CELANESE CORPORATION 2004 STOCK INCENTIVE PLAN NONQUALIFIED STOCK OPTION AWARD AGREEMENT
Exhibit 10.5
CELANESE
CORPORATION
2004 STOCK INCENTIVE PLAN
2004 STOCK INCENTIVE PLAN
THIS AWARD AGREEMENT, is made effective as of April 23,
2008 (the “Date of Grant”), between Celanese
Corporation (the “Company”) and Xxxxxxxxxxx
Xxxxxx (the “Participant”).
R E C I T A
L S:
WHEREAS, the Company has adopted the Plan (as defined below),
the terms of which are hereby incorporated by reference and made
a part of this Award Agreement; and
WHEREAS, the Compensation Committee (the “Committee”)
has determined that it would be in the best interests of the
Company and its stockholders to grant the Options provided for
herein to the Participant pursuant to the Plan and the terms set
forth herein;
NOW, THEREFORE, in consideration of the mutual covenants
hereinafter set forth, the parties agree as follows:
1. Definitions. Whenever the
following terms are used in this Award Agreement, they shall
have the meanings set forth below. Capitalized terms not
otherwise defined herein shall have the same meanings as in the
Plan.
(a) Cause: “Cause” as
defined in an employment agreement or change in control
agreement between the Company or its subsidiaries and the
Participant or, if not defined therein or if there is no such
agreement, “Cause” means (i) the
Participant’s willful failure to perform Participant’s
duties to the Company (other than as a result of total or
partial incapacity due to physical or mental illness) for a
period of 30 days following written notice by the Company
to the Participant of such failure, (ii) commission of
(A) a felony (other than traffic-related) under the laws of
the United States or any state thereof or any similar criminal
act in a jurisdiction outside the United States or (B) a
crime involving moral turpitude, (iii) Participant’s
willful malfeasance or willful misconduct which is demonstrably
injurious to the Company, (iv) any act of fraud by the
Participant or (v) the Participant’s breach of the
provisions of any confidentiality, non-competition or
non-solicitation to which the Participant is subject.
(b) Total Disability: Total Disability
shall be determined by regulation of the Committee from time to
time in its sole discretion.
(c) Expiration Date: The tenth
anniversary of the Date of Grant.
(d) Good Reason: “Good
Reason” as defined in an employment agreement or change
in control agreement between the Company or its subsidiaries and
the Participant or, if not defined therein or if there is no
such agreement, “Good Reason” means (i) a
substantial diminution in Participant’s position or duties;
adverse change in reporting lines, or assignment of duties
materially inconsistent with
his/her
position (other than in connection with an increase in
responsibility or a promotion), (ii) any reduction in
Participant’s base salary or annual bonus opportunity or
(iii) failure of the Company to pay compensation or
benefits when due, in each case which is not cured within
30 days following the Company’s receipt of written
notice from Participant describing the event constituting Good
Reason.
(e) Options: The Option to purchase
Shares granted under this Award Agreement.
(f) Plan: The Celanese Corporation 2004
Stock Incentive Plan, as amended from time to time.
(g) Shares: Celanese Series A Common
Stock available for grant under the Plan.
(h) Vested Portion: At any time, the
portion of an Option which has become vested, as described in
Section 3 of this Award Agreement.
2. Grant of Options. The Company hereby
grants to the Participant the right and option to purchase
40,000 Shares, on the terms and conditions hereinafter set
forth. The exercise price of the Shares subject to the Options
shall be $44.81 per Share, subject to adjustment as set forth in
the Plan (the “Option Price”). The Options are
intended to be nonqualified stock options, and are not intended
to be treated as incentive stock options that comply with
Section 422 of the Code.
3. Vesting of the Options.
(a) In General. Subject to the
Participant’s continued Employment with the Company and its
Affiliates, the Option shall vest and become exercisable with
respect to fifty percent (50%) of the Shares subject to such
Option on each of October 1, 2010 and October 3, 2011.
(b) Change in Control. Notwithstanding the foregoing, upon
a Change in Control, the Option shall, to the extent not
previously cancelled or expired, immediately become one hundred
percent (100%) vested and exercisable.
(c) Termination of Employment.
(i) Other than as described in Sections 3(c)(ii), if
the Participant’s Employment with the Company and its
Affiliates terminates for any reason, the Option, to the extent
not then vested and exercisable, shall expire and be immediately
canceled by the Company without consideration.
(ii) Notwithstanding Sections 3(a) and 3(c)(i), in the
event that the Participant’s Employment is terminated
(A) by the Company without Cause, (B) by the
Participant with Good Reason or (C) due to the
Participant’s death or Total Disability, to the extent not
previously cancelled or expired, the Option shall immediately
become vested and exercisable as to the Shares subject to the
Option that would have otherwise vested and become exercisable
in the calendar year in which such termination of Employment
occurs.
4. Exercise of Options.
(a) Period of Exercise. Subject to the
provisions of the Plan and this Award Agreement, the Participant
may exercise all or any part of the Vested Portion of an Option
at any time prior to the Expiration Date. Notwithstanding the
foregoing, if the Participant’s Employment terminates prior
to the Expiration Date, the Vested Portion of an Option shall
remain exercisable only for the period set forth below (and
shall expire upon termination of such period):
(i) Termination by the Company Without Cause, Termination
by the Participant with Good Reason or Termination Due to Death
or Total Disability. If the Participant’s Employment with
the Company and its Affiliates is terminated (A) by the
Company without Cause, (B) by the Participant with Good
Reason or (C) due to the Participant’s death or Total
Disability, the Participant may exercise the Vested Portion of
the Option for a period ending on the earlier of one year
following the date of such termination or the Expiration Date.
(ii) Termination by the Participant without Good
Reason. If the Participant’s Employment with
the Company and its Affiliates is terminated by the Participant
without Good Reason, the Participant may exercise the Vested
Portion of an Option for a period ending on the earlier of
90 days following the date of such termination or the
Expiration Date; and
(iii) Termination by the Company for
Cause. If the Participant’s Employment with
the Company and its Affiliates is terminated by the Company for
Cause, the Vested Portion of an Option shall immediately
terminate in full and cease to be exercisable.
(b) Method of Exercise.
(i) Subject to Section 4(a) of this Award Agreement,
the Vested Portion of an Option may be exercised by delivering
to the Company at its principal office written notice of intent
to so exercise; provided that the Option may be exercised with
respect to whole Shares only. Such notice shall specify the
number of Shares for which the Option is being exercised and,
other than as described in clause (C) of the following
sentence, shall be accompanied by payment in full of the
aggregate Option Price in respect of such Shares. Payment of the
aggregate Option Price may be made (A) in cash, or its
equivalent (e.g., a
check), (B) by transferring to the Company Shares having a
Fair Market Value equal to the aggregate Option Price for the
Shares being purchased and satisfying such other requirements as
may be imposed by the Committee, (C) if there is a public
market for the Shares at the time of payment, subject to such
rules as may be established by the Committee, through delivery
of irrevocable instructions to a broker to sell the Shares
otherwise deliverable upon the exercise of the Option and
deliver promptly to the Company an amount equal to the aggregate
Option Price or (D) by a combination of (A) and
(B) above or such other method as approved by the
Committee. No Participant shall have any rights to dividends or
other rights of a stockholder with respect to the Shares subject
to an Option until the Participant has given written notice of
exercise of the Option, paid in full for such Shares or
otherwise completed the exercise transaction as described in the
preceding sentence and, if applicable, has satisfied any other
conditions imposed pursuant to this Award Agreement.
(ii) Notwithstanding any other provision of the Plan or
this Award Agreement to the contrary, absent an available
exemption to registration or qualification, an Option may not be
exercised prior to the completion of any registration or
qualification of the Option or the Shares under applicable state
and federal securities or other laws, or under any ruling or
regulation of any governmental body or national securities
exchange that the Committee shall in its sole reasonable
discretion determine to be required by such laws, rulings or
regulations.
(iii) Upon the Company’s determination that an Option
has been validly exercised as to any of the Shares, the Company
shall issue certificates in the Participant’s name for such
Shares. However, the Company shall not be liable to the
Participant for damages relating to any reasonable delays in
issuing the certificates to the Participant or any loss by the
Participant of the certificates.
(iv) In the event of the Participant’s death, the
Vested Portion of an Option shall remain vested and exercisable
by the Participant’s executor or administrator, or the
person or persons to whom the Participant’s rights under
this Award Agreement shall pass by will or by the laws of
descent and distribution as the case may be, to the extent set
forth in Section 4(a) of this Award Agreement. Any heir or
legatee of the Participant shall take rights herein granted
subject to the terms and conditions hereof.
5. Adjustments. In the event of any
change in the outstanding Shares after the Effective Date by
reason of any Share dividend or split, reorganization,
recapitalization, merger, consolidation, spin-off, combination
or transaction or exchange of Shares or other corporate
exchange, or in the event of any distribution to shareholders of
Shares (other than regular cash dividends) or any transaction
similar to the foregoing or the issuance of equity (or rights to
acquire equity) for consideration less than Fair Market Value
(other than equity-based compensation or the conversion of
preferred shares of the Company to Shares), the Committee in its
sole discretion and without liability to any person may, subject
to the requirements of Treasury
Regulation Section 1.409A-1(b)(5)(D)
or (H), as applicable, make such substitution or adjustment, if
any, as it deems to be equitable, to the Option; provided, that
in the event of an extraordinary dividend or similar
extraordinary distribution, in lieu of any other adjustment or
substitution, the Participant shall be entitled to receive, with
respect to each Share subject to the Vested Portion of the
Option as of such distribution, an amount equal to such
extraordinary dividend or distribution paid with respect to a
Share (whether paid in cash or otherwise), such amount to be
paid when such distribution is paid to shareholders of the
Company (but in no event later than
21/2
months after the extraordinary dividend or similar extraordinary
distribution is declared by the Company) .
6. No Right to Continued
Employment. Neither the Plan nor this Award
Agreement shall be construed as giving the Participant the right
to be retained in the employ of, or in any consulting
relationship to, the Company or any Affiliate. Further, the
Company or its Affiliate may at any time terminate the
Participant or discontinue any consulting relationship, free
from any liability or any claim under the Plan or this Award
Agreement, except as otherwise expressly provided herein.
7. Legend on Certificates. The
certificates representing the Shares purchased by exercise of an
Option shall be subject to such stop transfer orders and other
restrictions as the Committee may determine is required by the
rules, regulations, and other requirements of the Securities and
Exchange Commission, any stock exchange upon which such Shares
are listed, any applicable federal or state laws and the
Company’s Certificate of Incorporation and Bylaws, and the
Committee may cause a legend or legends to be put on any such
certificates to make appropriate reference to such restrictions.
8. Transferability. Unless
otherwise determined by the Committee, an Option may not be
assigned, alienated, pledged, attached, sold or otherwise
transferred or encumbered by the Participant otherwise than by
will or by the laws of descent and distribution, and any such
purported assignment, alienation, pledge, attachment, sale,
transfer or encumbrance shall be void and unenforceable against
the Company or any Affiliate; provided that the designation of a
beneficiary shall not constitute an assignment, alienation,
pledge, attachment, sale, transfer or encumbrance. During the
Participant’s lifetime, an Option is exercisable only by
the Participant.
9. Withholding. The Participant may
be required to pay to the Company or its Affiliate and the
Company or its Affiliate shall have the right and is hereby
authorized to withhold from any payment due or transfer made
under the Option or under the Plan or from any compensation or
other amount owing to a Participant the amount (in cash, Shares,
other securities, other Awards or other property) of any
applicable withholding taxes in respect of the Option, its
exercise, or any payment or transfer under the Option or under
the Plan and to take such action as may be necessary in the
option of the Company to satisfy all obligations for the payment
of such taxes.
10. Securities Laws. Upon the
acquisition of any Shares pursuant to the exercise of an Option,
the Participant will make or enter into such written
representations, warranties and agreements as the Committee may
reasonably request in order to comply with applicable securities
laws or with this Award Agreement.
11. Notices. Any notice under this
Award Agreement shall be addressed to the Company in care of its
General Counsel, addressed to the principal executive office of
the Company and to the Participant at the address last appearing
in the personnel records of the Company for the Participant or
to either party at such other address as either party hereto may
hereafter designate in writing to the other. Any such notice
shall be deemed effective upon receipt thereof by the addressee.
12. Governing Law. This Award
Agreement shall be governed by and construed in accordance with
the laws of the State of Delaware, without regard to the
conflicts of laws provisions thereof.
13. Options Subject to Plan and Stockholders Award
Agreement. By entering into this Award Agreement
the Participant agrees and acknowledges that the Participant has
received and read a copy of the Plan. The Options and the Shares
received upon exercise of the Options are subject to the Plan.
The terms and provisions of the Plan as it may be amended from
time to time are hereby incorporated by reference. In the event
of a conflict between any term or provision contained herein and
a term or provision of the Plan, the applicable terms and
provisions of the Plan will govern and prevail.
14. Signature in Counterparts. This
Award Agreement may be signed in counterparts, each of which
shall be an original, with the same effect as if the signatures
thereto and hereto were upon the same instrument.
15. Validity of Agreement. This
Award Agreement shall be valid, binding and effective upon the
Company on the Date of Grant. However, the Options contained in
this Award Agreement shall be forfeited by the Participant and
this Award Agreement shall have no force and effect if it is not
duly executed (as outlined in Section 14) by the
Participant within forty-five (45) days of the Date of
Grant.
This Nonqualified Stock Option Award Agreement dated
April 23, 2008 has been delivered to Participant pursuant
to such action approved by the Committee on the Grant Date and
can be accepted only by the signature of the Participant and
timely delivery thereof to the Company in accordance with the
terms of this Agreement.
IN WITNESS WHEREOF, this Award Agreement has been executed and
delivered by the parties hereto.
CELANESE CORPORATION
| By: |
/s/ Xxxxx
X. Xxxxxxx
|
Name: Xxxxx X. Xxxxxxx
| Title: | Chairman and Chief Executive Officer |
Date: May 7, 2008
ACCEPTED AND
AGREED
PARTICIPANT
| By: |
/s/ Xxxxxxxxxxx
Xxxxxx
|
Name: Xxxxxxxxxxx Xxxxxx
| Title: | Vice President, Finance and Treasurer |
Employee ID: [Redacted]
Date: May 9, 2008
