Exhibit 10.44
KOPPERS HOLDINGS INC.
RESTRICTED STOCK UNIT ISSUANCE AGREEMENT- ebitda Performance vesting
RECITALS
A. The Board has adopted the Plan for the purpose of retaining the services of selected Employees, non-employee members of the Board (or the board of directors of any Affiliate) and consultants who provide services to the Corporation (or any Affiliate).
B. Participant is to render valuable services to the Corporation (or an Affiliate), and this Agreement is executed pursuant to, and is intended to carry out the purposes of, the Plan in connection with the Corporation’s issuance of shares of Common Stock to Participant under the Plan.
C. The award made by the Corporation pursuant to this Agreement is in consideration for the Participant’s services to the Corporation and/or its Affiliates and acceptance of, and agreement to, the terms, conditions and restrictions of the restrictive covenants set forth in Paragraph 9 of this Agreement.
D. Unless otherwise defined in this Agreement, all capitalized terms in this Agreement shall have the meaning assigned to them in the attached Appendix A.
NOW, THEREFORE, it is hereby agreed as follows:
AWARD SUMMARY
Award Date: | ____________ |
Target Number of Shares Subject to Award: | ____________ shares of Common Stock (the “Shares”); provided, however, that the actual number of Restricted Stock Units shall be determined in accordance with the provisions of Schedule I attached hereto. |
Vesting Schedule: | The Shares shall vest on ____________, provided (i) the Participant continues in Service until ____________, and (ii) the Performance Objectives set forth in the attached Schedule I, Section (A) are attained over the Measurement Period. However, the Shares may also vest in accordance with the special vesting provisions of Paragraph 5 of this Agreement. |
Issuance Schedule: | The Shares in which Participant vests in accordance with the foregoing Vesting Schedule shall become issuable upon the Issue Date. Except to the extent otherwise specified in Paragraph 5, the “Issue Date” with respect to any Shares shall be ____________. The actual issuance of the Shares shall be subject to the Corporation’s collection of all applicable Withholding Taxes and shall be effected on the applicable Issue Date or as soon as administratively practicable thereafter, but in no event later than the close of the calendar year in which such Issue Date occurs or (if later) the fifteenth (15th) day of the third (3rd) calendar month following such Issue Date. The procedures pursuant to which the applicable Withholding Taxes are to be collected are set forth in Paragraph 7 of this Agreement. Notwithstanding the foregoing, or anything contained herein to the contrary, the Plan Administrator has the discretion to provide for the payment of vested Shares in cash, rather than Shares. In the event the Plan Administrator exercises such discretion, all references herein to payment in Shares or the right to receive Shares shall be replaced with references to payment in cash and/or the right to receive payment in cash equal to the Fair Market Value of the Shares on the date the Plan Administrator certifies the attainment of the Performance Objective. |
Restrictive Covenants: | The Award is being made by the Corporation in consideration for the Participant’s services to the Corporation and its Affiliates and acceptance of, and agreement to be bound by, the terms, conditions and restrictions of the restrictive covenants set forth in Paragraph 9 of this Agreement, which acceptance and agreement shall be evidenced by the Participant’s execution of this Agreement. |
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(c) Should any Shares (including shares attributable to the dividend equivalent rights provided under Paragraph 4) vest or be issued at a time when the Share Withholding Method is not available, then the Withholding Taxes required to be withheld with
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respect to those Shares shall be collected from Participant through either of the following alternatives:
(d) Except as otherwise provided in Paragraph 4 and Paragraph 5, the settlement of all Restricted Stock Units which vest under the Award shall be made solely in shares of Common Stock. In no event, however, shall any fractional shares be issued. Accordingly, the total number of shares of Common Stock to be issued pursuant to the Award shall, to the extent necessary, be rounded down to the next whole share in order to avoid the issuance of a fractional share.
(a) As a condition of receiving this Award, the Participant hereby acknowledges and agrees that during the period in which the Participant provides Services to the Corporation or any Affiliate, and for the Restrictive Covenant Period following the date on which the Participant ceases to provide Service to the Corporation or any Affiliate for any reason, the Participant shall comply with the restrictive covenants set forth herein. The restrictive covenants set forth herein shall not supersede and replace any other restrictions and obligations the Participant may be subject to with the Corporation and if there is a conflict between comparable restrictions the more restrictive provisions shall control, as reasonably determined by the Corporation:
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(b) Participant acknowledges that a breach of any of the covenants contained in this Agreement may cause irreparable damage to the Corporation or Affiliate, the exact amount of which would be difficult to ascertain, and that the remedies at law for any such breach or threatened breach would be inadequate. Accordingly, Participant agrees that if Participant breaches or threatens to breach any of the covenants contained in this Agreement, in addition to any other remedy which may be available to the Corporation at law or in equity, the Corporation shall be entitled to (i) cease or withhold any payment, including any issuance of Shares or payment of cash, to Participant pursuant to this Award, including the return of any previously delivered payment, including any Shares, proceeds recognized upon any sale or other disposition of those Shares, or cash; and/or (ii) institute and prosecute proceedings in any court of competent jurisdiction for specific performance and injunctive relief to prevent the breach or any threatened breach thereof without bond or other security or a showing that monetary damages will not provide an adequate remedy. Participant agrees to disclose in advance the existence and terms of the restrictions and covenants contained in this Agreement to any employer or service recipient by whom Participant might be employed or retained during the period in which the covenants or restrictions apply. Participant agrees that, in the event of a final determination of Participant's breach of any of the covenants contained in this Agreement, the restrictions in the relevant paragraph shall be extended for a period equal to the period that Participant was in breach. Participant represents and acknowledges that Participant has been advised by the Corporation to consult Participant’s own legal counsel with respect to this Agreement and Participant has had full opportunity, prior to execution of this Agreement, to review thoroughly this Agreement with Participant’s legal counsel.
(c) Upon delivery of the Shares or other payment pursuant to this Award, the Plan Administrator may require Participant to certify on a form acceptable to the Plan Administrator, that Participant is in compliance with the terms, conditions and restrictions of the Plan and this Agreement.
(d) This Award, and the right to receive and retain any Shares or cash payments covered by this Award, shall be subject to rescission, cancellation or recoupment, in
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whole or part, if and to the extent so provided under any “clawback” or similar policy of the Corporation in effect on the Award Date or that may be established thereafter, including any modification or amendment thereto, or as required by the Sarbanes-Oxley Act of 2002, the Dodd-Frank Wall Street Reform and Consumer Protection Act, or other applicable law as may be in effect from time to time, and which may operate to create additional rights for the Corporation with respect to the Shares and recovery of amounts relating thereto. By accepting this Award under the Plan, Participant agrees and acknowledges that Participant is obligated to cooperate with, and provide any and all assistance necessary to, the Corporation to recover or recoup any Award or amounts paid under the Plan subject to claw-back pursuant to such law or policy. Such cooperation and assistance shall include, but is not limited to, executing, completing and submitting any documentation necessary to recover or recoup any Award or amounts paid pursuant to this Award.
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IN WITNESS WHEREOF, the parties have executed this Agreement on the Award Date indicated above.
KOPPERS HOLDINGS INC. | |
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By: |
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Title: |
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Participant: | |
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Signature: |
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APPENDIX A
DEFINITIONS
The following definitions shall be in effect under the Agreement:
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SCHEDULE I
PERFORMANCE OBJECTIVE
The maximum number of Restricted Stock Units subject to this Agreement is ___% of the Target Number of Shares Subject to Award, provided the Participant continues in Service until ____________ (except to the extent otherwise provided in Section 5).
(A) The actual number of Restricted Stock Units to vest during the Measurement Period (provided Participant continues in Service until ____________, except to the extent otherwise provided in Section 5), shall be determined in accordance with the following:
Performance Level | Three-Year Cumulative Adjusted EBITDA | % of Restricted Stock Units Vesting |
Maximum | $_____ | ___% |
Target | $_____ | ___% |
Threshold | $_____ | ___% |
If the Corporation’s performance falls within the range of the Threshold and Target or the Target and Maximum achievement levels, then the number of Restricted Stock Units will be calculated based on a linear interpolation between the ___% and ___% levels or the ___% and ___% levels, respectively.
The term “Three-Year Cumulative Adjusted EBITDA” shall mean the Corporation’s total Adjusted EBITDA over the Measurement Period. Adjusted EBITDA is defined as the Corporation’s earnings before interest, taxes, depreciation and amortization, as adjusted by the Plan Administrator in its discretion to account for certain items.
(B) Notwithstanding the foregoing, the number of Shares with respect to which the Award may become vested pursuant to Paragraph 5(d), and the number of Shares with respect to which the Award becomes vested pursuant to Paragraph 5(e), shall be determined based upon Compound Annual Growth Rate as of the date of the Change in Control rather than on the basis of Three-Year Cumulative EBITDA, as determined in accordance with the following:
Performance Level | Compound Annual Growth Rate | % of Restricted Stock Units Vesting |
Maximum | ____% | ___% |
Target | ____% | ___% |
Threshold | ____% | ___% |
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If the Corporation’s performance falls within the range of the Threshold and Target or the Target and Maximum achievement levels, then the number of Restricted Stock Units will be calculated based on a linear interpolation between the ___% and ___% levels or the ___% and ___% levels, respectively.
The term “Compound Annual Growth Rate” shall mean the percentage determined by subtracting one from the Applicable Root of the quotient determined by dividing the Final Annual Adjusted EBITDA by the Initial Annual Adjusted EBITDA. For this purpose:
(1) The term Final Annual Adjusted EBITDA shall mean the Corporation’s Adjusted EBITDA of the Corporation for the 12-month period ending on the last day of the calendar month ending immediately prior to the Change in Control (as determined by the Corporation).
(2) The term Initial Annual Adjusted EBITDA shall mean $___ Million.
(3) The term “Applicable Root” shall mean (i) single root, if the Change in Control occurs during the first 17 months of the Measurement Period, (ii) square root, if the Change in Control occurs during the next 12 months of the Measurement Period and (iii) cube root if the Change in Control occurs during the final 7 months of the Measurement Period.
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