FOSTER WHEELER LTD. OMNIBUS INCENTIVE PLAN Director Restricted Stock Unit Agreement
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▇▇▇▇▇▇▇ 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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_______________
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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 Director 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(e) 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(e) 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 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 provide continued service to 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 on December 31, 2007.
(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 Units shall immediately
vest
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 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.
(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), any unvested Units shall vest pro-rata as of the
date
of your termination of service 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 service from October
1,
2006 to the end of the month in which the date of your termination of service
occurs, and the denominator of which is fifteen (15), rounded to the nearest
whole number.
The
remaining portion of the unvested Units which are not accelerated for vesting
purposes shall be immediately forfeited.
Example:
The
following example is included merely for demonstrative purposes.
▇▇▇,
a
director, is granted 1,000 Units on November 15, 2006. She will vest 100%
in her
Units on December 31, 2007. ▇▇▇ subsequently announces her termination of
service effective June 1, 2007.
As
of
June 1, 2007, ▇▇▇ will immediately vest in unvested Units equal to the amount
of
600 (equal to 1,000 Units multiplied
by 9
(i.e.,
9
months of service from October 1, 2006) divided
by 15.
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(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 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 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 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.
(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 3(c) or Section 3(f), 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(c) or
Section 3(f), 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 (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).
4. Forfeiture
Events.
In
addition to the rights available to the Company under Section 3(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 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.
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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, 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.
Notwithstanding
anything to the contrary, such adjustments by the Committee shall be final,
binding and conclusive.
7. 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.
8. 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.
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9. 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 11 below,
distribution can be made pursuant to will, the laws of descent and distribution,
intra-family transfer instruments or to an inter vivos trust.
10. 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.
11. 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.
12. 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.
13. 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.
14. 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
14. 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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15. 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.
16. Tax
Provisions Applicable to Non-US Persons.
This
Section 16 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
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 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.
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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.
17. 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.
18. 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.
19. 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 19.
20. 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:
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(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.
| Accepted and Agreed to by Participant: | |
| Participant | |
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Acknowledged
and Agreed to by Company:
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Chairman, President &
CEO
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