ACCO BRANDS CORPORATION AMENDED AND RESTATED 2005 INCENTIVE PLAN PERFORMANCE STOCK UNIT AWARD AGREEMENT
EXHIBIT
99.3
ACCO
BRANDS CORPORATION
AMENDED
AND RESTATED 2005 INCENTIVE PLAN
THIS
AGREEMENT is made and entered into this and effective _____________, 20__
(the
“Grant
Date”)
by and
between ACCO Brands Corporation, a Delaware corporation (collectively with
all
Subsidiaries, the “Company”)
and
____________________ (“Grantee”).
WHEREAS,
Grantee is a Key Employee of the Company and in compensation for Grantee’s
services, the Board deems it advisable to award to Grantee an Award of
Performance Stock Units representing shares of the Company’s Common Stock,
pursuant to the Amended and Restated ACCO Brands Corporation 2005 Incentive
Plan
(“Plan”),
which
may be earned by Grantee upon the satisfaction of performance objectives,
as set
forth herein.
NOW
THEREFORE, subject to the terms and conditions set forth herein:
1. Plan
Governs; Capitalized Terms.
This
Agreement is made pursuant to the Plan, and the terms of the Plan are
incorporated into this Agreement, except as otherwise specifically stated
herein. Capitalized terms used in this Agreement that are not defined in
this
Agreement shall have the meanings as used or defined in the Plan. References
in
this Agreement to any specific Plan provision shall not be construed as limiting
the applicability of any other Plan provision.
2. Award
of Performance Stock Units.
The
Company hereby awards to Grantee on the Grant Date an Award of ______________
Performance Stock Units. Each Performance Stock Unit constitutes an unfunded
and
unsecured promise of the Company to deliver (or cause to be delivered) to
Grantee, subject to the terms and conditions of this Agreement, one (1) share
of
Common Stock. Each Performance Stock Unit shall be earned and vested in
accordance with Section
3
and
shall be payable to Grantee in accordance with Section
4,
below.
The Company shall hold the Performance Stock Units in book-entry form. The
Grantee shall have no direct or secured claim in any specific assets of the
Company or the shares of Common Stock to be issued to Grantee under Section
4 hereof,
and shall have the status of a general unsecured creditor of the Company.
THIS
AWARD IS CONDITIONED ON GRANTEE SIGNING THIS AGREEMENT AND RETURNING IT TO
THE
COMPANY BY _____________, 20__, AND IS SUBJECT TO ALL TERMS, CONDITIONS AND
PROVISIONS OF THE PLAN AND THIS AGREEMENT, WHICH GRANTEE ACCEPTS UPON SIGNING
AND DELIVERING THIS AGREEMENT TO THE COMPANY.
3. Vesting.
(a) Generally.
The
period for the attainment of the performance objectives set forth on Schedule
I
hereto shall commence on _________, 20__ and end on
_________, 20__(“Performance
Period”).
Subject to the acceleration of the vesting of the Performance Stock Units
pursuant to Sections
3(b),
3(c),
3(d),
3(f)
and
3(g)
below,
or the forfeiture and termination of the Performance Stock Units pursuant
Section
3(e)
below,
the Performance Stock Units shall be wholly or partially earned and vested
and
become nonforfeitable, to the extent of the satisfaction of the performance
objectives set forth on
Schedule
I, attached hereto, provided that Grantee has been continuously employed
with
the Company through ___________, 20__.
(b) Death;
Disability.
Unless
the Committee shall otherwise determine, upon the death of Grantee while
employed by the Company or the termination of Grantee’s employment due to his
Disability prior to the last day of the Performance Period, the Performance
Stock Units shall be deemed to have achieved a target-level of performance
and,
to the extent so earned, shall become vested and nonforfeitable, and
restrictions thereon shall lapse, on all such earned Performance Stock
Units.
(c) Retirement.
Unless
the Committee shall otherwise determine, upon the termination of Grantee’s
employment due to his Retirement prior to the last day of the Performance
Period, the Performance Stock Units shall become vested and nonforfeitable
and
restrictions thereon shall lapse as of the last day of the Performance Period,
as to such number of Performance Stock Units that, upon completion of the
Performance Period, are earned and payable under this Performance Award as
if
Grantee had continued employment by the Company through the last day of the
Performance Period.
(d) Involuntary
Termination.
Unless
the Committee shall otherwise determine, upon the involuntary termination
of
Grantee’s employment by the Company without Cause on a date that is on or after
the first anniversary of the Grant Date (an “Involuntary
Termination”)
and
prior to the last day of the Performance Period, the Performance Stock Units
shall be deemed to have achieved a target-level of performance and, to the
extent so earned, shall become vested and non-forfeitable, and restrictions
thereon shall lapse, in such number of earned Performance Stock Units (rounded
up to the next integer) as equals the fraction the numerator of which is
the
number of days from the Grant Date through the date of such employment
termination and the denominator of which is the number of days constituting
the
Performance Period
(e) Other
Terminations.
Unless
the Committee shall otherwise determine, upon a termination of Grantee’s
employment for any reason, other than due to Grantee’s death, Involuntary
Termination, Disability or Retirement, prior to the last day of the Performance
Period, the Performance Stock Units shall be forfeited. Any forfeited
Performance Stock Units shall immediately be cancelled and shall terminate.
(f) Change
in Control[; Divestiture].
(i) Subject
to Section
3(e)(ii)
hereof,
upon the occurrence of a Change in Control while the Grantee is employed
by the
Company, the Performance Stock Units shall be deemed to have achieved a
maximum-level of performance and shall immediately vest and become
nonforfeitable, and restrictions thereon shall lapse, on all such earned
Performance Stock Units.
(ii) The
Committee shall have the authority to cause the Company (or successor pursuant
to the Change in Control), upon the occurrence of a Change in Control, to
issue
to Grantee a Replacement Award for the Performance Stock Units granted hereunder
on such terms and conditions as are consistent with Section 13(b)(iii)(B)
and 13(b)(iv)
of the
Plan. Upon the involuntary termination of Grantee’s
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employment
by the Company without Cause, or the voluntary termination of Grantee’s
employment for Good Reason, at any time on or before the second anniversary
of
the occurrence of the Change in Control, the unvested Performance Stock Units
constituting the Replacement Award shall be deemed to have achieved a
maximum-level of performance and shall immediately vest and become
nonforfeitable and all restrictions thereon shall lapse. Any termination
of
Grantee’s employment after the second anniversary of the occurrence of the
Change in Control shall be governed by the provisions of Section
3
of this
Agreement other than this Section
3(f)(ii).
(iii) Upon
the
occurrence of a transaction by which the Subsidiary that is Grantee’s principal
employer ceases to be a Subsidiary of the Company and Grantee’s employment with
the Company and all other Subsidiaries ceases, the unvested Performance Stock
Units shall be deemed to have achieved a target-level of performance and,
to the
extent so earned, shall partially vest and become nonforfeitable, and
restrictions thereon shall lapse, in such number of earned Performance Stock
Units (rounded up to the next integer) as equals the fraction the numerator
of
which is the number of days from the Grant Date through the Divestiture Date
(as
defined under Section
13(c)
of the
Plan) and the denominator of which is the number of days from the Grant Date
through the last day of the Performance Period.
(g) Contrary
Other Agreement.
The
provisions of Sections
3(b),
3(c)
and
3(d)
to the
contrary notwithstanding, if Grantee and the Company have entered into an
employment or other agreement which provides for earning of performance stock
units and vesting treatment upon a termination of Grantee’s employment with the
Company (and all Affiliates) that is inconsistent with the provisions of
Sections
3(b),
3(c)
and
3(d),
to the
extent not inconsistent with the terms of the Plan the more favorable to
Grantee
of the terms of (i) such employment or other agreement and (ii) this Agreement,
shall control; provided, if such agreement addresses only an element of
time-vesting upon such employment termination, then Grantee’s Performance Stock
Units shall be subject to the attainment of the performance objectives set
forth
on Schedule I hereto at achievement of target-level (or greater) performance
through the last day of the Performance Period, as a condition of the right
to
and amount of payment of Performance Stock Units hereunder, which shall not
be
payable until after the last day of the Performance Period.
(h) Payment
on Vesting.
To the
extent earned and vested, Performance Stock Units shall be paid to Grantee
as
provided at Section
4
hereof.
4. Delivery
of Shares.
(a) Issuance
of Shares.
As soon
as may be practicable after the last day of the Performance Period, but not
later than (i) except for a vesting event pursuant to Section
3(b),
3(e)
or
3(f)
hereof,
the March 15th following the December 31st of the calendar year in which
the
Performance Period ends or (ii) 30 days following the occurrence event in
which
all or a portion of the Performance Stock Units become earned and vested
pursuant to Section
3(b),
3(d)
or
3(f)
hereof,
the Company (or its successor) shall cause its transfer agent for the Common
Stock to register shares in book-entry form in the name of the Grantee (or,
in
the discretion of the Committee, issue to Grantee a stock certificate)
representing a number of shares of Common Stock equal to the number of
Performance Stock Units then earned and vested pursuant to Section
3
and the
attainment (or deemed attainment pursuant to Section
3(b),
3(e)
or
3(f))
of
the
3
performance
objectives set forth in Schedule I; provided, such issuance shall be deferred
until the first such later date after vesting as may be required to comply
with
the provisions of Section 409A of the Code.
(b) Withholding
Taxes.
At the
time shares of Common Stock are issued to Grantee, the Company shall satisfy
the
minimum statutory Federal, state and local withholding tax obligation (including
the FICA and Medicare tax obligation) required by law with respect to the
distribution of shares from one or more of the following methods, as determined
by the Committee: (i) the Company shall withhold cash compensation then accrued
and payable to Grantee of such required withholding amount, (ii) Grantee
may
tender a check or other payment of cash to the Company of such required
withholding amount, or (iii) by withholding from shares issuable to Grantee
hereunder having an aggregate Fair Market Value equal to the amount of such
required withholding.
5. No
Transfer or Assignment of Performance Stock Units; Restrictions on
Sale.
Except
as otherwise provided in this Agreement, the Performance Stock Units and
the
rights and privileges conferred thereby shall not be sold, pledged or otherwise
transferred (whether by operation of law or otherwise) and shall not be subject
to sale under execution, attachment, levy or similar process until the shares
of
Common Stock represented by the Performance Stock Units are delivered to
Grantee
or his designated representative. The Grantee shall not sell any shares of
Common Stock at any time when applicable laws or Company policies prohibit
a
sale. This restriction shall apply as long as Grantee is an Employee of the
Company or an Affiliate of the Company.
6. Legality
of Initial Issuance.
No
shares of Common Stock shall be issued unless and until the Company has
determined that (a) any applicable listing requirement of any stock exchange
or
other securities market on which the Common Stock is listed has been satisfied;
and (b) all other applicable provisions of state or federal law have been
satisfied.
7. Miscellaneous
Provisions.
(a) Rights
as a Stockholder.
Neither
Grantee nor Grantee’s representative shall have any rights as a stockholder with
respect to any shares underlying the Performance Stock Units until the date
that
the Company is obligated to deliver such shares of Common Stock to Grantee
or
Grantee’s representative.
(b) Dividend
Equivalents.
As of
each dividend date with respect to shares of Common Stock, an unvested dividend
equivalent shall be awarded to Grantee in the dollar amount equal to the
amount
of the dividend that would have been paid on the number of shares of Common
Stock equal to the number of Performance Stock Units held by Grantee as of
the
close of business on the record date for such dividend. Such dividend equivalent
amount shall be converted into a number of Performance Stock Units equal
to the
number of whole and fractional shares of Common Stock that could have been
purchased at the closing price on the dividend payment date with such dollar
amount. In the case of any dividend declared on shares of Common Stock which
is
payable in shares of Common Stock, Grantee shall be awarded an unvested vested
dividend equivalent of an additional number of Performance Stock Units equal
to
the product of (x) the number of his Performance Stock Units then held on
the
related dividend record date multiplied by the (y) the number of shares of
Common Stock (including any
4
fraction
thereof) distributable as a dividend on a share of Common Stock. All such
dividend equivalents credited to Grantee shall be added to and in all respects
thereafter be treated as Performance Stock Units hereunder.
(c) No
Retention Rights.
Nothing
in this Agreement shall confer upon Grantee any right to continue in the
employment or service of the Company for any period of specific duration
or
interfere with or otherwise restrict in any way the rights of the Company
or of
Grantee, which rights are hereby expressly reserved by each, to terminate
his
employment or service at any time and for any reason, with or without
Cause.
(d) Inconsistency.
To the
extent any terms and conditions herein conflict with the terms and conditions
of
the Plan, the terms and conditions of the Plan shall control.
(e) Notices.
Any
notice required by the terms of this Agreement shall be given in writing
and
shall be deemed effective upon personal delivery, upon deposit with the United
States Postal Service, by registered or certified mail, with postage and
fees
prepaid or upon deposit with a reputable overnight courier. Notice shall
be
addressed to the Company at its principal executive office and to Grantee
at the
address that he most recently provided to the Company.
(f) Entire
Agreement; Amendment; Waiver.
This
Agreement constitutes the entire agreement between the parties hereto with
regard to the subject matter hereof. This Agreement supersedes any other
agreements, representations or understandings (whether oral or written and
whether express or implied) which relate to the subject matter hereof. No
alteration or modification of this Agreement shall be valid except by a
subsequent written instrument executed by the parties hereto. No provision
of
this Agreement may be waived except by a writing executed and delivered by
the
party sought to be charged. Any such written waiver will be effective only
with
respect to the event or circumstance described therein and not with respect
to
any other event or circumstance, unless such waiver expressly provides to
the
contrary.
(g) Choice
of Law.
This
Agreement shall be governed by, and construed in accordance with, the laws
of
the State of Illinois, as such laws are applied to contracts entered into
and
performed in such State, without giving effect to the choice of law provisions
thereof.
(h) Successors.
(i) This
Agreement is personal to Grantee and, except as otherwise provided in
Section 5
above,
shall not be assignable by Grantee otherwise than by will or the laws of
descent
and distribution, without the written consent of the Company. This Agreement
shall inure to the benefit of and be enforceable by Grantee’s legal
representatives.
(ii) This
Agreement shall inure to the benefit of and be binding upon Company and its
successors.
(i) Severability.
If any
provision of this Agreement for any reason should be found by any court of
competent jurisdiction to be invalid, illegal or unenforceable, in whole
or in
part, such declaration shall not affect the validity, legality or enforceability
of any remaining provision or portion thereof, which remaining provision
or
portion thereof shall remain in full
5
force
and
effect as if this Agreement had been adopted with the invalid, illegal or
unenforceable provision or portion thereof eliminated.
(j) Headings.
The
headings, captions and arrangements utilized in this Agreement shall not
be
construed to limit or modify the terms or meaning of this
Agreement.
(k) Counterparts.
This
Agreement may be executed simultaneously in one or more counterparts, each
of
which shall be deemed an original, but all of which shall constitute but
one and
the same instrument.
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date
and year first written above.
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ACCO
BRANDS CORPORATION
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By:
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Name:
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Its:
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Grantee
Name
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Grantee
Signature
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SCHEDULE
I
7
