FORM OF PERFORMANCE CONTINGENT RESTRICTED STOCK UNIT AWARD AGREEMENT pursuant to the HORSEHEAD HOLDING CORP. EXECUTIVE LONG TERM INCENTIVE PLAN
Exhibit 10.25
FORM OF PERFORMANCE CONTINGENT
RESTRICTED STOCK UNIT AWARD AGREEMENT
RESTRICTED STOCK UNIT AWARD AGREEMENT
pursuant to the
HORSEHEAD HOLDING CORP. EXECUTIVE LONG TERM INCENTIVE PLAN
* * * * *
Participant:
Grant Date:
Number of Performance Contingent
Restricted Stock Units granted:
Restricted Stock Units granted:
* * * * *
THIS AWARD AGREEMENT (this “Agreement”), dated as of the Grant Date specified above,
is entered into by and between Horsehead Holding Corp., a company organized in the State of
Delaware (the “Company”), and the Participant specified above, pursuant to the Horsehead
Holding Corp. Amended and Restated 2006 Long-Term Equity Incentive Plan, as in effect and as
amended from time to time (the “Plan”).
WHEREAS, it has been determined by the Committee that it is in the best interests of the
Company to grant the Performance Contingent Restricted Stock Units (the “Restricted Stock
Units”) provided herein to the Participant, in anticipation of the receipt of future services
by the Participant.
NOW, THEREFORE, in consideration of the mutual covenants and premises hereinafter set forth
and for other good and valuable consideration, the parties hereto hereby mutually covenant and
agree as follows:
1. Incorporation By Reference; Plan Document Receipt. This Agreement is subject in
all respects to the terms and provisions of the Plan (including, without limitation, any amendments
thereto adopted at any time and from time to time unless such amendments are expressly intended not
to apply to the award provided hereunder), all of which terms and provisions are made a part of and
incorporated in this Agreement as if they were expressly set forth herein. Any capitalized term
not defined in this Agreement shall have the same meaning as is ascribed thereto in the Plan. The
Participant hereby acknowledges receipt of a true copy of the Plan and that the Participant has
read the Plan carefully and fully understands its content. In the event of a conflict between the
terms of this Agreement and the terms of the Plan, the terms of the Plan shall control.
2. Grant of Restricted Stock Unit Award. The Company hereby grants to the
Participant, as of the Grant Date specified above, the number of Restricted Stock Units specified
above. Except as otherwise provided by Section 16 of the Plan, the Participant agrees and
understands that nothing contained in this Agreement provides, or is intended to provide, the
Participant with any protection against potential future dilution of the Participant’s interest in
the Company for any reason. Subject to Section 5, the Participant shall not have the rights of a
stockholder in respect of the shares of Common Stock underlying this Award until such Common Stock
is delivered to the Participant in accordance with Section 4.
3. Vesting.
3.1. General. The Restricted Stock Units subject to this grant shall become vested
and deliverable in accordance with this Section 3.1. [ ] of the Restricted Stock Units
subject to this grant shall be allocated to each of [ ] Performance Categories (the
“Allocated Units”). Subject to Section [ ] and Section [ ], the Applicable Percentage
of these Allocated Units shall vest based upon the degree to which the relevant Performance Goals
for each Performance Category herein are attained during the Performance Period if the Participant
is employed by the Company or its Subsidiaries on the date the Restricted Stock Units subject to
this grant are settled in accordance with Section 4.1. The Applicable Percentage shall be
determined as follows: [ ]
3.2. Performance Criteria. The Performance Period for the Restricted Stock Units
subject to this grant shall be the [ ]-year period commencing on [ , 20xx] and ending
[ , 20xx]. The Performance Categories for the Restricted Stock Units subject to this
grant are (i) [first performance category], (ii) [next performance category] ... and (n) [last
performance category] for the Company and its Subsidiaries for the period beginning [ ],
20xx and ending [ ], 20xx. The Performance Goals for each of these Performance
Categories are as follows: [ ]
3.3. Achievement of Performance Criteria. The Committee shall have the sole and
complete discretion for determining whether and to what extent each of the Performance Goals for
each Performance Category has been achieved. The Committee may, in its sole and absolute
discretion, adjust the Performance Goals for each Performance Category to the extent the Committee
determines appropriate to reflect any acquisitions or dispositions of business units during the
Performance Period.
3.4. Effect of Employment Termination. Subject to Section [ ], if the
Participant’s employment with the Company and its Subsidiaries terminates for any reason prior to
the date the Restricted Stock Units subject to this grant are settled in accordance with Section
4.1, all Restricted Stock Units subject to this grant shall immediately be cancelled and the
Participant (and the Participant’s estate, designated beneficiary or other legal representative)
shall forfeit any rights or interests in and with respect to any such Restricted Stock Units.
3.5. Certain Transactions. If the Participant’s employer ceases to be an Affiliate or
Subsidiary of the Company, that event shall be deemed to constitute a termination of employment
under Section [ ] above.
4. Delivery of Common Stock.
4.1. Settlement. Subject to the terms of the Plan, if the Restricted Stock Units
awarded by this Agreement become earned, the Company shall promptly (and in any event
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within 60 days of the end of the Performance Period) distribute to the Participant the number
of shares of Common Stock equal to the number of Restricted Stock Units that were earned;
provided that (i) the Company shall deliver immediately prior to a Change in Control the
appropriate number of shares of Common Stock for all Restricted Stock Units that were earned before
or in connection with such Change in Control to the extent such shares have not previously been
delivered or the delivery of such shares have not been deferred by the Participant pursuant to
Section 4.2 (in which case the Participant’s deferral election shall be given effect); and (ii)
prior to a Change in Control the Company may convert each Restricted Stock Units otherwise
deliverable pursuant to Section [ ], above, into a right to receive an amount of cash equal to
the consideration paid for a share of Common Stock in connection with such Change in Control, in
which case such cash shall be paid immediately following the consummation of such Change in
Control. To the extent required by Section 409A of the Code, delivery of shares of Common Stock
or cash upon a Participant’s “separation from service”, within the meaning of Treas. Reg. §
1.409A-1 shall be deferred until the six month anniversary of such separation from service. In
connection with the delivery of the shares of Common Stock pursuant to this Agreement, the
Participant agrees to execute any documents reasonably requested by the Company.
4.2. Deferrals. If permitted by the Company, the Participant may elect, in accordance
with written plans or procedures adopted by the Company from time to time, to defer the
distribution of all or any portion of the shares of Common Stock that would otherwise be
distributed to the Participant hereunder (“Deferred Shares”). Upon the vesting of
Restricted Stock Units that have been so deferred, the applicable number of Deferred Shares shall
be credited to a bookkeeping account established on the Participant’s behalf (the
“Account”). Subject to Section 5, the number of shares of Common Stock equal to the number
of Deferred Shares credited to the Participant’s Account shall be distributed to the Participant in
accordance with written plans or procedures adopted by the Company from time to time.
5. Dividends and Other Distributions. Participants holding Restricted Stock Units
shall be entitled to receive all dividends and other distributions paid with respect to shares of
Common Stock, provided that any such dividends or other distributions will be held by the Company
on the Participant’s behalf subject to the same vesting requirements as the underlying Restricted
Stock Unit and shall be paid at the time the Common Stock is delivered pursuant to Section 4.
6. Restrictive Covenants. The Participant agrees to abide by the covenants and
agreements set forth in Annex A hereto and incorporated by reference herein, and acknowledges that
the Restricted Stock Units being granted herein constitutes adequate and sufficient consideration
in support of such covenants and agreements.
7. Withholding. The Participant may direct the Company to withhold from delivery
hereunder in satisfaction of applicable tax withholding obligations shares of Common Stock having
an aggregate fair market value equal to the minimum amount of federal, state and local income and
payroll taxes required to be withheld in respect of this Award.
8. Entire Agreement; Amendment. This Agreement, together with the Plan, contains the
entire agreement between the parties hereto with respect to the subject matter
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contained herein, and supersedes all prior agreements or prior understandings, whether written
or oral, between the parties relating to such subject matter. The Committee shall have the right,
in its sole discretion, to modify or amend this Agreement from time to time in accordance with and
as provided in the Plan. This Agreement may also be modified or amended by a writing signed by
both the Company and the Participant. The Company shall give written notice to the Participant of
any such modification or amendment of this Agreement as soon as practicable after the adoption
thereof.
9. Acknowledgment of Participant. The grant of this award does not entitle the
Participant to any benefit other than that granted under this Agreement. Any benefits granted under
this Agreement are not part of the Participant’s ordinary salary, and shall not be considered as
part of such salary in the event of severance, redundancy or resignation. The Participant
understands and accepts that the benefits granted under the Plan and this Agreement are entirely at
the discretion of the Company.
10. Governing Law. This Agreement shall be governed by and construed in accordance
with the laws of the State of Delaware without reference to the principles of conflict of laws
thereof.
11. Compliance with Laws. The issuance of the shares of Common Stock pursuant to this
Agreement shall be subject to, and shall comply with, any applicable requirements of any federal
and state securities laws, rules and regulations (including, without limitation, the provisions of
the Act, the Exchange Act and the respective rules and regulations promulgated thereunder) and any
other law or regulation applicable thereto. The Company shall not be obligated to issue any of the
shares of Common Stock pursuant to this Agreement if such issuance would violate any such
requirements.
12. Headings. The titles and headings of the various sections of this Agreement have
been inserted for convenience of reference only and shall not be deemed to be a part of this
Agreement.
IN WITNESS WHEREOF, the Company has caused this Agreement to be executed by its duly
authorized officer, and the Participant has hereunto set his/her hand, all as of the Grant Date
specified above.
| HORSEHEAD HOLDING CORP. | |||||
| By: | |||||
| Name: ___________________________ | |||||
| Title: ___________________________ | |||||
| PARTICIPANT: | |||||
| Name: ___________________________ | |||||
| Title: ___________________________ | |||||
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ANNEX A
COVENANTS AND AGREEMENTS OF THE PARTICIPANT
1. The Participant acknowledges the time and expense incurred by the Company, its Subsidiaries
and their respective affiliates (the “Company Group”) in connection with developing
proprietary and confidential information in connection with the business and operations of the
Company and its Subsidiaries. The Participant agrees that the Participant will not, whether during
the Participant’s service as an employee of any member of the Company Group or at any time
thereafter, divulge, communicate, or use to the detriment of any of member of the Company Group or
any other person, firm or entity, confidential information or trade secrets relating to any member
of the Company Group, including, without limitation, business strategies, operating plans,
acquisition strategies (including the identities of (and any other information concerning) possible
acquisition candidates), financial information, market analyses, acquisition terms and conditions,
personnel information, know-how, customer lists and relationships, supplier lists and
relationships, or other non-public proprietary and confidential information relating to any member
of the Company Group. The foregoing confidentiality agreement shall not apply if the communication
(i) is required in the course of performing the Participant’s duties as an employee of the Company
or its Subsidiaries, (ii) is made with the written consent of the Company’s Board of Directors,
(iii) relates to information that is or becomes generally known by the public other than as a
result of a breach hereof by the Participant, or (iv) is required by law or judicial or
administrative process.
2. During the Participant’s service as an employee of the Company or its Subsidiaries and for
24 months thereafter, the Participant shall not, to the detriment of any member of the Company
Group, directly or indirectly, for the Participant or on behalf of any other person, firm or
entity: (i) solicit, hire, employ, engage, retain or enter into a business affiliation with any
person who at any time during the preceding 12 month period was an employee of, the Company or any
of its Subsidiaries, or (ii) encourage, induce or attempt to encourage or induce any person who at
any time during the preceding 12 month period was a supplier or customer of the Company or any of
its Subsidiaries to cease doing business with the Company or any of its Subsidiaries or to decrease
the amount of business such supplier or customer does with the Company or any of its Subsidiaries.
3. During the Participant’s service as an employee of the Company or its Subsidiaries and for
24 months thereafter (or for such longer period during which the Participant receives severance
from the Company) (as applicable, the “Restricted Period”), the Participant shall not,
directly or indirectly, engage in, or serve as a principal, partner, joint venturer, member,
manager, trustee, agent, stockholder, director, officer or employee of, or advisor to, or in any
other capacity, or in any manner, own, control, manage, operate, or otherwise participate, invest,
or have any interest in, or be connected with, any person, firm or entity that engages in any
activity which competes directly or indirectly with any business of the Company or its Subsidiaries
(collectively, the “Company Business”) anywhere in the United States of America or any
other country in which the Company Business was conducted or related sales were effected during the
two years preceding the Participant’s termination of employment. THIS PARAGRAPH 3 WILL NOT APPLY
AND WILL NOT BE ENFORCED BY THE COMPANY WITH RESPECT TO POST-TERMINATION ACTIVITY BY PARTICIPANT
THAT
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OCCURS IN CALIFORNIA OR IN ANY OTHER STATE IN WHICH THIS PROHIBITION IS NOT ENFORCEABLE UNDER
APPLICABLE LAW.
4. Whether during or after the term of the Participant’s employment or service, the
Participant shall not disparage, defame or discredit any member of the Company Group or engage in
any activity which would have the effect of disparaging, defaming or discrediting any member of the
Company Group.
5. The Participant acknowledges that the Participant’s service as an employee of the Company
or its Subsidiaries, as the case may be, and the agreements herein are reasonable and necessary for
the protection of the Company Group and are an essential inducement to the Company’s grant of the
Restricted Stock Units. Accordingly, the Participant shall be bound by the provisions hereof to
the maximum extent permitted by law, it being the intent and spirit of the parties that the
foregoing shall be fully enforceable.
6. In signing this Agreement, the Participants gives the Company assurance that the
Participant has carefully read and considered all the terms and conditions of this Agreement,
including the restraints imposed on the Participant under this Annex A. The Participant agrees
that these restraints are necessary for the reasonable and proper protection of the Company Group
and their trade secrets and confidential information and that each and every one of the restraints
is reasonable in respect to subject matter, length of time and geographic area, and that these
restraints, individually or in the aggregate, will not prevent the Participant from obtaining other
suitable employment during the period in which the Participant is bound by the restraints. the
Participant agrees that, before providing services, whether as an employee or consultant, to any
entity during the Restricted Period, the Participant will provide a copy of this Annex A to such
entity. The Participant further acknowledges that each of these covenants has a unique, very
substantial and immeasurable value to the Company Group, that the Participant has sufficient assets
and skills to provide a livelihood while such covenants remain in force and that, as a result of
the foregoing, in the event that the Participant breaches such covenants, monetary damages would be
an insufficient remedy for the Company Group and equitable enforcement of the covenant would be
proper. The Participant therefore agrees that each member of the Company Group, in addition to any
other remedies available to it, will be entitled to preliminary and permanent injunctive relief
against any breach by the Participant of any of those covenants, without the necessity of showing
actual monetary damages or the posting of a bond or other security. The Participant and the
Company further agrees that, in the event that any provision of this Annex A is determined by any
court of competent jurisdiction to be unenforceable by reason of its being extended over too great
a time, too large a geographic area or too great a range of activities, that provision will be
deemed to be modified to permit its enforcement to the maximum extent permitted by law. The
Participant further covenants that the Participant will not challenge the reasonableness or
enforceability of any of the covenants set forth in this Annex A.
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