CELANESE CORPORATION 2004 STOCK INCENTIVE PLAN SIGN-ON RESTRICTED STOCK UNIT AWARD AGREEMENT
Exhibit 10.3
CELANESE
CORPORATION
2004 STOCK INCENTIVE PLAN
2004 STOCK INCENTIVE PLAN
THIS AWARD AGREEMENT is made effective as of July 23, 2008
(the “Date of Grant”), between Celanese Corporation
(the “Company”) and Xxxxxxx X. Xxxxxxx (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 to the Participant a
Sign-on Restricted Stock Unit Award, subject to the terms set
forth herein, which award shall constitute an “Other
Stock-Based Award” pursuant to Section 8 of the Plan;
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 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” shall mean (i) your
willful failure to perform your duties hereunder (other than as
a result of total or partial incapacity due to physical or
mental illness) for a period of thirty (30) days following
written notice by the Company to you of such failure;
(ii) conviction of, or a plea of nolo contendere to,
(x) a felony under the laws of the United States or any
state thereof or any similar criminal act in a jurisdiction
outside the United States or (y) a crime involving moral
turpitude; (iii) your willful malfeasance or willful
misconduct which is demonstrably injurious to the Company;
(iv) any act of fraud by you; (v) any material
violation of the Company’s code of conduct; (vi) any
material violation of the Company’s policies concerning
harassment or discrimination; (vii) your conduct that
causes material harm to the business reputation of the Company;
or (viii) your breach of the Confidentiality and
Non-Compete Covenants.
(b) “Good Reason” shall mean any of the
following conditions which occurs without your consent:
(i) a material diminution in your base salary or annual
bonus opportunity; (ii) a material diminution in your
authority, duties or responsibilities (including status,
offices, title and reporting requirements); (iii) a
material change in the geographic location at which you must
perform your duties; (iv) the failure of the Company to pay
compensation or benefits when due;, or (v) any other action
or inaction that constitutes a material breach by the Company of
this letter agreement. The conditions described above will not
constitute “Good Reason” unless you provide written
notice to the Company of the existence of the condition
described above within ninety (90) days after the initial
existence of such condition. In addition, the conditions
described above will not constitute “Good Reason”
unless the Company fails to remedy the condition within a period
of thirty (30) days after receipt of the notice described
in the preceding sentence. If the Company fails to remedy the
condition within the period referred to in the preceding
sentence, you may terminate your employment with the Company for
“Good reason” within the next thirty (30) days
following the expiration of the cure period.
(c) “Performance Target” shall mean
progress towards, or achievement of, as determined in the sole
discretion of the Chief Executive Officer of the Company, the
following objectives:
(i) The implementation of the new HR global information
system;
(ii) The establishment of a world class HR team;
(iii) The development and execution of a plan to bring the
Company’s HR function to world class performance standards.
(d) “Plan” shall mean the Celanese
Corporation 2004 Stock Incentive Plan, as amended from time to
time.
(e) “Total Disability” shall be determined
by regulation of the Committee from time to time in its sole
discretion.
2. Grant of Restricted Stock
Units. The Company hereby grants to the
Participant, subject to adjustment as set forth in the Plan,
(i) 21,000 time-vesting Restricted Stock Units (the
“Time RSUs”) and (ii) 9,000 performance-vesting
Restricted Stock Units (the “Performance RSUs” and
together with the Time RSUs, the “RSUs”). The RSUs
shall be subject to the terms and conditions set forth herein.
3. Vesting of Restricted Stock
Units.
(a) General.
(i) Subject to Sections 3(b) and 3(c) below, and
subject to the Participant’s continued Employment with the
Company and its Affiliates, fifty percent (50%) of the Time RSUs
granted pursuant to this Agreement shall vest on each of
June 5, 2009 and June 7, 2010 (each such date being
referred to as a “Vesting Date”). Each period between
the Date of Grant and a Vesting Date shall be referred to herein
as a “Vesting Period.”
(ii) Subject to Sections 3(b) and 3(c) below, and
subject to the Participant’s continued Employment with the
Company and its Affiliates, up to fifty percent (50%) of the
Performance RSUs granted pursuant to this Agreement shall vest
on each Vesting Date to the extent that the Performance Target
for such Performance RSU is achieved for the vesting period
ending on such Vesting Date.
(b) Change in Control. Upon the
occurrence of a Change in Control, RSUs, to the extent not
previously canceled, shall become fully vested.
(c) Termination of Employment.
(i) General. Except as provided
in paragraph (ii) below, if the Participant’s
Employment with the Company and its Affiliates terminates for
any reason, the RSUs, to the extent not then vested, shall be
immediately canceled by the Company without consideration.
(ii) In the event that at any time prior to the date where
the RSUs covered by this Agreement shall become fully vested
(100%) as outlined in paragraph 3(a) above, the
Participant’s Employment is terminated (x) by the
Company without Cause, (y) by the Participant with Good
Reason, or (z) due to the Participant’s death or Total
Disability, then:
(1) all Time RSUs shall become immediately and
unconditionally vested; and
(2) the number of Performance RSUs which become
vested (rounded up to the nearest number of whole shares) with
respect to each incomplete Vesting Period on such termination
date shall be equal to the product of (1) the number of
Performance RSUs granted hereunder, as adjusted if applicable,
multiplied by (2) a fraction the numerator of which is the
number of full months during any such Vesting Period through and
including the date of termination and the denominator of which
is the number of full months in each respective Vesting Period.
The RSUs that vest under this paragraph 3(c)(ii) shall be
issued as soon as practicable, but in no event later than
21/2
months after the end of the calendar year in which the
Participant’s employment with the Company is
terminated; and
(iii) upon determination of the number of vested RSUs
pursuant to clause (ii) above, all remaining RSUs shall be
canceled without consideration.
4. Settlement of RSUs. As
soon as practicable following each Vesting Date (but in no event
later than
21/2
months after the Vesting Date, or, in the event of a Change in
Control, immediately prior to the occurrence of such Change in
Control), the Company shall deliver to the Participant, in
complete settlement of all vested RSUs, a number of Shares equal
to the number of vested RSUs determined hereunder that have not
previously been settled.
2
5. 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 Employment. Further, the Company or its
Affiliate may at any time terminate the Participant’s
Employment, free from any liability or any claim under the Plan
or this Award Agreement, except as otherwise expressly provided
herein.
6. Legend on Certificates.
The certificates representing the Shares issued in respect of
the RSUs 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.
7. Transferability. An RSU
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.
8. Taxes. The Company shall
be entitled to require, as a condition of delivery of the Shares
in settlement of the RSUs, that the Participant agree to remit
and when due an amount in cash sufficient to satisfy all current
or estimated future federal, state and local withholding, and
other taxes relating thereto. 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 with respect to
the RSUs 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 vesting and or settlement of RSUs (including
withholding of Shares otherwise deliverable in settlement of
RSUs) and to take such action as may be necessary in the
discretion of the Company to satisfy all obligations for the
payment of such taxes.
9. Securities Laws. Upon
the acquisition of any Shares pursuant to the vesting of the
RSUs, 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.
10. 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.
11. 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.
12. Restricted Stock Units Subject to
Plan. By entering into this Award Agreement
the Participant agrees and acknowledges that the Participant has
received and read a copy of the Plan. The RSUs and the Shares
issued upon vesting thereof are subject to the Plan, which is
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 shall govern and prevail.
13. 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.
14. Validity of
Agreement. This Award Agreement shall be
valid, binding and effective upon the Company on the Date of
Grant. However, the RSUs 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 13) by the Participant within sixty
(60) days of the Date of Grant.
This Sign-on Restricted Stock Unit Award Agreement dated
July 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.
3
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: August 1, 2008
ACCEPTED AND
AGREED: PARTICIPANT
| By: |
/s/ Xxxxxxx
X. Xxxxxxx
|
Name: Xxxxxxx X. Xxxxxxx
Employee ID: [Redacted]
Date: August 12, 2008
4
