As filed with the Securities and Exchange Commission on April 23, 2009
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
Celanese Corporation
(Exact name of registrant as specified in its charter)
Delaware
(State or other jurisdiction of incorporation or organization)
98-0420726
(I.R.S. Employer Identification No.)
1601 West LBJ Freeway
Dallas, TX 75234-6034
(Address of Principal Executive Offices)
Celanese Corporation 2009 Global Incentive Plan
Celanese Corporation 2009 Employee Stock Purchase Plan
(Full title of the plans)
Gjon N. Nivica, Jr.
Senior Vice President, General Counsel and Corporate Secretary
1601 West LBJ Freeway
Dallas, TX 75234-6034
(Name and address of agent for service)
(972) 443-4000
(Telephone number, including area code, of agent for service)
Copies to:
Barbara L. Becker, Esq.
Gibson, Dunn & Crutcher LLP
200 Park Avenue
New York, NY 10166-0193
(212) 351-4000
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer or a smaller reporting company. See the definitions of large accelerated filer, accelerated filer and smaller reporting company in Rule 12b-2 of the Exchange Act. (Check one):
Large accelerated filer
þ
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Accelerated filer
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Non-accelerated filer
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(Do not check if a smaller reporting company)
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Smaller reporting company
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CALCULATION OF REGISTRATION FEE
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Proposed Maximum
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Proposed Maximum
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Title of Each Class of
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Amount to be
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Offering Price Per
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Aggregate
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Amount of
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Securities to be Registered
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Registered (1)
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Share
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Offering Price
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Registration Fee
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Series A Common Stock, par
value $0.0001 per share
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14,320,690
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(2)
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$
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16.58
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(2)
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$
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237,437,040.20
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(2)
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$
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13,248.99
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Series A Common Stock, par
value $0.0001 per share
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14,000,000
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(3)
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$
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14.10
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(3)
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$
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197,400,000.00
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(3)
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$
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11,014.92
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(1)
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Pursuant to Rule 416(a) under the Securities Act of 1933, as amended, this registration
statement on Form S-8 also shall cover any additional shares of Common Stock in respect of the
securities identified in the above table as a result of any stock dividend, stock split,
recapitalization or other similar transaction.
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(2)
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Relates to Common Stock to be issued pursuant to the Celanese Corporation 2009 Global
Incentive Plan. The maximum offering price per share is estimated solely for the purpose of
calculating the registration fee pursuant to Rule 457(c) and Rule 457(h) under the Securities Act
based upon the average of the high and low prices of the Common Stock on the New York Stock
Exchange on April 20, 2009, which was $16.58.
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(3)
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Relates to Common Stock to be issued pursuant to the Celanese Corporation 2009 Employee
Stock Purchase Plan. The maximum offering price per share is estimated solely for the purpose of
calculating the registration fee pursuant to Rule 457(c) and Rule 457(h) under the Securities Act
based upon 85% of the average of the high and low sales prices of the Common Stock as reported on
the New York Stock Exchange on April 20, 2009, which was $14.10. Under the terms of the Celanese
Corporation 2009 Employee Stock Purchase Plan, the purchase price of Common Stock with respect to
an offering period is 85% of the fair market value of the Common Stock on the last day of the
offering period.
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TABLE OF CONTENTS
EXPLANATORY NOTE
This Registration Statement on Form S-8 (the Registration Statement) is filed by Celanese
Corporation, a Delaware corporation (the Company or the Registrant), relating to (a) shares of
its Series A Common Stock, par value $0.0001 per share (the Common Stock) issuable to eligible
employees, non-employee directors and service providers of the Company under the Celanese
Corporation 2009 Global Incentive Plan, consisting of (i) 348,218 shares of Common Stock that
previously were available for issuance under the Celanese Corporation 2004 Stock Incentive Plan
(the Prior Plan), (ii) 8,622,472 shares of Common Stock currently subject to awards outstanding
under the Prior Plan, to the extent such shares cease for any reason to be subject to such awards
(other than by reason of exercise or settlement of the award to the extent that such award is
exercised for or settled in vested and non-forfeitable shares) and (iii) 5,350,000 additional
shares of Common Stock; and (b) 14,000,000 shares of Common Stock issuable to eligible employees,
including the employees of any subsidiaries designated by the Board of Directors, under the
Celanese Corporation 2009 Employee Stock Purchase Plan.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information*
Item 2. Registrant Information and Employee Plan Annual Information*
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*
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Information required by Part I to be contained in the Section 10(a) prospectus is omitted
from this Registration Statement in accordance with Rule 428 under the Securities Act of 1933,
as amended (the Securities Act), and the Note to Part I of Form S-8.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents by Reference
The following documents, which have heretofore been filed by the Company with the Securities and
Exchange Commission (the Commission) pursuant to the Securities Act, and pursuant to the
Securities Exchange Act of 1934, as amended (the Exchange Act), are incorporated by reference
herein and shall be deemed to be a part hereof:
(a)
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The Companys Annual Report on Form 10-K filed pursuant to Sections 13(a) or 15(d) of the
Exchange Act, containing audited financial statements for the Companys fiscal year ended
December 31, 2008, as filed with the Commission on February 13, 2009;
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(b)
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All other reports filed by the Company pursuant to Section 13(a) or 15(d) of the Exchange Act
since December 31, 2008, including the Companys Current Reports on Form 8-K filed with the
Commission on January 6, 2009; January 21, 2009; January 26, 2009; February 2, 2009; February 12, 2009; March 2,
2009; March 10, 2009; March 27, 2009; and April 3, 2009; and
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(d)
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The description of the Companys Series A Common Stock contained in its Form 8-A, filed on
January 18, 2005.
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In addition, all documents subsequently filed by the Company with the Commission pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a post-effective
amendment to this Registration Statement which indicates that all securities offered hereby have
been sold or which deregisters all securities remaining unsold, shall be deemed to be incorporated
by reference in this Registration Statement and to be a part hereof from the date of filing of such
documents. Notwithstanding the foregoing, unless specifically stated to the contrary, none of the
information that the Company discloses under Items 2.02 or 7.01 of any Current Report on
Form 8-K that it may from time to time furnish to the Securities and Exchange Commission will be
incorporated by reference into, or otherwise included in, this Registration Statement.
Any statement, including financial statements, contained in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded for purposes of this
Registration Statement to the extent that a statement contained herein or therein or in any other
subsequently filed document which also is or is deemed to be incorporated by reference herein
modifies or supersedes such statement. Any such statement so modified or superseded shall not be
deemed, except as so modified or superseded, to constitute a part of this Registration Statement.
The Companys Exchange Act file number with the Commission is 001-32410.
Item 4. Description of Securities
Not applicable.
Item 5. Interests of Named Experts and Counsel
Not applicable.
Item 6. Indemnification of Directors and Officers
The Delaware General Corporation Law, or DGCL, authorizes corporations to limit or eliminate
the personal liability of directors to corporations and their stockholders for monetary damages for
breaches of directors fiduciary duties. The Companys Second Amended and Restated Certificate of
Incorporation (the Certificate of Incorporation) includes a provision that eliminates the
personal liability of directors for monetary damages for actions taken as a director, except for
liability:
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for breach of duty of loyalty;
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for acts or omissions not in good faith or involving intentional misconduct or
knowing violation of law;
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under Section 174 of the DGCL (unlawful dividends or stock repurchases and
redemptions); or
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for transactions from which the director derived improper personal benefit.
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The Companys Certificate of Incorporation and Third Amended and Restated By-laws (the
By-laws) provide that, except in limited circumstances, the Company must indemnify its directors
and officers to the fullest extent authorized by the DGCL and must pay in advance the expenses and
costs incurred by its directors and officers in defense of civil, criminal, administrative,
regulatory and investigative actions. The Company is authorized to carry directors and officers
insurance providing indemnification for its directors, officers and certain employees for some
liabilities.
The limitation of liability and indemnification provisions in the Companys Certificate of
Incorporation and By-Laws may discourage stockholders from bringing a lawsuit against directors for
breach of their fiduciary duty. These provisions also may have the effect of reducing the
likelihood of derivative litigation against directors and officers, even though such an action, if
successful, might otherwise benefit the Company and its stockholders.
Item 7. Exemption from Registration Claimed
Not applicable.
Item 8. Exhibits
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Exhibit No.
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Description
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4.1
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Second Amended and Restated Certificate of Incorporation (incorporated by reference
from Exhibit 3.1 to the Companys Current Report on Form 8-K filed on January 28,
2005).
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4.2
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Third Amended and Restated By-laws, effective as of October 23, 2008 (incorporated
by reference from Exhibit 3.1 to the Companys Current Report on Form 8-K filed on
October 29, 2008).
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4.3
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Form of certificate of Series A Common Stock (incorporated by reference to Exhibit
4.1 from the Companys Registration Statement on Form S-1 (File No. 333-120187),
filed on January 13, 2005).
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4.4
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Celanese Corporation 2009 Global Incentive Plan.
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4.5
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Celanese Corporation 2009 Employee Stock Purchase Plan.
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5.1
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Opinion of Gibson, Dunn & Crutcher LLP.
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23.1
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Consent of KPMG LLP.
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23.2
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Consent of Gibson, Dunn & Crutcher LLP (incorporated by reference from exhibit 5.1).
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24
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Power of Attorney (contained on signature page hereto).
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Item 9. Undertakings
1. The Company hereby undertakes:
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(a)
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To file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement:
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(i)
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To include any prospectus required by Section 10(a)(3) of the
Securities Act;
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(ii)
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To reflect in the prospectus any facts or events arising after
the effective date of this Registration Statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the Registration
Statement; notwithstanding the foregoing, any increase or decrease in volume of
securities offered (if the total dollar value of securities offered would not
exceed that which was registered) and any deviation from the low or high end of
the estimated maximum offering range may be reflected in the form of prospectus
filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than a 20 percent change in the
maximum aggregate offering price set forth in the Calculation of Registration
Fee table in the effective registration statement; and
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(iii)
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To include any material information with respect to the plan
of distribution not previously disclosed in this Registration Statement or any
material change to such information in this Registration Statement;
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provided
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however
, that paragraphs (1)(a)(i) and (1)(a)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the
Commission by the Company pursuant to Section 13 or Section 15(d) of the Exchange
Act that are incorporated by reference in this Registration Statement;
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(b)
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That, for the purpose of determining any liability under the Securities Act,
each such post-effective amendment shall be deemed to be a new Registration Statement
relating to the securities
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offered therein, and the offering of such securities at that time shall be deemed to
be the initial
bona fide
offering thereof; and
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(c)
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To remove from registration by means of a post-effective amendment any of the
securities being registered which remain unsold at the termination of the offering.
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2. The Company hereby further undertakes that, for the purposes of determining any liability under
the Securities Act, each filing of the Companys annual report pursuant to Section 13(a) or 15(d)
of the Exchange Act that is incorporated by reference in this Registration Statement shall be
deemed to be a new Registration Statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial
bona fide
offering
thereof.
3. Insofar as indemnification for liabilities arising under the Securities Act may be permitted to
directors, officers and controlling persons of the Company pursuant to provisions and arrangements
that exist whereby the Company may indemnify such persons against liabilities arising under the
Securities Act, or otherwise, the Company has been advised that in the opinion of the Commission
such indemnification is against public policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such liabilities (other than
the payment by the Company of expenses incurred or paid by a director, officer or controlling
person of the Company in the successful defense of any action, suit or proceeding) is asserted by
such director, officer or controlling person in connection with the securities being registered,
the Company will, unless in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether such indemnification
by it is against public policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act, the Company certifies that it has reasonable
grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused
this Registration Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Dallas, State of Texas, on this 23
rd
day of April, 2009.
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CELANESE CORPORATION
(Registrant)
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By:
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/s/
David N. Weidman
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David N. Weidman
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Chairman of the Board of Directors and Chief Executive Officer
(Principal executive officer)
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We, the undersigned officers and directors of Celanese Corporation, do hereby constitute and
appoint David N. Weidman and Steven M. Sterin, and each of them acting alone, our true and lawful
attorneys and agents, to do any and all acts and things in our name and on our behalf in our
capacities as directors and officers and to execute any and all instruments for us and in our names
in the capacities indicated below, which said attorneys and agents may deem necessary or advisable
to enable said Registrant to comply with the Securities Act of 1933 and any rules, regulations and
requirements of the Securities and Exchange Commission, in connection with this Registration
Statement, including specifically, but without limitation, power and authority to sign for us or
any of us in our names in the capacities indicated below, any and all amendments (including
post-effective amendments) and supplements hereto and we do hereby ratify and confirm all that said
attorneys and agents shall do or cause to be done or have done or caused to be done by virtue
hereof.
Pursuant to the requirements of the Securities Act, this Registration Statement has
been signed below by the following persons in the capacities and on the date indicated.
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Name
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Title
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Date
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/s/ David
N. Weidman
David N. Weidman
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Chairman of the Board of Directors
and Chief Executive
Officer
(Principal Executive Officer)
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April 23, 2009
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/s/ Steven M. Sterin
Steven M. Sterin
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Senior Vice President and Chief
Financial Officer
(Principal Financial Officer)
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April 23, 2009
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/s/ Christopher W. Jensen
Christopher W. Jensen
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Vice President and Corporate Controller
(Principal
Accounting Officer)
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April 23, 2009
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/s/ James E. Barlett
James E. Barlett
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Director
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April 23, 2009
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/s/ David F. Hoffmeister
David F. Hoffmeister
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Director
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April 23, 2009
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/s/ Martin G. McGuinn
Martin G. McGuinn
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Director
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April 23, 2009
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/s/ Paul H. ONeill
Paul H. ONeill
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Director
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April 23, 2009
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/s/ Mark C. Rohr
Mark C. Rohr
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Director
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April 23, 2009
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/s/ Daniel S. Sanders
Daniel S. Sanders
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Director
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April 23, 2009
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Name
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Title
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Date
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/s/
Farah M. Walters
Farah
M. Walters
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Director
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April 23, 2009
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/s/ John K. Wulff
John
K. Wulff
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Director
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April 23, 2009
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EXHIBIT INDEX
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Exhibit No.
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Description
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4.1
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Second Amended and Restated Certificate of Incorporation (incorporated by reference
from Exhibit 3.1 to the Companys Current Report on Form 8-K filed on January 28,
2005).
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4.2
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Third Amended and Restated By-laws, effective as of October 23, 2008 (incorporated
by reference from Exhibit 3.1 to the Companys Current Report on Form 8-K filed on
October 29, 2008).
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4.3
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Form of certificate of Series A Common Stock (incorporated by reference to Exhibit
4.1 from the Companys Registration Statement on Form S-1 (File No. 333-120187),
filed on January 13, 2005).
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4.4
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Celanese Corporation 2009 Global Incentive Plan.
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4.5
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Celanese Corporation 2009 Employee Stock Purchase Plan.
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5.1
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Opinion of Gibson, Dunn & Crutcher LLP.
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23.1
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Consent of KPMG LLP.
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23.2
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Consent of Gibson, Dunn & Crutcher LLP (incorporated by reference from exhibit 5.1).
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24
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Power of Attorney (contained on signature page hereto).
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EXHIBIT 4.4
Celanese
Corporation
2009 Global Incentive Plan
The purpose of the Celanese Corporation 2009 Global Incentive
Plan (the Plan) is to advance the interests of
Celanese Corporation (the Company) by enabling the
Company and its subsidiaries to attract, retain and motivate
employees and consultants of the Company by providing for or
increasing the proprietary interests of such individuals in the
Company, and by enabling the Company to attract, retain and
motivate its nonemployee directors and further align their
interests with those of the stockholders of the Company by
providing for or increasing the proprietary interests of such
directors in the Company. The Plan supersedes the Companys
existing 2004 Stock Incentive Plan (the 2004 Plan)
with respect to future awards, and provides for the grant of
Incentive and Nonqualified Stock Options, Stock Appreciation
Rights, Restricted Stock and Restricted Stock Units, any of
which may be performance-based, and for Incentive Bonuses, which
may be paid in cash or stock or a combination thereof, as
determined by the Committee. On and after the Effective Date, no
further grants shall be made under the Prior Plan, which plan
shall remain in effect solely as to outstanding awards
thereunder.
As used in the Plan, the following terms shall have the meanings
set forth below:
(a) Award means an Incentive Stock Option,
Nonqualified Stock Option, Stock Appreciation Right, Restricted
Stock, Restricted Stock Unit or Incentive Bonus granted to a
Participant pursuant to the provisions of the Plan, any of which
the Committee may structure to qualify in whole or in part as a
Performance Award.
(b) Award Agreement means a written agreement
or other instrument as may be approved from time to time by the
Committee implementing the grant of each Award. An Award
Agreement may be in the form of an agreement to be executed by
both the Participant and the Company (or an authorized
representative of the Company) or certificates, notices or
similar instruments as approved by the Committee.
(c) Board means the board of directors of the
Company.
(d) Code means the Internal Revenue Code of
1986, as amended from time to time, and the rulings and
regulations issued thereunder.
(e) Committee means the Committee delegated the
authority to administer the Plan in accordance with
Section 17.
(f) Common Share means a share of the
Companys Series A common stock, subject to adjustment
as provided in Section 12.
(g) Company means Celanese Corporation, a
Delaware corporation.
(h) Fair Market Value means, as of any given
date, the average of the high and low sales price on such date
during normal trading hours (or, if there are no reported sales
on such date, on the last date prior to such date on which there
were sales) of the Common Shares on the New York Stock Exchange
Composite Tape or, if not listed on such exchange, on any other
national securities exchange on which the Common Shares are
listed, in any case, as reporting in such source as the
Committee shall select. If there is no regular public trading
market for such Common Shares, the Fair Market Value of the
Common Shares shall be determined by the Committee in good faith
and in compliance with Section 409A of the Code.
(i) Incentive Bonus means a bonus opportunity
awarded under Section 9 pursuant to which a Participant may
become entitled to receive an amount based on satisfaction of
such performance criteria as are specified by the Committee.
(j) Incentive Stock Option means a stock option
that is intended to qualify as an incentive stock
option within the meaning of Section 422 of the Code.
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(k) Nonemployee Director means each person who
is, or is elected to be, a member of the Board and who is not an
employee of the Company or any Subsidiary.
(l) Nonqualified Stock Option means a stock
option that is not intended to qualify as an incentive
stock option within the meaning of Section 422 of the
Code.
(m) Option means an Incentive Stock Option
and/or
a
Nonqualified Stock Option granted pursuant to Section 6 of
the Plan.
(n) Participant means any individual described
in Section 3 to whom Awards have been granted from time to
time by the Committee and any authorized transferee of such
individual.
(o) Performance Award means an Award, the
grant, issuance, retention, vesting or settlement of which is
subject to satisfaction of one or more performance criteria
pursuant to Section 13.
(p) Plan means the Celanese Corporation 2009
Global Incentive Plan as set forth herein and as amended from
time to time.
(q) Prior Plan means the Celanese Corporation
2004 Stock Incentive Plan.
(r) Qualifying Performance Criteria has the
meaning set forth in Section 13(b).
(s) Restricted Stock means Common Shares
granted pursuant to Section 8 of the Plan.
(t) Restricted Stock Unit or RSU
means an Award granted to a Participant pursuant to
Section 8 pursuant to which Common Shares or cash in lieu
thereof may be issued in the future.
(u) Stock Appreciation Right or SAR
means a right granted pursuant to Section 7 of the Plan
that entitles the Participant to receive, in cash or Common
Shares or a combination thereof, as determined by the Committee,
value equal to or otherwise based on the excess of (i) the
market price of a specified number of Common Shares at the time
of exercise over (ii) the exercise price of the right, as
established by the Committee on the date of grant.
(v) Subsidiary means any corporation (other
than the Company) in an unbroken chain of corporations beginning
with the Company where each of the corporations in the unbroken
chain other than the last corporation owns stock possessing at
least 50 percent or more of the total combined voting power
of all classes of stock in one of the other corporations in the
chain, and if specifically determined by the Committee in the
context other than with respect to Incentive Stock Options, may
include an entity in which the Company has a significant
ownership interest or that is directly or indirectly controlled
by the Company.
(w) Substitute Awards means Awards granted or
Common Shares issued by the Company in assumption of, or in
substitution or exchange for, awards previously granted, or the
right or obligation to make future awards, by a corporation
acquired by the Company or any Subsidiary or with which the
Company or any Subsidiary combines.
Any person who is an officer or employee of the Company or of
any Subsidiary (including any director who is also an employee,
in his or her capacity as such) and any Nonemployee Director
shall be eligible for selection by the Committee for the grant
of Awards hereunder. In addition, any service provider who has
been retained to provide consulting, advisory or other services
to the Company or to any Subsidiary shall be eligible for
selection by the Committee for the grant of Awards hereunder.
Options intending to qualify as Incentive Stock Options may only
be granted to employees of the Company or any Subsidiary within
the meaning of the Code, as selected by the Committee.
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4.
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Effective
Date and Termination of the Plan
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This Plan was adopted by the Board and became effective as of
March 6, 2009 (the Effective Date), subject to
approval by the Companys stockholders. All Awards granted
under this Plan are subject to, and may not be exercised before,
the approval of this Plan by the stockholders prior to the first
anniversary date of the effective date of the Plan by the
affirmative vote of the holders of a majority of the outstanding
Common Shares of the Company present, or represented by proxy,
and entitled to vote, at a meeting of the Companys
stockholders or by written
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consent in accordance with the laws of the State of Delaware;
provided that, if such approval by the stockholders of the
Company is not forthcoming, all Awards previously granted under
this Plan shall be void. The Plan shall remain available for the
grant of Awards until the tenth (10th) anniversary of the
Effective Date. Notwithstanding the foregoing, the Plan may be
terminated at such earlier time as the Board may determine.
Termination of the Plan will not affect the rights and
obligations of the Participants and the Company arising under
Awards theretofore granted and then in effect.
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5.
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Common
Shares Subject to the Plan and to Awards
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(a)
Aggregate Limits.
The aggregate
number of Common Shares issuable pursuant to all Awards under
this Plan shall not exceed 5,350,000, plus (i) any Common
Shares that were authorized for issuance under the Prior Plan
that, as of the Effective Date, remain available for issuance
under the Prior Plan (not including any Common Shares that are
subject to outstanding awards under the Prior Plan or any Common
Shares that were issued pursuant to awards granted under the
Prior Plan) and (ii) any Common Shares subject to
outstanding awards under the Prior Plan that on or after the
Effective Date cease for any reason to be subject to such awards
(other than by reason of exercise or settlement of the awards to
the extent they are exercised for or settled in vested and
non-forfeitable shares). The aggregate number of Common Shares
available for grant under this Plan and the number of Common
Shares subject to outstanding Awards shall be subject to
adjustment as provided in Section 12. The Common Shares
issued pursuant to Awards granted under this Plan may be shares
that are authorized and unissued or shares that were reacquired
by the Company, including shares purchased in the open market.
(b)
Share Counting.
For purposes of this
Section 5, with respect to Options or SARs, the number of
Shares available for Awards under the Plan shall be reduced by
one Share for each Share covered by such Award or to which such
Award relates. With respect to any Awards that are granted on or
after the Effective Date, other than Options or SARs, the number
of Shares available for Awards under the Plan shall be reduced
by 1.59 Shares for each Share covered by such Award or to
which such Award relates.
(c)
Issuance of Common Shares.
For
purposes of this Section 5, the aggregate number of Common
Shares available for Awards under this Plan at any time shall
not be reduced by (i) shares subject to Awards that have
been terminated, expired unexercised, forfeited or settled in
cash, and (ii) shares subject to Awards that otherwise do
not result in the issuance of Common Shares in connection with
payment or settlement of an Award.
(d)
Tax Code Limits.
The aggregate number
of Common Shares subject to Awards granted under this Plan
during any calendar year to any one Participant shall not exceed
1,000,000, which number shall be calculated and adjusted
pursuant to Section 12 only to the extent that such
calculation or adjustment will not affect the status of any
Award intended to qualify as performance based
compensation under Section 162(m) of the Code but
which number shall not count any tandem SARs (as defined in
Section 7). The aggregate number of Common Shares that may
be issued pursuant to the exercise of Incentive Stock Options
granted under this Plan shall not exceed 5,350,000, which number
shall be calculated and adjusted pursuant to Section 12
only to the extent that such calculation or adjustment will not
affect the status of any option intended to qualify as an
Incentive Stock Option under Section 422 of the Code. The
maximum cash amount payable pursuant to that portion of an
Incentive Bonus granted in any calendar year to any Participant
under this Plan that is intended to satisfy the requirements for
performance-based compensation under
Section 162(m) of the Code shall not exceed $20,000,000.
(e)
Substitute Awards.
Substitute Awards
shall not reduce the Common Shares authorized for issuance under
the Plan or authorized for grant to a Participant in any
calendar year. Additionally, in the event that a corporation
acquired by the Company or any Subsidiary, or with which the
Company or any Subsidiary combines, has shares available under a
pre-existing plan approved by stockholders and not adopted in
contemplation of such acquisition or combination, the shares
available for grant pursuant to the terms of such pre-existing
plan (as adjusted, to the extent appropriate, using the exchange
ratio or other adjustment or valuation ratio or formula used in
such acquisition or combination to determine the consideration
payable to the holders of common stock of the entities party to
such acquisition or combination) may be used for Awards under
the Plan and shall not reduce the Common Shares authorized for
issuance under the Plan; provided that Awards using such
available shares shall not be made after the date awards or
grants could have been made under the terms of the pre-existing
plan, absent the acquisition
3
or combination, and shall only be made to individuals who were
not employees, directors or consultants of the Company or its
Subsidiaries immediately before such acquisition or combination.
6. Options
(a)
Option Awards.
Options may be granted
to Participants at any time and from time to time prior to the
termination of the Plan as determined by the Committee. No
Participant shall have any rights as a stockholder with respect
to any Common Shares subject to Option hereunder until said
Common Shares have been issued. Each Option shall be evidenced
by an Award Agreement. Options granted pursuant to the Plan need
not be identical but each Option must contain and be subject to
the terms and conditions set forth below.
(b)
Price.
The Committee shall establish
the exercise price per Common Share under each Option, which in
no event will be less than the Fair Market Value of the Common
Shares on the date of grant; provided, however, that the
exercise price per Common Share with respect to an Option that
is granted in connection with a merger or other acquisition as a
substitute or replacement award for options held by optionees of
the acquired entity may be less than 100% of the market price of
the Common Shares on the date such Option is granted if such
exercise price is based on a formula set forth in the terms of
the options held by such optionees or in the terms of the
agreement providing for such merger or other acquisition. The
exercise price of any Option may be paid in Common Shares, cash
or a combination thereof, as determined by the Committee,
including an irrevocable commitment by a broker to pay over such
amount from a sale of the Common Shares issuable under an
Option, the delivery of previously owned Common Shares and
withholding of Common Shares deliverable upon exercise, or by
any other method approved by the Committee.
(c)
No Repricing.
Other than in
connection with a change in the Companys capitalization
(as described in Section 12) the exercise price of an
Option may not be reduced without stockholder approval
(including canceling previously awarded Options and
(i) re-granting them with a lower exercise price or
(ii) replacing them with other Awards).
(d)
Provisions Applicable to Options.
The
date on which Options become exercisable shall be determined at
the sole discretion of the Committee and set forth in an Award
Agreement. Unless provided otherwise in the applicable Award
Agreement, to the extent that the Committee determines that an
approved leave of absence or employment on a less than full-time
basis is not a termination of employment or other service, the
vesting period
and/or
exercisability of an Option shall be adjusted by the Committee
during or to reflect the effects of any period during which the
Participant is on an approved leave of absence or is employed on
a less than full-time basis.
(e)
Term of Options and Termination of
Employment.
The Committee shall establish the
term of each Option, which in no case shall exceed a period of
seven (7) years from the date of grant. Unless an Option
earlier expires upon the expiration date established pursuant to
the foregoing sentence or upon the termination of the
Participants employment or other service, his or her
rights to exercise an Option then held shall be determined by
the Committee and set forth in an Award Agreement.
(f)
Incentive Stock
Options.
Notwithstanding anything to the contrary
in this Section 6, in the case of the grant of an Option
intending to qualify as an Incentive Stock Option: (i) if
the Participant owns stock possessing more than 10 percent
of the combined voting power of all classes of stock of the
Company (a 10% Common Shareholder), the exercise
price of such Option must be at least 110 percent of the
Fair Market Value of the Common Shares on the date of grant and
the Option must expire within a period of not more than five
(5) years from the date of grant, and (ii) termination
of employment will occur when the person to whom an Award was
granted ceases to be an employee (as determined in accordance
with Section 3401(c) of the Code and the regulations promulgated
thereunder) of the Company and its Subsidiaries. Notwithstanding
anything in this Section 6 to the contrary, options
designated as Incentive Stock Options shall not be eligible for
treatment under the Code as Incentive Stock Options (and will be
deemed to be Nonqualified Stock Options) to the extent that
either (a) the aggregate Fair Market Value of Common Shares
(determined as of the time of grant) with respect to which such
Options are exercisable for the first time by the Participant
during any calendar year (under all plans of the Company and any
Subsidiary) exceeds $100,000, taking Options into account in the
order in which they were granted, or (b) such Options
otherwise remain exercisable but are not exercised within three
(3) months of termination of employment (or such other
period of time provided in Section 422 of the Code).
4
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7.
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Stock
Appreciation Rights
|
Stock Appreciation Rights may be granted to Participants from
time to time either in tandem with or as a component of other
Awards granted under the Plan (tandem SARs) or not
in conjunction with other Awards (freestanding SARs)
and may, but need not, relate to a specific Option granted under
Section 6. The provisions of Stock Appreciation Rights need
not be the same with respect to each grant or each recipient.
Any Stock Appreciation Right granted in tandem with an Award may
be granted at the same time such Award is granted or at any time
thereafter before exercise or expiration of such Award. All
freestanding SARs shall be granted subject to the same terms and
conditions applicable to Options as set forth in Section 6
and all tandem SARs shall have the same exercise price, vesting,
exercisability, forfeiture and termination provisions as the
Award to which they relate. Subject to the provisions of
Section 6 and the immediately preceding sentence, the
Committee may impose such other conditions or restrictions on
any Stock Appreciation Right as it shall deem appropriate. Stock
Appreciation Rights may be settled in Common Shares, cash or a
combination thereof, as determined by the Committee and set
forth in the applicable Award Agreement. Other than in
connection with a change in the Companys capitalization
(as described in Section 12), the exercise price of Stock
Appreciation Rights may not be reduced without stockholder
approval (including canceling previously awarded Stock
Appreciation Rights and (i) re-granting them with a lower
exercise price or (ii) replacing them with other Awards).
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8.
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Restricted
Stock and Restricted Stock Units
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(a)
Restricted Stock and Restricted Stock Unit
Awards.
Restricted Stock and Restricted Stock
Units may be granted at any time and from time to time prior to
the termination of the Plan to Participants as determined by the
Committee. Restricted Stock is an award or issuance of Common
Shares the grant, issuance, retention, vesting
and/or
transferability of which is subject during specified periods of
time to such conditions (including continued employment/service
or performance conditions) and terms as the Committee deems
appropriate. Restricted Stock Units are Awards denominated in
units of Common Shares under which the issuance of Common Shares
is subject to such conditions (including continued
employment/service or performance conditions) and terms as the
Committee deems appropriate. Each grant of Restricted Stock and
Restricted Stock Units shall be evidenced by an Award Agreement.
Unless determined otherwise by the Committee, each Restricted
Stock Unit will be equal to one Common Share and will entitle a
Participant to either the issuance of Common Shares or payment
of an amount of cash determined with reference to the value of
Common Shares. To the extent determined by the Committee,
Restricted Stock and Restricted Stock Units may be satisfied or
settled in Common Shares, cash or a combination thereof.
Restricted Stock and Restricted Stock Units granted pursuant to
the Plan need not be identical but each grant of Restricted
Stock and Restricted Stock Units must contain and be subject to
the terms and conditions set forth below.
(b)
Contents of Agreement.
Each Award
Agreement shall contain provisions regarding (i) the number
of Common Shares or Restricted Stock Units subject to such Award
or a formula for determining such number, (ii) the purchase
price of the Common Shares, if any, and the means of payment,
(iii) the performance criteria, if any, and level of
achievement versus these criteria that shall determine the
number of Common Shares or Restricted Stock Units granted,
issued, retainable
and/or
vested, (iv) such terms and conditions on the grant,
issuance, vesting
and/or
forfeiture of the Common Shares or Restricted Stock Units as may
be determined from time to time by the Committee, (v) the
term of the performance period, if any, as to which performance
will be measured for determining the number of such Common
Shares or Restricted Stock Units, and (vi) restrictions on
the transferability of the Common Shares or Restricted Stock
Units. Common Shares issued under a Restricted Stock Award may
be issued in the name of the Participant and held by the
Participant or held by the Company, in each case as the
Committee may provide.
(c)
Vesting and Performance Criteria.
The
grant, issuance, retention, vesting
and/or
settlement of shares of Restricted Stock and Restricted Stock
Units will occur when and in such installments as the Committee
determines or under criteria the Committee establishes, which
may include Qualifying Performance Criteria. Notwithstanding
anything in this Plan to the contrary, the performance criteria
for any Restricted Stock or Restricted Stock Unit that is
intended to satisfy the requirements for performance-based
compensation under Section 162(m) of the Code will be
a measure based on one or more Qualifying Performance Criteria
selected by the Committee and specified when the Award is
granted. However, for Restricted Stock and Restricted Stock
Units granted to Participants other
5
than Nonemployee Directors, except in the event of a change of
control of the Company or the death or disability of the
Participant, Restricted Stock and Restricted Stock Units shall
vest no more quickly than over (i) one (1) year
following the date of grant to the extent such vesting is
subject to the satisfaction of performance criteria, or
(ii) three (3) years following the date of grant to
the extent subject only to time-based vesting criteria.
(d)
Discretionary Adjustments and
Limits.
Subject to the limits imposed under
Section 162(m) of the Code for Awards that are intended to
qualify as performance-based compensation,
notwithstanding the satisfaction of any performance goals, the
number of Common Shares granted, issued, retainable
and/or
vested under an Award of Restricted Stock or Restricted Stock
Units on account of either financial performance or personal
performance evaluations may, to the extent specified in the
Award Agreement, be reduced by the Committee on the basis of
such further considerations as the Committee shall determine.
(e)
Voting Rights.
Unless otherwise
determined by the Committee, Participants holding shares of
Restricted Stock granted hereunder may exercise full voting
rights with respect to those shares during the period of
restriction. Participants shall have no voting rights with
respect to Common Shares underlying Restricted Stock Units
unless and until such Common Shares are reflected as issued and
outstanding shares on the Companys stock ledger.
(f)
Dividends and
Distributions.
Participants in whose name
Restricted Stock is granted shall be entitled to receive all
dividends and other distributions paid with respect to those
Common Shares, unless determined otherwise by the Committee. The
Committee will determine whether any such dividends or
distributions will be automatically reinvested in additional
shares of Restricted Stock and subject to the same restrictions
on transferability as the Restricted Stock with respect to which
they were distributed or whether such dividends or distributions
will be paid in cash.
(a)
General.
Each Incentive Bonus Award
will confer upon the Participant the opportunity to earn a
future payment tied to the level of achievement with respect to
one or more performance criteria established for a performance
period of not less than one (1) year.
(b)
Funding.
In order to preserve the tax
deductibility of amounts paid to the Companys named
executive officers, the Committee shall determine the maximum
funding for Incentive Bonus Awards to such named executive
officers based on a percentage of Operating EBITDA. For the
purpose of annual bonus awards, the maximum bonus pool available
for named executive officers shall be 5% percent of Operating
EBITDA. Within this funding limit, annual bonus awards earned by
named executive officers shall be determined based on the
attainment of established objectives. Such objectives may be
qualitative or quantitative in nature. Further, no reduction in
the annual bonus award for one named executive officer shall
result in an increased bonus award to any other named executive
officer or any other employee.
(c)
Individual Incentive
Opportunities.
Each named executive officer shall
be assigned a target Incentive Bonus Award expressed as a
percentage of his or her base salary. No payout is earned if
threshold performance is not achieved, with the actual payment
based on achievement of performance criteria specified by the
Committee, and a maximum actual payment for a Participant as
determined pursuant to Section 9(b) above.
(d)
Incentive Bonus Document.
The terms
of any Incentive Bonus may be set forth in an Award Agreement.
Each Award Agreement evidencing an Incentive Bonus shall contain
provisions regarding (i) the target and maximum amount
payable to the Participant as an Incentive Bonus, (ii) the
performance criteria and level of achievement versus these
criteria that shall determine the amount of such payment,
(iii) the term of the performance period as to which
performance shall be measured for determining the amount of any
payment, (iv) the timing of any payment earned by virtue of
performance, (v) restrictions on the alienation or transfer
of the Incentive Bonus prior to actual payment,
(vi) forfeiture provisions and (vii) such further
terms and conditions, in each case not inconsistent with this
Plan, as may be determined from time to time by the Committee.
(e)
Performance Criteria.
The Committee
shall establish the performance criteria and level of
achievement versus these criteria that shall determine the
target and maximum amount payable under an Incentive Bonus,
which criteria may be based on financial performance
and/or
personal performance evaluations. The Committee may specify the
percentage of the target Incentive Bonus that is intended to
satisfy the requirements for performance-
6
based compensation under Section 162(m) of the Code.
Notwithstanding anything to the contrary herein, the performance
criteria for any portion of an Incentive Bonus that is intended
by the Committee to satisfy the requirements for
performance-based compensation under
Section 162(m) of the Code shall be a measure based on one
or more Qualifying Performance Criteria (as defined in
Section 13(b)) selected by the Committee and specified at
the time the Incentive Bonus is granted, or within the time
prescribed by Section 162(m) and shall otherwise be in
compliance with Section 162(m). The Committee shall certify
the extent to which any Qualifying Performance Criteria has been
satisfied and the amount payable as a result thereof, prior to
payment of any Incentive Bonus that is intended to satisfy the
requirements for performance-based compensation
under Section 162(m) of the Code.
(f)
Timing and Form of Payment.
The
Committee shall determine the timing and form of payment of any
Incentive Bonus. Payment of the amount due under an Incentive
Bonus may be made in cash or in Shares, as determined by the
Committee. The Committee may provide for or, subject to such
terms and conditions as the Committee may specify, may permit a
Participant to elect for the payment of any Incentive Bonus to
be deferred to a specified date or event.
(g)
Discretionary
Adjustments.
Notwithstanding satisfaction of any
performance goals, the amount paid under an Incentive Bonus on
account of either financial performance or personal performance
evaluations may, to the extent specified in the Award Agreement,
be reduced, but not increased, by the Committee on the basis of
such further considerations as the Committee shall determine.
The Committee may, in an Award Agreement or otherwise, provide
for the deferred delivery of Shares upon settlement, vesting or
other events with respect to Restricted Stock or Restricted
Stock Units, or in payment or satisfaction of an Incentive
Bonus. Notwithstanding anything herein to the contrary, in no
event will any deferral of the delivery of Shares or any other
payment with respect to any Award be allowed if the Committee
determines, in its sole discretion, that the deferral would
result in the imposition of the additional tax under
Section 409A(a)(1)(B) of the Code. No award shall provide
for deferral of compensation that does not comply with
Section 409A of the Code unless the Board, at the time of
grant, specifically provides that the Award is not intended to
comply with Section 409A of the Code. The Company shall
have no liability to a Participant or any other party if an
Award that is intended to be exempt from, or compliant with,
Section 409A is not so exempt or compliant or for any
action taken by the Board.
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11.
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Conditions
and Restrictions Upon Securities Subject to Awards
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The Committee may provide that the Common Shares issued upon
exercise of an Option or Stock Appreciation Right or otherwise
subject to or issued under an Award shall be subject to such
further agreements, restrictions, conditions or limitations as
the Committee in its discretion may specify prior to the
exercise of such Option or Stock Appreciation Right or the
grant, vesting or settlement of such Award, including without
limitation, conditions on vesting or transferability, forfeiture
or repurchase provisions and method of payment for the Common
Shares issued upon exercise, vesting or settlement of such Award
(including the actual or constructive surrender of Common Shares
already owned by the Participant) or payment of taxes arising in
connection with an Award. Without limiting the foregoing, such
restrictions may address the timing and manner of any resale by
the Participant or other subsequent transfers by the Participant
of any Common Shares issued under an Award, including without
limitation (i) restrictions under an insider trading policy
or pursuant to applicable law, (ii) restrictions designed
to delay
and/or
coordinate the timing and manner of sales by the Participant and
holders of other Company equity compensation arrangements,
(iii) restrictions as to the use of a specified brokerage
firm for such resale or other transfers, and
(iv) provisions requiring Common Shares to be sold on the
open market or to the Company in order to satisfy tax
withholding or other obligations.
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12.
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Adjustment
of and Changes in the Stock
|
The number and kind of Common Shares available for issuance
under this Plan (including under any Awards then outstanding),
and the number and kind of Common Shares subject to the limits
set forth in Section 5 of this Plan, shall be equitably
adjusted by the Committee to reflect any reorganization,
reclassification, combination of
7
shares, stock split, reverse stock split, spin-off, dividend or
distribution of securities, property or cash (other than
regular, quarterly cash dividends), or any other event or
transaction that affects the number or kind of Common Shares of
the Company outstanding. Such adjustment may be designed to
comply with Section 425 of the Code or, except as otherwise
expressly provided in Section 5(c) of this Plan, may be
designed to treat the Common Shares available under the Plan and
subject to Awards as if they were all outstanding on the record
date for such event or transaction or to increase the number of
such Common Shares to reflect a deemed reinvestment in Common
Shares of the amount distributed to the Companys security
holders. The terms of any outstanding Award shall also be
equitably adjusted by the Committee as to price, number or kind
of Common Shares subject to such Award, vesting and other terms
to reflect the foregoing events, which adjustments need not be
uniform as between different Awards or different types of Awards.
In the event there shall be any other change in the number or
kind of outstanding Common Shares, or any stock or other
securities into which such Common Shares shall have been
changed, or for which it shall have been exchanged, by reason of
a change of control, other merger, consolidation or otherwise,
then the Committee shall determine the appropriate and equitable
adjustment to be effected. In addition, in the event of such
change described in this paragraph, the Committee may accelerate
the time or times at which any Award may be exercised and may
provide for cancellation of such accelerated Awards that are not
exercised within a time prescribed by the Committee in its sole
discretion.
No right to purchase fractional shares shall result from any
adjustment in Awards pursuant to this Section 12. In case
of any such adjustment, the Common Shares subject to the Award
shall be rounded down to the nearest whole share. The Company
shall notify Participants holding Awards subject to any
adjustments pursuant to this Section 12 of such adjustment,
but (whether or not notice is given) such adjustment shall be
effective and binding for all purposes of the Plan.
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13.
|
Qualifying
Performance-Based Compensation
|
(a)
General.
The Committee may establish
performance criteria and the level of achievement versus such
criteria that shall determine the number of Common Shares,
units, or the amount of cash to be granted, retained, vested,
issued or issuable under or in settlement of or the amount
payable pursuant to an Award, which criteria may be based on
Qualifying Performance Criteria or other standards of financial
performance
and/or
personal performance evaluations. In addition, the Committee may
specify that an Award or a portion of an Award is intended to
satisfy the requirements for performance-based
compensation under Section 162(m) of the Code,
provided that the performance criteria for such Award or portion
of an Award that is intended by the Committee to satisfy the
requirements for performance-based compensation
under Section 162(m) of the Code shall be a measure based
on one or more Qualifying Performance Criteria selected by the
Committee and specified at the time the Award is granted. The
Committee shall certify the extent to which any Qualifying
Performance Criteria have been satisfied and the amount payable
as a result thereof, prior to payment, settlement or vesting of
any Award that is intended to satisfy the requirements for
performance-based compensation under
Section 162(m) of the Code. Notwithstanding satisfaction of
any performance goals, the number of Common Shares issued under
or the amount paid under an award may, to the extent specified
in the Award Agreement, be reduced by the Committee on the basis
of such further considerations as the Committee in its sole
discretion shall determine.
(b)
Qualifying Performance Criteria.
For
purposes of this Plan, the term Qualifying Performance
Criteria shall mean any one or more of the following
performance criteria, either individually, alternatively or in
any combination, applied to either the Company as a whole or to
a business unit or Subsidiary, either individually,
alternatively or in any combination, and measured either
annually or cumulatively over a period of years, on an absolute
basis or relative to a pre-established target, to previous
years results or to a designated comparison group, in each
case as specified by the Committee: (i) cash flow (before
or after dividends), (ii) earnings or earnings per share
(including earnings before interest, taxes, depreciation and
amortization), (iii) stock price, (iv) return on
equity, (v) total stockholder return, (vi) return on
capital or investment (including return on total capital, return
on invested capital, or return on investment), (vii) return
on assets or net assets, (viii) market capitalization,
(ix) economic value added, (x) debt leverage (debt to
capital), (xi) revenue, (xii) income or net income,
(xiii) operating income, (xiv) operating profit or net
operating profit, (xv) operating margin or profit margin,
(xvi) return on operating revenue, (xvii) cash from
operations, (xviii) operating ratio, (xix) operating
revenue,
8
(xx) bookings, (xxi) backlog, (xxii) customer
service, (xxiii) trade working capital,
and/or
(xxiv) environmental, health
and/or
safety goals. To the extent consistent with Section 162(m)
of the Code, the Committee (A) shall appropriately adjust
any evaluation of performance under a Qualifying Performance
Criteria to eliminate the effects of charges for restructurings,
discontinued operations, extraordinary items and all items of
gain, loss or expense determined to be extraordinary or unusual
in nature or related to the acquisition or disposal of a segment
of a business or related to a change in accounting principle all
as determined in accordance with standards established by
opinion No. 30 of the Accounting Principles Board (APA
Opinion No. 30) or other applicable or successor
accounting provisions, as well as the cumulative effect of
accounting changes, in each case as determined in accordance
with generally accepted accounting principles or identified in
the Companys financial statements or notes to the
financial statements, and (B) may appropriately adjust any
evaluation of performance under Qualifying Performance Criteria
to exclude any of the following events that occurs during a
performance period: (i) asset write-downs,
(ii) litigation, claims, judgments or settlements,
(iii) the effect of changes in tax law or other such laws
or provisions affecting reported results and (iv) accruals
for reorganization and restructuring programs.
Unless the Committee provides otherwise, each Award may not be
sold, transferred, pledged, assigned, or otherwise alienated or
hypothecated by a Participant other than by will or the laws of
descent and distribution, and each Option or Stock Appreciation
Right shall be exercisable only by the Participant during his or
her lifetime; provided, however, that a Participant may transfer
an Award for no consideration to the Participants
family members as defined in
Form S-8
under the Securities Act of 1933. In no event shall Awards be
transferable for value or consideration.
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15.
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Compliance
with Laws and Regulations
|
This Plan, the grant, issuance, vesting, exercise and settlement
of Awards hereunder, and the obligation of the Company to sell,
issue or deliver Common Shares under such Awards, shall be
subject to all applicable foreign, federal, state and local
laws, rules and regulations, stock exchange rules and
regulations, and to such approvals by any governmental or
regulatory agency as may be required. The Company shall not be
required to register in a Participants name or deliver any
Common Shares prior to the completion of any registration or
qualification of such shares under any foreign, federal, state
or local law or any ruling or regulation of any government body
which the Committee shall determine to be necessary or
advisable. To the extent the Company is unable to or the
Committee deems it infeasible to obtain authority from any
regulatory body having jurisdiction, which authority is deemed
by the Companys counsel to be necessary to the lawful
issuance and sale of any Common Shares hereunder, the Company
and its Subsidiaries shall be relieved of any liability with
respect to the failure to issue or sell such Common Shares as to
which such requisite authority shall not have been obtained. No
Option shall be exercisable and no Common Shares shall be issued
and/or
transferable under any other Award unless a registration
statement with respect to the Common Shares underlying such
Option is effective and current or the Company has determined
that such registration is unnecessary.
To the extent required by applicable federal, state, local or
foreign law, a Participant shall be required to satisfy, in a
manner satisfactory to the Company, any withholding tax
obligations that arise by reason of an Option exercise,
disposition of Common Shares issued under an Incentive Stock
Option, the vesting of or settlement of an Award, an election
pursuant to Section 83(b) of the Code or otherwise with
respect to an Award. The Company and its Subsidiaries shall not
be required to issue Common Shares, make any payment or to
recognize the transfer or disposition of Common Shares until
such obligations are satisfied. The Committee may provide for or
permit the minimum statutory withholding obligations to be
satisfied through the mandatory or elective sale of Common
Shares
and/or
by
having the Company withhold a portion of the Common Shares that
otherwise would be issued to a Participant upon exercise of the
Option or the vesting or settlement of an Award, or by tendering
Common Shares previously acquired. The Company shall also be
authorized to deduct withholding taxes from a Participants
other compensation or to make other arrangements to satisfy
withholding tax obligations. The Company shall further be
9
authorized to deduct from any payment under an Award or from a
Participants other compensation any tax or social
insurance payment imposed on the Company or Subsidiary in
connection with such Award.
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17.
|
Administration
of the Plan
|
(a)
Administration by Committee.
The Plan
shall be administered by the Compensation Committee of the Board
or, in the absence of a Compensation Committee, or in the event
the Compensation Committee is not properly constituted, by the
Board itself. Any power of the Committee may also be exercised
by the Board, except to the extent that the grant or exercise of
such authority would cause any Award or transaction to become
subject to (or lose an exemption under) the short-swing profit
recovery provisions of Section 16 of the Securities
Exchange Act of 1934 or cause an Award designated as a
Performance Award not to qualify for treatment as
performance-based compensation under Section 162(m) of the
Code. To the extent that any permitted action taken by the Board
conflicts with action taken by the Committee, the Board action
shall control. The Committee may by resolution authorize one or
more officers of the Company to perform any or all things that
the Committee is authorized and empowered to do or perform under
the Plan, and for all purposes under this Plan, such officer or
officers shall be treated as the Committee; provided, however,
that the resolution so authorizing such officer or officers
shall specify the total number of Awards (if any) such officer
or officers may award pursuant to such delegated authority, and
any such Award shall be subject to the form of Award Agreement
theretofore approved by the Committee; provided, further, that
no such officer shall have the authority to grant Awards to
Nonemployee Directors. No such officer shall designate himself
or herself as a recipient of any Awards granted under authority
delegated to such officer. In addition, the Committee may
delegate any or all aspects of the day-to-day administration of
the Plan to one or more officers or employees of the Company or
any Subsidiary,
and/or
to
one or more agents.
(b)
Powers of the Committee.
Subject to
the express provisions of this Plan, the Committee shall be
authorized and empowered to do all things that it determines to
be necessary or appropriate in connection with the
administration of this Plan, including, without limitation:
(i) to prescribe, amend and rescind rules and regulations
relating to this Plan and to define terms not otherwise defined
herein; (ii) to determine which persons are Participants,
to which of such Participants, if any, Awards shall be granted
hereunder and the timing of any such Awards; (iii) to grant
Awards to Participants and determine the terms and conditions
thereof, including the number of Common Shares subject to Awards
and the exercise or purchase price of such Common Shares and the
circumstances under which Awards become exercisable or vested or
are forfeited or expire, which terms may but need not be
conditioned upon the passage of time, continued employment or
other service, the satisfaction of performance criteria, the
occurrence of certain events (including events which constitute
a change of control), or other factors; (iv) to establish
and verify the extent of satisfaction of any performance goals
or other conditions applicable to the grant, issuance,
exercisability, vesting
and/or
ability to retain any Award; (v) to prescribe and amend the
terms of the agreements or other documents evidencing Awards
made under this Plan (which need not be identical) and the terms
of or form of any document or notice required to be delivered to
the Company by Participants under this Plan; (vi) to
determine the extent to which adjustments are required pursuant
to Section 12; (vii) to interpret and construe this
Plan, any rules and regulations under this Plan and the terms
and conditions of any Award granted hereunder, and to make
exceptions to any such provisions in good faith and for the
benefit of the Company; and (viii) to make all other
determinations deemed necessary or advisable for the
administration of this Plan.
(c)
Determinations by the Committee.
All
decisions, determinations and interpretations by the Committee
regarding the Plan, any rules and regulations under the Plan and
the terms and conditions of or operation of any Award granted
hereunder, shall be final and binding on all Participants,
beneficiaries, heirs, assigns or other persons holding or
claiming rights under the Plan or any Award. The Committee shall
consider such factors as it deems relevant, in its sole and
absolute discretion, to making such decisions, determinations
and interpretations including, without limitation, the
recommendations or advice of any officer or other employee of
the Company and such attorneys, consultants and accountants as
it may select.
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18.
|
Amendment
of the Plan or Awards
|
The Board may amend, alter or discontinue this Plan and the
Committee may amend, or alter any agreement or other document
evidencing an Award made under this Plan but, except as
specifically provided for hereunder, no
10
such amendment shall, without the approval of the stockholders
of the Company (a) reduce the exercise price of outstanding
Options or Stock Appreciation Rights, (b) reduce the price
at which Options may be granted below the price provided for in
Section 6, (c) increase the benefits accrued to any
Participant, (d) increase the number of Common Shares
available for issuance under the Plan, (e) modify the
eligible classes of Participants under the Plan,
(f) eliminate the minimum vesting requirements in
Section 8(c) or allow the Committee to waive such
requirements, or (g) otherwise amend the Plan in any manner
requiring stockholder approval by law or under applicable
listing requirements. No amendment or alteration to the Plan or
an Award or Award Agreement shall be made which would impair the
rights of the holder of an Award, without such holders
consent, provided that no such consent shall be required if the
Committee determines in its sole discretion and prior to the
date of any change of control that such amendment or alteration
either is required or advisable in order for the Company, the
Plan or the Award to satisfy any law or regulation or to meet
the requirements of or avoid adverse financial accounting
consequences under any accounting standard.
(a)
No Liability of Company.
The Company
and any Subsidiary or affiliate which is in existence or
hereafter comes into existence shall not be liable to a
Participant or any other person as to: (i) the non-issuance
or sale of Common Shares as to which the Company has been unable
to obtain from any regulatory body having jurisdiction the
authority deemed by the Companys counsel to be necessary
to the lawful issuance and sale of any Common Shares hereunder;
and (ii) any tax consequence expected, but not realized, by
any Participant or other person due to the receipt, exercise or
settlement of any Award granted hereunder.
(b)
Non-Exclusivity of Plan.
Neither the
adoption of this Plan by the Board nor the submission of this
Plan to the stockholders of the Company for approval shall be
construed as creating any limitations on the power of the Board
or the Committee to adopt such other incentive arrangements as
either may deem desirable, including, without limitation, the
granting of restricted stock or stock options otherwise than
under this Plan or an arrangement not intended to qualify under
Code Section 162(m). Further, such arrangements may be
either generally applicable or applicable only in specific cases.
(c)
Governing Law.
This Plan and any
agreements or other documents hereunder shall be interpreted and
construed in accordance with the laws of Delaware and applicable
federal law.
(d)
No Right to Employment, Reelection or Continued
Service.
Nothing in this Plan or an Award
Agreement shall interfere with or limit in any way the right of
the Company, its Subsidiaries
and/or
its
affiliates to terminate any Participants employment,
service on the Board or service for the Company at any time or
for any reason not prohibited by law, nor shall this Plan or an
Award itself confer upon any Participant any right to continue
his or her employment or service for any specified period of
time. Neither an Award nor any benefits arising under this Plan
shall constitute an employment contract with the Company, any
Subsidiary
and/or
its
affiliates.
(e)
Unfunded Plan.
The Plan is intended
to be an unfunded plan. Participants are and shall at all times
be general creditors of the Company with respect to their
Awards. If the Committee or the Company chooses to set aside
funds in a trust or otherwise for the payment of Awards under
the Plan, such funds shall at all times be subject to the claims
of the creditors of the Company in the event of its bankruptcy
or insolvency.
(f)
Employees Based Outside of the United
States.
Notwithstanding any provision of the Plan
to the contrary, in order to foster and promote achievement of
the purposes of the Plan or to comply with the provisions of
laws in other countries in which the Company and its
Subsidiaries operate or have employees, the Committee, in its
sole discretion, shall have the power and authority to:
(1) determine which employees that are subject to the tax
laws of nations other than the United States are eligible to
participate in the Plan, (2) modify the terms and
conditions of any Awards granted to employees who are employed
outside the United States, and (3) establish sub-plans,
modified exercise procedures and other terms and procedures to
the extent such actions may be necessary or advisable in such
foreign jurisdictions.
(g)
Discretionary Nature of Benefit.
The
grant of Awards by the Committee is a one-time benefit and does
not create any contractual or other right to receive a grant of
an Award or any payment or benefit in lieu of an Award in the
future. The Committees selection of an eligible employee
to receive an Award in any year or at any time shall
11
not require the Committee to consider or select such employee to
receive an Award in any other year or at any other time.
Further, the selection of an employee to receive one type of
Award under the Plan does not require the Committee to select
such employee to receive any other type of Award under the Plan.
The Committee shall consider such factors it deems pertinent in
selecting Participants and in determining the type and amount of
their respective Awards. Future grants, if any, will be made at
the sole discretion of the Committee, including, but not limited
to, the timing of any grant, the number of shares or units
awarded or the value of any such Award, vesting and exercise
provisions, exercise or grant price and any and all other terms
and conditions governing such Awards.
(h)
Voluntary
Participation.
Participation in the Plan is
voluntary and the value of any Award is an extraordinary item of
compensation outside the scope of a Participants
employment contract or agreement, if any. As such, the Award is
not part of normal or expected compensation for purposes of
calculating any severance, resignation, redundancy or end of
service payments or benefits, bonuses, service or long-service
awards, pension and / or retirement benefits, or any
similar benefits or payments.
12
EXHIBIT 4.5
Celanese
Corporation
2009 Employee Stock Purchase Plan
The purpose of the Celanese Corporation 2009 Employee Stock
Purchase Plan (Plan) is to provide employees of
Celanese Corporation, a Delaware corporation
(Celanese), and certain of its subsidiaries
described in Section 4 (individually a Participating
Employer and collectively the Participating
Employers) with a strong incentive for individual
creativity and contribution to ensure the future growth of the
Participating Employers by enabling such employees to acquire
shares of common stock of Celanese (the Celanese
Stock), in the manner contemplated by the Plan. Rights to
purchase Celanese Stock offered pursuant to the Plan are a
matter of separate inducement and not in lieu of any salary or
other compensation for the services of any employee. The Plan is
intended to qualify as an employee stock purchase plan within
the meaning of Section 423 of the Internal Revenue Code of
1986, as amended (the Code), and shall be
interpreted accordingly.
2. Amount
of Stock Subject to the Plan; Payment for Shares
The total number of shares of Celanese Stock that may be issued
pursuant to rights of purchase granted under the Plan shall not
exceed 14,000,000 shares of authorized Celanese Stock. Such
shares may be: (i) treasury shares, including shares
acquired by Celanese in open market transactions;
(ii) authorized but unissued shares,
and/or
(iii) shares acquired by the third party administrator of
the Plan (or its delegate) on the open market. If a right of
purchase under the Plan expires or is terminated unexercised for
any reason, the shares as to which such right so expired or
terminated again may be made subject to a right of purchase
under the Plan.
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3.
|
Administration
by Committee
|
The Plan shall be administered by the Compensation Committee of
the Board (the Committee) or, in the absence of a
Compensation Committee or in the event the Compensation
Committee is not properly constituted, by the Board itself. To
the extent necessary, the Committee may delegate any of its
duties or responsibilities as they pertain to a Participating
Employer to such Participating Employer. The Committee or any
Participating Employer with the consent of the Committee may
appoint or engage any person or persons as a third party
administrator to perform ministerial functions pertaining to the
issuance, accounting, recordkeeping, forfeiture, exercise,
communication, transfer, or any other functions or activities
necessary or appropriate to administer and operate the Plan (the
plan administrator). Any third party administrator
engaged to assist the Committee who is not an employee of a
Participating Employer shall be required to be bonded and
insured for errors and omissions insurance in such amounts and
by such carrier as is deemed suitable and appropriate by the
Committee. The Committee shall administer the Plan all as
provided herein. The Committee shall hold meetings at such times
and places as each may determine and may take action by
unanimous written consent or by means of a meeting held by
conference telephone call or similar communications equipment
pursuant to which all persons participating in the meeting can
hear each other. The Committee may request advice or assistance
or employ such other persons as each deems necessary for proper
administration of the Plan. Subject to the express provisions of
the Plan and the requirements of applicable law, the Committee
shall have authority, in its discretion, to determine when each
offering hereunder of rights to purchase shares (hereinafter
offering) shall be made, the duration of each
offering, the dates on which the purchase period for each
offering shall begin and end, the total number of shares subject
to each offering, the purchase price of shares subject to each
offering and the exclusion of any employees pursuant to
Section 4; provided that unless the Committee determines
otherwise, an offering shall begin on the first day of each
calendar quarter (the Offering Date), beginning on
October 1, 2009, and each offering and the purchase period
thereunder shall be three (3) months in duration, with each
offering ending on the day prior to the first day of the
subsequent offering (the Purchase Date). Subject to
the express provisions of the Plan, the Committee has authority
(a) to construe offerings, the Plan and the respective
rights to purchase shares, (b) to prescribe, amend and
rescind rules and regulations relating to the Plan and
(c) to make all other determinations necessary or advisable
for administering the Plan. The determination of the Committee
with respect to matters referred to in this Section 3 as
within its province
1
shall be conclusive, except that, to the extent required by law
or by the Certificate of Incorporation or By-Laws of Celanese,
the terms of any offering shall be subject to ratification by
the Board of Directors of Celanese Corporation (the Board
of Directors) or the Committee prior to the effective date
of such offering.
No right to purchase shares shall be granted hereunder to a
person who is not an employee of Celanese or a subsidiary
corporation, now existing or hereafter formed or acquired. As
used in the Plan, the terns parent corporation and
subsidiary corporation shall have the meanings
respectively given to such terms in Sections 424(e) and
424(f) of the Code (
i.e.
, generally, corporations that,
in an unbroken chain of corporations including the Company, are
at least 50%-related to the Company based on total combined
voting power). Each offering shall be made to all eligible
employees of Celanese and to all eligible employees of any
of its subsidiary corporations to which participation in the
Plan is extended by the Committee or its delegate from time to
time in its discretion. Unless otherwise determined by the
Committee, the following classes of employees shall be excluded
from participation in an offering under the Plan:
(i) employees whose customary employment is 20 hours
or less per week; (ii) employees whose customary employment
is for not more than 5 months in any calendar year. In
addition, the following groups of employees shall be excluded
from participation in an offering: (i) in the discretion of
the Committee, as specified in the terms of any offering, highly
compensated employees within the meaning of Section 414(q)
of the Code; and (ii) any employee who, immediately after
the grant of a right to purchase stock pursuant to an offering,
owns stock possessing 5% or more of the total combined voting
power or value of all classes of stock of Celanese or of any
subsidiary or parent corporation of Celanese (in determining
stock ownership of an individual, the rules of
Section 424(d) of the Code shall be applied; shares that
the employee may purchase under outstanding rights of purchase
and options shall be treated as stock owned by him; and the
Committee may rely on representations of fact made to it by the
employee and believed by them to be true).
The Committee may make grants to all eligible employees of the
Participating Employers of rights to purchase shares under the
terms hereinafter set forth. Unless otherwise provided by the
express provisions of the Plan, the terms and conditions of each
offering shall state its effective date, shall define the
duration of such offering and the purchase period thereunder,
shall specify the number of shares that may be purchased
thereunder, shall specify the purchase price for such shares and
shall specify if any employees are excluded pursuant to
Section 4. During the purchase period specified in the
terms of an offering, payroll deductions shall be made from such
employees compensation pursuant to Sections 6, 7 and
8. Any stated purchase period shall end no later than
27 months from the effective date of any offering
hereunder. The measure of an employees participation in an
offering shall be such employees Base Salary for the
purchase period specified in such offering, subject to
appropriate adjustments that would exclude items such as
reimbursement of moving, travel, trade or business expenses.
An eligible employee may participate in an offering by enrolling
(or, if the eligible employee previously discontinued
participation in the Plan pursuant to Section 8, by
re-enrolling) through the internet website of the plan
administrator prior to the Offering Date or, if the website is
unavailable, by completing a payroll deduction authorization
form and forwarding it to the plan administrator during the
enrollment period prior to the Offering Date. The employee must
authorize a regular payroll deduction from the employees
compensation. An employee shall be considered a
Participant in the Plan as of the Offering Date
immediately following his or her enrollment or re-enrollment in
the manner specified above and shall continue as a Participant
until the earlier to occur of (i) the first date of the
payroll period immediately following the date on which the
Participant properly registers a discontinuance to the payroll
deduction authorization information then on file with the
Committee, the Participating Employer or plan administrator, or
as soon as administratively practicable after the first day of
such payroll period, or (ii) the date on which the
Participant is no longer an eligible employee.
2
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7.
|
Deductions
or Payments
|
The Committee, or its designee, shall maintain a payroll
deduction account for each participating employee. With respect
to any offering made under the Plan, an employee may authorize a
payroll deduction of any whole percentage up to a maximum of 20%
of the employees Eligible Compensation
he/she
receives during the purchase period specified in an offering.
Interest shall not be accrued, payable or credited under this
Plan on any amount in the payroll deduction or other Plan
account. For purposes hereof, Eligible Compensation
means an employees salary or hourly base rate of pay, as
the case may be, and any commissions received by the employee,
but except to the extent determined otherwise by the Committee,
shall exclude overtime pay, bonuses, disability payments,
workers compensation payments, and any other payment in
excess of normal salary or hourly base pay or commissions.
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8.
|
Deduction
or Payment Changes
|
A Participant may change or discontinue payroll deductions
through the plan administrators website or, if the website
is unavailable, by completing a new payroll deduction
authorization form and forwarding it to the plan administrator.
Any change shall become effective on the first Offering Date
after the Participant properly registers the change of the
payroll deduction authorization information then on file with
the plan administrator, while any discontinuance shall become
effective on the first day of the payroll period immediately
following the date on which the Participant properly registers
the discontinuance of such information, or as soon as
administratively practicable after the first day of such payroll
period. The Committee may establish limits on the number of
times a Participant may be entitled to change or discontinue
payroll deductions. Unless otherwise permitted by a third party
plan administrators procedures, if a Participant
discontinues payroll deductions for an offering under the Plan,
the Participant shall be deemed to have withdrawn from the
offering pursuant to Section 9 below.
A Participant may at any time and for any reason withdraw the
entire cash balance then accumulated in such Participants
payroll deduction account and thereby withdraw from
participating in an offering. Upon withdrawal of the cash
balance in a payroll deduction or other account, such
Participant shall cease to be eligible to participate in the
offering pursuant to which the withdrawn funds were withheld or
received. Partial withdrawals shall not be permitted. Any cash
balance withdrawn in accordance with this Section 9 may not
be transferred to any payroll deduction or other account
maintained for the employee pursuant to another offering,
whether under the Plan or under another such plan.
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10.
|
Right of
Purchase Option for a Maximum Number of
Shares
|
The right of an employee to purchase stock pursuant to an
offering under the Plan shall be an option (and an
offering shall be the grant of such option) to
purchase no more than 25,000 shares (or such lower amount
as otherwise provided under the Plan) during a purchase period.
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11.
|
Maximum
Allotment of Rights of Purchase
|
Any right to purchase shares under the Plan shall be subject to
the limitations of Section 423(b)(8) of the Code (generally
limiting accrual of the right of any employee to purchase shares
under all employee stock purchase plans of Celanese and any
subsidiary or parent corporation, qualified under
Section 423 of the Code, to an annual rate of $25,000 in
fair market value on the Offering Date).
The purchase price for each share under each right of purchase
granted pursuant to an offering shall not be less than an amount
equal to 85% of the fair market value (defined below) of such
share determined on the Purchase Date For all purposes under
this Plan, the fair market value of a share of
Celanese Stock on any given date shall be the average of the
high and low sales prices on such date during normal trading
hours (or, if there are no reported sales on such date, on the
last date prior to such date on which there were sales) on the
New York Stock Exchange
3
Composite Tape or, if not listed on such exchange, on any other
national securities exchange on which the Celanese Stock is
listed, in any case, as reporting in such source as the
Committee shall select.
As of the last trading day in each calendar quarter (such date
being known as an investment date), the payroll
deduction account of each Participant shall be totaled. On such
investment date such Participant shall purchase without any
further action, the maximum number of whole and fractional
shares (subject to the limitations provided in Sections 10
and 11) possible at a per share purchase price equal to the
amount determined under Section 12, together with any fees
or charges associated with such purchase, except as otherwise
prohibited by law, that can be purchased with the funds in such
Participants payroll deduction account. The
Participants payroll deduction or other account shall be
charged for the amount of the purchase and shares shall be
issued for the benefit of the Participant as soon thereafter as
practicable for the shares so purchased, which shares may be
issued in nominee name. Except as otherwise prohibited by law,
all funds in payroll deduction accounts may be used by Celanese
for its general corporate purposes as the Board of Directors
shall determine. However, any funds that remain in a
Participants payroll deduction account after applying the
limitations of Sections 10 and 11 shall be returned to the
Participant.
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14.
|
Rights as
a Stockholder
|
A Participant shall have no rights as a stockholder with respect
to any shares covered by a right of purchase until a stock
certificate for such shares is issued to the benefit of such
Participant, which stock certificate may be issued in nominee
name. No adjustment will be made for dividends (ordinary or
extraordinary, whether in cash or in other property) or
distributions or other rights for which the record date is prior
to the date such stock certificate is issued, except as provided
in Section 16.
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15.
|
Rights
Not Transferable
|
Rights to purchase shares under the Plan are not transferable by
a participating employee and may be exercised only by such
Participant during such Participants lifetime.
If any change is made in the number, class or rights of shares
subject to the Plan or subject to any offering under the Plan
(through merger, consolidation, reorganization,
recapitalization, stock dividend,
split-up,
combination of shares, exchange of shares, issuance of rights to
subscribe or other change in capital structure), appropriate
adjustments shall be made as to the maximum number of shares
subject to the Plan and the number of shares and price per share
subject to outstanding rights of purchase as shall be equitable
to prevent dilution or enlargement of such rights; provided,
however, that any such adjustment shall comply with the rules of
Section 424(a) of the Code if the transaction is one
described in said Section 424(a); provided, further that in
no event shall any adjustment be made that would render any
offering other than an offering pursuant to an employee stock
purchase plan within the meaning of Section 423 of the Code.
17. Retirement,
Termination and Death
In the event of a Participants retirement or termination
of employment, the amount in the Participants payroll
deduction or other Plan account shall be refunded to such
Participant and the restricted and nonrestricted shares of stock
held for such Participants benefit by the Plan shall upon
request be issued to such Participant, and in the event of such
Participants death, such amount and stock shall be paid
and issued to such Participants estate or as otherwise
provided under applicable law.
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18.
|
Amendment
of the Plan
|
This Plan may be amended at any time by the Committee, subject
to the approval of the stockholders of Celanese to the extent
required by Section 423 of the Code, applicable law, or
stock exchange listing standards.
4
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19.
|
Termination
of the Plan
|
The Plan and all rights of employees hereunder shall terminate:
(i) on the investment date that participating employees
become entitled to purchase a number of shares greater than the
number of shares that remain available for purchase under the
Plan; or (ii) in the discretion of the Committee, upon the
completion of any purchase period. In the event that the Plan
terminates under circumstances described in (i) above,
shares remaining available for purchase under the Plan as of the
termination date shall be issued to Participants on a pro rata
basis. Any cash balances remaining in Participants payroll
deduction and other Plan accounts upon termination of the Plan
shall be refunded as soon thereafter as practicable. The powers
of the Committee provided by Section 3 to construe and
administer any right to purchase shares granted prior to the
termination of the Plan shall nevertheless continue after such
termination.
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20.
|
Listing
of Shares and Related Matters
|
If at any time the Committee shall determine, based on opinion
of counsel, that the listing, registration or qualification of
the shares covered by the Plan upon any national securities
exchange or under any state or Federal or foreign law or the
consent or approval of any governmental regulatory body is
necessary or desirable as a condition of, or in connection with,
the sale or purchase of shares under the Plan, no shares will be
sold, issued or delivered unless and until such listing,
registration, qualification, consent or approval shall have been
effected or obtained, or otherwise provided for, free of any
conditions not acceptable to counsel.
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21.
|
Third
Party Beneficiaries
|
None of the provisions of the Plan shall be for the benefit of
or enforceable by any creditor of a Participant. A Participant
may not create a lien on any portion of the cash balance
accumulated in such Participants payroll deduction or
other Plan account or on any shares covered by a right to
purchase before a stock certificate for such shares is issued
for such Participants benefit.
The Plan shall neither impose any obligation on Celanese or on
any subsidiary corporation to continue the employment of any
Participant or eligible employee, nor impose any obligation on
any Participant to remain in the employ of Celanese or of any
subsidiary corporation. For purposes of the Plan, an employment
relationship shall be deemed to exist between an individual and
a corporation if, at the time of the determination, the
individual was an employee of such corporation
within the meaning of Section 423(a)(2) of the Code and the
regulations and rulings interpreting such Section. For purposes
of the Plan, the transfer of an employee from employment with
Celanese to employment with a subsidiary of Celanese, or vice
versa, shall not be deemed a termination of employment of the
employee. Subject to the specific terms of the Plan, all
employees granted rights to purchase shares hereunder shall have
the same rights and privileges.
Except where jurisdiction is exclusive to the federal courts or
except as governed by federal law, the Plan and rights to
purchase shares that may be granted hereunder shall be governed
by and construed and enforced in accordance with the laws of the
State of Delaware.
The effective date of this Plan is March 6, 2009. The Plan
was originally effective upon its approval by the Board of
Directors; provided, however, that no purchase period under the
Plan began until a Registration Statement under the Securities
Act of 1933, as amended, covering the shares to be issued under
the Plan became effective.
5