Exhibit 10.13.1
RESTRICTED STOCK AGREEMENT
(Standard Version)
Restricted Stock Agreement (this "Agreement"), dated as of________,
____ (the "Grant Date"), between GrafTech International Ltd. (the "Company") and
______________ (the "Participant").
BACKGROUND
Reference is made to the GrafTech International Ltd. Management Stock
Incentive Plan, 1995 Equity Incentive Plan or 1996 Mid-Management Equity
Incentive Plan, in each case as amended and restated effective through the Grant
Date. As used herein, the term "Plan" means whichever of those Plans is
specified below. A copy of the Plan has been made available to the Participant
and the terms of the Plan are incorporated herein by reference.
The Plan allows the Company to provide rewards and incentives to
certain management employees of the Company and its Subsidiaries by, among other
things, granting them shares of Common Stock. The Board or the Committee has
determined that it would be in the best interest of the Company and its
stockholders to grant the Restricted Shares to the Participant under the Plan.
In consideration of the covenants contained herein and other good and
valuable consideration, receipt of which is hereby acknowledged, the parties
agree as follows:
ARTICLE I
DEFINITIONS
Whenever capitalized terms are used in this Agreement, they shall have
the meanings set forth in this Agreement or, if not defined in this Agreement,
as set forth in the written employment agreement between the Participant and the
Company or a Subsidiary or, if not defined in this Agreement and if not defined
in such an agreement or there is no such agreement, as set forth in the Plan.
"Cause" shall mean:
(i) gross neglect or willful and continuing refusal by the
Participant to substantially perform his or her duties or responsibilities for
or owed to the Company or any Subsidiary (other than due to death, Disability or
Retirement);
(ii) breach by the Participant of his or her confidentiality
obligations owed to the Company or any Subsidiary;
(iii) willful engagement by the Participant in conduct which is
demonstrably injurious to the Company or any Subsidiary (including a breach by
the Participant of his or her non-competition or non-solicitation obligations
owed to the Company or any Subsidiary); or
(iv) conviction or plea of nolo contendere by the Participant to a
felony or a misdemeanor involving moral turpitude.
"Disability" shall mean the inability of the Participant to perform in
all material respects his or her duties or responsibilities for or owed to the
Company or any Subsidiary by reason of a physical or mental disability or
infirmity which inability is reasonably expected to be permanent and has
continued:
(i) for a period of ___ consecutive months; or
(ii) such shorter period as the Company may determine.
The Participant (or his or her representative) must furnish the Company with
satisfactory medical evidence documenting the Participant's disability or
infirmity.
"Retirement" means the Participant's retirement from employment by
the Company and its Subsidiaries:
(i) with the right to receive a non-actuarially reduced pension
benefit under the UCAR Carbon Retirement Plan (or a successor plan); or
(ii) if not eligible to participate in the UCAR Carbon Retirement
Plan (or a successor plan) or if the UCAR Carbon Retirement Plan (or a successor
plan) is not then in effect or shall have been changed in a manner which makes
it materially more onerous to become eligible to receive such a benefit than it
is on the Grant Date, at any time after attaining age __ with at least __ years
of employment with the Company and its Subsidiaries or after attaining age __ or
after attaining that age where the sum of the Participant's age and years of
employment with the Company and its Subsidiaries equals or exceeds __.
ARTICLE II
GRANT OF RESTRICTED SHARES
2.1 Grant of Restricted Shares. The Participant is hereby granted
_______ shares of Common Stock subject to the restrictions and conditions set
forth in this Agreement. References in this Agreement to "Restricted Shares"
mean the shares of Common Stock granted hereby.
2.2 Value of Restricted Shares. The Fair Market Value of the Restricted
Shares on the Grant Date was $_____ per share (which was the Fair Market Value
of the Common Stock on the last trading day prior to the Grant Date, as
specified by the Board or the Committee).
2.3 Grant Information. The Restricted Shares have been granted under
the 1995 Equity Incentive Plan. The Board or the Committee authorized the grant
of the Restricted Shares on_________, ____.
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ARTICLE III
VESTING OF RESTRICTED SHARES
All of the Restricted Shares are unvested. Restricted Shares shall vest
upon, but only upon, the earliest to occur of the events described in Section
3.1, 3.3 or 3.3, but subject to the limitations set forth in Section 3.4. All
unvested Restricted Shares shall be forfeitable as set forth in Section 3.4 and
shall be non-transferable as set forth in Section 4.3. All vested Restricted
Shares shall become non-forfeitable and transferable at the time they first vest
although:
(i) transferability may be subject to pre-clearance and other
restrictions under the Company's xxxxxxx xxxxxxx and other compliance policies
and procedures;
(ii) transferability may be restricted under Section 4.4 until all
Withholding Requirements are satisfied; and
(iii) transfers by executive officers should be reviewed in
advance to determine if there would be any potential liability for short-swing
profits under Section 16(b) of the Securities Exchange Act of 1934.
3.1 Time Vesting. If not sooner vested:
(i) the first __% of the Restricted Shares shall vest on _______,
____ if (A) the Participant's employment by the Company or any Subsidiary
continues through that date or (B) the Participant's employment shall have been
terminated by the Company and its Subsidiaries prior to that date without Cause
(including termination due to reduction in force or lay-off) and such Restricted
Shares shall not have previously vested pursuant to Section 3.2 or 3.3 or been
forfeited pursuant to Section 3.4; and
(ii) the remaining __% of the Restricted Shares shall vest on
_______, ____ if (A) the Participant's employment by the Company or any
Subsidiary continues through that date or (B) the Participant's employment shall
have been terminated by the Company and its Subsidiaries without Cause
(including termination due to reduction in force or lay-off) and such Restricted
Shares shall not have previously vested pursuant to Section 3.2 or 3.3 or been
forfeited pursuant to Section 3.4 .
3.2 Accelerated Vesting. If not sooner vested and unless previously
forfeited pursuant to Section 3.4, all Restricted Shares shall vest (regardless
of whether the Participant's employment shall have been terminated by the
Company and its Subsidiaries without Cause (including termination due to
reduction in force or lay-off)) upon the earliest to occur of:
(i) a Change in Control;
(ii) the death of the Participant;
(iii) the Disability of the Participant; or
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(iv) the Retirement of the Participant.
3.3 Discretionary Vesting. The Committee or the Board may accelerate
the vesting of any or all of the Restricted Shares at any time and for any
reason.
3.4 Effect of Termination of Employment and Other Events on Vesting;
Forfeiture of Unvested Restricted Shares. Unless otherwise determined by the
Board or the Committee, all unvested Restricted Shares shall cease to vest and
shall be forfeited upon the earliest to occur of:
(i) the time of notification of the termination of the
Participant's employment by the Company or any Subsidiary for Cause; or
(ii) the date of the Participant's resignation from employment
with the Company and its Subsidiaries for any reason (including resignation for
good reason) other than Retirement.
3.5 Effective Date of Termination of Employment or Retirement. For
purposes hereof, except as otherwise set forth in Section 3.4(i), the date of
resignation or termination of employment means the last date of actual
employment, even if a different date is used for administrative convenience in
connection with employee retirement, benefit or welfare plans.
ARTICLE IV
PROCEDURES AFFECTING RESTRICTED SHARES
4.1 Reversion to Treasury. All Restricted Shares which are forfeited
pursuant to Section 3.4 shall automatically (and without need for further action
by the Company, the Participant or any other person) revert to the Company and
shall thereupon constitute treasury shares subject to the Plan.
4.2 Delivery of Restricted Shares.
(i) The Restricted Shares will be delivered to the Participant in
book entry form by causing the Restricted Shares to be credited to the
Participant's account at such brokerage firm as may be designated from time to
time by the Company to assist in the administration of the Plan (the "Broker").
(ii) The Restricted Shares will be delivered on or before
__________, ____; provided, however, that if any of the Restricted Shares vest
before such date, such Restricted Shares shall be delivered reasonably promptly
thereafter (as determined by the Company).
(iii) When Restricted Shares are delivered in book entry form,
such delivery as well as all subsequent transfers and other matters relating to
the Restricted Shares will be subject, in addition to all other provisions
hereof, to the rules and requirements imposed by the Broker and such
administrative rules and requirements as may be imposed by the Company. Prior to
vesting, the Restricted Shares will be subject to stop transfer instructions
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given by the Company to the Broker and the transfer agent for the Common Stock.
Upon vesting of any Restricted Shares, such stop transfer instructions will be
terminated (except to the extent that any Restricted Shares may be sold pursuant
to Section 4.4 to satisfy Withholding Requirements). Upon forfeiture of any
Restricted Shares, the Broker and such transfer agent will be instructed to
debit such Restricted Shares from such account and return them to the Company.
(iv) Each book entry relating to Restricted Shares may include
such restrictive instructions in such forms as the Company may deem convenient,
expedient, necessary or appropriate relating to the restrictions under this
Agreement, applicable securities, tax or other laws or applicable rules of any
securities exchange or market.
4.3 Transfer of Restricted Shares.
(i) Unvested Restricted Shares cannot be transferred or pledged to
any individual or entity or for any purpose without the prior written consent of
the Company. Any attempt to effect a transfer or pledge of unvested Restricted
Shares without such consent shall be null and void.
(ii) To the extent necessary (as determined by the Company) to
permit resale by the Participant of vested Restricted Shares, the Company will
use reasonable efforts to register the resale of such Restricted Shares under
the Securities Act of 1933, so long as the Company is permitted to do so on Form
S-3 or S-8 or a similar abbreviated form and subject to the terms and conditions
set forth in the Plan and such other reasonable or customary terms and
conditions as be may be imposed by the Company (including those relating to
indemnification by the Participant for errors or omissions from information
provided by the Participant).
4.4 Withholding of Taxes.
(i) The Company and its Subsidiaries shall withhold or deduct from
any or all payments or amounts due to or held for the Participant, whether due
from the Company or any Subsidiary or held in the Participant's account at the
Broker, an amount (the "Withholding Amount") equal to all taxes (including
unemployment (including FUTA), social security and medical (including FICA), and
other governmental charges of any kind as well as income and other taxes)
required to be withheld or deducted with respect to any and all taxable income
and other amounts attributable to the Restricted Shares (the "Withholding
Requirement").
(ii) The Withholding Amount shall be determined by the Company and
its Subsidiaries.
(iii) The timing of withholding or deduction from such payments or
amounts shall be determined by the Company and its Subsidiaries; provided,
however, that, if such taxes are required to be paid to a tax or other
governmental authority before such withholding or deduction is made, then the
Company and its Subsidiaries shall pay such taxes when due as agent for the
Participant and shall be entitled to reimbursement therefore from the
Withholding Amount.
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(iv) The Company may restrict transfer of any or all of the vested
Restricted Shares until all Withholding Requirements are satisfied.
(v) Unless the Participant has made or makes a timely election
pursuant to Section 83(b) of the Internal Revenue Code of 1986, the Participant
authorizes the Company and the Broker to:
(A) sell, on his or her behalf and for his or her account,
from time to time and at any time as the Company or the Broker may deem
necessary, appropriate, convenient or expedient to satisfy each Withholding
Requirement or to reimburse the Company and its Subsidiaries in respect thereof,
a sufficient number of Restricted Shares (as determined by the Company or the
Broker) so that the net proceeds from such sale equal or exceed the applicable
Withholding Amount; and
(B) use the net proceeds to satisfy such Withholding
Requirement (with any excess net proceeds to be paid to or deposited in an
account of the Participant).
(vi) If the Participant has made or makes an election pursuant to
Section 83(b) of the Internal Revenue Code of 1986, he or she shall immediately
upon demand by the Company make a cash payment to the Company equal to any
Withholding Amount in respect thereof.
(vii) In connection with any sale of Restricted Shares pursuant to
this Section 4.4, the Participant agrees that:
(A) such sale may be aggregated with sales of restricted
stock granted to other participants under the Plan or other equity incentive
plans;
(B) such aggregated sales may be made from time to time in one
or more installments at any time;
(C) such aggregated sales may be made over time as the Company
or the Broker may deem necessary, appropriate, convenient or expedient with a
view toward avoidance or minimization of disruption of the market for the Common
Stock, administrative convenience, minimization of costs and expenses or other
factors; and
(D) the net proceeds from such aggregated sales and the sale
prices of the shares sold may be allocated among such Restricted Shares and
other shares of restricted stock and the Participant and such other participants
as the Company or the Broker may deem reasonable.
(viii) The Participant understands that:
(A) different Withholding Requirements may arise at different
times based on time of delivery or vesting of Restricted Shares, tax elections
or other factors;
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(B) different Withholding Requirements may be based on
different values attributable to the Restricted Shares at such times or
otherwise based on applicable tax laws, changes in the financial performance or
prospects of the Company, changes in market or economic conditions or other
factors;
(C) it may not be practicable or permissible to sell
Restricted Shares to satisfy each Withholding Requirement at the time due
because of rules and requirements of the Broker, administrative rules and
requirements of the Company, restrictions under the Company's xxxxxxx xxxxxxx
and other compliance policies and procedures, potential liability for
short-swing profits under Section 16(b) of the Securities Exchange Act of 1934,
applicable securities, tax or other laws, applicable rules of any securities
exchange or market, or other factors; and
(D) as a result, Restricted Shares may be sold at times and
values that differ, potentially significantly, from those applicable to such
Withholding Requirement and that such differences can result in gains or losses,
potentially significant, relative to those values and capital gains and losses
for tax purposes in addition to the taxes described in Section 4.4(i).
(ix) The Participant hereby appoints each officer and assistant
officer of the Company to be the Participant's true and lawful agent, proxy and
attorney-in-fact, with full power of substitution and re-substitution (each, an
"attorney-in-fact" and, together, the "attorneys-in-fact"), to take, cause to be
taken and authorize the taking of any and all actions (including the giving of
instructions to sell and the approval of confirmations), to incur, cause to be
incurred and authorize the incurrence of any and all costs and expenses
(including brokerage commissions), to undertake, cause to be undertaken and
authorize the undertaking of any and all obligations and to execute,
acknowledge, file, publish and deliver, cause to be executed, acknowledged,
filed, published and delivered and authorize the execution, acknowledgement,
filing, publication and delivery of any and all agreements, instruments and
documents (including stock powers, account agreements and related documents, and
wire transfer instructions) which such attorney-in-fact may deem necessary,
appropriate, convenient or expedient to sell Restricted Shares, on behalf and
for the account of the Participant, to generate net proceeds to satisfy any and
all Withholding Requirements, to use net proceeds in satisfaction thereof and to
otherwise give effect to the intent and purposes of this Section 4.4, all in the
name of the Participant, such attorney-in-fact, the Company or any Subsidiary
and all at such times, in such manners, in such amounts, on such exchanges or
markets, on such terms, through such brokers, dealers and accounts and otherwise
as such attorney-in-fact may determine in his or her sole and absolute
discretion, and hereby grants to each attorney-in-fact the full power and
authority to do any and all things necessary, convenient, expedient or
appropriate in connection therewith. This power of attorney shall not be
affected in any manner by reason of the execution, at any time, of other powers
of attorney by the Participant in favor of persons other than the
attorneys-in-fact named herein and shall not be affected by the subsequent
death, disability or incompetence of the Participant. This power of attorney is
irrevocable and coupled with an interest and shall remain in effect until all
Withholding Requirements have been fully and unconditionally satisfied. All
persons dealing with any of the attorneys-in-fact named herein may assume that
this power of attorney has not been revoked and may be relied upon.
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(x) The Participant acknowledges and agrees that neither the
Company, any Subsidiary, the Broker nor any of their respective affiliates,
control persons, directors, officers, employees, representatives or agents shall
have any liability or obligation for any losses, damages, costs or expenses of
any kind or under any theory arising out of or in connection with any action
taken or omitted to be taken or any delay in taking any action pursuant to or
contemplated by this Section 4.4 (including the determination of any Withholding
Amount or the time when any Withholding Requirement is required to be satisfied
or any sale of or delay in selling or failure to sell or the price, terms or
conditions of sale of any or all of the Restricted Shares), including any
liability for any claim that the Participant could have made more or lost less
in connection therewith or for any capital gain or loss due to the difference in
time between the triggering of a Withholding Requirement and the resale of
Restricted Shares in respect thereof or for violations of xxxxxxx xxxxxxx or
other laws or for incurrence of liability for short-swing profits under Section
16(b) of the Securities Exchange Act of 1934, except to the extent that a court
of competent jurisdiction determines by final and nonappealable judgment that
any such losses, damages, costs or expenses resulted from actions taken or
omitted to be taken by them in bad faith or from their gross negligence or
willful misconduct. References in this Section 4.4 to "selling" and correlative
terms include all activities related thereto, including placement and execution
of sell orders, selection of brokers and dealers, delivery of share
certificates, receipt of proceeds and payment of fees and commissions.
(xi) The provisions hereof regarding sale of Restricted Shares to
satisfy Withholding Requirements are also intended to constitute a trading plan
within the meaning of Rule 10b5-1 under the Securities Act of 1933.
(xii) The Participant accepts this Agreement and the Restricted
Shares subject to, and agrees to assume, the limitations, risks and
responsibilities inherent with respect to the Restricted Shares, including those
mentioned in this Agreement.
ARTICLE V
MISCELLANEOUS
5.1 Notices. All notices to a party must be given in writing and shall
be deemed to have been duly given when delivered by hand or three days after
deposited in the mail, postage prepaid or, in the case of telecopy or email
notice, when received, addressed as follows or to such other address as to which
the intended receiving party shall have duly given notice to the notifying party
hereunder:
(i) If to the Company, to the following address:
GrafTech International Ltd.
Brandywine West Bldg., Suite 301
1521 Concorde Pike
Wilmington, Delaware 19803
Attn: General Counsel
Telecopy: (___) ________
Email: ____________@xxxxxxxx.xxx
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with a copy to:
UCAR Carbon Company Inc.
00000 Xxxx Xxxx
Xxxxx, Xxxx 00000
Attn: Human Resources
Telecopy: (___) ________
Email: ____________ @xxxxxxxx.xxx
(ii) If to the Participant, to his or her most recent primary
residential address or business telecopy or email address as
shown on the records of the Company and its Subsidiaries.
5.2 Amendment. This Agreement may be amended only by a writing executed
by the parties which specifically states that it is amending this Agreement,
except that this Agreement may be amended by a writing executed by the Company
which so states if such amendment is not adverse to the Participant or relates
to administrative matters.
5.3 Governing Law and Interpretation. This Agreement shall be governed
by and construed and enforced in accordance with the laws of the State of
Delaware applicable to contracts made and to be performed therein without regard
to the conflicts of law principles thereof. Whenever the word "including" is
used herein, it shall be deemed to be followed by the phrase "without
limitation". Unless otherwise specified herein, all determinations, consents,
elections and other decisions by the Company, the Board, the Committee or the
Broker may be made, withheld or delayed in its sole and absolute discretion.
5.4 Titles. Titles are provided herein for convenience only and are not
to serve as a basis for interpretation or construction of this Agreement.
5.5 Counterparts. This Agreement may be executed in counterparts, which
together shall constitute one and the same instrument and which will be deemed
effective whether received in original form or by telecopy or other electronic
means.
IN WITNESS WHEREOF, this Agreement has been executed and delivered by
the parties.
PARTICIPANT GRAFTECH INTERNATIONAL LTD.
____________________________________ By:________________________________
Signed Name:______________________________
Title:_____________________________
Name:_______________________________
Home Address:_______________________
_______________________
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