ABITIBIBOWATER INC. 2010 EQUITY INCENTIVE PLAN DIRECTOR RESTRICTED STOCK UNIT AGREEMENT
EXHIBIT 10.12
THIS RESTRICTED STOCK UNIT AGREEMENT, dated as of the third trading day after the date the
Company’s 2010 Form 10-K is filed with the Securities and Exchange Commission (the “Date of
Grant”) is made by and between AbitibiBowater Inc., a Delaware corporation (the
“Company”), and _______________ (“Participant”).
WHEREAS, the Company has adopted the AbitibiBowater Inc. 2010 Equity Incentive Plan (the
“Plan”) pursuant to which restricted stock units (“RSUs”) may be granted in respect
of shares of the Company’s common stock, par value $0.001 per share (“Stock”); and
WHEREAS, the Participant serves as a member of the Board of Directors of the Company
(“Director”) and the Board of Directors has determined that, subject to the terms set forth
herein, a portion of each Director’s compensation should be made in the form of a RSU award to more
closely align their interests with those of the Company and its stockholders.
NOW, THEREFORE, for and in consideration of the premises and the covenants of the parties
contained in this Agreement, and for other good and valuable consideration, the receipt of which is
hereby acknowledged, the parties hereto, for themselves, their successors and assigns, hereby agree
as follows:
1. Grant of Restricted Stock Unit.
(a) Grant.
The Company hereby grants to Participant _______________ RSUs, on the terms and conditions
set forth in this Agreement and as otherwise provided in the Plan (the “Initial Grant”).
Each RSU represents the right to receive payment in respect of one share of Stock as of the
Settlement Date (defined in Section 2(b)) to the extent the Participant is vested in such RSU as of
the Settlement Date, subject to the terms of this Agreement and the Plan.
(b) Incorporation by Reference, Etc. The provisions of the Plan are hereby
incorporated herein by reference. Except as otherwise expressly set forth herein, this Agreement
shall be construed in accordance with the provisions of the Plan and any interpretations,
amendments, rules and regulations promulgated by the Human Resources and Compensation/Nominating
and Governance Committee (the “Committee”) from time to time pursuant to the Plan. Any
capitalized terms not otherwise defined in this Agreement shall have the definitions set forth in
the Plan. The Committee shall have final authority to interpret and construe the Plan and this
Agreement and to make any and all determinations under them, and its decision shall be binding and
conclusive upon the Participant and his legal representative in respect of any questions arising
under the Plan or this Agreement.
(c) Acceptance of Agreement. Unless the Participant notifies the Director, Corporate
Compensation in writing within 14 days after the Date of Grant that the Participant does not wish
to accept this Agreement, the Participant will be deemed to have accepted this Agreement and will
be bound by the terms of the Agreement and the Plan. Any such notice may be given to the Director,
Corporate Compensation at the Company’s principal executive office.
2. Terms and Conditions.
(a) Vesting. Subject to the Participant’s continued service as a Director, twenty
five percent (25%) of the RSUs (rounded to the nearest whole RSU) shall vest on the last day of
each calendar quarter of the year of the Date of Grant (each such date, a “Vesting Date”).
(b) Settlement. The obligation to make payments and distributions with respect to
RSUs (the “settlement”) shall be satisfied through the issuance of one share of Stock for
each vested RSU, and the settlement of the RSUs may be subject to such conditions, restrictions and
contingencies as the Committee shall determine. One-third of the RSUs shall be settled on March 31
of each of the first three calendar years following the year of the Date of Grant; provided,
however, all vested RSUs shall be settled as soon as practicable after the earliest of the
Participant’s (i) termination of service as a Director, (ii) death or (iii) Disability, but in no
event later than March 15 of the year following the year of such termination of service, death or
Disability, as applicable. For purposes of this Agreement, each date on which RSUs are settled
pursuant to the preceding sentence shall be a “Settlement Date.” For purposes of this
Agreement and to the extent applicable to the Participant, the term “termination of service” shall
be interpreted to comply with Section 409A of the Internal Revenue Code (“Section 409A”).
To the extent payments are made during the periods permitted under Section 409A (including any
applicable periods before or after the specified payment dates set forth in this Section 2(b)), the
Company shall be deemed to have satisfied its obligations under the Plan and shall be deemed not to
be in breach of its payment obligations hereunder.
(c) Dividend Equivalents and Voting Rights. The Participant will from time to time be
credited with additional RSUs (including a fractional RSU), the number of which will be determined
by dividing:
(i) The product obtained by multiplying the amount of each dividend (including extraordinary
dividend if so determined by the Company) declared and paid by the Company on the Stock on a per
share basis on or after the Date of Grant and before the date on which all RSUs are settled by the
number of vested but unsettled and unvested RSUs recorded in Participant’s account on the record
date for payment of any such dividend, by
(ii) The Fair Market Value of one (1) share of Stock on the dividend payment date for such
dividend.
Subject to the Participant’s continued service as a Director, the additional RSUs shall vest
and be settled at the same time and on the same proportion as the Initial Grant. No additional
RSUs shall be accrued for the benefit of Participant with respect to record dates occurring prior
to, or with respect to record dates occurring on or after the date, if any, on which Participant
has forfeited the RSUs.
3. Termination of Service with Company. Notwithstanding any provision of Section 2 to
the contrary, the following vesting and forfeiture provisions shall apply to the Participant’s
vested but unsettled and unvested RSUs.
(a) Retirement and Involuntary Termination. If the Participant’s service as a
Director terminates as a result of “Retirement” or a failure to be re-elected as a Director (other
than due to
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death or Disability), then the Participant shall become vested in a prorated number of RSUs.
For purposes of the preceding, the prorated portion of the RSUs that is vested as of the
Participant’s date of termination, including the portion of the RSUs then already vested, shall be
the total number of granted and credited RSUs multiplied by a fraction, the numerator of which
shall be the number of full months elapsed from January 1 of the calendar year of the Date of Grant
through the date of the Participant’s termination of service as a Director and the denominator of
which shall be 12. The term “Retirement” shall mean mandatory retirement at age 72 (or such other
age as required by Company’s By-Laws and/or Board of Directors Corporate Governance Principles).
(b) Death. If the Participant dies during his period of service as a Director, then,
in addition to the RSUs vested as of the date of death under Section 2(a), the RSUs scheduled to
vest on the next scheduled Vesting Date shall also vest on the date of death.
(c) Disability. If the Participant becomes Disabled, then, in addition to the RSUs
then vested under Section 2(a), the RSUs scheduled to vest on the next scheduled Vesting Date shall
also vest upon the Participant’s Disability.
(d) Termination by the Company for Cause. If the Participant’s service as a Director
terminates for Cause, then all outstanding RSUs, whether vested but unsettled or unvested, shall
immediately terminate.
(e) Other Termination. If the Participant’s service as a Director terminates other
than as described in the foregoing provisions of this Section 3, including resignation from the
Board of Directors before Retirement, then the Participant shall remain vested in all previously
vested RSUs, whether settled or unsettled, but all unvested RSUs shall immediately terminate.
Notwithstanding anything contained to the contrary in this Section 3, in no event shall any
RSUs be settled prior to the applicable Vesting Date except if otherwise determined by the Board of
Directors and if permitted under Code Section 409A (to the extent applicable to the Participant).
4. Compliance with Legal Requirements. The granting and settlement of the RSUs, and
any other obligations of the Company under this Agreement, shall be subject to all applicable
federal, provincial, state, local and foreign laws, rules and regulations and to such approvals by
any regulatory or governmental agency as may be required.
(a) Transferability. Unless otherwise provided by the Committee in writing, the RSUs
shall not be transferable by Participant other than by will or the laws of descent and
distribution.
(b) No Rights as Stockholder. The Participant shall not be deemed for any purpose to
be the owner of any shares of Stock subject to RSUs and shall have no voting rights with respect to
the RSUs.
(c) Tax Withholding. All distributions under the Plan are subject to withholding of
all applicable federal, state, provincial, local and foreign taxes, which obligations shall be
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satisfied through (i) the issuance by the Company of net shares of Stock, or (ii) the sale by
the Company of the number of shares of Stock necessary satisfy such obligations.
5. Miscellaneous.
(a) Waiver. Any right of the Company contained in this Agreement may be waived in
writing by the Committee. No waiver of any right hereunder by any party shall operate as a waiver
of any other right, or as a waiver of the same right with respect to any subsequent occasion for
its exercise, or as a waiver of any right to damages. No waiver by any party of any breach of this
Agreement shall be held to constitute a waiver of any other breach or a waiver of the continuation
of the same breach.
(b) Notices. Any written notices provided for in this Agreement or the Plan shall be
in writing and shall be deemed sufficiently given if either hand delivered or if sent by fax or
overnight courier, or by postage paid first class mail. Notices sent by mail shall be deemed
received three business days after mailing but in no event later than the date of actual receipt.
Notices shall be directed, if to the Participant, at the Participant’s address indicated by the
Company’s records, or if to the Company, to the attention of the Director, Corporate Compensation
at the Company’s principal executive office.
(c) Severability. The invalidity or unenforceability of any provision of this
Agreement shall not affect the validity or enforceability of any other provision of this Agreement,
and each other provision of this Agreement shall be severable and enforceable to the extent
permitted by law.
(d) No Rights to Continued Service. Nothing contained in this Agreement shall be
construed as giving the Participant any right to be retained in any position as a consultant or
director of the Company or its Affiliates or shall interfere with or restrict in any way the right
of the Company or its Affiliates, which is hereby expressly reserved, to remove, terminate or
discharge the Participant at any time for any reason whatsoever.
(e) Beneficiary of Non-Québec Participant. The Participant, other than a Participant
residing in the Province of Québec, may file with the Committee a written designation of a
beneficiary on such form as may be prescribed by the Committee and may, from time to time, amend or
revoke such designation. Any notice should be made to the attention of the Director, Corporate
Compensation at the Company’s principal executive office. If no designated beneficiary survives
the Participant, the Participant’s estate shall be deemed to be Participant’s beneficiary.
(f) Beneficiary of Québec Participant. The Participant residing in the Province of
Québec may only designate a beneficiary by will. Upon the death of the Participant residing in the
Province of Québec, the Company shall settle the RSUs pursuant to Section 2(b) of this Agreement to
the liquidator, administrator or executor of the estate of the Participant.
(g) Successors. The terms of this Agreement shall be binding upon and inure to the
benefit of the Company and its successors and assigns, and of the Participant and the
beneficiaries, executors, administrators, heirs and successors of the Participant.
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(h) Entire Agreement. This Agreement and the Plan contain the entire agreement and
understanding of the parties hereto with respect to the subject matter contained herein and
supersede all prior communications, representations and negotiations in respect thereto. No
change, modification or waiver of any provision of this Agreement shall be valid unless the same be
in writing and signed by the parties hereto, except for any changes permitted without consent under
Section 9 of the Plan.
(i) Governing Law. This Agreement shall be construed and interpreted in accordance
with the laws of the State of Delaware without regard to principles of conflicts of law thereof, or
principles of conflicts of laws of any other jurisdiction which could cause the application of the
laws of any jurisdiction other than the State of Delaware.
(j) Headings. The headings of the Sections hereof are provided for convenience only
and are not to serve as a basis for interpretation or construction, and shall not constitute a
part, of this Agreement.
IN WITNESS WHEREOF, the Company has executed this Agreement as of the day first written above.
| ABITIBIBOWATER, INC. | ||||||
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| Name: | ||||||
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