FOSTER WHEELER LTD. OMNIBUS INCENTIVE PLAN Employee Restricted Stock Unit Award Agreement
XXXXXX
XXXXXXX LTD. OMNIBUS INCENTIVE PLAN
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Name
of Participant:
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__________________________________ | |
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Date
of Grant:
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November 15, 2006 | |
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Number of Restricted Stock Units
Awarded:
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__________________ | |
Pursuant
to the Xxxxxx Xxxxxxx Ltd. Omnibus Incentive Plan (the “Plan”), a copy of which
has been delivered to you, along with a prospectus describing the material
terms
of the Plan, and in accordance with the terms and conditions of the Plan and
your agreement to such additional terms, conditions and restrictions as are
set
forth below, you have been granted as of the date set forth above a Restricted
Stock Unit Award (the “Restricted Stock Unit Award”), meaning the right to
receive common stock of Xxxxxx Xxxxxxx Ltd. (the “Company”), par value of $.01
per share, on the terms and conditions set forth herein. Capitalized terms
used
but not defined in this Employee Restricted Stock Unit Award Agreement (the
“Agreement”) have the meanings ascribed to them in the Plan.
1. Acceptance
of Restricted Stock Unit Award.
Subject
to the terms and conditions of this Agreement and the Plan (the terms of which
are incorporated herein by reference) and effective as of the date set forth
above, the Company hereby grants to you and you hereby accept the grant of
________________________________ (_________) Restricted Stock Units (the
“Units”). Units will be settled only in Shares of common stock of the Company on
a one Share for one Unit basis, rounded up or down to the nearest whole Share,
and not in cash.
2. Relation
of Restricted Stock Unit Award to Other Agreement(s).
As
an
express condition to acceptance of this Restricted Stock Unit Award, subject
to
the special exception provided under Section 3(g) of this Agreement (which
governs a Change in Control situation), you agree that:
(a) Except
to
the extent you are or subsequently become a party to a written service or other
agreement with the Company (such agreement(s), which for the avoidance of doubt,
do not include any agreements entered into with Affiliates or Subsidiaries
of
the Company) (the “Other Agreement”), the only vesting and lapse of forfeiture
restriction provisions that govern the Restricted Stock Unit Award under this
Agreement are set forth in Section 3 of this Agreement;
(b) To
the
extent that the vesting and lapse of forfeiture restriction provisions of this
Agreement or the Plan’s terms are inconsistent with an Other Agreement, the
provisions of your Other Agreement shall govern and control, subject to the
special exception provided under Section 3(g) of this Agreement (which governs
a
Change in Control situation); and
(c) Except
as
expressly provided in paragraph (b) above, the terms of any Other Agreement
shall in no way alter or amend, or provide additional rights or benefits, under
the Restricted Stock Unit Award governed by this Agreement.
3. Vesting;
Termination of Restricted Stock Unit Award.
(a) General
Vesting Rule.
You
will
be issued Shares in settlement of the Units only as you vest in the Units,
meaning that the Units will be settled in Shares on the day on which you vest
in
any portion of the Units (hereinafter referred to as a “Vesting Date”). So long
as you remain continuously employed by the Company or any Affiliate through
such
Vesting Date(s), and except as otherwise set forth in this Section 3, the Units
shall vest and your right to receive and retain the Shares in settlement of
such
Units will become nonforfeitable in accordance with the following
schedule:
(i) One-third
of the Units shall vest on December 31, 2007;
(ii) Another
one-third of the Units shall vest on December 31, 2008; and
(iii) The
remaining one-third of the Units shall vest on December 31, 2009.
(b) Termination
as a Result of Death or Disability.
In
the
event of your termination of employment as a result of your death or Disability
(as defined in Section 2(q) of the Plan), any unvested Units shall immediately
vest as of the date of such termination for death or Disability.
(c) Termination
as a Result of Involuntary Termination or Resignation for Good
Reason.
In
the
event of the your termination of employment as a result of your Involuntary
Termination (as defined in Section 2(aa) of the Plan) or Resignation for Good
Reason (as defined in Section 2(tt) of the Plan), any unvested Units shall
immediately vest as of the date of such Involuntary Termination or Resignation
for Good Reason.
(d) Termination
as a Result of Retirement.
In
the
event of your termination of employment as a result of your Retirement (which
for purposes of this Agreement is as defined in Section 2(vv) of the Plan),
any
unvested Units shall vest pro-rata as of the date of your termination due to
Retirement based on the following formula:
(i) the
total
number of Units, times
(ii) a
ratio,
the numerator of which is the total number of months of employment from November
15, 2006 to the end of the month in which the date of termination due to
Retirement occurs, and the denominator of which is thirty-seven and one-half
(37.5), rounded to the nearest whole number; less
(iii) the
total
number of Units in which you have previously vested prior to your date of
Retirement.
The
remaining portion of the unvested Units which are not accelerated for vesting
purposes shall be immediately forfeited.
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Example:
The
following example is included merely for demonstrative purposes.
Xxx
is
granted 1,000 Units on November 15, 2006. She will vest in her Units as follows:
(1) 333 Units on December 31, 2007, (2) 333 Units on December 31, 2008, and
(3)
334 Units on December 31, 2009. Xxx subsequently announces her Retirement
effective June 1, 2008.
As
of
June 1, 2008, Xxx will immediately vest in additional unvested Units equal
to
the amount of 187 (equal to 1,000 Units multiplied
by 19.5
months of employment from November 1, 2006 divided
by 37.5
reduced
by 333
Units
previously vested).
(e) Termination
for Cause.
In
the
event your employment is terminated for Cause (as defined in Section 2(i) of
the
Plan), all unvested Units and all Shares received upon settlement of vested
Units shall expire immediately, be forfeited and considered null and void,
and
the provisions of Section 4 of this Agreement shall control.
(f) Termination –
General.
In
the
event of your termination of employment other than as a result of your death,
Disability (as defined in Section 2(q) of the Plan), Involuntary Termination
(as
defined in Section 2(aa) of the Plan), Resignation for Good Reason (as defined
in Section 2(tt) of the Plan), Retirement, or Cause (as defined in Section
2(i)
of the Plan), all unvested Units shall expire immediately, be forfeited and
considered null and void.
(g) Change
in Control Acceleration.
In
the
event of a Change in Control (as defined in Section 2(j) of the Plan) which
closes on a date prior to your termination of employment, any unvested Units
shall immediately become fully vested, effective as of immediately prior to
consummation of the Change in Control. Notwithstanding the foregoing, to the
extent that an employment, change in control or other agreement or arrangement
with the Company or an Affiliate provides benefits of greater value upon a
Change in Control that those provided in this paragraph (g), the rights set
forth in such other agreement shall supersede the provisions of this paragraph
(g). Comparatively, to the extent that an employment, change in control or
other
agreement or arrangement with the Company or an Affiliate provides benefits
of
lesser value upon a Change in Control that those provided in this paragraph
(g),
the rights set forth in this paragraph (g) shall supersede the provisions of
such other agreement.
(h) Other
Termination Events.
Notwithstanding
anything to the contrary contained in this Agreement, the Units will terminate
and expire immediately upon the occurrence of the circumstances set forth in
Section 11.2 of the Plan, and the provisions of Section 4 of this Agreement
shall control.
(i) Forfeiture
Price.
In
the
event that any Shares previously issued to you on settlement of the Units are
required to be forfeited under Section 3(e) or Section 3(h), then the Company
will have the right (but not the obligation) to repurchase any or all of such
forfeited Shares for $0.001 per Share. The Company will have ninety (90) days
from the date of any event giving rise to forfeiture under Section 3(e) or
Section 3(h), as the case may be, within which to effect a repurchase of any
or
all of the Shares subject to such forfeiture conditions. The Company’s right to
repurchase the Shares under this paragraph (i) is assignable by the Company,
in
its sole discretion, to an Affiliate or other party to whom such rights can
be
assigned under the Applicable Laws (as defined in Section 2(c) of the
Plan).
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4. Forfeiture
Events.
In
addition to the rights available to the Company under Section 3(i) immediately
above, upon the occurrence of any of the events set forth in Section 11.2 of
the
Plan (a “Forfeiture Event”), you, without any further action by the Company or
you, shall forfeit, as of the first day of any such Forfeiture
Event:
(a) all
right, title and interest to these Units;
(b) any
Shares received upon settlement of these Units then owned by you; and
(c) any
and
all profits realized by you, on an after-tax basis, pursuant to any sales or
transfer of any Shares received upon settlement of these Units within the six
(6) month period prior to the date of such Forfeiture Event.
Additionally,
the Company shall have the right to issue a stop transfer order and other
appropriate instructions to its transfer agent with respect to this Unit and
the
Shares, and the Company further shall be entitled to reimbursement from you
of
any fees and expenses (including attorneys’ fees) incurred by or on behalf of
the Company in enforcing the Company’s rights under this Section 4. By accepting
this Restricted Stock Unit Award, you hereby consent to a deduction from any
amounts the Company owes to you from time to time (including amounts owed to
you
as compensation as well as any other amounts owed to you by the Company), to
the
extent of any amounts that you owe to the Company under this Section 4. Whether
or not the Company elects to make any set-off in whole or in part, if the
Company does not recover by means of set-off the full amount you owe to the
Company, calculated as set forth above, you agree to pay immediately the unpaid
balance to the Company.
5. Share
Certificates.
Share
certificates (the “Certificate”) evidencing the settlement of Units into Shares
will be issued only at your request and the Shares will be issued and registered
in your name as of the Vesting Date (such date being the end of the “Restricted
Period”) on the register of shareholders of the Company (through its transfer
agent). If the Shares are to be issued in certificated form, then subject to
Section 7 of this Agreement, Certificates representing the Shares will be
delivered to you as soon as practicable after the end of the applicable
Restricted Period.
6. Changes
in Company’s Capital Structure.
Subject
to any required action by the Company’s Board and stockholders, as may be
determined to be appropriate and equitable by the Committee, to prevent dilution
or enlargement of rights, the Committee shall:
(a) adjust
proportionately the number of Units for any increase or decrease in the number
of issued and outstanding shares of common stock resulting from a subdivision
or
combination of such shares or the payment of a stock dividend or any other
increase or decrease in the number of such outstanding shares of common stock
of
the Company effected without the receipt of consideration by the Company; and
(b) if
the
Company is a participating corporation in any merger or consolidation and
provided the Units are not terminated upon consummation of such merger or
consolidation, modify such Units to pertain to and apply to the securities
or
other property to which a holder of the number of shares subject to the Units
would have been entitled upon such consummation.
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Notwithstanding
anything to the contrary, such adjustments by the Committee shall be final,
binding and conclusive.
7. Tax
Withholding Obligations.
As
a
condition to receipt of Shares upon settlement of the Units, you acknowledge
your obligation with respect to any tax or similar withholding obligations
that
may arise in connection with receipt or vesting of the Units and/or receipt
of
the Shares. Pursuant to Article 20 of the Plan, you may satisfy withholding
tax
obligations through either (a) giving instructions to a broker for the sale
on
the open market of a sufficient number of Shares to pay the applicable
withholding tax or (b) depositing with the Company an amount of funds equal
to
the estimated withholding tax liability. If you fail to satisfy such obligations
in either of these ways, the Company may require that the Shares otherwise
scheduled to be settled upon vesting of the Units on any given date be
forfeited. You understand that the Company’s rights to ensure satisfaction of
applicable withholding obligations with respect to the settlement of Units
may
require planning on your part, in advance of the expected Vesting Date(s)
specified in Section 3 above. The Company will not deliver any of the Shares
until and unless you have made proper provision for all applicable tax and
similar withholding obligations.
8. US
Tax Consequences.
Below
is
a brief summary as of the date of this Restricted Stock Unit Award of certain
United States federal tax consequences of the award of the Units and disposition
of the Shares upon settlement of the Units under the laws in effect as of the
date of grant. THIS
SUMMARY IS INCOMPLETE, AND THE TAX LAWS AND REGULATIONS ARE SUBJECT TO CHANGE.
PARTICIPANT SHOULD CONSULT A TAX ADVISER BEFORE SETTLEMENT OF THIS RESTRICTED
STOCK UNIT AWARD OR DISPOSING OF THE SHARES. There
may
be a regular federal (and state) income tax liability when the Units vest on
the
Vesting Date(s). You will be treated as having received compensation income
(taxable at ordinary income tax rates) equal to the current Fair Market Value
of
the Shares underlying the Units on the date of vesting (i.e.,
when
the forfeiture provisions lapse). If Shares issued upon vesting of this
Restricted Stock Unit Award are held for at least one year, any gain realized
on
disposition of those Shares will be treated as long-term capital gain for
federal income tax purposes. You are obligated as a condition of receiving
this
Restricted Stock Unit Award to satisfy any applicable withholding obligations
that apply thereto.
9. Effect
of Agreement.
You
acknowledge receipt of a copy of the Plan and represent that you are familiar
with the terms and provisions thereof (and have had an opportunity to consult
counsel regarding the Units’ terms), and hereby accept this Restricted Stock
Unit Award and agree to be bound by its contractual terms as set forth herein
and in the Plan. You hereby agree to accept as binding, conclusive and final
all
decisions and interpretations of the Committee (as defined in Section 2(m)
of
the Plan) regarding any questions relating to the Units. In the event of a
conflict between the terms and provisions of the Plan and the terms and
provisions of this Agreement, the Plan terms and provisions shall prevail.
10. Restriction
on Transferability.
Until
settlement of the Units upon issuance to you of the Shares subject thereto,
the
Units may not be sold, transferred, pledged, assigned or otherwise alienated
at
any time. Any attempt to do so contrary to the provisions hereof shall be null
and void. Notwithstanding the above and subject to Section 12 below,
distribution can be made pursuant to will, the laws of descent and distribution,
intra-family transfer instruments or to an inter vivos trust.
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11. Voting
Rights.
You
will
have no voting or any other rights as a shareholder of the Company with respect
to the Units prior to the date on which you are issued the Shares in settlement
thereof. Upon settlement of the Units into Shares, you will obtain full voting
and other rights as a shareholder of the Company.
12. Designation
of Beneficiaries.
You
may,
in accordance with procedures established by the Committee (as defined in
Section 2(m) of the Plan), designate one or more beneficiaries to receive all
or
part of any Shares to be distributed to you hereunder on settlement of Units
in
the case of your death, and you may change or revoke such designation at any
time. In the event of your death, any Shares distributable hereunder that are
subject to such a designation (to the extent such a designation is enforceable
under the Applicable Laws (as defined in Section 2(c) of the Plan)) will be
distributed to such beneficiary or beneficiaries in accordance with this
Agreement. Any other Shares distributable will be distributed to your estate.
If
there is any question as to the legal right of any beneficiary to receive a
distribution hereunder, the amount in question will be paid over to your estate,
in which event neither the Company nor any affiliate of the Company will have
any further liability to anyone with respect to such amount.
13. Amendment
of Restricted Stock Unit Award.
The
Committee may at any time amend, alter, suspend or discontinue the Plan, but
no
amendment, alteration, suspension or discontinuation (other than as explicitly
permitted under the Plan) shall be made that would adversely affect your rights
under this Agreement without your consent.
14. Governing
Law.
The
laws
of the state of New Jersey, without giving effect to principles of conflicts
of
law, will apply to the Plan, this Restricted Stock Unit Award and this
Agreement. The Company agrees, and you agree as a condition to acceptance of
the
Restricted Stock Unit Award, to submit to the jurisdiction of the courts located
in the jurisdiction in which you are employed, or were most recently employed,
by the Company.
15. Data
Protection.
You
acknowledge and agree (by executing this Agreement) to the collection, use,
processing and transfer of certain personal data as described in this Section
15. You understand that you are not obliged to consent to such collection,
use,
processing and transfer of personal data. However, you understand your failure
to provide such consent may affect your ability to participate in the Plan.
You
understand that the Company may hold certain personal information about you,
including your name, social security number (or other tax identification number)
salary, nationality, job title, position evaluation rating along with details
of
all past awards and current awards outstanding under the Plan, for the purpose
of managing and administering the Plan (the “Data”). The Company, or its
Affiliates, will transfer Data amongst themselves as necessary for the purpose
of implementation, administration and management of the Plan. The Company and/or
any of it Affiliates may further transfer Data to any third parties assisting
the Company in the implementation, administration and management of the Plan.
These various recipients of Data may be located elsewhere throughout the world.
You authorize these various recipients of Data to receive, possess, use, retain
and transfer the Data, in electronic or other form, for the purposes of
implementing, administering and managing the Plan, including any required
transfer of such Data as may be required for the subsequent holding of Shares
subject to the Unit on your behalf by a broker or other third party with whom
you may elect to deposit any Shares subject to the Unit acquired pursuant to
the
Plan. You understand that you may, at any time, review Data with respect to
you
and require any necessary amendments to such Data. You also understand that
you
may withdraw the consents to use Data herein by notifying the Company in
writing; however, you understand that by withdrawing your consent to use Data,
you may affect your ability to participate in the Plan.
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16. Employment
Matters.
This
Restricted Stock Unit Award does not form part of your entitlement to
remuneration or benefits in terms of your employment by the Company. Your terms
and conditions of employment are not affected or changed in any way by this
Restricted Stock Unit Award or by the terms of the Plan or this Agreement.
No
provision of this Agreement or of the Restricted Stock Unit Award granted
hereunder shall give you any right to continue in the employment of the Company
or any Affiliate, create any inference as to the length of your employment,
affect the right of the Company or any Affiliate to terminate your employment,
with or without Cause (as defined in Section 2(i) of the Plan), or give you
any
right to participate in any employee welfare or benefit plan or other program
(other than the Plan) of the Company or any Affiliate. You acknowledge and
agree
(by executing this Agreement) that the granting of the Restricted Stock Unit
Award under this Agreement is made on a fully discretionary basis by the Company
and that this Agreement does not lead to a vested right to further awards in
the
future. Further, the Restricted Stock Unit Award set forth in this Agreement
constitutes a non-recurrent benefit and the terms of this Agreement are only
applicable to the Units awarded pursuant to this Agreement.
17. Tax
Provisions Applicable to Non-US Persons.
This
Section 17 shall apply to you if you are resident in and/or subject to the
laws
of a country other than the United States at the time of grant of the Restricted
Stock Unit Award and during the period in which you hold this Restricted Stock
Unit Award or the Shares issued upon settlement thereof.
(a) Applicable
if you are not a US person (including as to UK persons):
You
hereby agree to indemnify and keep indemnified the Company and any Affiliate
from and against any liability for, or obligation to pay, income tax and
employer’s and/or employee’s national insurance or social security contributions
arising on the grant of the Restricted Stock Unit Award, vesting of the
Restricted Stock Unit Award or the issuance of the Shares upon
settlement.
(b) Applicable
if you are a UK person:
Where
any
obligation to pay income tax or employee’s national insurance contributions or
social security contributions (any such obligation or contribution, a “Tax
Liability”) arises, the Company or any Affiliate may recover from you an amount
of money sufficient to meet the Tax Liability by any of the following
arrangements:
(i) deduction
from salary or other payments due to you; or
(ii) withholding
from the issuance to you of that number of Shares (otherwise to be acquired
by
you upon settlement of the Units) whose aggregate Fair Market Value on the
date
of exercise is, so far as possible, equal to but neither less than nor more
than
the amount of Tax Liability.
If
the
Participant is unable to satisfy his or her Tax Liability pursuant to either
subparagraph (i) or clause (ii) above, the Company may additionally cause the
forfeiture of any Shares otherwise scheduled to become vested under the
Restricted Stock Unit Award on a given date to avoid imposition of any Tax
Liability to the Participant.
18. Severability.
In the
event that any provision of this Agreement shall be held illegal or invalid
for
any reason, the illegality or invalidity shall not affect the remaining parts
of
this Agreement, and this Agreement shall be construed and enforced as if the
illegal or invalid provision had not been included.
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19. Waiver;
Cumulative Rights.
The
failure or delay of either party to require performance by the other party
of
any provision hereof shall not affect its right to require performance of such
provision unless and until such performance has been waived in writing. Each
and
every right hereunder is cumulative and may be exercised in part or in whole
from time to time.
20. Representations.
As
a
condition to your receipt of this Restricted Stock Unit Award and the Shares
to
be issued on settlement thereof, you represent and warrant the following:
(a) You
are
aware of the Company’s business affairs and financial condition and have
acquired sufficient information about the Company to reach an informed and
knowledgeable decision to accept this Restricted Stock Unit Award;
(b) You
are
acquiring the Restricted Stock Unit Award and the Shares subject thereto for
investment only for your own account, and not with a view, or for resale in
connection with, any “distribution” thereof under Applicable Law (as defined in
Section 2(c) of the Plan);
(c) You
understand that neither the Units nor the Shares have been registered in all
State jurisdictions within the United States, and that the exemption(s) from
registration relied upon may depend upon your investment intent as set forth
above;
(d) You
further understand that prior to any resale by you of the Shares acquired upon
settlement of these Units without registration of such resale in relevant State
jurisdictions, the Company may require you to furnish the Company with an
opinion of counsel acceptable to the Company that you may sell or transfer
such
Shares pursuant to an available exemption under Applicable Law;
(e) You
understand that the Company is under no obligation to assist you in this process
by registering the Shares in any jurisdiction or by ensuring that an exemption
from registration is available; and
(f) You
further agree that as a condition to settlement of these Units, the Company
may
require you to furnish contemporaneously dated representations similar to those
set forth in this Section 20.
21. Compliance
with Code §409A.
For
avoidance of doubt, and anything else contained herein to the contrary
notwithstanding, if the Company determines in good faith that the settlement
of
Units pursuant to this Agreement constitutes deferred compensation subject
to
§409A of the Internal Revenue Code and the regulations and other guidance issued
pursuant thereto (“§409A”) then the following shall apply:
(a) Settlement
of Units shall in no event occur later than two and one-half months following
the end of the year in which the Vesting Date occurs;
(b) Settlement
of Units shall not be accelerated to a time earlier than the time at which
the
Units would otherwise have been settled pursuant to this Agreement, whether
by
amendment of this Agreement or otherwise, unless such acceleration is permitted
by §409A; and
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(c) If
any
other provision of this Agreement or the Plan relating to the time or manner
of
settlement of Units would otherwise cause any amount to be subject to tax under
§409A, the Company shall have the authority to revise the Agreement to the
minimum extent, as determined by the Company in good faith, necessary to satisfy
the requirements of §409A; provided, however, that nothing contained herein
shall be construed to impose on the Company any liability for any tax imposed
on
you by §409A.
By
your
signature below, you indicate your acceptance of the terms of this Restricted
Stock Unit Award, and acknowledge that you have received copies of the Plan
and
the prospectus, in each case as currently in effect. By signing this Agreement,
you acknowledge that your personal information regarding participation in the
Plan and information necessary to determine and pay, if applicable, benefits
under the Plan must be shared with other entities, including companies related
to the Company and persons responsible for certain acts in the administration
of
the Plan. By signing this Agreement, you consent to such transmission of
personal data as the Company believes is appropriate to administer the
Plan.
| Accepted and Agreed to by Participant: | |
| Participant | |
|
Acknowledged
and Agreed to by Company:
|
|
|
Xxxxxxx X. Xxxxxxxxxx
Chairman, President &
CEO
|
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