FOSTER WHEELER LTD. OMNIBUS INCENTIVE PLAN Director’s Restricted Stock Unit Award Agreement
Exhibit
10.1
▇▇▇▇▇▇
▇▇▇▇▇▇▇ LTD. OMNIBUS INCENTIVE PLAN
Director’s
Restricted Stock Unit Award Agreement
Name
of
Participant:
Date
of
▇▇▇▇▇: June
16,
2006
Number
of
Shares of common stock, $.01 par value: _______________
(the “Restricted Shares”)
Pursuant
to the ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 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 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”), each Unit representing the right to be issued one share of common
stock of the Company on the terms and conditions outlined herein.
2 Shares.
The
“Shares” refer to the Shares of common stock of the Company referenced above to
be issued upon settlement of the Units, and to all securities received in
replacement of such Shares, including those received as stock dividends, bonus
issues, splits, subdivisions or consolidations, all securities received in
replacement of such Shares in a recapitalization, amalgamation, merger,
reorganization, exchange or similar transaction, and all new, substituted or
additional securities or other property to which the Recipient is entitled
by
reason of his or her ownership of such Shares.
3 Relation
of Restricted Stock Unit Award to Prior Agreement(s).
As an
express condition to acceptance of this Restricted Stock Unit Award, you agree
that the only vesting and lapse of forfeiture restriction provisions to govern
the Restricted Stock Unit Award are as set forth in Section 4 of this Agreement.
Subject to Section 4(e) immediately below (which governs a Change in Control
situation), you agree that you will not be entitled to any additional vesting
or
lapse of forfeiture restrictions under any service, change of control or other
agreement or arrangement, written or unwritten, to which you are a party with
the Company.
4 Vesting;
Termination of Restricted Stock Unit Award.
(a) General
Vesting Rule.
You
will be issued the Shares subject to 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 provide continuous service to the Company or any Affiliate through such
Vesting Date(s), and subject to the other provisions of this Section 4, the
Units will vest and your right to receive and retain the Shares will become
nonforfeitable on September 30, 2006.
(b) Termination
as a Result of Death or Disability.
In the
event of your termination of service as a result of your death or Disability
(as
defined in Section 2(q) of the Plan), any unvested Shares under the Unit shall
immediately become fully vested (and any restriction will lapse in full) as
of
the date of such termination for death or Disability.
(c) Termination
for Cause.
In the
event your service is terminated for Cause (as defined in Section 2(i) of the
Plan), all unvested Shares under the Unit and all vested Shares under the Unit
shall expire immediately, be forfeited and considered null and void, and the
provisions of Section 5 shall control.
(d) Termination
--
General. In the event of your termination of service other than as a result
of
your death, Disability (as defined in Section 2(q) of the Plan) or Cause (as
defined in Section 2(i) of the Plan), the vesting of the Unit shall accelerate
such that you shall be vested in the Unit as of the date of your termination
of
service as to that number of Shares subject to the Unit that equals the product
of:
(i) the
total
number of Shares subject to the Unit, times
(ii) a
ratio,
the numerator of which is the total number of months of service from May 1,
2006
to the end of the month immediately preceding the month in which the date of
your termination of service occurs, and the denominator of which is five (5).
(e) 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 service, any unvested Shares
under
the Unit shall immediately become fully vested (and any restriction will lapse
in full), effective as of immediately prior to consummation of the Change in
Control. Notwithstanding the foregoing, to the extent that a service, 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 (e), the rights set forth in such other agreement shall
supersede the provisions of this paragraph (e). Comparatively, to the extent
that a service, 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 (e), the rights set forth in
this
paragraph (e) shall supersede the provisions of such other
agreement.
(f) Other
Termination Events.
Notwithstanding anything to the contrary contained in this Agreement, the Unit
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 5 shall
control.
(g) Forfeiture
Price.
In the
event that any Shares previously issued to you on settlement of the Units are
required to be forfeited under Section 4(c), 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 4(c) 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 (g) 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).
5 Forfeiture
Events.
In
addition to the rights available to the Company under Section 4(g) 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 this Unit;
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| (b) |
any
Shares subject to the Unit then owned by you; and
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| (c) |
any
net proceeds received by you pursuant to any sales or transfer of
any
Shares previously subject to the Unit within the six (6) month period
prior to such date of such Forfeiture Event.
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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 5. 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 5. 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.
6 Share
Certificates.
Share
certificates (the “Certificate”) evidencing the conversion 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 9 of this Agreement, Certificates representing the Shares will be
delivered to you as soon as practicable after the end of the applicable
Restricted Period.
7 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 may:
(a) adjust
proportionately the number of Shares covered by the 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.
Notwithstanding
anything to the contrary, such adjustments by the Committee shall be final,
binding and conclusive.
8 Dividends.
While
you hold Units, you will not be entitled to receive cash payments equal to
any
cash dividends and other distributions paid with respect to a corresponding
number of Shares.
9 Tax
Withholding Obligations.
As a
condition to receipt of the Units and the Shares, 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. The Company or its representative will have the right to take such
action as may be necessary, in the Committee’s discretion, to satisfy the
obligations outlined in this Section 9. You further agree that the Company
will
have the right to deduct or cause to be deducted from your current remuneration
any federal, state, local, foreign or other taxes, if any, required by law
to be
withheld or paid with respect to such event. If you fail to satisfy such
obligations in this regard, the Company may require that the Shares otherwise
scheduled to become vested on any given date be forfeited. In addition, you
agree that the Company will have the right (but not the obligation) to require
you to tender for cancellation that number of Shares subject to the Unit having
a Fair Market Value equal to the aggregate amount of the withholding obligation
and that such tendering for cancellation shall be effected by the Company’s
repurchasing from you that number of Shares having such aggregate value, which
amount will be applied against the withholding obligations. You understand
that
the Company’s rights to ensure satisfaction of applicable withholding
obligations with respect to the Unit and the Shares, either through your
tendering for cancellation or sale of the Shares themselves, or through other
sources of funds that may be available to you, may require planning on your
part, in advance of the expected Vesting Date(s) specified in Section 4 above.
The Company may also, in lieu of or in addition to the foregoing, at its sole
discretion, require you to deposit with the Company an amount of cash sufficient
to meet the withholding requirements. The Company will not deliver any of the
Shares until and unless you have made the deposit required herein or otherwise
made proper provision for all applicable tax and similar withholding
obligations.
10 Tax
Consequences.
Below
is a brief summary as of the date of this Unit of certain United States federal
tax consequences of the award of the Restricted Stock Unit Award and disposition
of the Shares 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 EXERCISING 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 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.
11 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 Unit 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 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. Subject to Section 4(e) of this Agreement, this
Agreement and the Plan constitute the entire agreement between you and the
Company on the subject matter hereof and supersedes all proposals, written
or
oral, and all other communications between the parties relating to such subject
matter.
12 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 14 below,
distribution can be made pursuant to will, the laws of descent and distribution,
intra-family transfer instruments or to an inter vivos trust.
13 Rights
as Shareholder.
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
subject thereto. Upon settlement of the Units into Shares, you will obtain
full
voting and other rights as a shareholder of the Company.
14 Designation
of Beneficiaries.
You
may, in accordance with procedures established by the Committee, 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.
15 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.
16 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 provide, or most recently provided,
your primary services to the Company.
17 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) 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 paragraph
(a). 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, 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, that you may affect your ability to participate in
the
Plan.
(b) Service
Matters.
This
Restricted Stock Unit Award does not form part of your entitlement to
remuneration or benefits in terms of your services to the Company. Your terms
and conditions of service 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 service of the Company
or
any Affiliate, create any inference as to the length of your service, affect
the
right of the Company or any Affiliate to terminate your service, 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.
(c) Tax
Matters.
(i) 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.
(ii) 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:
| (A) |
deduction
from salary or other payments due to you; or
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| (B) |
withholding
from the issuance to you of that number of Shares (otherwise to be
acquired by you on exercise 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.
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If
the
Participant is unable to satisfy his or her Tax Liability pursuant to either
clause (A) or clause (B) 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.
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 Restricted Stock Unit Awards 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
exercise of this Unit 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 this Unit, 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
(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.
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Accepted
and Agreed to by Participant:
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Participant
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Acknowledged
and Agreed to by Company:
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▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇▇▇
Chairman,
President & CEO
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