FORM OF MARKET SHARE UNITS AGREEMENT UNDER THE BRISTOL-MYERS SQUIBB COMPANY 2007 STOCK AWARD ANDINCENTIVE PLAN
Exhibit 10dd.
FORM OF MARKET SHARE UNITS AGREEMENT
UNDER THE BRISTOL-MYERS SQUIBB COMPANY
2007 STOCK AWARD AND INCENTIVE PLAN
BRISTOL-MYERS SQUIBB COMPANY, a Delaware corporation (the “Company”), has granted to you the Market Share Units (“MSUs”) specified in the Grant Summary above, which is incorporated into this Market Share Units Agreement (the “Agreement”) and deemed to be a part hereof. The MSUs have been granted to you under Sections 6(i) and 7 of the 2007 Stock Award and Incentive Plan (the “Plan”), on the terms and conditions specified in the Grant Summary and this Agreement.
| 1. | MARKET SHARE UNITS AWARD |
The Compensation and Management Development Committee of the Board of Directors of Bristol-Myers Squibb Company (the “Committee”) has granted to you on the Award Date an Award of MSUs as designated herein subject to the terms, conditions, and restrictions set forth in this Agreement and the Plan. Each MSU shall represent the conditional right to receive, upon settlement of the MSU, one share of Bristol-Myers Squibb Common Stock (“Common Stock”) (subject to any tax withholding as described in Section 4). MSUs include the right to receive dividend equivalents as specified in Section 5 (“Dividend Equivalents”). The purpose of such Award is to motivate and retain you as an employee of the Company or a subsidiary of the Company, to encourage you to continue to give your best efforts for the Company’s future success, to increase your proprietary interest in the Company, and to further align your compensation with the interests of the Company’s shareholders. Except as may be required by law, you are not required to make any payment (other than payments for taxes pursuant to Section 4 hereof) or provide any consideration other than the rendering of future services to the Company or a subsidiary of the Company.
| 2. | RESTRICTIONS, FORFEITURES, AND SETTLEMENT |
Except as otherwise provided in this Section 2, MSUs shall be subject to the restrictions and conditions set forth herein during the Restricted Period (as defined below). Vesting of the MSUs is conditioned upon you remaining continuously employed by the Company or a subsidiary of the Company following the Award Date until the relevant Vesting Date, subject to the provisions of this Section 2. In addition, for purposes of vesting, the MSU grant shall be divided into four tranches, each of which shall include 25% of the number of MSUs specified in the Grant Summary above and any additional MSUs and/or cash that results from Dividend Equivalents that are attributable to the MSUs in that tranche.
Assuming satisfaction of such employment conditions, the MSUs shall vest only if the Share Price (as defined below) on the applicable Vesting Date equals at least 60% of the Share Price on the Award Date.
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If this threshold condition is satisfied, MSUs shall vest to the extent provided in the following schedule:
| (A) Tranche | (B) MSUs in Tranche | (C) Vesting Date | (D) Payout Factor | (E) Number of MSUs Vested | ||||
| 1 | 25% of Total | 1st Anniversary of Award Date | Share Price on Vesting Date divided by Share Price on Award Date | MSUs in Tranche (Column B) times Payout Factor (Column D) | ||||
| 2 | 25% of Total | 2nd Anniversary of Award Date | Share Price on Vesting Date divided by Share Price on Award Date | MSUs in Tranche (Column B) times Payout Factor (Column D) | ||||
| 3 | 25% of Total | 3rd Anniversary of Award Date | Share Price on Vesting Date divided by Share Price on Award Date | MSUs in Tranche (Column B) times Payout Factor (Column D) | ||||
| 4 | 25% of Total | 4th Anniversary of Award Date | Share Price on Vesting Date divided by Share Price on Award Date | MSUs in Tranche (Column B) times Payout Factor (Column D) | ||||
For purposes of the table set forth above—
| (A) | “Share Price” shall equal the average of the closing share price of the Company’s Common Stock on the Vesting Date or Award Date, as applicable, and the nine trading days immediately preceding the Vesting Date or Award Date. If there were no trades on the Vesting Date or Award Date, the closing price on most recent date on which there were trades and the nine trading days immediately preceding that date shall be used. |
| (B) | “Payout Factor” shall be rounded to the nearest hundredth (two places after the decimal), except that if the “Payout Factor” equals more than 2.00, the Payout Factor used in Column E shall be 2.00. Notwithstanding the formula in the table, the Payout Factor for any Vesting Date that occurs on or after a Change in Control (as defined in the Plan) shall equal the Share Price on the Change in Control Date divided by the Share Price on the Award Date. |
Any MSUs that fail to vest, either because the employment condition is not satisfied or because the Payout Factor on the applicable Vesting Date is less than 60% shall be forfeited, subject to the special provisions set forth in paragraphs (c) through (g) of this Section 2.
| (a) | Nontransferability. During the Restricted Period and any further period prior to settlement of your MSUs, you may not sell, transfer, pledge or assign any of the MSUs or your rights relating thereto. |
| (b) | Time of Settlement. MSUs shall be settled promptly upon expiration of the Restricted Period without forfeiture of the MSUs (i.e., upon vesting) by delivery of one share of Common Stock for each MSU being settled; provided, however, that settlement of an MSU shall be subject to Plan Section 11(k), including, if applicable, the six-month delay rule in Plan Section 11(k)(i)(C) to the extent the MSUs are subject to Section 409A of the |
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| Code, payment is on account of your “separation from service” and you are a “key employee,” both within the meaning of Section 409A. (Note: This rule may apply to any portion of the MSUs that vests after the time you become Retirement eligible under the Plan, and could apply in other cases as well). Settlement of MSUs which directly or indirectly result from non-cash Dividend Equivalents on MSUs or adjustments to MSUs shall occur at the time of settlement of the granted MSUs. Until shares are delivered to you in settlement of MSUs, you shall have none of the rights of a stockholder of the Company with respect to the shares issuable in settlement of the MSUs, including the right to vote the shares and receive actual dividends and other distributions on the underlying shares of Common Stock (you are entitled to Dividend Equivalents, however). Shares of stock issuable in settlement of MSUs shall be delivered to you upon settlement in certificated form or in such other manner as the Company may reasonably determine. |
| (c) | Retirement. In the event of your Retirement (as that term is defined in section 2(v)(i) of the Plan) at or after your 65th birthday and prior to the end of the Restricted Period, the continuous employment requirement shall be eliminated and you shall vest in and be entitled to settlement of (i.e., the Restricted Period shall expire with respect to) any MSUs that have not previously been vested or forfeited, provided that you have been continuously employed by the Company for at least one year following the Award Date and your employment has not been terminated by the Company for misconduct or other conduct deemed detrimental to the interests of the Company. Any MSU that vests on your Retirement Date shall vest based on the Payout Factor determined by substituting your Retirement date (or the date of a Change in Control, if a Change in Control has occurred before your Retirement) for the Vesting Date. |
| (d) | Early Retirement; Termination not for Misconduct/Detrimental Conduct. This paragraph 2(d) shall apply in the event of (1) your Retirement (as that term is defined in section 2(v)(ii) or 2(v)(iii) of the Plan) (A) at or after age 55 with at least 10 years of service or (B) after attaining eligibility for the “Rule of 70” or (2) the termination of your employment by the Company for reasons other than misconduct or other conduct deemed detrimental to the interests of the Company (and you are not eligible for Retirement). If one of the events described in the preceding sentence occurs before the end of the Restricted Period, the continuous employment requirement shall be eliminated and you shall vest in and be entitled to settlement of (i.e., the Restricted Period shall expire with respect to) a proportionate number of the MSUs that would otherwise have vested on the Vesting Date that next follows the date on which the event occurs, provided that you have been continuously employed by the Company for at least one year following the Award Date and your employment has not been terminated by the Company for misconduct or other conduct deemed detrimental to the interests of the Company. Any MSU that vests on your early Retirement or termination date shall vest based on the Payout Factor determined by substituting your Retirement or termination date (or the date of a Change in Control, if a Change in Control has occurred before your early Retirement or termination) for the Vesting Date. If you are employed in the United States (including in Puerto Rico), you shall be entitled to the pro rata vesting described in the preceding sentence only if you execute and do not revoke a release in favor of the Company and its predecessors, successors, affiliates, subsidiaries, directors and employees in a form satisfactory to the Company and, where deemed applicable by the Company, a non-compete and/or a non-solicitation agreement; if you fail to execute or revoke the release or fail to execute the non-compete or non-solicitation agreement, you shall forfeit any MSUs that are unvested as of the date your employment terminates. The formula for determining the proportionate number of your MSUs to become vested and non-forfeitable |
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| upon your early Retirement or involuntary termination not for misconduct or other detrimental conduct is available by request from the Office of the Corporate Secretary at 345 Park Avenue, New York, New York 10154. |
| (e) | Death. In the event of your death during the Restricted Period, the continuous employment requirement shall be eliminated and your estate shall vest in and be entitled to settlement of (i.e., the Restricted Period shall expire with respect to) a proportionate number of the MSUs that would otherwise have vested, provided that you have been continuously employed by the Company for at least one year following the Award Date. Any MSU that vests on your death shall vest based on the Payout Factor determined by substituting your date of death (or the date of a Change in Control, if a Change in Control has occurred before your death) for the Vesting Date. The formula for determining the proportionate number of your MSUs to become vested and non-forfeitable upon your death is available by request from the Office of the Corporate Secretary at 345 Park Avenue, New York, New York 10154. In the event of your death prior to the delivery of shares in settlement of MSUs (not previously forfeited), shares in settlement of your MSUs shall be delivered to your estate, upon presentation to the Committee of letters testamentary or other documentation satisfactory to the Committee, and your estate shall succeed to any other rights provided hereunder in the event of your death. |
| (f) | Disability. In the event you become Disabled (as that term is defined below), for the period during which you continue to be deemed to be employed by the Company or a subsidiary (i.e., the period during which you receive Disability benefits), you will not be deemed to have terminated employment for purposes of the MSUs. Upon the termination of your receipt of Disability benefits, (i) you will not be deemed to have terminated employment if you return to employment status, and (ii), if you do not return to employment status, you will be deemed to have terminated employment at the date of cessation of payments to you under all disability pay plans of the Company and its subsidiaries, with such termination treated for purposes of the MSUs as a Retirement, death, or voluntary termination based on your circumstances at the time of such termination. For purposes of this Agreement, “Disability” or “Disabled” shall mean qualifying for and receiving payments under a disability plan of the Company or any subsidiary or affiliate either in the United States or in a jurisdiction outside of the United States, and in jurisdictions outside of the United States shall also include qualifying for and receiving payments under a mandatory or universal disability plan or program managed or maintained by the government. |
| (g) | Qualifying Termination Following Change in Control. In the event your employment is terminated by reason of a Qualifying Termination (as defined in the Plan) during the three- (3) year period following a Change in Control (as defined in the Plan), the continuous employment requirement shall be eliminated and you shall vest in and be entitled to settlement of (i.e., the Restricted Period shall expire with respect to) any MSUs that have not previously been forfeited. Any MSU that vests following a Qualifying Termination during the three- (3) year period following a Change in Control shall vest based on the Payout Factor determined by substituting the Change in Control Date for the Vesting Date. |
| (h) | Other Termination of Employment. In the event of your voluntary termination, or termination by the Company for misconduct or other conduct deemed by the Company to be detrimental to the interests of the Company, you shall forfeit all unvested MSUs on the date of termination. |
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| (i) | Other Terms. |
| (i) | In the event that you fail promptly to pay or make satisfactory arrangements as to the withholding taxes as provided in Section 4, all MSUs then subject to restriction shall be forfeited by you and shall be deemed to be reacquired by the Company. |
| (ii) | You may, at any time prior to the expiration of the Restricted Period, waive all rights with respect to all or some of the MSUs by delivering to the Company a written notice of such waiver. |
| (iii) | Termination of employment includes any event if immediately thereafter you are no longer an employee of the Company or any subsidiary of the Company, subject to Section 2(i) hereof. References in this Section 2 to employment by the Company include employment by a subsidiary of the Company. Termination of employment means an event after which you are no longer employed by the Company or any subsidiary of the Company. Such an event could include the disposition of a subsidiary or business unit by the Company or a subsidiary. |
| (iv) | Upon any termination of your employment, any MSUs as to which the Restricted Period has not expired at or before such termination shall be forfeited, subject to Section 2(c)-(g). Other provisions of this Agreement notwithstanding, in no event will an MSU that has been forfeited thereafter vest or be settled. |
| (j) | The following events shall not be deemed a termination of employment: |
| (i) | A transfer of you from the Company to a subsidiary, or vice versa, or from one subsidiary to another; |
| (ii) | A leave of absence, duly authorized in writing by the Company, for military service or sickness or for any other purpose approved by the Company if the period of such leave does not exceed ninety (90) days; and |
| (iii) | A leave of absence in excess of ninety (90) days, duly authorized in writing, by the Company, provided your right to reemployment is guaranteed either by a statute or by contract. |
However, failure of you to return to active service with the Company or a subsidiary at the end of an approved leave of absence shall be deemed a termination of employment. During a leave of absence as defined in (ii) or (iii), although you will be considered to have been continuously employed by the Company or a subsidiary and not to have had a termination of employment under this Section 2, the Committee may specify that such leave period shall not be counted in determining the period of employment for purposes of the vesting of the MSUs. In such case, the vesting dates for unvested MSUs shall be extended by the length of any such leave of absence.
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| 3. | FORFEITURE IN THE EVENT OF COMPETITION AND/OR SOLICITATION OR OTHER DETRIMENTAL ACTS |
You acknowledge that your continued employment with the Company and the grant of MSUs is sufficient consideration for this Agreement, including, without limitation, the restrictions imposed upon you by this Section 3.
| (a) | By accepting the MSUs, you expressly agree and covenant that during the Restricted Period (as defined below) and the Non-Competition and Non-Solicitation Period (as defined below), you shall not, without the prior consent of the Company, directly or indirectly: |
| (i) | own or have any financial interest in a Competitive Business (as defined below), except that nothing in this clause shall prevent you from owning one per cent or less of the outstanding securities of any entity whose securities are traded on a U.S. national securities exchange (including NASDAQ) or an equivalent foreign exchange; |
| (ii) | be actively connected with a Competitive Business by managing, operating, controlling, being an employee or consultant (or accepting an offer to be an employee or consultant) or otherwise advising or assisting a Competitive Business in such a way that such connection might result in an increase in value or worth of any product, technology or service, that competes with any product, technology or service upon which you worked or about which you became familiar as a result of your employment with the Company. You may, however, be actively connected with a Competitive Business after your employment with the Company terminates for any reason, so long as your connection to the business does not involve any product, technology or service, that competes with any product, technology or service upon which you worked or about which you became familiar as a result of your employment with the Company and the Company is provided written assurances of this fact from the Competing Company prior to your beginning such connection. |
| (iii) | take any action that might divert any opportunity from the Company or any of its affiliates, successors or assigns (the “Related Parties”) that is within the scope of the present or future operations or business of any Related Parties; |
| (iv) | employ, solicit for employment, advise or recommend to any other person that they employ or solicit for employment or form an association with any person who is employed by the Company or who has been employed by the Company within one year of the date your employment with the Company ceased for any reason whatsoever; |
| (v) | contact, call upon or solicit any customer of the Company, or attempt to divert or take away from the Company the business of any of its customers; |
| (vi) | contact, call upon or solicit any prospective customer of the Company that you became aware of or were introduced to in the course of your duties for the Company, or otherwise divert or take away from the Company the business of any prospective customer of the Company; or |
| (vii) | engage in any activity that is harmful to the interests of the Company, including, without limitation, any conduct during the term of your employment that violates |
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| the Company’s Standards of Business Conduct and Ethics, securities trading policy and other policies. |
| (b) | Forfeiture. If the Committee determines that you have violated any provisions of Section 3(a) above during the Restricted Period or the Non-Competition and Non-Solicitation Period, then you agree and covenant that: |
| (i) | any unvested portion of the MSUs shall be immediately rescinded; |
| (ii) | you shall automatically forfeit any rights you may have with respect to the MSUs as of the date of such determination; and |
| (iii) | if any part of the MSUs vests within the twelve-month period immediately preceding a violation of Section 3(a) above (or following the date of any such violation), upon the Company’s demand, you shall immediately deliver to it a certificate or certificates for shares of the Company’s Common Stock that you acquired upon settlement of such MSUs (or an equivalent number of other shares). |
| (c) | Definitions. For purposes of this Agreement, the following definitions shall apply: |
| (i) | The Company directly advertises and solicits business from customers wherever they may be found and its business is thus worldwide in scope. Therefore, “Competitive Business” means any person or entity that engages in any business activity that competes with the Company’s business in any way, in any geographic area in which the Company engages in business, including, without limitation, any state in the United States in which the Company sells or offers to sell its products from time to time. |
| (ii) | “Non-Competition and Non-Solicitation Period” means the period during which you are employed by the Company and twelve months following the date that you cease to be employed by the Company for any reason whatsoever. |
| (iii) | “Restricted Period” means, with respect to each MSU, the period from the Award Date until the date such MSU has become vested and non-forfeitable (i.e., the Vesting Date). |
| (d) | Severability. You acknowledge and agree that the period, scope and geographic areas of restriction imposed upon you by the provisions of Section 3 are fair and reasonable and are reasonably required for the protection of the Company. In the event that all or any part of this Section 3 is held to be unenforceable or invalid, the remaining parts of Section 3 and this Agreement shall nevertheless continue to be valid and enforceable as though the invalid portions were not a part of this Agreement. If any one of the provisions in Section 3 is held to be excessively broad as to period, scope and geographic areas, any such provision shall be construed by limiting it to the extent necessary to be enforceable under applicable law. |
| (e) | Additional Remedies. You acknowledge that breach by you of this Agreement would cause irreparable harm to the Company and that in the event of such breach, the Company shall have, in addition to monetary damages and other remedies at law, the |
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| right to an injunction, specific performance and other equitable relief to prevent violations of your obligations hereunder. |
| 4. | TAXES |
At such time as the Company is required to withhold taxes with respect to the MSUs, or at an earlier date as determined by the Company, you shall make remittance to the Company of an amount sufficient to cover such taxes or make such other arrangement regarding payments of such taxes as are satisfactory to the Committee. The Company and its subsidiaries shall, to the extent permitted by law, have the right to deduct such amount from any payment of any kind otherwise due to you, including by means of mandatory withholding of shares deliverable in settlement of your MSUs to satisfy the mandatory tax withholding requirements. Prior to settlement of the MSUs, the Dividend Equivalents payable to you will be compensation (wages) for tax purposes and will be included on your W-2 form. The Company will be required to withhold applicable taxes on such Dividend Equivalents. The Company may deduct such taxes either from the gross Dividend Equivalents payable on such MSUs or from any other cash payments to be made to or on account of you or may require you to make prompt remittance to the Company of such tax amounts. Any cash payment to you under Section 5 of the Agreement will be included in your W-2 form as compensation and subject to applicable tax withholding.
| 5. | DIVIDEND EQUIVALENTS AND ADJUSTMENTS |
| (a) | Dividend Equivalents shall be paid or credited on MSUs (other than MSUs that, at the relevant record date, previously have been settled or forfeited) as follows, except that the Committee may specify an alternative treatment from that specified in (i), (ii), or (iii) below for any dividend or distribution: |
| (i) | Cash Dividends. If the Company declares and pays a dividend or distribution on Common Stock in the form of cash, then you shall be entitled to a cash payment amount equal to (A) the amount of such dividend on each outstanding share of Common Stock, multiplied by (B) the number of MSUs credited to you as of the record date for such dividend or distribution (other than previously settled or forfeited MSUs), multiplied by (C) the Payout Factor that applies to the MSU with respect to which the cash dividend is being paid. Any cash payment made under this section shall be paid on the settlement date for the underlying MSU. |
| (ii) | Non-Share Dividends. If the Company declares and pays a dividend or distribution on Common Stock in the form of property other than shares, then a number of additional MSUs shall be credited to you as of the payment date for such dividend or distribution equal to (A) the number of MSUs credited to you as of the record date for such dividend or distribution (other than previously settled or forfeited MSUs), multiplied by (B) the Fair Market Value of such property actually paid as a dividend or distribution on each outstanding share of Common Stock at such payment date, divided by (C) the Fair Market Value of a share at such payment date. Any MSUs payable under this section shall be settled on the settlement date for the underlying MSU and shall be subject to the Payout Factor that applies to the underlying MSU. |
| (iii) | Common Stock Dividends and Splits. If the Company declares and pays a dividend or distribution on Common Stock in the form of additional shares, or there occurs a forward split of Common Stock, then a number of additional MSUs |
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| shall be credited to you as of the payment date for such dividend or distribution or forward split equal to (A) the number of MSUs credited to you as of the record date for such dividend or distribution or split (other than previously settled or forfeited MSUs), multiplied by (B) the number of additional shares actually paid as a dividend or distribution or issued in such split in respect of each outstanding share of Common Stock. Any MSUs payable under this section shall be settled on the settlement date for the underlying MSU and shall be subject to the Payout Factor that applies to the underlying MSU. |
| (b) | The number of your MSUs and other related terms shall be appropriately adjusted, in order to prevent dilution or enlargement of your rights with respect to MSUs, to reflect any changes in the outstanding shares of Common Stock resulting from any event referred to in Section 11(c) of the Plan or any other “equity restructuring” as defined in FAS 123R, taking into account any MSUs credited to you in connection with such event under Section 5(a). |
| 6. | EFFECT ON OTHER BENEFITS |
In no event shall the value, at any time, of the MSUs or any other payment under this Agreement be included as compensation or earnings for purposes of any other compensation, retirement, or benefit plan offered to employees of the Company unless otherwise specifically provided for in such plan.
| 7. | RIGHT TO CONTINUED EMPLOYMENT |
Nothing in the Plan or this Agreement shall confer on you any right to continue in the employ of the Company or any subsidiary or any specific position or level of employment with the Company or any subsidiary or affect in any way the right of the Company or any subsidiary to terminate your employment without prior notice at any time for any reason or no reason.
| 8. | ADMINISTRATION; UNFUNDED OBLIGATIONS |
The Committee shall have full authority and discretion, subject only to the express terms of the Plan, to decide all matters relating to the administration and interpretation of the Plan and this Agreement, and all such Committee determinations shall be final, conclusive, and binding upon the Company, you, and all interested parties. Any provision for distribution in settlement of your MSUs and other obligations hereunder shall be by means of bookkeeping entries on the books of the Company and shall not create in you or any beneficiary any right to, or claim against any, specific assets of the Company, nor result in the creation of any trust or escrow account for you or any beneficiary. You and any of your beneficiaries entitled to any settlement or distribution hereunder shall be a general creditor of the Company.
| 9. | AMENDMENT |
This Agreement shall be subject to the terms of the Plan, as amended from time to time, except that the Award which is the subject of this Agreement may not be materially adversely affected by any amendment or termination of the Plan approved after the Award Date without your written consent.
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| 10. | SEVERABILITY AND VALIDITY |
The various provisions of this Agreement are severable, and any determination of invalidity or unenforceability of any one provision shall have no effect on the remaining provisions.
| 11. | GOVERNING LAW |
This Agreement shall be governed by the substantive laws (but not the choice of law rules) of the State of New York.
| 12. | SUCCESSORS |
This Agreement shall be binding upon and inure to the benefit of the successors, assigns, and heirs of the respective parties.
| 13. | DATA PRIVACY |
By entering into this agreement, you (i) authorize the Company, and any agent of the Company administering the Plan or providing Plan recordkeeping services, to disclose to the Company or any of its subsidiaries such information and data as the Company or any such subsidiary shall request in order to facilitate the grant of MSUs and the administration of the Plan; (ii) waive any data privacy rights you may have with respect to such information; and (iii) authorize the company to store and transmit such information in electronic form.
| 14. | ENTIRE AGREEMENT AND NO ORAL MODIFICATION OR WAIVER |
This Agreement contains the entire understanding of the parties. This Agreement shall not be modified or amended except in writing duly signed by the parties, except that the Company may adopt a modification or amendment to the Agreement that is not materially adverse to you in writing signed only by the Company. Any waiver of any right or failure to perform under this Agreement shall be in writing signed by the party granting the waiver and shall not be deemed a waiver of any subsequent failure to perform.
| Bristol-Myers Squibb Company | ||
| By |
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I have read this Agreement in its entirety. I understand that this Award has been granted to provide a means for me to acquire and/or expand an ownership position in Bristol-Myers Squibb Company, and it is expected that I will retain the stock I receive upon the vesting of this award consistent with the Company’s share retention guidelines. I acknowledge and agree that sales of shares will be subject to the Company’s policy regulating trading by employees. In accepting this Award, I hereby agree that Smith Barney, or such other vendor as the Company may choose to administer the Plan, may
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provide the Company with any and all account information necessary to monitor my compliance with the Company’s Share Retention Policy and other applicable policies.
I hereby agree to all the terms, restrictions and conditions set forth in the Agreement.
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