TBS INTERNATIONAL LIMITED FORM OF SHARE UNIT AWARD AGREEMENT
TBS
INTERNATIONAL LIMITED &
SUBSIDIARIES EXHIBIT
10.2
TBS
INTERNATIONAL LIMITED
2005
EQUITY INCENTIVE PLAN
FORM
OF SHARE UNIT AWARD AGREEMENT
SHARE
UNIT AWARD AGREEMENT (this “Agreement”) dated as of ___________, _______ (the
“Grant Date”) between TBS INTERNATIONAL LIMITED (the “Company”), and
[PARTICIPANT] (the “Participant”). Except as otherwise defined herein,
capitalized terms used herein shall have the meanings set forth in the Plan
(as
defined below).
WHEREAS,
pursuant to the 2005 Equity Incentive Plan (the “Plan”), the Committee
designated under the Plan desires to issue to the Participant an award of share
units (the “Share Units”); and
WHEREAS,
the Participant desires to accept such share units award subject to the terms
and conditions of this Agreement.
NOW,
THEREFORE, in consideration of the promises and of the mutual covenants and
agreements contained herein, the Company and the Participant, intending to
be
legally bound, hereby agree as follows:
1. Definitions.
Defined terms in the Plan shall have the same meaning in this Agreement, except
where the context otherwise requires.
2. Grant
of Share Units. On the Grant Date, the Company hereby grants to Participant
an Award of _________ Share Units (the “Award”) in accordance with Section 11 of
the Plan and subject to the conditions set forth in this Agreement and the
Plan
(as amended from time to time). Upon the vesting of the Award (the
"Vest Date"), one Class A Common Share, par value U.S. $0.01 par share (a
"Common Share") of the Company (as adjusted from time to time pursuant to
Section 16(a) of the Plan) shall be issuable for each Share Unit that vests
on
such Vest Date (the "Shares"). Thereafter, the Company will transfer
such Shares to the Participant net of, and upon satisfaction of, any required
tax withholding obligations. No fractional shares will be issued
under this Agreement. By accepting the Award, Participant irrevocably
agrees on behalf of Participant and Participant’s successors and permitted
assigns to all of the terms and conditions of the Award as set forth in or
pursuant to this Agreement and the Plan (as such Plan may be amended from time
to time).
3. Vesting. The
Share Units shall vest in ______ equal installments, the first of which shall
vest upon _______________________________________________________, and the
second [and third installments] of which shall vest on
_______________________________, subject to the Participant's continued
employment with the Company through each such Vest Date.
4. Withholding
of Tax.
(a) Generally. Participant
is liable and responsible for all taxes owed in connection with the Award,
regardless of any action the Company takes with respect to any tax withholding
obligations that arise in connection with the Award. The Company does
not make any representation or undertaking regarding the treatment of any tax
withholding in connection with the grant or vesting of the Award or the
subsequent sale of the Shares issuable pursuant to the Award. The
Company does not commit and is under no obligation to structure the Award to
reduce or eliminate Participant's tax liability.
(b) Payment
of Withholding Taxes. Upon each Vest Date, the Company shall
withhold from the vested Share Units the amount required to satisfy the minimum
statutory Federal, state and local withholding tax requirement, including the
Participant's share of applicable payroll taxes, and shall reduce the number
of
shares delivered to Participant by the appropriate number to reflect such
withholding.
5. Forfeiture.
Nothing in this Agreement will limit the Company's rights pursuant to Section
15, Section 11 or Section 9 of the Plan.
6. Right
to Shares. Participant shall not have any right in, to or with
respect to any of the Shares (including any voting rights or rights with respect
to dividends paid on the Common Shares) issuable under the Award until the
Award
is settled by the issuance of the Shares to Participant.
7. Restriction
on Transferability. This Award 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.
8. Committee
Authority. Any question concerning the interpretation of this
Agreement or the Plan, any adjustments required to be made under this Agreement
or the Plan, and any controversy that may arise under this Agreement or the
Plan
shall be determined by the Committee in its sole and absolute discretion. All
decisions by the Committee shall be final and binding.
9. Application
of the Plan. The terms of this Agreement are governed by the
terms of the Plan, as it exists on the date hereof and as the Plan may be
amended from time to time. In the event of any conflict between the provisions
of this Agreement and the provisions of the Plan, the terms of the Plan shall
control, except as expressly stated otherwise herein. As used herein, the term
“Section” generally refers to provisions within the Plan, and the term
“Paragraph” refers to provisions of this Agreement. By entering into
this Agreement and accepting the Award, Participant acknowledges that (i) the
grant of the Award is a one-time benefit and does not create any contractual
or
other right to receive future grants of awards or benefits in lieu of awards;
(ii) all determinations with respect to any such future grants, including,
but
not limited to, the times when awards will be granted, the number of shares
subject to each award, the award price, if any, and the time or times when
each
award will be settled, will be at the sole discretion of the Company; (iii)
Participant's participation in the Plan is voluntary; (iv) the value of the
Award is an extraordinary item which is outside the scope of Participant's
employment contract, if any; (v) the Award is not part of normal or expected
compensation for any purpose, including, without limitation, for calculating
any
benefits, severance, resignation, termination, redundancy or end of service
payments, bonuses, long-service awards, pension or retirement benefits or
similar payments; and (vi) the future value of the Shares is unknown and cannot
be predicted with certainty.
10. No
Right to Continued Employment. Nothing in the Plan, in this
Agreement or in any other instrument executed pursuant thereto or hereto shall
confer upon the Participant any right to continued employment with the Company
or any of its subsidiaries or affiliates, or interfere in any way with the
right
of the Company or any of its subsidiaries to terminate the Participant’s
employment or other service relationship for any reason at any
time.
11. Further
Assurances. Each party hereto shall cooperate with each other party, shall
do and perform or cause to be done and performed all further acts and things,
and shall execute and deliver all other agreements, certificates, instruments,
and documents as any other party hereto reasonably may request in order to
carry
out the intent and accomplish the purposes of this Agreement and the
Plan.
12. Entire
Agreement. This Agreement and the Plan together set forth the entire
agreement and understanding between the parties as to the subject matter hereof
and supersede all prior oral and written and all contemporaneous or subsequent
oral discussions, agreements and understandings of any kind or
nature.
13. Binding
on Transferees. The provisions of the Plan and this Agreement will inure to
the benefit of, and be binding on, the Company and its transferees and assigns
and the Participant and Participant’s executor, administrator and permitted
transferees and beneficiaries, whether or not any such person will have become
a
party to this Agreement and agreed in writing to join herein and be bound by
the
terms and conditions hereof.
14. Securities
Law Compliance. The Company may impose such restrictions, conditions or
limitations as it determines appropriate as to the timing and manner of any
resales by Participant or other subsequent transfers by Participant of any
of
the Shares issued as a result of or under this Award, including, without
limitation, (i) restrictions under an ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ policy, (ii) restrictions
that may be necessary in the absence of an effective registration statement
under the Securities Act of 1933, as amended, covering the Award and/or the
shares underlying the Award and (iii) restrictions as to the use of a specified
brokerage firm or other agent for such resales or other transfers. Any sale
of
the Shares must also comply with other applicable laws and regulations governing
the sale of such Shares.
15. Applicable
Law. The validity, construction, interpretation and effect of
this instrument shall be governed by and construed in accordance with the laws
of Delaware without giving effect to the conflicts of laws provisions
thereof.
The
parties hereto have executed this Agreement as of the date first above
written.
TBS
INTERNATIONAL LIMITED
By:
___________________________
Name:
Title:
Name: [PARTICIPANT]
______________________________
(printed)