As filed with the Securities and Exchange Commission on January 7, 2011
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
AbitibiBowater Inc.
(Exact name of Registrant as specified in its charter)
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Delaware
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98-0526415
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(State or other jurisdiction of
incorporation or organization)
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(IRS Employer
Identification No.)
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1155 Metcalfe Street, Suite 800
Montreal, Quebec
Canada H3B 5H2
(514) 875-2160
(Address, including zip code, of principal executive offices)
AbitibiBowater Inc. 2010 Equity Incentive Plan
(Full title of the plan)
The
Corporation Trust Company
1209 Orange Street
Wilmington, Delaware 19801
(866) 809-1134
(Name of agent, including area code, for service)
COPIES TO:
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AbitibiBowater Inc.
1155 Metcalfe Street, Suite 800
Montreal, Quebec
Canada H3B 5H2
(514) 875-2160
Attention: Jacques P. Vachon
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Seyfarth Shaw LLP
131 South Dearborn
Suite 2400
Chicago, Illinois 60603
(312) 460-5000
Attention: Ameena Majid
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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.
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Large accelerated filer
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¨
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Accelerated filer
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¨
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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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x
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CALCULATION OF REGISTRATION FEE
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Title of
Securities to be Registered
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Amount
to be
Registered (1)
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Proposed
Maximum
Offering Price
Per Unit
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Proposed
Maximum
Aggregate
Offering Price
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Amount of
Registration Fee
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Common stock, par value $.001 per share
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9,020,960 shares
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$23.12 (2)
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$208,564,595 (2)
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$24,214
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(1)
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Pursuant to Rule 416 under the Securities Act of 1933, as amended (the “Securities Act”), this Registration Statement shall be deemed to cover any additional
securities to be offered or issued from stock splits, stock dividends or similar transactions.
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(2)
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Estimated solely for the purposes of calculating the registration fee under Rule 457(h) and Rule 457(c) under the Securities Act based on the average of the high and
low prices for the registrant’s common stock as reported on the New York Stock Exchange on January 4, 2011.
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EXPLANATORY NOTE
Except as the context otherwise requires, references to “we,” “our,” “us,” “AbitibiBowater” and the “Company” are to AbitibiBowater Inc. and its
consolidated subsidiaries.
We have prepared this Registration Statement in accordance with the requirements of Form S-8 under the
Securities Act of 1933, as amended (the “Securities Act”), to register the issuance and sale of up to 9,020,960 shares of our common stock, par value $.001 per share, which we refer to as the common stock, that are reserved for issuance in
respect of grants made or upon exercise of options granted under the AbitibiBowater Inc. 2010 Equity Incentive Plan (the “Plan”).
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
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Item 1.
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Plan Information.
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The document(s)
containing the information specified in Part I of Form S-8 will be sent or given to participants in the Plan as specified by Rule 428(b)(1) under the Securities Act. Such documents are not being filed with the Securities and Exchange Commission
(the “SEC”), but constitute, along with the documents incorporated by reference into this Registration Statement, a prospectus that meets the requirements of Section 10(a) of the Securities Act.
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Item 2.
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Company Information and Employee Plan Annual Information.
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We will furnish without charge to each person to whom the prospectus is delivered, upon the written or oral request of such person, a copy of any and all of the documents incorporated by reference in
Item 3 of Part II of this Registration Statement, other than exhibits to such documents (unless such exhibits are specifically incorporated by reference to the information that is incorporated). Those documents are incorporated by
reference in the Section 10(a) prospectus. We will also furnish without charge to each person to whom the prospectus is delivered, upon written or oral request, all other documents required to be delivered to employees pursuant to
Rule 428(b). Requests should be directed to AbitibiBowater Inc., 1155 Metcalfe Street, Suite 800, Montreal, Quebec, Canada H3B 5H2, Attention: Chief Legal Officer; Telephone number (514) 875-2160.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
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Item 3.
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Incorporation of Documents by Reference
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The following documents filed with the SEC by us are incorporated by reference in this Registration Statement:
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1.
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Our Annual Report on Form 10-K for the fiscal year ended December 31, 2009 filed with the SEC on March 31, 2010;
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2.
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Amendment No. 1 to our Annual Report on Form 10-K/A for the fiscal year ended December 31, 2009 filed with the SEC on April 30, 2010;
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3.
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Our Quarterly Reports on Form 10-Q for the quarters ended March 31, 2010, June 30, 2010 and September 30, 2010, as filed with the SEC on
May 20, 2010, August 16, 2010 and November 15, 2010, respectively;
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4.
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Our Current Reports on Form 8-K, as filed with the SEC on January 8, 2010, January 27, 2010, February 4, 2010, February 8, 2010, February 25,
2010, March 3, 2010, March 4, 2010, April 1, 2010, April 6, 2010, April 16, 2010, May 5, 2010, May 11, 2010, May 28, 2010, June 8, 2010, June 17, 2010, July 7, 2010, July 26, 2010,
August 5, 2010, August 30, 2010, September 8, 2010, September 20, 2010, October 7, 2010, October 8, 201, October 19, 2010, November 5, 2010, November 12,
2010, November 30, 2010, December 7, 2010, December 15, 2010, December 16, 2010 and December 30, 2010; and
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5.
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The description of our common stock contained in our Registration Statement on Form 8-A as filed with the SEC on December 9, 2010.
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In addition, all reports and documents filed with the SEC by us pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of
1934, as amended (the “Exchange Act”), subsequent to the date hereof and prior to the filing of a post-effective amendment to this Registration Statement that indicates that all securities offered hereby have been sold, or that deregisters
all securities then remaining unsold, shall be deemed to be incorporated by reference herein and made a part hereof from the date of the filing of such documents.
Any statement contained in this Registration Statement, in an amendment hereto or in a document 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 in any subsequently filed amendment to this Registration Statement or in any document that also is incorporated by reference herein modifies or supersedes such
statement. Any statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Registration Statement.
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Item 4.
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Description of Securities
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Not
applicable.
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Item 5.
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Interests of Named Experts and Counsel
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Not applicable.
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Item 6.
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Indemnification of Directors and Officers
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Delaware law permits a corporation to adopt a provision in its certificate of incorporation eliminating or limiting the personal liability of a director,
but not an officer in his or her capacity as such, to the corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except that such provision shall not limit the liability of a director for (1) any breach
of the director’s duty of loyalty to the corporation or its stockholders, (2) acts or omissions not in good faith or that involve intentional misconduct or a knowing violation of law, (3) liability under Section 174 of the
Delaware General Corporation Law for unlawful payment
3
of dividends or stock purchases or redemptions, or (4) any transaction from which the director derived an improper personal benefit. The Company’s restated certificate of
incorporation provides that no director of the Company shall be personally liable to the Company or its stockholders for monetary damages for breach of fiduciary duty as a director, except to the extent such an exemption from liability or limitation
thereof is not permitted under the Delaware General Corporation Law.
Under Delaware law, a corporation may indemnify any individual made a
party or threatened to be made a party to any type of proceeding, other than action by or in the right of the corporation, because he or she is or was an officer, director, employee or agent of the corporation or was serving at the request of the
corporation as an officer, director, employee or agent of another corporation or entity, against expenses, judgments, fines and amounts paid in settlement actually and reasonably incurred in connection with such proceeding: (1) if he or she
acted in good faith and in a manner he or she reasonably believed to be in or not opposed to the best interests of the corporation; or (2) in the case of a criminal proceeding, he or she had no reasonable cause to believe that his or her
conduct was unlawful. A corporation may indemnify any individual made a party or threatened to be made a party to any threatened, pending or completed action or suit brought by or in the right of the corporation because he or she was an
officer, director, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation or other entity, against expenses actually and reasonably incurred in
connection with such action or suit if he or she acted in good faith and in a manner he or she reasonably believed to be in or not opposed to the best interests of the corporation, provided that such indemnification will be denied if the individual
is found liable to the corporation unless, in such a case, the court determines the person is nonetheless entitled to indemnification for such expenses. A corporation must indemnify a present or former director or officer who successfully
defends himself or herself in a proceeding to which he or she was a party because he or she was a director or officer of the corporation against expenses actually and reasonably incurred by him or her. Expenses incurred by an officer or
director, or any employees or agents as deemed appropriate by the Board of Directors, in defending civil or criminal proceedings may be paid by the corporation in advance of the final disposition of such proceedings upon receipt of an undertaking by
or on behalf of such director or officer to repay such amount if it shall ultimately be determined that he or she is not entitled to be indemnified by the corporation. The Delaware law regarding indemnification and expense advancement is not
exclusive of any other rights which may be granted by the Company’s restated certificate of incorporation or by-laws, a vote of stockholders or disinterested directors, agreement or otherwise.
Under the Delaware General Corporation Law, termination of any proceeding by conviction or upon a plea of nolo contendere or its equivalent shall not, of
itself, create a presumption that such person is prohibited from being indemnified. The Company’s restated certificate of incorporation and bylaws provide for the indemnification and advancement of expenses to the fullest extent permitted by
law of any individual made, or threatened to be made, a party to an action, suit or proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that he or she is or was a director or officer of the Company or is or
was a director or officer of the Company serving any other enterprise at the request of the Company. However, the Company will not indemnify a director or officer who commences any proceeding (except for proceedings to enforce rights of
indemnification), unless the commencement of that proceeding was authorized or consented to by the Board of Directors.
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Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors,
officers or persons controlling the registrant pursuant to the foregoing provisions, we have been informed that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities
Act, and is therefore unenforceable.
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Item 7.
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Exemption from Registration Claimed
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Not
applicable.
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Exhibits
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3.1
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Third Amended and Restated Certificate of Incorporation of AbitibiBowater Inc. (incorporated by reference to Exhibit 3(i) to the Company’s Form 8-A filed on December 9,
2010).
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3.2
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Second Amended and Restated By-laws of AbitibiBowater Inc. (incorporated by reference to Exhibit 3(ii) to the Company’s Form 8-A filed on December 9,
2010).
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5.1
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Opinion of Counsel regarding the legality of the securities being registered.
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10.1
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AbitibiBowater Inc. 2010 Equity Incentive Plan (incorporated by reference to Exhibit 10.1 to the Company’s Form 8-K filed on November 30, 2010).
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10.2
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AbitibiBowater Inc. 2010 Equity Incentive Plan Form of Restricted Stock Unit Agreement.
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10.3
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AbitibiBowater Inc. 2010 Equity Incentive Plan Form of Director Stock Option Agreement.
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10.4
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AbitibiBowater Inc. 2010 Equity Incentive Plan Form of Employee Stock Option Agreement.
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23.1
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Consent of PricewaterhouseCoopers LLP.
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23.2
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Consent of Counsel (included in Exhibit 5.1).
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24.1
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Power of Attorney.
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(a)
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The undersigned registrant hereby undertakes:
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1.
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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 the 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 the 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 SEC pursuant to Rule 424(b) if, in
the aggregate, the changes in volume and price represent no more than a 20% 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 the registration statement or any material change to such
information in the registration statement;
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Provided, however, that,
paragraphs 1(i) and
1(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 SEC by us pursuant to Section 13 or Section 15(d) of the
Exchange Act that are incorporated by reference in the registration statement.
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2.
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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 offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
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3.
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To remove from registration by means of a post-effective amendment any of the securities being registered hereby which remain unsold at the termination of the offering.
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(b)
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The undersigned registrant hereby undertakes that, for the purposes of determining any liability under the Securities Act, each filing of the registrant’s annual
report pursuant to Section 13(a) or Section 15(d) of the Exchange Act that is incorporated by reference in the 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.
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(c)
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Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the
registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the SEC such indemnification is against public policy as expressed in the Securities Act and is,
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therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or
controlling person of the registrant 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 registrant 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.
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7
SIGNATURES
Pursuant to the requirements of the Securities Act, the registrant 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 Montreal, Province of Quebec, Canada, on January 7, 2011.
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ABITIBIBOWATER INC.
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By:
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/
S
/ R
ICHARD
G
ARNEAU
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Name:
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Richard Garneau
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Title:
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President and Chief Executive Officer
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Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities and on the dates stated.
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Signature
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Title
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Date
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/
S
/ R
ICHARD
G
ARNEAU
Richard Garneau
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President, Chief Executive Officer and Director (Principal Executive Officer)
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January 7, 2011
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/
S
/ W
ILLIAM
G.
H
ARVEY
William G. Harvey
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Executive Vice President and Chief Financial Officer (Principal Financial Officer)
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January 7, 2011
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S
/ J
OSEPH
B.
J
OHNSON
Joseph B. Johnson
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Senior Vice President, Finance and Chief Accounting Officer (Principal Accounting Officer)
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January 7, 2011
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*
Richard B. Evans
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Chairman of the Board
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January 7, 2011
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*
Pierre Dupuis
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Director
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January 7, 2011
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*
Richard D. Falconer
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Director
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January 7, 2011
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*
Jeff Hearn
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Director
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January 7, 2011
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*
Sarah Nash
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Director
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January 7, 2011
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* Signed by
William G. Harvey, attorney-in-fact
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*
Alain Rhéaume
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Director
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January 7, 2011
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*
Paul C. Rivett
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Director
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January 7, 2011
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*
Michael Rousseau
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Director
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January 7, 2011
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*
David H. Wilkins
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Director
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January 7, 2011
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* Signed by
William G. Harvey, attorney-in-fact
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INDEX TO EXHIBITS
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Exhibits
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3.1
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Third Amended and Restated Certificate of Incorporation of AbitibiBowater Inc. (incorporated by reference to Exhibit 3(i) to the Company’s Form 8-A filed on December 9,
2010).
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3.2
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Second Amended and Restated By-laws of AbitibiBowater Inc. (incorporated by reference to Exhibit 3(ii) to the Company’s Form 8-A filed on December 9, 2010).
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5.1
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Opinion of Counsel regarding the legality of the securities being registered.
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10.1
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AbitibiBowater Inc. 2010 Equity Incentive Plan (incorporated by reference to Exhibit 10.1 to the Company’s Form 8-K filed on November 30, 2010).
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10.2
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AbitibiBowater Inc. 2010 Equity Incentive Plan Form of Restricted Stock Unit Agreement.
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10.3
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AbitibiBowater Inc. 2010 Equity Incentive Plan Form of Director Stock Option Agreement.
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10.4
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AbitibiBowater Inc. 2010 Equity Incentive Plan Form of Employee Stock Option Agreement.
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23.1
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Consent of PricewaterhouseCoopers LLP.
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23.2
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Consent of Counsel (included in Exhibit 5.1).
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24.1
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Power of Attorney.
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10
Exhibit 5.1
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TROUTMAN SANDERS LLP
Attorneys at Law
Bank of America Plaza
600 Peachtree Street, NE, Suite 5200
Atlanta, Georgia 30308-2216
404.885.3000 telephone
troutmansanders.com
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January 7, 2011
Board of Directors
AbitibiBowater Inc.
1155 Metcalfe Street, Suite 800
Montreal, Quebec
Canada H3B 5H2
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Re:
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Registration Statement on Form S-8 Relating to the AbitibiBowater Inc. 2010 Equity
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Ladies and Gentlemen:
We have acted as special counsel to AbitibiBowater Inc., a Delaware corporation (the “Company”), in connection with
the registration statement on Form S-8 (the “Registration Statement”), filed by the Company with the Securities and Exchange Commission (the “Commission”) on January 7, 2011 pursuant to the Securities Act of 1933, as amended (the
“Securities Act”), with respect to 9,020,960 shares of the Company’s common stock, $0.001 par value per share (the “Shares”), issuable by the Company pursuant to the Company’s 2010 Equity Incentive Plan (the “2010
Plan”).
This opinion is being furnished in accordance with the requirements of Item 601(b)(5)(i) of Regulation S-K
promulgated under the Securities Act.
In connection with the foregoing, we have examined the 2010 Plan, the Registration
Statement and the exhibits filed with the Commission on the date hereof. We have also examined originals, or duplicates or certified or conformed copies, of such corporate records, agreements, documents and other instruments and have made such other
investigations as we have deemed relevant and necessary in connection with the opinions hereinafter set forth. As to questions of fact material to this opinion, we have relied upon certificates or comparable documents of public officials and of
officers and representatives of the Company.
For purposes of the opinion expressed below, we have assumed (i) the
authenticity of all documents submitted to us as originals, (ii) the conformity to the originals of all documents submitted as certified, photostatic or electronic copies and the authenticity of the originals thereof, (iii) the legal
capacity of natural persons, (iv) the genuineness of signatures not witnessed by us and (v) the due authorization, execution and delivery of all documents by all parties and the validity, binding effect and enforceability thereof.
AbitibiBowater Inc.
January 7, 2011
Page 2
We do not purport to express an opinion on any laws other than the General Corporation Law of the State of Delaware (including the
relevant statutory provisions, the applicable provisions of the Delaware Constitution and the reported judicial decisions interpreting these laws) and the federal laws of the United States of America. We are not opining on “blue sky” or
other state securities laws.
Based upon the foregoing, and subject to the qualifications, assumptions and limitations stated
herein, we are of the opinion that the Shares have been duly authorized by all necessary corporate action of the Company, and when such Shares have been issued in accordance with the terms of the 2010 Plan, will be validly issued, fully paid and
nonassessable.
This opinion is given as of the date hereof, and we assume no obligation to advise you after the date hereof
of facts or circumstances that come to our attention or changes in law that occur which could affect the opinions contained herein.
We hereby consent to the filing of this opinion letter as an exhibit to the Registration Statement and any amendments thereto and with respect to our name wherever it appears in the Registration
Statement. In giving the foregoing consent, we do not hereby admit that we come within the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the Commission thereunder. This
opinion is being rendered solely for the benefit of the Company in connection with the matters addressed herein. This opinion may not be relied upon by you for any other purpose, or furnished or quoted to or relied upon by any other persons, firm or
entity for any purpose, without our prior written consent.
Very truly yours,
/s/ Troutman Sanders LLP
Exhibit 10.2
ABITIBIBOWATER INC. 2010 EQUITY INCENTIVE PLAN
RESTRICTED STOCK UNIT
AGREEMENT
THIS RESTRICTED STOCK UNIT AGREEMENT, dated as of [Insert Date]
1
(the “
Date of Grant
”) is made by and between
AbitibiBowater Inc., a Delaware corporation (the “
Company
”), and
(“
Participant
”).
WHEREAS, the Company has adopted the AbitibiBowater Inc. 2010 Equity Incentive Plan (the “
Plan
”), pursuant
to which restricted stock units may be granted in respect of shares of the Company’s common stock, par value $0.001 per share (“
Stock
”); and
WHEREAS, the Human Resources and Compensation/Nominating and Governance Committee of the Company (the “
Committee
”) has determined that it is in the best interests of the Company and its
stockholders to grant the restricted stock unit award provided for herein to Participant subject to the terms set forth herein.
NOW, THEREFORE, for and in consideration of the premises and the covenants of the parties contained in this Agreement, and for other good
and valuable consideration, the receipt of which is hereby acknowledged, the parties hereto, for themselves, their successors and assigns, hereby agree as follows:
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1.
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Grant of Restricted Stock Unit
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(a)
Grant
. The Company hereby grants to Participant [
] restricted stock units (the “
RSUs
”), on the
terms and conditions set forth in this Agreement and as otherwise provided in the Plan (the “Initial Grant”). Each RSU represents the right to receive one share of Stock as of the Settlement Date (defined in Section 2(b)), to the extent
the Participant is vested in such RSUs as of the Settlement Date, subject to the terms of this Agreement and the Plan.
(b)
Incorporation by Reference, Etc.
The provisions of the Plan are hereby incorporated herein by reference. Except as otherwise expressly set forth herein, this Agreement shall be construed in accordance with the provisions of the Plan and any
interpretations, amendments, rules and regulations promulgated by the Committee from time to time pursuant to the Plan. Any capitalized terms not otherwise defined in this Agreement shall have the definitions set forth in the Plan. The Committee
shall have final authority to interpret and construe the Plan and this Agreement and to make any and all determinations under them, and its decision shall be binding and conclusive upon Participant and his legal representative in respect of any
questions arising under the Plan or this Agreement.
(c)
Acceptance of Agreement
. Unless Participant notifies the
Company’s Corporate Secretary in writing within 14 days after the Date of Grant that Participant does not wish to accept this Agreement, Participant will be deemed to have accepted this
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1
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For emergence date grants, first day following end of the 30 day calendar period beginning on the date AbitibiBowater Inc.’s common stock are
listed on the New York Stock Exchange.
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Agreement and will be bound by the terms of the Agreement and the Plan. Any such notice may be given to the Corporate Secretary at the Company’s principal executive office.
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2.
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Terms and Conditions
.
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(a)
Vesting
. Subject to continued employment with the Company or any Affiliate or Subsidiary, twenty five percent (25%) of the RSUs (rounded to the nearest whole restricted stock unit) shall
vest on each of the first four anniversaries of the Date of Grant
2
(each such date, a “
Vesting Date
”).
(b)
Settlement
. The
obligation to make payments and distributions with respect to RSUs shall only be satisfied through the issuance of one share of Stock for each vested RSU (the “
settlement
”) and the settlement of the RSUs may be subject to such
conditions, restrictions and contingencies as the Committee shall determine. The Company undertakes and agrees not to exercise its right under the Plan to settle the RSU in any other means other than Stock. RSUs shall be settled as soon as
practicable after the applicable Vesting Date (the “
Settlement Date
”), but in no event later than March 15 of the year following the year in which the Vesting Date occurs. Notwithstanding the foregoing, the payment dates set
forth in this Section 2(b) have been specified for the purpose of complying with the short-term deferral exception of Section 409A of the Internal Revenue Code (“
Section 409A
”). To the extent payments are made during the
periods permitted under Section 409A (including any applicable periods before or after the specified payment dates set forth in this Section 2(b)), the Company shall be deemed to have satisfied its obligations under the Plan and shall be
deemed not to be in breach of its payments obligations hereunder.
(c)
Dividend Equivalents and Voting Rights
.
Participant will from time to time be credited with additional RSUs (including a fractional RSU), the number of which will be determined by dividing:
(i) The product obtained by multiplying the amount of each dividend (including extraordinary dividend if so determined by the Company) declared and paid by the Company on the Stock on a per share basis
during the Vesting Period by the number of RSUs recorded in Participant’s account on the record date for payment of any such dividend, by
(ii) The Fair Market Value of one (1) share of Stock on the dividend payment date for such dividend.
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2
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For emergence date grants, the vesting period will begin on the date on which the Company emerged from creditor protection, namely December 9,
2010.
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2
Subject to continued employment with the Company or any Affiliate or Subsidiary, the
additional RSUs shall vest at the same time and on the same proportion as the Initial Grant. No additional RSUs shall be accrued for the benefit of Participant with respect to record dates occurring prior to, or with respect to record dates
occurring on or after the date, if any, on which Participant has forfeited the RSUs. Participant shall not be a shareholder of record with respect to the RSUs and shall have no voting rights with respect to the RSUs.
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3.
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Termination of Employment.
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(a)
Retirement and Involuntary Termination
. If the Participant’s employment with the Company or any Affiliate or Subsidiary terminates as a result of “Retirement”, or involuntary
termination by the Company or any Affiliate or Subsidiary without Cause (whether or not the Participant is eligible for Retirement and other than due to Disability or death), then the Participant shall become vested in a prorated number of RSUs. For
purpose of the preceding, the prorated portion of the RSUs that is vested as of the Participant’s date of termination, including the portion of the RSUs then already vested, shall be the total number of granted and credited RSUs multiplied by a
fraction, the numerator of which shall be the number of full months elapsed from the Date of Grant
3
through the date of the Participant’s termination of employment (or, if later, the last day of any severance period during which Participant is receiving salary continuation) and the denominator of
which shall be 48. The term “Retirement” shall mean termination of employment on or after age 55.
(b)
Death
. If the Participant’s employment with the Company or any Affiliate or Subsidiary terminates due to the Participant’s death, then, in addition to the RSUs vested as of the date of death under Section 2(a), the RSUs
scheduled to vest on the next scheduled Vesting Date shall also vest on the date of death.
(c)
Disability
. If the
Participant becomes eligible for long-term disability benefits under a plan sponsored by the Company, an Affiliate or a Subsidiary, then, in addition to the RSUs then vested, the RSUs scheduled to vest on the next scheduled Vesting Date shall also
vest on the first date of the long-term disability period. For the avoidance of doubt, RSUs shall continue to vest during any short-term disability period.
(d)
Other Termination
. If the Participant’s employment with the Company, all Affiliates and Subsidiaries terminates for Cause or resignation (before Retirement eligibility) then all
outstanding RSUs, whether vested but unsettled or unvested, shall immediately terminate.
Notwithstanding anything contained to the contrary
in this Section 3, in no event shall any RSUs be settled prior to the applicable Vesting Date except if otherwise determined by the Company.
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3
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For emergence date grants, the period for determining any prorata amount will begin on the date on which the Company emerged from creditor protection,
namely December 9, 2010.
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3
4.
Compliance with Legal Requirements
. The granting and settlement of the RSUs, and any other
obligations of the Company under this Agreement, shall be subject to all applicable federal, provincial, state, local and foreign laws, rules and regulations and to such approvals by any regulatory or governmental agency as may be required.
(a)
Transferability
. Unless otherwise provided by the Committee in writing, the RSUs shall not be transferable by
Participant other than by will or the laws of descent and distribution.
(b)
No Rights as Stockholder
. The Participant
shall not be deemed for any purpose to be the owner of any shares of Stock subject to RSUs.
(c)
Tax Withholding
. All
distributions under the Plan are subject to withholding of all applicable federal, state, provincial, local and foreign taxes, and the Committee may condition the settlement of the RSUs on satisfaction of the applicable withholding obligations. For
distributions occurring during a blackout period under the Company’s insider trading policy, the Company shall arrange for the sale of a number of shares of Stock to be delivered to the Participant to satisfy the applicable withholding
obligations. Such shares of Stock shall be sold on behalf of the Participant through the Company’s transfer agent on the facilities of the New York Stock Exchange or through the facilities of any other exchange on which the Company’s
Stock is listed at the time of such sale.
(a)
Waiver
. Any right of the Company contained in this Agreement may be waived in writing by the Committee. No waiver of any right hereunder by any party shall operate as a waiver of any other right, or as a waiver of the same right with respect
to any subsequent occasion for its exercise, or as a waiver of any right to damages. No waiver by any party of any breach of this Agreement shall be held to constitute a waiver of any other breach or a waiver of the continuation of the same breach.
(b)
Notices
. Any written notices provided for in this Agreement or the Plan shall be in writing and shall be deemed
sufficiently given if either hand delivered or if sent by fax or overnight courier, or by postage paid first class mail. Notices sent by mail shall be deemed received three business days after mailing but in no event later than the date of actual
receipt. Notices shall be directed, if to the Participant, at the Participant’s address indicated by the Company’s records, or if to the Company, to the attention of the Corporate Secretary at the Company’s principal executive office.
(c)
Severability
. The invalidity or unenforceability of any provision of this Agreement shall not affect the validity
or enforceability of any other provision of this Agreement, and each other provision of this Agreement shall be severable and enforceable to the extent permitted by law.
(d)
No Rights to Employment
. Nothing contained in this Agreement shall be construed as giving Participant any right to be retained, in any position, as an employee,
4
consultant or director of the Company or its Affiliates or shall interfere with or restrict in any way the right of the Company or its Affiliates, which are hereby expressly reserved, to remove,
terminate or discharge Participant at any time for any reason whatsoever.
(e)
Beneficiary
. The Participant other than
a Participant residing in the Province of Québec, may file with the Committee a written designation of a beneficiary on such form as may be prescribed by the Committee and may, from time to time, amend or revoke such designation. Any notice
should be made to the attention of the Corporate Secretary of the Company at the Company’s principal executive office. If no designated beneficiary survives the Participant, the Participant’s estate shall be deemed to be Participant’s
beneficiary.
(f)
Québec Participant
. The Participant residing in the Province of Québec may only
designate a beneficiary by will. Upon the death of the Participant residing in the Province of Québec, the Company shall settle the RSUs pursuant to Section 2(b) of this Agreement to the liquidator, administrator or executor of the estate of
the Participant.
(g)
Successors
. The terms of this Agreement shall be binding upon and inure to the benefit of the
Company and its successors and assigns, and of the Participant and the beneficiaries, executors, administrators, heirs and successors of the Participant.
(h)
Entire Agreement
. This Agreement and the Plan contain the entire agreement and understanding of the parties hereto with respect to the subject matter contained herein and supersede all prior
communications, representations and negotiations in respect thereto. No change, modification or waiver of any provision of this Agreement shall be valid unless the same be in writing and signed by the parties hereto, except for any changes permitted
without consent under Section 9 of the Plan.
(i)
Governing Law
. This Agreement shall be construed and interpreted
in accordance with the laws of the State of Delaware without regard to principles of conflicts of law thereof, or principles of conflicts of laws of any other jurisdiction which could cause the application of the laws of any jurisdiction other than
the State of Delaware.
(j)
Headings
. The headings of the Sections hereof are provided for convenience only and are not
to serve as a basis for interpretation or construction, and shall not constitute a part, of this Agreement.
[Remainder of page
intentionally blank]
5
IN WITNESS WHEREOF, the Company has executed this Agreement as of the day first written
above.
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ABITIBIBOWATER INC.
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By:
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Name:
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Title:
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6
Exhibit 10.3
ABITIBIBOWATER INC. 2010 EQUITY INCENTIVE PLAN
DIRECTOR NONQUALIFIED
STOCK OPTION AGREEMENT
THIS OPTION AGREEMENT (the “
Agreement
”), dated as of
[Insert Date]
1
(the “
Date of Grant
”), is made by and between AbitibiBowater Inc., a Delaware corporation (the “
Company
”), and
(“
Participant
”).
WHEREAS, the Company has adopted the AbitibiBowater Inc. 2010 Equity Incentive Plan (the “
Plan
”), pursuant to which options may be granted to purchase shares of the Company’s common
stock, par value $0.001 per share (“
Stock
”); and
WHEREAS, the Participant serves as a member of the Board of
Directors of the Company (“Director”) and the Board of Directors has determined that, subject to the terms set forth herein, a portion of each Director’s compensation should be made in the form of a stock option award to more closely
align their interests with those of the Company and its stockholders.
NOW, THEREFORE, for and in consideration of the
premises and the covenants of the parties contained in this Agreement, and for other good and valuable consideration, the receipt of which is hereby acknowledged, the parties hereto, for themselves, their successors and assigns, hereby agree as
follows:
(a)
Grant
. The Company hereby grants to Participant an option (the “
Option
”) to purchase [
] shares of Stock (such shares of Stock, the “
Option
Shares
”), on the terms and conditions set forth in this Agreement and as otherwise provided in the Plan.
(b)
Incorporation by Reference, Etc.
The provisions of the Plan are hereby incorporated herein by reference. Except as otherwise expressly set forth herein, this Agreement shall be construed in accordance with the provisions of the Plan and any
interpretations, amendments, rules and regulations promulgated by the Human Resources and Compensation/Nominating and Governance Committee (the “
Committee
”) from time to time pursuant to the Plan. Any capitalized terms not otherwise
defined in this Agreement shall have the definitions set forth in the Plan. The Committee shall have final authority to interpret and construe the Plan and this Agreement and to make any and all determinations under them, and its decision shall be
binding and conclusive upon Participant and his legal representative in respect of any questions arising under the Plan or this Agreement.
(c)
Acceptance of Agreement
. Unless Participant notifies the Corporate Secretary of the Company in writing within 14 days after the Date of Grant that Participant does not wish to accept this
Agreement, Participant will be deemed to have accepted this Agreement and will be bound by the terms of the Agreement and the Plan. Any such notice may be given to the Corporate Secretary at the Company’s principal executive office.
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1
|
For emergence date grants, first day following the end of the 30 day calendar period beginning on the date AbitibiBowater Inc.’s common stock are
listed on the New York Stock Exchange.
|
|
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2.
|
Terms and Conditions
.
|
(a)
Exercise Price
. The Exercise Price, being the price at which Participant shall be entitled to purchase the Option Shares upon the exercise of all or any portion of the Option, shall be
$
per Option Share.
2
(b)
Exercisability of the Option
. Except as may
otherwise be provided herein, the Option shall become vested and exercisable with respect to twenty five percent (25%) of the Option Shares (rounded to the nearest whole Option Share) on each of the first four anniversaries of the Date of
Grant
3
(each such date, a “
Vesting
Date
”), subject to the Participant’s continued service as a Director through the applicable Vesting Date.
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3.
|
Termination of Service with the Company
.
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(a)
Retirement and Involuntary Termination
. If the Participant’s service as a Director terminates as a result of “Retirement” or a failure to be re-elected as a Director (other than
due to Disability or death), then the Option shall become vested with respect to a prorated number of the Option Shares. For purposes of the preceding, the prorated portion of the Option that is vested as of the Participant’s date of
termination, including the portion of the Option then already vested, shall be the total number of Option Shares multiplied by a fraction, the numerator of which shall be the number of full months elapsed from the Date of Grant
4
through the date of the Participant’s termination of service as
a Director and the denominator of which shall be 48. The term “Retirement” shall mean mandatory retirement at age 72 (or such other age as required by Company’s By-Laws and/or Board of Directors Corporate Governance Principles). The
vested portion of the Option shall remain exercisable during the one-year period beginning on Participant’s date of termination of service as a Director;
provided
that if the Participant dies during such one-year period, then the
remaining portion of the then outstanding and vested Option shall remain exercisable for two years following the death of Participant.
(b)
Death
. If the Participant’s service as a Director terminates due to the Participant’s death, then, in addition to the portion of the Option then vested, the portion of the Option
scheduled to vest on the next Vesting Date shall also vest on the date of death. The vested portion of the Option shall remain exercisable for two years following the death of Participant.
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2
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For emergence date grants, the exercise price will be the arithmetic mean of the per-share closing trading price of AbitibiBowater Inc.’s common
stock for the 30 calendar day period beginning on the day the shares of common stock are listed on New York Stock Exchange. For post-emergence date grants, the exercise price will be no less than Fair Market Value of a share of common stock on Date
of Grant.
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3
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For emergence date grants, the vesting period will begin on the date on which the Company emerged from creditor protection, namely December 9,
2010.
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4
|
For emergence date grants, the period for determining any prorata amount will begin on the date on which the Company emerged from creditor protection,
namely December 9, 2010.
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2
(c)
Disability
. If the Participant becomes Disabled, then, in addition to the
portion of the Option then vested, the portion of the Option scheduled to vest on the next Vesting Date shall also vest upon the Participant’s Disability. The vested portion of the Option shall remain exercisable for two years from the first
date on which the Participant is determined Disabled.
(d)
Termination by the Company for Cause
. If the
Participant’s service as a Director terminates for Cause, then the entire Option (including any portion which was previously vested, but not exercised as of the date of termination) shall be immediately forfeited.
(e)
Other Termination
. If the Participant’s service as a Director terminates other than as otherwise described in the
foregoing provisions of this Section 3, including resignation from the Board before Retirement, then any vested portion of the Option as of the date of such termination shall remain exercisable for 90 days following such termination of service
as a Director;
provided
that if the Participant dies during such 90-day period, then any vested portion of the Option as of the date of death shall remain exercisable for one year following the death of the Participant.
Notwithstanding anything contained to the contrary in this Section 3, in no event shall all or any portion of the Option be exercisable after the
ten-year anniversary of the Date of Grant.
4.
Method of Exercise
. Subject to applicable law, the Exercise Price shall
be payable in cash, check, cash equivalent or by tendering, by either actual delivery of shares or by attestation, shares of Stock acceptable to the Committee, and valued at Fair Market Value as of the day of exercise, or in any combination thereof,
as determined by the Committee. Subject to applicable law, the Committee may permit a Participant to elect to pay the Exercise Price upon (i) the exercise of an Option by irrevocably authorizing a third party to sell, on behalf of the
Participant, shares of Stock (or a sufficient portion of the shares) acquired upon exercise of the Option and remit to the Company a sufficient portion of the sale proceeds to pay the entire Exercise Price and any tax withholding resulting from such
exercise, or (ii) such other method which is approved by the Committee. Notwithstanding the foregoing, if, on the last day of the Option Period, the Fair Market Value exceeds the Exercise Price, the Participant has not exercised the Option, and
the Option has not expired, such Option shall be deemed to have been exercised by the Participant on such last day by means of a net exercise and the Company shall deliver to the Participant the number of shares of Stock for which the Option was
deemed exercised less such number of shares of Stock required to be withheld to cover the payment of the Exercise Price and all applicable required withholding taxes, which portion of the Stock shall be delivered by the Company to its transfer agent
who will sell them on behalf of the Participant in order to pay the exercise price and the withholding tax.
5.
Settlement
of the Options
. The Company undertakes and agrees to settle the Options only by issuing stocks and will not exercise its right under the Plan to settle the Options by any other means.
6.
Compliance with Legal Requirements
. The granting and exercising of the Option, and any other obligations of the Company under
this Agreement, shall be subject to all applicable federal, state, local and foreign laws, rules and regulations and to such approvals by
3
any regulatory or governmental agency as may be required. The Committee, in its sole discretion, may postpone the issuance or delivery of Option Shares as the Committee may consider appropriate
and may require the Participant to make such representations and furnish such information as it may consider appropriate in connection with the issuance or delivery of Option Shares in compliance with applicable laws, rules and regulations.
(a)
Transferability
. Unless otherwise provided by the Committee in writing, the Option shall not be transferable by
Participant other than by will or the laws of descent and distribution.
(b)
Rights as Stockholder
. The Participant
shall not be deemed for any purpose to be the owner of any shares of Stock subject to this Option unless, until and to the extent that (i) this Option shall have been exercised pursuant to its terms, (ii) the Company shall have issued and
delivered to the Participant the Option Shares and (iii) the Participant’s name shall have been entered as a stockholder of record with respect to such Option Shares on the books of the Company.
(c)
Tax Withholding
. All distributions under the Plan are subject to withholding of all applicable federal, state, local and
foreign taxes, and the Committee may condition the delivery of any shares or other benefits under the Plan on satisfaction of the applicable withholding obligations. If permitted by the Committee (in its sole discretion), such withholding
obligations may be satisfied (i) through cash payment by the Participant; (ii) through the surrender of shares of Stock which the Participant already owns; (iii) through the surrender of shares of Stock to which the Participant is
otherwise entitled under the Plan, which will be sold on behalf of the Participant to satisfy the applicable withholding tax, provided, however, that such shares under the preceding clause (ii) and this clause (iii) may be used to
satisfy not more than the Company’s statutory withholding obligation (based on minimum statutory withholding rates for Federal, state and provincial tax purposes, including payroll taxes, that are applicable to such supplemental taxable income)
or (iv) by such other method as specified by the Committee.
(a)
Waiver
. Any right of the Company contained in this Agreement may be waived in writing by the Committee. No waiver of any right hereunder by any party shall operate as a waiver of any other right, or as a waiver of the same right with respect
to any subsequent occasion for its exercise, or as a waiver of any right to damages. No waiver by any party of any breach of this Agreement shall be held to constitute a waiver of any other breach or a waiver of the continuation of the same breach.
(b)
Notices
. Any written notices provided for in this Agreement or the Plan shall be in writing and shall be deemed
sufficiently given if either hand delivered or if sent by fax or overnight courier, or by postage paid first class mail. Notices sent by mail shall be deemed received three business days after mailing but in no event later than the date of actual
receipt. Notices shall be directed, if to the Participant, at the Participant’s address indicated by the Company’s records, or if to the Company, to the attention of the Corporate Secretary at the Company’s principal executive office.
4
(c)
Severability
The invalidity or unenforceability of any provision of this
Agreement shall not affect the validity or enforceability of any other provision of this Agreement, and each other provision of this Agreement shall be severable and enforceable to the extent permitted by law.
(d)
No Rights to Continued Service
. Nothing contained in this Agreement shall be construed as giving Participant any right to be
retained as a consultant or director of the Company or its Affiliates or shall interfere with or restrict in any way the right of the Company or its Affiliates, which are hereby expressly reserved, to remove, terminate or discharge Participant at
any time for any reason whatsoever.
(e)
Fractional Shares
. In lieu of issuing a fraction of a share of the Stock
resulting from any exercise of the Option, resulting from an adjustment of the Option pursuant to Section 8.3 of the Plan or otherwise, the Company shall be entitled to pay to the Participant an amount equal to the Fair Market Value of such
fractional share.
(f)
Beneficiary
. The Participant, other than a Participant residing in the Province of
Québec, may file with the Committee a written designation of a beneficiary on such form as may be prescribed by the Committee and may, from time to time, amend or revoke such designation. Any notice should be made to the attention of the
Corporate Secretary of the Company at the Company’s principal executive office. If no designated beneficiary survives the Participant, the Participant’s estate shall be deemed to be Participant’s beneficiary.
(g)
Québec Participant
. The Participant residing in the Province of Québec may only designate a beneficiary by
will. Upon the death of the Participant residing in the Province of Québec, the Company shall settle the Options pursuant to sections 2(b) and 4 of this Agreement to the liquidator, administrator or executor of the estate of the Participant.
(h)
Successors
. The terms of this Agreement shall be binding upon and inure to the benefit of the Company and its
successors and assigns, and of the Participant and the beneficiaries, executors, administrators, heirs and successors of the Participant.
(i)
Entire Agreement
. This Agreement and the Plan contain the entire agreement and understanding of the parties hereto with respect to the subject matter contained herein and supersede all prior
communications, representations and negotiations in respect thereto. No change, modification or waiver of any provision of this Agreement shall be valid unless the same be in writing and signed by the parties hereto, except for any changes permitted
without consent under Section 9 of the Plan.
(j)
Governing Law
. This Agreement shall be construed and
interpreted in accordance with the laws of the State of Delaware without regard to principles of conflicts of law thereof, or principals of conflicts of laws of any other jurisdiction which could cause the application of the laws of any jurisdiction
other than the State of Delaware.
(k)
Headings
. The headings of the Sections hereof are provided for convenience only
and are not to serve as a basis for interpretation or construction, and shall not constitute a part, of this Agreement.
5
IN WITNESS WHEREOF, the Company has executed this Agreement as of the day first written
above.
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ABITIBIBOWATER INC.
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By:
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Name:
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Title:
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[Signature Page to
Nonqualified Stock Option Agreement]
6
Exhibit 10.4
ABITIBIBOWATER INC. 2010 EQUITY INCENTIVE PLAN
EMPLOYEE NONQUALIFIED
STOCK OPTION AGREEMENT
THIS OPTION AGREEMENT (the “
Agreement
”), dated as of
[Insert Date]
1
(the “
Date of Grant
”), is made by and between AbitibiBowater Inc., a Delaware corporation (the “
Company
”), and
(“
Participant
”).
WHEREAS, the Company has adopted the AbitibiBowater Inc. 2010 Equity Incentive Plan (the “
Plan
”), pursuant to which options may be granted to purchase shares of the Company’s common
stock, par value $0.001 per share (“
Stock
”); and
WHEREAS, the Human Resources and Compensation/Nominating
and Governance Committee of the Company (the “
Committee
”) has determined that it is in the best interests of the Company and its stockholders to grant the stock option award provided for herein to Participant subject to the terms
set forth herein, and the Board of Directors of the Company have ratified the grant.
NOW, THEREFORE, for and in consideration
of the premises and the covenants of the parties contained in this Agreement, and for other good and valuable consideration, the receipt of which is hereby acknowledged, the parties hereto, for themselves, their successors and assigns, hereby agree
as follows:
(a)
Grant
. The Company hereby grants to Participant an option (the “
Option
”) to purchase [
] shares of Stock (such shares of Stock, the “
Option
Shares
”), on the terms and conditions set forth in this Agreement and as otherwise provided in the Plan. The Option is not intended to qualify as an incentive stock option within the meaning of Section 422 of the Code.
(b)
Incorporation by Reference, Etc.
The provisions of the Plan are hereby incorporated herein by reference. Except as otherwise
expressly set forth herein, this Agreement shall be construed in accordance with the provisions of the Plan and any interpretations, amendments, rules and regulations promulgated by the Committee from time to time pursuant to the Plan. Any
capitalized terms not otherwise defined in this Agreement shall have the definitions set forth in the Plan. The Committee shall have final authority to interpret and construe the Plan and this Agreement and to make any and all determinations under
them, and its decision shall be binding and conclusive upon Participant and his legal representative in respect of any questions arising under the Plan or this Agreement.
(c)
Acceptance of Agreement
. Unless Participant notifies the Corporate Secretary of the Company in writing within 14 days after the Date of Grant that Participant does not wish to accept this
Agreement, Participant will be deemed to have accepted this Agreement and will be bound by the terms of the Agreement and the Plan. Any such notice may be given to the Corporate Secretary at the Company’s principal executive office.
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1
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For emergence date grants, first day following the end of the 30 day calendar period beginning on the date AbitibiBowater Inc.’s common stock are
listed on the New York Stock Exchange.
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|
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2.
|
Terms and Conditions
.
|
(a)
Exercise Price
. The Exercise Price, being the price at which Participant shall be entitled to purchase the Option Shares upon the exercise of all or any portion of the Option, shall be
$
per Option Share.
2
(b)
Exercisability of the Option
. Except as may
otherwise be provided herein, the Option shall become vested and exercisable with respect to twenty five percent (25%) of the Option Shares (rounded to the nearest whole Option Share) on each of the first four anniversaries of the Date of
Grant
3
(each such date, a “
Vesting
Date
”), subject to the Participant’s continued employment through the applicable Vesting Date.
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3.
|
Termination of Employment with the Company
.
|
(a)
Retirement and Involuntary Termination
. If the Participant’s employment with the Company terminates as a result of “Retirement” or involuntary termination by the Company without
Cause (whether or not the Participant is eligible for Retirement and other than due to Disability or death), then the Option shall become vested with respect to a prorated number of the Option Shares. For purposes of the preceding, the prorated
portion of the Option that is vested as of the Participant’s date of termination, including the portion of the Option then already vested, shall be the total number of Option Shares multiplied by a fraction, the numerator of which shall be the
number of full months elapsed from the Date of Grant
4
through the date of the Participant’s termination of employment (or, if later, the last day of any severance period during which such Participant is receiving salary continuation) and the denominator of which shall be 48. The term
“Retirement” shall mean termination of employment on or after age 55. The vested portion of the Option shall remain exercisable during the one-year period beginning on Participant’s date of termination or service with the
Company;
provided
that if the Participant dies during such one-year period, then the remaining portion of the then outstanding and vested Option shall remain exercisable for two years following the death of Participant.
(b)
Death
. If the Participant’s employment with the Company terminates due to the Participant’s death, then, in
addition to the portion of the Option then vested, the portion of the Option scheduled to vest on the next Vesting Date shall also vest on the date of death. The vested portion of the Option shall remain exercisable for two years following the death
of Participant.
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2
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For emergence date grants, the exercise price will be the arithmetic mean of the per-share closing trading price of AbitibiBowater Inc.’s common
stock for the 30 calendar day period beginning on the day the shares of common stock are listed on New York Stock Exchange. For post-emergence date grants, the exercise price will be no less than Fair Market Value of a share of common stock on Date
of Grant.
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For emergence date grants, the vesting period will begin on the date on which the Company emerged from creditor protection, namely December 9,
2010.
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For emergence date grants, the period for determining any prorata amount will begin on the date on which the Company emerged from creditor protection,
namely December 9, 2010.
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(c)
Disability
. If the Participant becomes eligible for long-term disability
benefits under a Company-sponsored plan, then, in addition to the portion of the Option then vested, the portion of the Option scheduled to vest on the next Vesting Date shall also vest on the first date of the long-term disability period. The
vested portion of the Option shall remain exercisable for two years from the first date of the long-term disability period. For the avoidance of doubt, the Option shall continue vesting during any applicable short-term disability period that occurs
before Participant becomes eligible for long-term disability.
(d)
Termination by the Company for Cause
. If the
Participant’s employment with the Company terminates for Cause, then the entire Option (including any portion which was previously vested, but not exercised as of the date of termination) shall be immediately forfeited.
(e)
Other Termination
. If the Participant’s employment with the Company terminates other than as otherwise described in the
foregoing provisions of this Section 3, including resignation before Retirement eligibility, then any vested portion of the Option as of the date of such termination shall remain exercisable for 90 days following such termination of employment
with the Company;
provided
that if the Participant dies during such 90-day period, then any vested portion of the Option as of the date of death shall remain exercisable for one year following the death of the Participant.
Notwithstanding anything contained to the contrary in this Section 3, in no event shall all or any portion of the Option be exercisable after the
ten-year anniversary of the Date of Grant.
4.
Method of Exercise
. Subject to applicable law, the Exercise Price shall
be payable in cash, check, cash equivalent or by tendering, by either actual delivery of shares or by attestation, shares of Stock acceptable to the Committee, and valued at Fair Market Value as of the day of exercise, or in any combination thereof,
as determined by the Committee. Subject to applicable law, the Committee may permit a Participant to elect to pay the Exercise Price upon (i) the exercise of an Option by irrevocably authorizing a third party to sell, on behalf of the
Participant, shares of Stock (or a sufficient portion of the shares) acquired upon exercise of the Option and remit to the Company a sufficient portion of the sale proceeds to pay the entire Exercise Price and any tax withholding resulting from such
exercise, (ii) such other method which is approved by the Committee. Notwithstanding the foregoing, if, on the last day of the Option Period, the Fair Market Value exceeds the Exercise Price, the Participant has not exercised the Option, and
the Option has not expired, such Option shall be deemed to have been exercised by the Participant on such last day by means of a net exercise and the Company shall deliver to the Participant the number of shares of Stock for which the Option was
deemed exercised less such number of shares of Stock required to be withheld to cover the payment of the Exercise Price and all applicable required withholding taxes, which portion of the Stock shall be delivered by the Company to its transfer agent
who will sell them on behalf of the Participant in order to pay the exercise price and the withholding tax.
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5.
Settlement of the Options
. The Company undertakes and agrees to settle the Options
only by issuing stocks and will not exercise its right under the Plan to settle the Options by any other means.
6.
Compliance with Legal Requirements
. The granting and exercising of the Option, and any other obligations of the Company under this Agreement, shall be subject to all applicable federal, state, local and foreign laws, rules and regulations and
to such approvals by any regulatory or governmental agency as may be required. The Committee, in its sole discretion, may postpone the issuance or delivery of Option Shares as the Committee may consider appropriate and may require the Participant to
make such representations and furnish such information as it may consider appropriate in connection with the issuance or delivery of Option Shares in compliance with applicable laws, rules and regulations.
(a)
Transferability
. Unless otherwise provided by the Committee in writing, the Option shall not be transferable by Participant
other than by will or the laws of descent and distribution.
(b)
Rights as Stockholder
. The Participant shall not be
deemed for any purpose to be the owner of any shares of Stock subject to this Option unless, until and to the extent that (i) this Option shall have been exercised pursuant to its terms, (ii) the Company shall have issued and delivered to
the Participant the Option Shares and (iii) the Participant’s name shall have been entered as a stockholder of record with respect to such Option Shares on the books of the Company.
(c)
Tax Withholding
. All distributions under the Plan are subject to withholding of all applicable federal, state, local and
foreign taxes, and the Committee may condition the delivery of any shares or other benefits under the Plan on satisfaction of the applicable withholding obligations. If permitted by the Committee (in its sole discretion), such withholding
obligations may be satisfied (i) through cash payment by the Participant; (ii) through the surrender of shares of Stock which the Participant already owns; (iii) through the surrender of shares of Stock to which the Participant is
otherwise entitled under the Plan, which will be sold on behalf of the Participant to satisfy the applicable withholding tax, provided, however, that such shares under the preceding clause (ii) and this clause (iii) may be used to
satisfy not more than the Company’s statutory withholding obligation (based on minimum statutory withholding rates for Federal, state and provincial tax purposes, including payroll taxes, that are applicable to such supplemental taxable income)
or (iv) by such other method as specified by the Committee.
(a)
Waiver
. Any right of the Company contained in this Agreement may be waived in writing by the Committee. No waiver of any right hereunder by any party shall operate as a waiver of any other right, or as a waiver of the same right with respect
to any subsequent occasion for its exercise, or as a waiver of any right to damages. No waiver by any party of any breach of this Agreement shall be held to constitute a waiver of any other breach or a waiver of the continuation of the same breach.
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(b)
Notices
. Any written notices provided for in this Agreement or the Plan shall be
in writing and shall be deemed sufficiently given if either hand delivered or if sent by fax or overnight courier, or by postage paid first class mail. Notices sent by mail shall be deemed received three business days after mailing but in no event
later than the date of actual receipt. Notices shall be directed, if to the Participant, at the Participant’s address indicated by the Company’s records, or if to the Company, to the attention of the Corporate Secretary at the
Company’s principal executive office.
(c)
Severability
The invalidity or unenforceability of any provision of
this Agreement shall not affect the validity or enforceability of any other provision of this Agreement, and each other provision of this Agreement shall be severable and enforceable to the extent permitted by law.
(d)
No Rights to Employment
. Nothing contained in this Agreement shall be construed as giving Participant any right to be
retained, in any position, as an employee, consultant or director of the Company or its Affiliates or shall interfere with or restrict in any way the right of the Company or its Affiliates, which are hereby expressly reserved, to remove, terminate
or discharge Participant at any time for any reason whatsoever.
(e)
Fractional Shares
. In lieu of issuing a fraction
of a share of the Stock resulting from any exercise of the Option, resulting from an adjustment of the Option pursuant to Section 8.3 of the Plan or otherwise, the Company shall be entitled to pay to the Participant an amount equal to the Fair
Market Value of such fractional share.
(f)
Beneficiary
. The Participant other than a Participant residing in the
Province of Québec, may file with the Committee a written designation of a beneficiary on such form as may be prescribed by the Committee and may, from time to time, amend or revoke such designation. Any notice should be made to the attention
of the Corporate Secretary of the Company at the Company’s principal executive office. If no designated beneficiary survives the Participant, the Participant’s estate shall be deemed to be Participant’s beneficiary.
(g)
Québec Participant
. The Participant residing in the Province of Québec may only designate a beneficiary by
will. Upon the death of the Participant residing in the Province of Québec, the Company shall settle the Options pursuant to sections 2(b) and 4 of this Agreement to the liquidator, administrator or executor of the estate of the Participant.
(h)
Successors
. The terms of this Agreement shall be binding upon and inure to the benefit of the Company and its
successors and assigns, and of the Participant and the beneficiaries, executors, administrators, heirs and successors of the Participant.
(i)
Entire Agreement
. This Agreement and the Plan contain the entire agreement and understanding of the parties hereto with respect to the subject matter contained herein and supersede all prior
communications, representations and negotiations in respect thereto. No change, modification or waiver of any provision of this Agreement shall be valid unless the same be in writing and signed by the parties hereto, except for any changes permitted
without consent under Section 9 of the Plan.
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(j)
Governing Law
. This Agreement shall be construed and interpreted in accordance
with the laws of the State of Delaware without regard to principles of conflicts of law thereof, or principals of conflicts of laws of any other jurisdiction which could cause the application of the laws of any jurisdiction other than the State of
Delaware.
(k)
Headings
. The headings of the Sections hereof are provided for convenience only and are not to serve as
a basis for interpretation or construction, and shall not constitute a part, of this Agreement.
IN WITNESS WHEREOF, the
Company has executed this Agreement as of the day first written above.
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ABITIBIBOWATER INC.
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By:
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Name:
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Title:
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[Signature Page to
Nonqualified Stock Option Agreement]
6
Exhibit 23.1
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PricewaterhouseCoopers LLP
Chartered Accountants
1250 René-Lévesque Boulevard West
Suite 2800
Montréal, Quebec
Canada H3B 2G4
Telephone +1 514 205 5000
Facsimile +1 514 876 1502
www.pwc.com/ca
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CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We hereby consent to the incorporation by reference in this Registration Statement on Form S-8 of our report dated March 31, 2010, relating to the financial statements, financial statement schedule
and the effectiveness of internal control over financial reporting, which appears in AbitibiBowater Inc.’s Annual Report on Form 10-K for the year ended December 31, 2009.
/s/ PricewaterhouseCoopers
Chartered Accountants
January 7, 2011
Montréal, Canada
“PricewaterhouseCoopers” refers to PricewaterhouseCoopers LLP, an Ontario limited liability partnership, or, as the context requires, the
PricewaterhouseCoopers global network or other member firms of the network, each of which is a separate legal entity.
Exhibit 24.1
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS
WHEREAS
, ABITIBIBOWATER INC., a Delaware corporation (the “
Company
”), proposes shortly to file with the Securities and Exchange
Commission, under the provisions of the Securities Exchange Act of 1934 as amended (the “
Act
”), a Form S-8 Registration Statement covering an offering of its securities under an equity compensation plan pursuant to Section 13
or 15 (d) of the Act.
WHEREAS
, each of the undersigned is a Director of the Company.
NOW, THEREFORE
, each of the undersigned hereby constitutes and appoints David J. Paterson, William G. Harvey and Jacques P. Vachon and each of
them, as true and lawful attorneys-in-fact and agents, and each of them with full power to act without the others, for him or her and in his or her name, place and stead, in any and all capacities, to sign said Registration Statement and any and all
amendments thereto, and any and all other documents in connection therewith, with the Securities and Exchange Commission, hereby granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform any and
all acts and things requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents or any of
them may lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF
, each of the undersigned has hereunto set his or her
hand effective as of this 9th day of December, 2010.
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/s/ Richard B. Evans
Richard B. Evans
Chairman of the Board
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/s/ David J. Paterson
David J. Paterson
Director
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/s/ Pierre Dupuis
Pierre Dupuis
Director
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/s/ Richard D. Falconer
Richard D. Falconer
Director
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/s/ Richard Garneau
Richard Garneau
Director
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/s/ Jeff Hearn
Jeff Hearn
Director
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/s/ Sarah Nash
Sarah Nash
Director
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/s/ Alain Rhéaume
Alain Rhéaume
Director
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/s/ Paul C. Rivett
Paul C. Rivett
Director
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/s/ Michael Rousseau
Michael Rousseau
Director
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/s/ David H. Wilkins
David H. Wilkins
Director
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