change in Control or the termination of the Grantee’s Continuous Status as an Employee or Consultant or Non-Employee Director, subject to Section 9(b) (including the six-month delay rule); and

 

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(C) 409A RSUs that become vested in accordance with Section 3(b) (during the year following a Change in Control) will be settled in a Prompt Settlement following termination of the Grantee’s Continuous Status as an Employee or Consultant or Non-Employee Director, subject to Section 9(b) (including the six-month delay rule).

(b) Manner of Settlement. The Company may make delivery of shares of Common Stock in settlement of Restricted Stock Units by either delivering one or more certificates representing such Shares to the Grantee (or his beneficiary in the event of death), registered in the name of the Grantee (and any joint name, if so directed by the Grantee), or by depositing such Shares into a stock brokerage account maintained for the Grantee (or of which the Grantee is a joint owner, with the consent of the Grantee). In no event will the Company issue fractional Shares.

(c) Effect of Settlement. Neither the Grantee nor any of the Grantee’s successors, heirs, assigns or personal representatives shall have any further rights or interests in any Restricted Stock Units that have been paid and settled. Although a settlement date or range of dates for settlement are specified above in order to comply with Code Section 409A, the Company retains discretion to determine the settlement date, and no Grantee or beneficiary of a Grantee shall have any claim for damages or loss by virtue of the fact that the market price of Common Stock was higher on a given date upon which settlement could have been made as compared to the market price on or after the actual settlement date (any claim relating to settlement will be limited to a claim for delivery of Shares and related dividend equivalents).

5. Restrictions on Transfer. The Grantee shall not have the right to make or permit to occur any transfer, assignment, pledge, hypothecation or encumbrance of all or any portion of the Restricted Stock Units, related rights to dividend equivalents or any other rights relating thereto, whether outright or as security, with or without consideration, voluntary or involuntary, and the Restricted Stock Units, related rights to dividend equivalents and other rights relating thereto, shall not be subject to execution, attachment, lien, or similar process; provided, however, the Grantee will be entitled to designate a beneficiary or beneficiaries to receive any settlement in respect of the Restricted Stock Units upon the death of the Grantee, in the manner and to the extent permitted by the Administrator. Any purported transfer or other transaction not permitted under this Section 5 shall be deemed null and void.

6. Forfeiture. Except as may be otherwise provided in this Section 6, the Grantee shall forfeit all of his rights and interest in the Restricted Stock Units and related dividend equivalents if his Continuous Status as an Employee or Consultant or Non-Employee Director terminates for any reason before the Restricted Stock Units become vested in accordance with Section 2 or Section 3 of this Agreement.

(a) Retirement. In the event of the Grantee’s Retirement in accordance with the terms and conditions set forth in this Section 6(a), the Grantee’s Continuous Status as an Employee or Consultant or Non-Employee Director shall be treated as not having terminated for a number of years determined in accordance with this Section 6(a) for purposes of application of the vesting provisions of this Agreement. For purposes of this Section 6(a), “Retirement” means termination of the Grantee’s Continuous Status as an Employee or Consultant or Non-Employee Director after the Grant Date or the end of the Company fiscal year in the Performance Period at which the Grantee has completed twenty (20) Full Years of Continuous Status as an Employee or Consultant or Non-Employee Director.

For purposes of this Section 6(a), “Full Year” means a twelve-month period beginning on the date of the Grantee’s commencement of service for the Company or a Subsidiary and each anniversary thereof. Except as otherwise provided in this Section 6(a), the time period of Continuous Status as an Employee or Consultant or Non-Employee Director for a Grantee whose service with the Company or a Subsidiary terminates and who subsequently returns to service with the Company or a Subsidiary shall include all time periods of the Grantee’s service for the Company or a Subsidiary for purposes of this Section 6(a). This Section 6(a) will only apply to a

 

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Retirement if the Grantee’s Continuous Status as an Employee or Consultant or Non-Employee Director does not terminate due to Cause as defined in this Agreement. In addition, this Section 6(a) will only apply to a Retirement if the Grantee executes the agreement, if any, required under Section 6(d). For a Grantee who became an Employee or Consultant or Non-Employee Director of the Company or a Subsidiary following the acquisition of his or her employer by the Company or a Subsidiary, service with the acquired employer shall not count toward the number of years of the Grantee’s Continuous Status as an Employee or Consultant or Non-Employee Director for purposes of this Section 6(a), and Continuous Status as an Employee or Consultant or Non-Employee Director shall be measured from the commencement of the Grantee ’s service for the Company or a Subsidiary following such acquisition. For purposes of this Section 6(a), the number of years of the Grantee’s Continuous Status as an Employee or Consultant or Non-Employee Director shall also include service with Jabil Circuit Co., a Michigan corporation and predecessor to the Company, and any Predecessor Subsidiary. For purposes of this Section 6(a), “Predecessor Subsidiary” means a company of which not less than fifty percent (50%) of the voting shares were held by Jabil Circuit Co. or a Predecessor Subsidiary. For purposes of this Section 6(a), for a Grantee who subsequent to the Grant Date performs service for the Company or a Subsidiary in a role as an employee of the Company or a Subsidiary that no longer includes being a state law officer of the Company or an employee of the Company with a title that is at least the equivalent of Vice President, or a substantially equivalent position of a Subsidiary (“Subsequent Non-Officer Service”), the time period of such Grantee’s Continuous Status as an Employee or Consultant or Non-Employee Director shall not include the time period of any such Subsequent Non-Officer Service, but shall include any time period during which such Grantee subsequently resumes service for the Company or a Subsidiary in a role as an employee of the Company or a Subsidiary that includes being a state law officer of the Company or an employee of the Company with a title that is at least the equivalent of Vice President, or a substantially equivalent position of a Subsidiary.

If this Section 6(a) applies to the Grantee’s Retirement, the Grantee’s Continuous Status as an Employee or Consultant or Non-Employee Director shall be treated as not having terminated for the number of years beginning on the effective date of the Retirement, or the remaining portion of the vesting period, whichever is applicable, in accordance with the following table based on the Grantee’s age and full years of Continuous Status as an Employee or Consultant or Non-Employee Director at the later of the Grant Date or the Company’s fiscal year-end next preceding the effective date of the Retirement:

Full Years of Continuous Status as an Employee or Consultant or Non-Employee Director

 

20 Years

  

25 Years

  

30 or More Years

2 years    3 years    Full vesting period

Accordingly, upon such Retirement, Restricted Stock Units that otherwise would be forfeited because such Restricted Stock Units remain unvested (and not previously forfeited) at the effective date of the Retirement will not be forfeited if the Determination Date would have been reached had the Grantee remained in Continuous Status as an Employee or Consultant or Non-Employee Director for the additional period specified in the table above. Vesting of such Restricted Stock Units will remain subject to Section 2, and settlement of such Restricted Stock Units will remain subject to Section 4. Any portion of the Restricted Stock Units that could not potentially become vested under Section 2 assuming the Grantee’s Continuous Status as an Employee or Consultant or Non-Employee Director as set forth in the above table will be forfeited upon Retirement. The death of the Grantee following Retirement or a Change in Control following Retirement shall not affect the application of this Section 6(a), although such events will trigger a settlement of the Restricted Stock Units not forfeited by operation of this Section 6(a) in accordance with Section 4.

 

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(b) Death. In the event that the Grantee’s Continuous Status as an Employee or Consultant or Non-Employee Director terminates due to death at a time that the Grantee’s Restricted Stock Units have not yet vested, a pro rata portion of the Grantee’s Restricted Stock Units shall vest as follows: First, for purposes of Section 2, the Company shall determine the actual level of the Performance Goal achieved (such determination may be by means of a good faith estimate) as of the Company’s fiscal quarter-end coincident with or next preceding the Grantee’s death (or, if the Grantee’s death occurs in the first fiscal quarter of the Performance Period, then the Company’s fiscal quarter-end coincident with or next following the Grantee’s death) and calculating, on a preliminary basis, the resulting number of Restricted Stock Units that would have become vested (based on such calculation) as of the Determination Date. Second, a pro rata portion of that number of Restricted Stock Units will be calculated by multiplying that number by a fraction, the numerator of which is the number of months from the first day of the Performance Period through the date of death (rounding any partial month to the next whole month) and the denominator of which is 36. No fractional Shares shall be issued, and subject to the limitation under Section 2(b) on the number of related Shares available under this Agreement, any fractional Share that would have resulted from the foregoing calculations shall be rounded up to the next whole Share. Any Restricted Stock Units that were unvested at the date of death and that exceed the pro rata portion of the Restricted Stock Units that become vested under this Section 6(b) shall be forfeited.

(c) Disability. In the event that the Grantee’s Continuous Status as an Employee or Consultant or Non-Employee Director terminates due to Disability at a time that the Grantee’s Restricted Stock Units have not yet vested, a pro rata portion of the Grantee’s Restricted Stock Units shall remain outstanding and shall be eligible for future vesting based on the actual level of achievement in the Performance Period, provided, however, that non-forfeiture of such Restricted Stock Units will only apply if the Grantee executes the agreement, if any, required under Section 6(d). The pro rata portion shall be calculated by multiplying the number of Restricted Stock Units originally granted by a fraction, the numerator of which is the number of months from the first day of the Performance Period through the date of termination (rounding any partial month to the next whole month) and the denominator of which is 36. No fractional Shares shall be issued, and subject to the limitation under Section 2(b) on the number of related Shares available under this Agreement, any fractional Share that would have resulted from the foregoing calculations shall be rounded up to the next whole Share. Vesting of such Restricted Stock Units will remain subject to Section 2, and settlement of such Restricted Stock Units will remain subject to Section 4. The death of the Grantee following a termination governed by this Section 6(c), or a Change in Control following such termination, shall not increase or decrease the number of Restricted Stock Units forfeited or not forfeited under this Section 6(c), although such events will trigger a settlement of the Restricted Stock Units not forfeited by operation of this Section 6(c) in accordance with Section 4. Any Restricted Stock Units that at any time after the date of a termination governed by this Section 6(c) exceed the pro rata portion of the Restricted Stock Units that remain outstanding and potentially subject to future vesting under this Section 6(c) shall be forfeited.

(d) Execution of Separation Agreement and Release. Unless otherwise determined by the Administrator, as a condition to the non-forfeiture of Restricted Stock Units upon Retirement under Section 6(a) or upon a termination due to Disability under Section 6(c), the Grantee shall be required to execute a separation agreement and release, in a form prescribed by the Administrator, setting forth covenants relating to noncompetition, nonsolicitation, nondisparagement, confidentiality and similar covenants for the protection of the Company’s business, and releasing the Company from liability in connection with the Grantee’s termination. Such agreement shall provide for the forfeiture and/or clawback of the Restricted Stock Units subject to Section 6(a) or 6(c), and the Shares of Common Stock issued or issuable in settlement of the Restricted Stock Units, and related dividend equivalents and any other related rights, in the event of the Grantee’s failure to comply with the terms of such agreement. The Administrator will provide the form of such agreement to the Grantee at the date of termination, and the Grantee must execute and return such form within the period specified by law or, if no such

 

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period is specified, within 21 days after receipt of the form of agreement, and not revoke such agreement within any permitted revocation period (the end of these periods being the “Agreement Effectiveness Deadline”). If any Restricted Stock Units subject to Section 6(a) or 6(c) or related rights would be required to be settled before the Agreement Effectiveness Deadline, the settlement shall not be delayed pending the receipt and effectiveness of the agreement, but any such Restricted Stock Units or related rights settled before such receipt and effectiveness shall be subject to a “clawback” (repaying to the Company the Shares and cash paid upon settlement) in the event that the agreement is not received and effective and not revoked by the Agreement Effectiveness Deadline.

7. Dividend Equivalents; Adjustments.

(a) Dividend Equivalents. During the period beginning on the Grant Date and ending on the date that Shares are issued in settlement of a Restricted Stock Unit, the Grantee will accrue dividend equivalents on Restricted Stock Units equal to the cash dividend or distribution that would have been paid on the Restricted Stock Unit had the Restricted Stock Unit been an issued and outstanding Share of Common Stock on the record date for the dividend or distribution. Such accrued dividend equivalents (i) will vest and become payable upon the same terms and at the same time of settlement as the Restricted Stock Units to which they relate, and (ii) will be denominated and payable solely in cash. Dividend equivalent payments, at settlement, will be net of applicable federal, state, local and foreign income and social insurance withholding taxes (subject to Section 8).

(b) Adjustments. The number of Restricted Stock Units credited to the Grantee shall be subject to adjustment by the Company, in accordance with Section 13 of the Plan, in order to preserve without enlarging the Grantee’s rights with respect to such Restricted Stock Units. Any such adjustment shall be made taking into account any crediting of cash dividend equivalents to the Grantee under Section 7(a) in connection with such transaction or event. In the case of an extraordinary cash dividend, the Committee may determine to adjust Grantee’s Restricted Stock Units under this Section 7(b) in lieu of crediting cash dividend equivalents under Section 7(a). Restricted Stock Units credited to the Grantee as a result of an adjustment shall be subject to the same forfei