UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-K
x | ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 |
For the fiscal year ended December 31, 2011
or
¨ | TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 |
Commission file number
001-34581
KRATON PERFORMANCE POLYMERS, INC.
(Exact Name of Registrant as Specified in its Charter)
Delaware | 20-0411521 | |
(State or other jurisdiction of incorporation or organization) |
(I.R.S. Employer Identification No.) |
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15710 John F. Kennedy Blvd, Suite 300 Houston, TX 77032 |
281-504-4700 | |
(Address of principal executive offices, including zip code) |
(Registrants telephone number, including area code) |
Securities registered pursuant to Section 12(b) of the Act:
Title of Each Class |
Name of Each Exchange on Which Registered |
|
Kraton Performance Polymers, Inc. Common Stock, par value $0.01 |
New York Stock Exchange |
Securities registered pursuant to Section 12(g) of the Act:
None
Indicate by check mark if the registrant is a well-known seasoned issuer, as defined in Rule 405 of the Securities Act. YES x NO ¨
Indicate by check mark if the registrant is not required to file reports pursuant to Section 13 or Section 15(d) of the Act. YES ¨ NO x
Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. YES x NO ¨
Indicate by check mark whether the registrant has submitted electronically and posted on its corporate Web site, if any, every Interactive Data File required to be submitted and posted pursuant to Rule 405 of Regulation S-T (§232.405 of this chapter) during the preceding 12 months (or for such shorter period that the registrant was required to submit and post such files). YES x NO ¨
Indicate by check mark if disclosure of delinquent filers pursuant to Item 405 of Regulation S-K is not contained herein, and will not be contained, to the best of the registrants knowledge, in definitive proxy or information statements incorporated by reference in Part III of this Form 10-K or any amendment to this Form 10-K. ¨
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 definitions of large accelerated filer, accelerated filer and smaller reporting company in Rule 12b-2 of the Securities Exchange Act. (Check one):
Large accelerated filer: x | Accelerated filer: ¨ | Non-accelerated filer: ¨ | Smaller reporting company: ¨ |
Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Act). YES ¨ NO x
Estimated aggregate market value of the common equity held by nonaffiliates of Kraton Performance Polymers, Inc. at June 30, 2011: $1,249,068,040. Number of shares of Kraton Performance Polymers, Inc. Common Stock, $0.01 par value, outstanding at February 24, 2012: 32,103,523.
DOCUMENTS INCORPORATED BY REFERENCE
Portions of Kraton Performance Polymers, Inc.s proxy statement for the 2012 Annual Meeting of Shareholders are incorporated by reference in Part III.
on Form 10-K for
Year Ended December 31, 2011
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Item 7. |
Managements Discussion and Analysis of Financial Condition and Results of Operations |
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Item 9. |
Changes in and Disagreements with Accountants on Accounting and Financial Disclosure |
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Item 12. |
Security Ownership of Certain Beneficial Owners and Management and Related Stockholder Matters |
59 | ||||
Item 13. |
Certain Relationships and Related Transactions, and Director Independence |
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Item 14. | 59 | |||||
Item 15. | 60 |
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CAUTIONARY STATEMENT REGARDING FORWARD-LOOKING INFORMATION
Some of the statements in this Annual Report on Form 10-K under the headings Business, Risk Factors, Selected Financial Data, Managements Discussion and Analysis of Financial Condition and Results of Operations, Financial Statements and Supplementary Data and elsewhere contain forward-looking statements within the meaning of the Private Securities Litigation Reform Act of 1995. We may also make written or oral forward-looking statements in our periodic reports on Forms 10-Q and 8-K, in press releases and other written materials and in oral statements made by our officers, directors or employees to third parties. Statements that are not historical facts, including statements about our beliefs and expectations, are forward-looking statements. Forward-looking statements are often characterized by the use of words such as believes, estimates, expects, projects, may, intends, plans or anticipates, or by discussions of strategy, plans or intentions and in this report include statements regarding our general outlook; our ability to obtain raw materials at competitive prices; anticipated benefits of or performance of our products; anticipated rates of growth, including sales growth and growth in product offerings through innovation; the outcome of our arbitration with LyondellBasell Industries N.V, or LyondellBassell; the terms of our new Operating Agreement with LyondellBassell; the impact of inflation on our results of operations and financial condition; our ability to realize certain deferred tax assets; estimates regarding the tax expense of repatriating certain cash and short-term investments related to foreign operations; expectations regarding our planned semi-works plant, including anticipated benefits of the facility; estimates related to the useful lives of certain assets for tax purposes; our anticipated dividend policy; adequacy of accruals for contingencies; anticipated growth in demand for Cariflex products; anticipated costs incurred by customers that switch vendors; costs, timing and plans related to our planned joint venture with Formosa Petrochemical Corporation and the related manufacturing facility; estimated future contributions to and assumptions regarding our employee benefit plans; adequacy of cash flows to fund working capital and anticipated capital expenditures; and expectations regarding counterparties ability to perform. Such forward-looking statements involve known and unknown risks, uncertainties and other important factors that could cause the actual results, performance or our achievements, or industry results, to differ materially from historical results, any future results, or performance or achievements expressed or implied by such forward-looking statements. There are a number of risks and uncertainties that could cause our actual results to differ materially from the forward-looking statements contained in this report. Important factors that could cause our actual results to differ materially from those expressed as forward-looking statements are set forth in this report, including but not limited to those under the heading Risk Factors. There may be other factors of which we are currently unaware or deem immaterial that may cause our actual results to differ materially from the forward-looking statements.
Forward-looking statements are based on current plans, estimates and projections, and, therefore, you should not place undue reliance on them. Forward-looking statements speak only as of the date they are made, and we undertake no obligation to update them publicly in light of new information or future events.
Presentation of Financial Statements.
The terms Kraton, our company, we, our, ours and us as used in this report refer collectively to Kraton Performance Polymers, Inc. and its consolidated subsidiaries.
This Form 10-K includes financial statements and related notes that present the consolidated financial position, results of operations and cash flows of Kraton, and its subsidiaries. Kraton is a holding company whose only material asset is its investment in Kraton Polymers LLC, which is its wholly owned subsidiary. Kraton Polymers LLC and its subsidiaries own all of the consolidated operating assets.
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Item 1. | Business. |
General
Our Company
We are a leading global producer of styrenic block copolymers (SBCs) and other engineered polymers. We market our products under the Kraton ® brand. SBCs are highly-engineered synthetic elastomers, which we invented and commercialized almost 50 years ago, that enhance the performance of numerous end use products by imparting greater flexibility, resilience, strength, durability and processability. Our SBC polymers are typically formulated or compounded with other products to achieve improved, customer specific performance characteristics in a variety of applications. We focus on the end use markets we believe offer the highest growth potential and greatest opportunity to differentiate our products from competing products. Within these end use markets, we provide our customers with a broad portfolio of highly-engineered polymers that we believe are value-enhancing and, in many cases, critical to the performance of their products. We seek to maximize the value of our product portfolio by emphasizing complex or specialized polymers and innovations that yield higher margins than more commoditized products. We sometimes refer to these complex or specialized polymers or innovations as being more differentiated. Our products are typically developed using our proprietary, and in many cases patent-protected, technology and require significant engineering, testing and certification. In 2011, we were awarded 79 patents for new products or applications and at December 31, 2011, we had 1,136 granted patents and 286 pending patent applications. We believe our almost 50-year track record of innovation, long-standing customer relationships and global infrastructure position us well to successfully execute our strategies.
Our SBC products are found in many everyday applications, including disposable diapers, the rubberized grips of toothbrushes, razor blades and power tools and asphalt formulations used to pave roads. We also produce Cariflex TM isoprene rubber (IR) and isoprene rubber latex (IRL). Our Cariflex TM products are highly-engineered, non-SBC synthetic substitutes for natural rubber latex. Our IRL products, which have not been found to contain the proteins present in natural rubber latex and are, therefore, not known to cause allergies, are used in applications such as surgical gloves and condoms. We believe the versatility of IRL provides opportunities for new, high-margin applications. In addition to IRL, we have a portfolio of innovations at various stages of development and commercialization, including polyvinyl chloride (PVC), alternatives for wire, cable and medical applications, and polymers for use in slush molding for automotive applications, and our Nexar TM family of membrane polymers for applications such as water filtration and breathable fabrics.
Our total capacity as of December 31, 2011 was approximately 420 kilotons. We generated approximately $1,437.5 million of sales revenue and 303.0 kilotons of sales volume for the year ended December 31, 2011. In 2011, we generated 14.3% of our sales revenue from innovation-driven revenue, which we define as revenue from products or applications introduced in the preceding five years. Our customers are diversified by industry and geography with more than 800 customers in over 60 countries. We manufacture our polymers at five manufacturing facilities globally, including our flagship facility in Belpre, Ohio, as well as facilities in Germany, France, Brazil, and Japan. The facility in Japan is operated by an unconsolidated manufacturing joint venture.
We have had relationships with many of our customers for 15 years or more and work closely with our customers to design products that meet application-specific performance and quality requirements. We have a diverse customer base, with no single customer accounting for more than 10.0% of our sales revenue in 2011 and our top 10 customers together representing approximately 29.2% of our sales revenues in 2011. Because of the technical expertise and investment required to develop many of our product formulations and the lead times required to replace them, our customers would likely incur additional costs by changing to an alternative vendor.
Over the past several years, we have implemented a range of strategic initiatives designed to enhance our profitability and end use market position. These include fixed asset investments to expand our capacity in
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specialized products, to enhance productivity at our existing facilities and to reduce our fixed costs through headcount reductions, production line closures at our Pernis, the Netherlands, facility (Pernis) and system upgrades. During this period, we have substantially exited the footwear applications business, which typically yielded lower margins than our other core end use markets, and implemented pricing strategies designed to enhance our overall margins and return on invested capital. We believe these initiatives provide us with a platform to benefit from volume growth that may occur in our end use markets.
Corporate History
Prior to our initial public offering and related reorganization transactions in December 2009, we were an indirect wholly-owned subsidiary of TJ Chemical Holdings LLC and were indirectly owned by certain affiliates of TPG Capital, L.P., which we refer to collectively as TPG, and certain affiliates of J.P. Morgan Partners, LLC, which we refer to collectively as JPMP, and certain members of our management. We conduct our business through Kraton Polymers LLC and its consolidated subsidiaries. Prior to our initial public offering, Kraton Polymers LLCs parent company was Polymer Holdings LLC, a Delaware limited liability company. On December 16, 2009, Polymer Holdings LLC was converted from a Delaware limited liability company to a Delaware corporation and renamed Kraton Performance Polymers, Inc., which remains Kraton Polymers LLCs parent company. In addition, prior to the closing of the initial public offering, TJ Chemical was merged into (and did not survive the merger with) Kraton Polymers LLC. Our initial public offering was completed, and trading in our common stock on the New York Stock Exchange commenced, in December 2009. TPG and JPMP collectively owned a majority of our common stock following the initial public offering, and through two secondary public offerings conducted in September 2010 and April 2011, sold all of their holdings in our common stock. We did not receive any proceeds from these secondary offerings.
Recent Developments
Construction of a New Semi-Works Plant at our Belpre, Ohio, Facility. In December 2011, we finalized our plans for construction of a new semi-works plant at our Belpre, Ohio, facility. The new plant will replace our current pilot plant located at the Shell Westhollow Technology Center in Houston, Texas. The new semi-works pilot plant is expected to enhance our innovation and product development processes and reduce new product development cycle time. USBC and HSBC materials produced at the new plant will be used internally in our research and new product development efforts and will also be provided to customers for qualification and testing purposes. We also expect the plant to produce semi-commercial quantities that are currently produced on our large-scale production units, thereby reducing our reliance on commercial manufacturing facilities for test runs. We expect this capacity will result in improved utilization of our manufacturing lines. The new plant will be larger and will have more instrumentation than our existing pilot plant, and is expected to enable faster and more effective scale up to commercial production than our current facilities allow. Design and construction of the plant is expected to begin in 2012, and we currently expect the plant to be operational in the fourth quarter of 2013. We currently expect our 2012 capital expenditure for this project to be approximately $20.0 million, with the total capital expenditures estimated to be between $35.0 million and $40.0 million. We currently expect to fund 2012 expenditures for this project with operating cash flows.
Establishment of a Joint Venture Framework with Formosa Petrochemical Corporation. In July 2011, we announced the execution of a framework agreement with Formosa Petrochemical Corporation (FPCC), a leading global petrochemicals and plastics manufacturer, which sets forth the major terms and conditions that will, upon completion of the necessary definitive agreements, govern the formation of a 50/50 joint venture between the two companies to construct and operate a 30 kiloton HSBC plant to be located on FPCCs industrial site in Mailiao, Taiwan. The agreement establishes a framework between Kraton and FPCC for the commercial, operational, technical and management aspects of the planned joint venture company. The design of the joint venture plant will incorporate our proprietary polymerization technology, and the plant will produce our more differentiated HSBC polymer grades. The plant will be operated by the joint venture, and we will undertake the global marketing of all products manufactured at the facility. In October 2011 the Fair Trade Commission in
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Taiwan approved the proposed joint venture. Certain required approvals from the Taiwanese environmental authorities remain pending. We are currently continuing to work towards the completion of definitive documentation with FPCC which we anticipate being completed in the first half of 2012, subject to receiving all required regulatory approvals. In the fourth quarter of 2011, we advanced plans to expand HSBC capacity in Asia with FPCC. Currently, we are conducting an engineering estimate for the project, which we expect will be completed in March 2012 and will provide data to estimate narrower ranges of total project cost and timing. At this time we anticipate the total project cost estimate will reflect at least $200.0 million. The increase from the previously estimated range of $165.0 million to $200.0 million results principally from an expanded project scope as well as a more detailed assessment of site-specific requirements since entering the framework agreement with FPCC. We are currently targeting to have the plant operational in the first half of 2014. We currently estimate our share of the funding for the joint venture will be approximately $70.0 million in 2012. This estimate is dependent on a number of factors, including final project cost, timing, and the extent to which the project can be funded through third party debt financing, which will impact the equity contributions to be made by us and FPCC. We currently anticipate funding our 2012 contributions with available liquidity and/or through alternative incremental funding sources.
Products
Our Kraton polymer products are high performance elastomers that are engineered for a wide range of end use applications. Our products possess a combination of high strength and low viscosity, which facilitates ease of processing at elevated temperatures and high processing speeds. Our products can be processed in a variety of manufacturing applications, including injection molding, blow molding, compression molding, extrusion and hot melt and solution applied coatings.
We offer our customers a broad portfolio of products, including 250 core commercial grades of SBCs. Our products are manufactured along the following product lines based upon polymer chemistry and process technologies:
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unhydrogenated SBCs (USBCs); |
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hydrogenated SBCs (HSBCs); |
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isoprene rubber (IR) and isoprene rubber latex (IRL); and |
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compounds. |
The majority of worldwide SBC production is dedicated to USBCs, which are primarily used in paving and roofing, in adhesives, sealants and coatings and in footwear applications. HSBCs, which are significantly more complex and capital-intensive to manufacture than USBCs, are used in applications such as soft touch and flexible materials, personal hygiene products, medical products, automotive components and certain adhesives and sealant applications.
Below is an overview of our four product lines. Sales revenue percentages included in our product line discussion are based on revenues excluding $4.6 million of other sales revenue in 2011 and $47.6 million of by-product sales revenue reported as other revenues in 2009.
USBCs . We developed the first USBC polymers in 1964 and built the first dedicated block copolymer facility in Belpre, Ohio, in 1971. As of December 31, 2011, our USBC product portfolio included 119 core commercial grades of products. Sales of USBC products comprised approximately 59.5%, 59.1% and 56.6% of our sales revenue in 2011, 2010 and 2009, respectively.
USBCs are used in three of our core end use markets (Advanced Materials, Adhesives, Sealants and Coatings, and Paving and Roofing) in a range of products to impart performance characteristics such as: (1) resistance to temperature and weather extremes in roads and roofing; (2) resistance to cracking, reduced sound transmission and better drainage in porous road surfaces; (3) impact resistance for consumer plastics; and
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(4) increased processing flexibility in adhesive applications, such as packaging tapes and labels, and materials used in disposable diapers. As with SBCs in general, USBCs are most often blended with substrates.
HSBCs . We developed the first HSBC polymers in the late 1960s for use in production of soft, strong compounds for handles and grips and elastic components in diapers. As of December 31, 2011, our HSBC product portfolio included 89 core commercial grades of products. HSBC products are significantly more complex to produce than USBC products and, as a result generate higher margins than USBCs. Sales of HSBC products, comprised 31.7%, 31.2% and 31.6% of our sales revenue in 2011, 2010 and 2009, respectively.
HSBCs are primarily used in our Advanced Materials and Adhesives, Sealants and Coatings end use markets to impart performance characteristics such as: (1) stretch properties in disposable diapers and adult incontinence products; (2) soft feel in numerous consumer products such as razor blades, power tools, and automobile internals; (3) impact resistance for demanding engineering plastic applications; (4) flexibility for wire and cable plastic outer layers; (5) improved flow characteristics for many industrial and consumer sealants lubricating fluids; (6) resistance to ultraviolet light; (7) processing stability and viscosity; and (8) elevated temperature resistance.
IR and IRL . We market our IR and IRL products under the Cariflex TM brand name. These products combine the key qualities of natural rubber, such as good mechanical properties and hysteresis, with purity and clarity enhancements, good flow, low gel content, and absence of nitrosamines and natural rubber proteins. As of December 31, 2011, our IR and IRL product portfolio included 11 core commercial grades of products. IR and IRL comprised 6.9%, 7.5% and 9.1% of our sales revenue in 2011, 2010 and 2009, respectively.
Isoprene rubber (formed from polymerizing isoprene) is a line of high purity isoprene rubber products and is a non-SBC product. Our IR polymers are available as bales of rubber or as latex. We focus our IR polymers, produced using nanotechnology, in demanding applications such as medical products, adhesives and tackifiers, paints, coatings and photo-resistors. Isoprene rubber latex (emulsion of IR in water) is a substitute for natural rubber latex, particularly in applications with high purity requirements, such as medical, healthcare, personal care and food contact operations. Our IRL is a specialized polyisoprene latex with a controlled structure and low chemical impurity levels obtained through an anionic polymerization process followed by a proprietary latex processing step, both of which were first developed by us. IRL is durable, tear resistant, soft, transparent and odorless. In addition, the synthetic material is non-allergenic and has superior consistency and other advantages to natural rubber latex. IRL is predominately used in the synthetic surgical gloves and condoms.
During the second quarter of 2011, we commissioned a line conversion project at our Belpre, Ohio, facility, which now provides for production of IR and replaces production capacity at our former manufacturing facility in the Netherlands that was closed in 2009. During 2011, we also successfully completed the expansion of our IRL capacity at our Paulinia, Brazil facility. Further, we executed a contract with our supplier in Japan to expand the manufacturing capability of IRL. The expansion, which is slated to be completed in mid-2013, is expected to double our existing capacity in Japan. These important projects will support anticipated continuing growth in demand for our Cariflex TM products.
Compounds . Our Compounds are a mixture of Kraton polymers and other polymers, resins, oils or fillers and cover a wide range of polymers used in consumer and industrial applications. Compounds can be formulated so that they meet the specific requirements of our customers. These products are primarily used in soft-touch grips, sporting equipment, automotive components and personal care products. As of December 31, 2011, our Compounds product portfolio included 31 core commercial grades of products. Compounds comprised 1.9%, 2.2% and 2.7% of our sales revenue in 2011, 2010 and 2009, respectively.
Our End Use Markets
Our commercial activities are aligned to serve our four core end use markets: (1) Advanced Materials; (2) Adhesives, Sealants and Coatings; (3) Paving and Roofing; and (4) Cariflex TM . In 2011, we realigned our core
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end use markets. The Emerging Businesses end use, which previously was comprised primarily of IR and IRL sales, has been renamed Cariflex TM , and IR sales previously reported in our Advanced Materials and in our Adhesives, Sealants and Coatings end use markets are now reported in the Cariflex TM end use. Additionally, sales of lubricant additives, which were previously not included in our four core end uses, are now reported in our Adhesives, Sealants and Coatings end use.
The following table provides sales revenue information as well as examples of selected applications for each of our core end use markets. Percentages of sales revenue and other data for our core end use markets are reported below on this realigned basis for 2011, as well as for prior periods.
Revenue Mix (1) | ||||||||||||||
End Use Markets |
2011 | 2010 | 2009 |
Selected Applications/Products |
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Advanced Materials |
28.0 | % | 29.8 | % | 28.8 | % |
Consumer disposable and consumer durable soft touch Engineering thermoplastics compatibilization and impact modification Personal care PVC, alternatives for medical, wire and cable Disposable food packaging and closures Highly engineered polymer modification Skin care products and lotions Automotive interior and exterior Stoppers for medical/pharmaceutical |
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Adhesives, Sealants and Coatings |
34.8 | % | 34.3 | % | 34.9 | % |
Tapes and labels Non-woven and industrial adhesives Clear sealants Lubricant additives |
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Paving and Roofing |
29.9 | % | 27.8 | % | 26.4 | % |
Asphalt modification for performance roadways, bridges and airports Asphalt modification for roofing felts and shingles |
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Cariflex TM |
6.9 | % | 7.5 | % | 9.1 | % |
Surgical gloves Condoms |
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Other |
0.4 | % | 0.6 | % | 0.8 | % |
High styrenics packaging Footwear Other |
(1) | Based on 2011, 2010 and 2009, sales revenue of $1,437.5 million, $1,228.4 million and $920.4 million, respectively. Excluded from the table is $47.6 million of sales of by-products associated with production at Pernis (which we exited in 2009) that are not associated with sales of our core end use markets. |
Advanced Materials . We sell HSBC, USBC, and customized SBC based compounds, across multiple markets as part of the Advanced Materials end use market.
Our products primarily compete against a variety of chemical and non-chemical alternatives including, but not limited to, thermoplastic vulcanizate, thermoplastic polyurethane (TPU), PVC, thermoplastic polyolefin, polyethylene terephthalate, polycarbonate, polyamide, and ethylene-propylene-diene-monomer (EPDM) based products. We believe the ability to balance performance characteristics such as ease of use, desired aesthetics, haptics, and managing total end product costs are principal factors influencing final product decisions of our customers in this end use market.
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Many of our products in this core end use market are customized formulations that are highly engineered to address specific customer needs, such as improved stretch and resilience characteristics in elastic film applications. As such, they require specialized product testing and validation, production and process evaluation. This results in long lead time to achieve customer and industry established approvals.
We believe demand for products in this end use market is principally driven by customer-specific needs and cost. Our innovation led growth strategy focuses on translating the inherent strengths of our product technologies such as flexibility, resilience, impact and moisture resistance, and aesthetics (clarity and haptics), and target opportunities where we can expand and/or have the potential to create new market spaces for our solutions.
Adhesives, Sealants and Coatings . We sell HSBC and USBC products in the Adhesives, Sealants and Coatings end use market.
Our products primarily compete with acrylics, silicones, solvent-based rubber systems and thermoplastic polyolefin elastomers. The choice between these materials is influenced by bond strength, specific adhesion, consistent performance to specification, processing speed, hot-melt application, resistance to water and total end-product cost.
Our SBCs are used in applications such as adhesives for diapers and hygiene products, sealants and coatings for construction and automotive applications, elastomeric white roof coatings and adhesives for tapes and labels. Our SBCs in this end use market are compatible with many other formulating ingredients. Due to the limited supply of hydrocarbon resins, we continue to work on SBC modified products that reduce the amount of resin required to formulate an adhesive, delivering similar cost and performance. We have expanded our offering of formulated compounds for both hydrocarbon tackifying resin reduction alternatives and solvent free co-extrusion adhesives for protective films that provide improved adhesive performance with no residue or haze after removal, both of which are commercialized.
We believe demand for products in this end use market is driven largely by the consumption of disposable hygiene products that contain adhesives, particularly in elastic attachment. Further, we believe that cost reduction and consumer market appeal are principal factors driving increasing use of SBC based adhesives relative to paper labels in the pressure sensitive label market. The trend towards utilization of SBC based adhesives is primarily driven by cost reduction and higher performance.
Paving and Roofing . We sell USBC products in the Paving and Roofing end use markets.
Our products primarily compete with chemicals such as styrene-butadiene rubber latex, acetates, polyphosphoric acids, and thermoplastic materials like EPDM, polyethylene, atactic polypropylene and unmodified asphalts. We believe that customer choice in this end use market is driven principally by total end-product cost, temperature performance, bitumen source, and application.
Styrene-butadiene-styrene (SBS)-modified asphalt pavements enhance the strength and elasticity of asphalt-based paving compositions over an extended temperature range, thus increasing resistance to wear, rutting and cracking and therefore extending service life. In roofing applications, SBS-modified asphalt produces stronger and more durable felts and shingles, thus reducing the possibility of damage from weather, ice and water build-up and again extending service life.
We believe the ability to maintain roads in an environment where traffic demands are rising and repair budgets are decreasing is the primary issue facing governments and other road owners in every region and a principal driver of demand in this end use market. Our recent commercialization of our Highly Modified Asphalt Technology (HiMA) polymers provided better rut and cracking resistance than other elastic binders, while achieving 25-40% reduction in road thickness without any major sacrifice of viscosity or temperature
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performance. We believe this innovation will extend road life by allowing pavements to withstand heavy traffic loads and varying climate conditions.
Cariflex TM . We sell IR and IRL in this end use market. We primarily supply the surgical glove, condom and specialty medical device markets.
Our products primarily compete with natural rubber, conventional Ziegler Natta sourced solid IR, halo butyl rubber and several synthetic latex alternatives, notably neoprene, nitrile and polychloroprene latex rubber, as well as polyurethane.
In the medical device markets, we believe that demand for products is driven by purity of the product (including metal residuals content, the absence of natural rubber proteins and plasticisers.) and mechanical properties applicable to surgical gloves, stoppers, closure and other packaging applications. In coatings applications, we believe that demand is driven by the level of impurity, as low levels facilitate more durable coatings that compete with epoxy coating systems. In electronic applications, we believe that demand is driven primarily by low metal content, which we believe reduces the likelihood of quality issues.
The surgical glove and condom markets are largely sourced by natural rubber latex products. However, we have seen a trend in surgeons using gloves made from synthetic latex alternatives, such as our IRL products. We believe this trend is driven by efforts to avoid allergies to natural rubber proteins, as well as comfort, consistent stretch and wearability factors imparted by synthetic latex such as our IRL. We have seen a similar trend in the market for condoms, which we believe is driven by these same factors.
Research, Development and Technology
Our research and development program is designed to develop new products and applications, provide technical service to customers, develop and optimize process technology, and assist in marketing new products. We spent $28.0 million, $23.6 million, and $21.2 million for research and development for the years ended December 31, 2011, 2010, and 2009, respectively. From time to time, we also engage in customer-sponsored research projects; with average spending of approximately $1.0 million a year for the three-year period ended December 31, 2011. As of December 31, 2011, we had 125 employees dedicated to research and development.
Our research and development activities are primarily conducted in laboratories in Houston, Texas, and Amsterdam, the Netherlands. We also own a laboratory in Paulinia, Brazil, that provides technical services to our South American customers. Our application and technical service laboratories in Shanghai, China and Tsukuba, Japan provide support to our Asian customers. In addition, we have technical service staff located in Mont St. Guibert, Belgium.
Our professionals perform research using scientific application equipment located primarily at our Houston, Texas, Amsterdam, the Netherlands and Shanghai, China research and development facilities. At all of our major research and development facilities, we produce new Kraton product samples for our customers and provide guidance to our manufacturing organization. Application equipment is used to evaluate polymers and compounds to determine optimal formulations.
Sales and Marketing
Our business is predominantly based on a short sales cycle. We sell our products through a number of channels including a direct sales force, marketing representatives and distributors. The majority of our products are sold through our direct sales force. In countries where we generate substantial revenues, our sales force is organized by end use market in order to meet the specific needs of our customers. In geographic areas where it is not efficient for us to organize our sales force by end use market, we may use one sales team to service all end use markets.
In smaller markets, we often utilize marketing representatives who act as independent contractors to sell our products. In addition, we utilize distributors to service our smaller customers in all regions. Distributors sell a
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wide variety of products, which allows smaller customers to obtain multiple products from one source. In addition to our long-term relationships with distributors in North America and Europe, we have established relationships with a wide network of distributors in Latin America and the Asia Pacific region.
Our direct sales force, marketing representatives and distributors interact with our customers to provide both product advice and technical assistance. In general, they arrange and coordinate contact between our customers and our research and development personnel to provide quality control and new product solutions. Our close interaction with our customers has allowed us to develop and maintain what we consider to be strong customer relationships.
Total operating revenues from our operations outside the United States were approximately 65.9%, 65.7%, and 66.8% of our total operating revenues in the years ended December 31, 2011, 2010, and 2009, respectively. Direct sales we make outside of the United States are generally priced in local currencies and can be subject to currency exchange fluctuations when reported in our consolidated financial statements, which are maintained in U.S. dollars in accordance with U.S. Generally Accepted Accounting Principles (GAAP). For geographic reporting, revenues are attributed to the geographic location in which the customers facilities are located. We generated approximately 41.0%, 40.0% and 19.0% of our 2011 total operating revenues from customers located in the Americas, Europe and Asia Pacific region, respectively. See Note 13 Industry Segment and Foreign Operations to the consolidated financial statements for geographic reporting of total operating revenues and long-lived assets as of and for the years ended December 31, 2011, 2010, and 2009.
Sources and Availability of Raw Materials
We use butadiene, styrene and isoprene as our primary raw materials (also referred to as monomers) in manufacturing our products. The monomers used by our U.S. and European facilities are predominantly supplied by a portfolio of suppliers under long-term supply contracts and arrangements with various expiration dates. For our U.S. facilities, we also procure a substantial amount of isoprene from various suppliers in Russia, China and Japan. These purchases include both spot and contract arrangements. We generally contract with these suppliers on a short-term basis and have increased the number of these contracts to enhance the availability of our isoprene supply. Our facility in Paulinia, Brazil, generally purchases all of its raw materials from local third-party suppliers. In Japan, butadiene and isoprene are supplied under our joint venture agreement with JSR Corporation. Styrene in Japan is sourced from local third-party suppliers. We believe our contractual and other arrangements with suppliers of butadiene, styrene, and isoprene provide an adequate supply of raw materials at competitive, market-based prices. However, we can provide no assurances that contract suppliers will not terminate these contracts at the expiration of their contract terms, that we will be able to obtain substitute arrangements on comparable terms, or that we generally will be able to source raw materials on an economic basis in the future. If we are unable to obtain one or more of these monomers at competitive prices and necessary levels, or at all, our ability to produce products that use such monomers would be adversely impacted.
Butadiene . Butadiene is available on the global petrochemical market with approximately eight producers in the Americas, 29 in Europe, 48 in Asia and seven in the Middle East. Prices for butadiene are impacted by worldwide supply and demand for butadiene and natural rubber and prevailing energy prices. We believe our contractual and other arrangements with our suppliers will generally provide adequate supplies of butadiene at competitive prices to support our current sales levels. Butadiene prices were volatile in 2011 and 2010, and production of our products above our current sales levels that require butadiene could be limited by our ability to source additional butadiene at competitive prices.
The North American market is structurally short of butadiene and has relied on imports of crude C4 and/or butadiene to balance demand. We currently source butadiene in the United States pursuant to contractual arrangements with maturities up to the end of 2013, subject to renewal conditions. Prices for U.S. butadiene vary with the published prices for butadiene on world markets. Due to political unrest in Libya and U.S. sanctions that
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were imposed upon the Libyan government, crude C4 exports to the United States from Libya were interrupted , and this could affect our ability to obtain butadiene in the United States in the quantities or at the prices we require. Although we have supplemented our requirements of butadiene by purchasing spot supply as needed, no assurances can be given that we will be able to obtain adequate supplies of butadiene at competitive prices in the future.
We currently source our butadiene in Europe pursuant to contracts and arrangements with LyondellBasell. The contract covering Germany will expire on December 31, 2040, and will be renewed automatically at the conclusion of the current term unless terminated with prior written notice by either party. We are presently acquiring butadiene in France from LyondellBasell under interim arrangements, pending resolution of an agreed arbitration between the parties to determine, among other matters, the effect of a term sheet previously reached between the parties that had been governing Butadiene purchases by us from LyondellBasell at Berre from January 2009 until September 2010. In this regard, we can provide no assurance as to the nature of any final arrangement whereby we will continue to purchase butadiene from LyondellBasell at Berre, including, without limitation, the volumes, prices or terms of sale that would be applicable to any such final arrangement. The price we pay for butadiene under our arrangements or agreements covering France and Germany vary based upon the published price for butadiene, the amount of butadiene purchased during the preceding calendar year and/or the cost of butadiene manufactured.
In Brazil, butadiene is obtained from a local third-party source. In Kashima, Japan, a majority of our butadiene needs are sourced from JSR Corporation (JSR) on a commercial supply basis.
Styrene . Styrene is available on the global petrochemical market with approximately 11 producers located in the Americas, 18 in Europe, 50 in Asia and five in the Middle East. The top five producers worldwide are: BASF, Shell Chemicals, LyondellBasell, Total and Sinopec. Styrene prices are principally driven by worldwide supply and demand, the cost of ethylene and benzene, and prevailing energy prices.
We satisfy our styrene requirements in the United States and Europe pursuant to purchase agreements with maturities up to the end of 2013, subject to renewal conditions. We have more than one supplier in each of these regions and also generally have alternatives for either modifying the contract, supply portfolio or obtaining spot supply. As contracts expire, we cannot give assurances that we will obtain new long-term supply agreements or that the terms of any such agreements will be on terms favorable to us, and consequently our future acquisition costs for styrene may therefore increase.
Isoprene . Isoprene is primarily produced and consumed captively by manufacturers for the production of IR, which is primarily used in the manufacture of rubber tires. As a result, there is limited non-captive isoprene available in the market place. Prices for isoprene are impacted by the supply and prices of natural and synthetic rubber, prevailing energy prices and the existing supply and demand of isoprene in the market.
We source our global isoprene requirements through several contractual arrangements. We also purchase additional supplies of isoprene from various suppliers at prevailing market prices. In Kashima, Japan, the majority of our isoprene needs are sourced from JSR on a commercial supply basis and from alternative suppliers as needed.
We have historically had adequate supplies of isoprene. However, we have periodically experienced periods of limited supply due to operational problems at key producers, due to limited availability of crude raw materials for the isoprene extraction units. During these periods, we have normally been able to meet most of our needs by acquiring relatively expensive isoprene from other suppliers. For example, supply constraints in 2009 limited isoprene purchases under some of our existing contracts and we satisfied our requirements by supplementing purchases from a variety of other suppliers. Going forward, we believe our contractual arrangements with several
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suppliers as well as spot arrangements and longstanding relationships with other third-party suppliers of isoprene will generally provide adequate future supplies of isoprene at competitive prices to support our current sales levels. Production of our products that require isoprene could be limited by our ability to source additional isoprene at competitive prices, and we can provide no assurances in this regard.
Competition
We compete with other SBC producers and non-SBC product producers primarily on the basis of price, breadth of product availability, product quality and speed of service from order to delivery. We believe our customers also base their supply decisions on the suppliers ability to design and produce custom products and the availability of technical support. See Part I, Item 1. Business for further discussion of competition in our end use markets.
SBC Industry . Our most significant competitors in the SBC industry are: Asahi Chemical, Chi Mei, Dynasol Elastomers, Kuraray Company, Korea Kumho P.C., Lee Chang Yung, LG Chemical, Polimeri Europa, Sinopec, Taiwan Synthetic Rubber Corporation and Zeon Corporation. Generally, however, we believe individual competitors do not compete across all of our end use markets.
Product Substitution . We also compete against a broad range of alternative, non-SBC products within each of our end use markets. See Part I, Item 1. Business for further discussion of product substitution in our end use markets.
Operating and Other Agreements
Operating Agreements . LyondellBasell operates our manufacturing facility located in Berre, France. This facility is situated on a major LyondellBasell refinery and petrochemical site at which other third party tenants also own facilities. LyondellBasell charges us fees based on certain costs incurred in connection with operating and maintaining this facility, including the direct and indirect costs of employees and subcontractors, reasonable insurance costs, certain taxes imposed on LyondellBasell (other than income taxes) and depreciation and capital charges on certain assets. Pursuant to the agreement, LyondellBasell employs and provides all staff, other than certain managers, assistant managers and technical personnel whom we may appoint. The original agreement had an initial term of 20 years, beginning in February 2001, indefinitely renewing automatically for consecutive five-year periods. A new operating agreement is being finalized, with an initial term through December 31, 2014 and shall continue thereafter for an indefinite period, if not terminated earlier with 18 months notice by either party.
Pursuant to an agreement dated March 31, 2000, LyondellBasell operates and provides certain services, materials and utilities required to operate our manufacturing facility in Wesseling, Germany. We pay LyondellBasell a monthly fee, as well as costs incurred by LyondellBasell in providing the various services, even if the facility fails to produce any output (whether or not due to events within LyondellBasells control), and even if we reject some or all output. This agreement has an initial term of 40 years and will automatically renew subject to five years prior written notice of non-renewal. This agreement will terminate at any earlier date as of which the facility can no longer operate in a safe and efficient manner.
Site Services, Utilities, Materials and Facilities Agreements . LyondellBasell, through local operating affiliates, provides various site services, utilities, materials and facilities for the Berre, France, and Wesseling, Germany, manufacturing sites. Generally, these services, utilities, materials and facilities are provided by LyondellBasell on either a long-term basis, short-term basis or a sole-supplier basis. Items provided on a sole-supplier basis may not be terminated except upon termination of the applicable agreement in its entirety. Items provided on a long-term or short-term basis may be terminated individually under certain circumstances.
Information Systems
We utilize ERP software systems to support each of our facilities worldwide. In 2009, we upgraded our ERP software systems utilizing a single global system, which provided increased reliability of our systems, and
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implementing best practices for our industry. The ERP software systems are supported by internal resources. We also have in place a laboratory quality assurance system; including bar code based material management systems and manufacturing systems. An annual disaster recovery exercise is performed on critical systems utilizing third-party data centers.
Patents, Trademarks, Copyrights and Other Intellectual Property Rights
We rely on a variety of intellectual property rights to conduct our business, including patents, trademarks and trade secrets. As of December 31, 2011, approximately 20% of our patent portfolio (286 of 1,422) consisted of patent applications (the majority of which were filed after 2003). In light of the fact that patents are generally in effect for a period of 20 years as of the filing date, this means that a significant portion of the portfolio would remain in effect for a long period (assuming most of these applications will be granted). The granted patents and the applications cover both the United States and foreign countries. We do not expect that the expiration of any single patent or specific group of patents would have a material impact on our business. Our material trademarks will remain in effect unless we decide to abandon any of them, subject to possible third-party claims challenging our rights. Similarly, our trade secrets will preserve their status as such for as long as they are the subject of reasonable efforts, on our part, to maintain their secrecy. A significant number of patents in our patent portfolio were acquired from Shell Chemicals. Shell Chemicals retained for itself fully-transferable and exclusive licenses for their use outside of the elastomers field, as well as fully-transferable, non-exclusive licenses within the field of elastomers for certain limited uses in non-competing activities. Shell Chemicals is permitted to sublicense these rights. Shell Chemicals also retains the right to enforce these patents outside the elastomers field and recover any damages resulting from these actions. Shell Chemicals may engage in or be the owner of a business that manufactures and/or sells elastomers in the elastomers field, so long as they do not use patent rights or technical knowledge exclusively licensed to us.
As a general matter, our trade names are protected by trademark laws. Our products are marketed under the registered trademarks Kraton, Elexar, Giving Innovators Their Edge, Nexar and Cariflex.
In our almost 50 years in the SBC business, we have accumulated a substantial amount of technical and business expertise. Our expertise includes: product development, design and formulation, information relating to the applications in which our products are used, process and manufacturing technology, including the process and design information used in the operation, maintenance and debottlenecking of our manufacturing facilities, and the technical service that we provide to our customers. We hold extensive discussions with customers and potential customers to define their market needs and product application opportunities. Where we believe necessary, we have implemented trade secret protection for our technical knowledge through non-analysis, secrecy and related agreements.
Employees
We had 916 full-time employees at December 31, 2011. In addition, 175 LyondellBasell manufacturing employees operate our manufacturing facilities and provide maintenance services in Europe under various operating and services arrangements. See Operating and Other Agreements . None of our employees in the United States are subject to collective bargaining agreements. In Europe, Brazil and Japan, a significant number of our employees are in arrangements similar to collective bargaining arrangements. We believe our relationships with our employees continue to be good.
Environmental Regulation
Our operations in the United States and abroad are subject to a wide range of environmental laws and regulations at the national, state and local levels. These laws and regulations govern, among other things, air emissions, wastewater discharges, solid and hazardous waste management, site remediation programs and chemical use and management.
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Pursuant to these laws and regulations, our facilities are required to obtain and comply with a wide variety of environmental permits for different aspects of their operations. Generally, many of these environmental laws and regulations are becoming increasingly stringent and the cost of compliance with these various requirements can be expected to increase over time.
For example, the U.S. Environmental Protection Agency (EPA) issued new maximum achievable control technology (MACT) standards for controlling hazardous air emissions from industrial boilers. The Boiler MACT standards are required under Sections 112 of the Clean Air Act. The Boiler MACT rule applies to the coal-burning boilers at our Belpre, Ohio, facility. The final rule was published in the Federal Register on March 21, 2011 and was to have become effective 60 days later on May 20, 2011, if it was not otherwise changed or delayed. On May 16, 2011, the EPA announced a stay and reconsideration of the Boiler MACT rule and established a new comment period, which was open until July 15, 2011, in order to allow the EPA to continue to seek additional public comment before proposing a revised Boiler MACT rule. In December 2011, the EPA proposed a reconsidered Boiler MACT rule in lieu of the March 2011 version that was subject to a 60-day comment period. Litigation against the EPA by environmental interest groups resulted in the EPAs delay notice being vacated by the Federal court in January 2012. The Boiler MACT rule will likely impact the operation of the Belpre coal-burning boilers after the compliance date. Capital expenditures necessary to comply with the Boiler MACT rule are estimated to be $40.0 million to $50.0 million, of which approximately $0.9 million was incurred in 2011, $2.2 million is expected to be incurred in 2012 and the balance is expected to be incurred between 2013 and 2015, if the above rule is finalized.
Environmental laws and regulations in various jurisdictions also establish programs and, in some instances, obligations to clean up contamination from current or historic operations. Under some circumstances, the current owner or operator of a site can be held responsible for remediation of past contamination regardless of fault and regardless of whether the activity was legal at the time that it occurred. Evaluating and estimating the potential liability related to site remediation projects is a difficult undertaking, and several of our facilities have been affected by contamination from historic operations.
Our Belpre, Ohio, facility is the subject of a site investigation and remediation program administered by the EPA pursuant to the Resource Conservation and Recovery Act (RCRA). In March 1997, Shell Chemicals entered into a consent order to investigate and remediate areas of contamination on and adjacent to the site. In March 2003, we joined Shell Chemicals in signing a new consent order that required additional remediation and assessment of various areas of contamination and continues to require groundwater-monitoring and reporting. Shell Chemicals continues to take the lead in this program, has posted financial assurance of $5.2 million for the work required under the consent order and has also indemnified us for the work required under this program, subject to the condition that we provide notice of any claims on or prior to February 28, 2021. In turn, we have agreed with Shell Chemicals that we will, for a fee, provide certain services related to the remediation program. We have agreed with Shell Chemicals that we will pay up to $100,000 per year for the groundwater monitoring associated with the 2003 consent order.
Our Brazilian facility has also been affected by prior Shell Chemicals operations. A Shell Chemicals pesticide manufacturing operation was previously located on a tract of land adjacent to our Brazilian facility. In addition, areas of our facility were used by Shell Chemicals as part of its crop protection business. Shell Chemicals has retained responsibility for remediating a former manufacturing facility located on our site and has also indemnified us for identified waste management areas used in prior operations. The indemnity for remediation relating directly to the facility for the previous pesticide manufacturing operations and for disposal activity related to that facility and for third-party claims regarding hazardous substance disposal expires in 2021. Shell Chemicals has installed a hydraulic barrier to prevent migration of ground water contamination and has completed other cleanup actions on the site.
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Shell Chemicals agreed to indemnify us for specific categories of environmental claims brought with respect to matters occurring before our separation from Shell Chemicals in February 2001. Coverage under the indemnity varies depending upon the nature of the environmental claim, the location giving rise to the claim and the manner in which the claim is triggered. The indemnity for specific site clean-up matters and for third-party claims regarding hazardous substance disposal expires in 2021. Claims that may arise in the future related to past operations may not be covered by the Shell Chemicals indemnities and amounts that are recoverable under those indemnities may not be sufficient to satisfy claims against us.
In addition, we may in the future be subject to claims that arise solely from events or circumstances occurring after February 2001 that would not, in any event, be covered by the Shell Chemicals indemnity. While we recognize that we may, in the future, be held liable with respect to remediation activities beyond those identified to date, at present we are not aware of any circumstances that are reasonably expected to give rise to remediation claims that would have a material adverse effect on our results of operations or cause us to exceed our projected level of anticipated capital expenditures.
Insurance
We have levels of insurance that we believe to be customary for a company of our size in our industry. Our insurance policies are subject to customary deductibles and limits.
Seasonality
Seasonal changes and weather conditions, although difficult to predict, typically affect the Paving and Roofing end use market resulting in higher sales volumes into this end use market in the second and third quarters of the calendar year versus the first and fourth quarters. Our other end use markets tend to show relatively little seasonality.
Available Information
We electronically file reports with the Securities and Exchange Commission (SEC), including annual reports on Form 10-K, quarterly reports on Form 10-Q, current reports on Form 8-K and amendments to such reports. The public may read and copy any materials that we file with the SEC at the SECs Public Reference Room at 100 F Street, N.E., Washington, D.C. 20549. The public may obtain information on the operation of the Public Reference Room by calling the SEC at 1-800-SEC-0330. The SEC also maintains an internet site that contains reports and information statements, and other information regarding issuers that file electronically with the SEC at http://www.sec.gov. Additionally, information about us, including our reports filed with the SEC, is available through our web site at http://www.kraton.com. Such reports are accessible at no charge through our web site and are made available as soon as reasonably practicable after such material is filed with or furnished to the SEC. Our website and the information contained on that site, or connected to that site, are not incorporated by reference into this report.
Item 1A. | Risk Factors. |
Conditions in the global economy and capital markets may adversely affect the companys results of operations, financial condition and cash flows.
Our products are sold in markets that are sensitive to changes in general economic conditions, such as automotive and construction products. Downturns in general economic conditions can cause fluctuations in demand for our products, product prices, volumes and margins. A decline in the demand for our products or a
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shift to lower-margin products due to deteriorating economic conditions could adversely affect sales of our products and our profitability and could also result in impairments of certain of our assets.
Our business and operating results have been affected by the ongoing global recession, dislocations in the housing and commercial real estate markets, fluctuating commodity prices, volatile exchange rates and other challenges currently affecting the global economy and our customers. The recent European debt crisis and related European financial restructuring efforts have contributed to instability in European markets in which we operate. Uncertainty regarding global economic conditions poses a continuing risk to our business, as consumers and businesses may postpone spending in response to tighter credit, negative financial news or declines in income or asset values, which may reduce demand for our products. If global economic and market conditions, or economic conditions in key markets such as Europe, remain uncertain or deteriorate further, our results of operations, financial condition and cash flows could be materially adversely affected.
LyondellBasell Industries provides significant operating and other services under agreements that are important to our business. The failure of LyondellBasell to perform its obligations, or the termination of these agreements, could adversely affect our operations.
We have operating and service agreements with LyondellBasell Industries, or LyondellBasell, that are important to our business. We are a party to:
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operating agreements pursuant to which LyondellBasell (in Berre, France, and Wesseling, Germany) operates and maintains our European manufacturing facilities and employs and provides almost all of the staff for those facilities; |
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site services, utilities, materials and facilities agreements pursuant to which LyondellBasell provides utilities and site services to our European manufacturing facilities; and |
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lease agreements pursuant to which we lease our European manufacturing sites from LyondellBasell. |
Under the terms of the above agreements, either party is permitted to terminate the applicable agreement in a variety of situations. Should LyondellBasell fail to provide these services or should any operating agreement be terminated, we would be forced to obtain these services from third parties or provide them ourselves. Similarly, if in connection with or independent from the termination of an operating agreement, LyondellBasell terminates a facility lease, we would be forced to relocate our manufacturing facility. The failure of LyondellBasell to perform its obligations under, or the termination of, any of these agreements could adversely affect our operations and, depending on market conditions at the time of any such termination, we may not be able to enter into substitute arrangements in a timely manner, or on terms as favorable to us.
From time to time, as part of our ongoing business operations, we discuss potential changes in the terms of our various agreements with LyondellBasell, based upon changes in market conditions or other factors. Any agreed changes to any of these contractual arrangements are not effective until implemented by the parties.
Under certain of these agreements, we are required to indemnify LyondellBasell, including in certain circumstances for loss and damages resulting from LyondellBasells negligence in performing their obligations.
The failure of our raw materials suppliers to perform their obligations under long-term supply agreements, or our inability to replace or renew these agreements when they expire, could increase our cost for these materials, interrupt production or otherwise adversely affect our results of operations.
Our manufacturing processes use three primary raw materials: styrene, butadiene and isoprene. We use styrene in the production of most of our polymer products. We use butadiene in the production of SBS grades of USBCs and SEBS (styrene-ethylene-butylene-styrene) grades of HSBCs. We use isoprene in the production of
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SIS (styrene-isoprene-styrene) grades of USBCs, SEPS (styrene-ethylene-propylene-styrene) grades of HSBCs and polyisoprene rubber, or IR. We have entered into long-term supply agreements with Shell Chemicals, LyondellBasell and others to supply our raw material needs in the United States and Europe. As these contracts expire, we may be unable to renew these contracts or obtain new long-term supply agreements on terms favorable to us, which may significantly impact our operations.
In addition, most of our long-term contracts contain provisions that allow our suppliers to limit, or allocate, the amount of raw materials shipped to us below the contracted amount in certain circumstances. If we are required to obtain alternate sources for raw materials because a supplier is unwilling or unable to perform under raw material supply agreements or if a supplier terminates its agreements with us, we may not be able to obtain these raw materials from alternative suppliers in sufficient quantities or in a timely manner, and we may not be able to enter into long-term supply agreements on terms as favorable to us. A lack of availability of raw materials could have an adverse effect on our results of operations.
If the availability of isoprene is limited, we may be unable to produce some of our products in quantities demanded by our customers, which could have an adverse effect on our sales of products requiring isoprene.
Isoprene is not widely available, and the few isoprene producers tend to use their production for captive manufacturing purposes or sell only limited quantities into the world chemicals market. Isoprene is primarily produced and consumed by manufacturers captively for the production of IR, which is primarily used in the manufacture of rubber tires. As a result, there is limited non-captive isoprene available for purchase in the markets in which we operate. Future isoprene requirements for our IR products will be met by our overall isoprene sourcing strategies.
The major producers of isoprene are Goodyear, Shell Chemicals, Nippon Zeon, Braskem, several Chinese producers and various Russian manufacturers. Currently, we source our isoprene requirements for the United States and Europe from a portfolio of suppliers. In Japan, we obtain the majority of our isoprene requirements from our joint venture partner, on a commercial supply basis and from alternative suppliers as needed. In Brazil, isoprene is obtained from a local third party supplier. These suppliers may not be able to meet our isoprene requirements, and we may not be able to obtain isoprene required for our operations on terms favorable to us or at all.
Because there is limited non-captive isoprene availability, the market for isoprene is thin and prices are particularly volatile. Prices for isoprene are impacted by the supply and prices of natural and synthetic rubber, prevailing energy prices and the existing supply and demand of isoprene in the market. Significant increases in the cost of isoprene could have a material impact on our results of operations. In the past, tight supply in the isoprene market has been exacerbated by operational problems of some key producers and reduced availability of crude C5 inputs for the extraction units. A lack of availability of isoprene could have an adverse effect on our results of operations if we are unable to produce products containing isoprene.
If the availability of butadiene is limited, we may be unable to produce some of our products in quantities demanded by our customers, which could have an adverse effect on facility utilization and our sales of products requiring butadiene.
The North American market is structurally short of butadiene and has relied on imports of crude C4 and/or butadiene to balance demand. Due to political unrest in Libya and U.S. sanctions that were imposed upon the Libyan government, crude C4 exports to the United States from Libya were interrupted, and this could affect our ability to obtain butadiene in the United States in the quantities or at the prices we require. Historically, the European market has been better balanced and provided exports to North America. Currently, our butadiene requirements in the United States are satisfied by several suppliers, and LyondellBasell is our major butadiene supplier in Europe. In general, the quantity of butadiene available in any one region is dependent on the cracking
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inputs of olefins plants, ethylene demand, inter-regional demand for butadiene and demand for other oil derivatives. Suppliers may not be able to meet our butadiene requirements, and we may not be able to obtain substitute supplies of butadiene from alternative suppliers in a timely manner or on favorable terms.
If the availability of styrene is limited, we may be unable to produce some of our products in quantities demanded by our customers, which could have an adverse effect on facility utilization and our sales of products requiring styrene.
We satisfy our styrene requirements in the United States and Europe pursuant to purchase agreements with maturities up to the end of 2013, subject to renewal conditions. We have more than one supplier in each of these regions and also generally have alternatives for either modifying the contract, supply portfolio or obtaining spot supply. As contracts expire, we cannot give assurances that we will obtain new long-term supply agreements or that the terms of any such agreements will be on terms favorable to us, and consequently our future acquisition costs for styrene may therefore increase.
Increases in the costs of our raw materials could have an adverse effect on our financial condition and results of operations if those costs cannot be passed onto our customers.
Our results of operations are directly affected by the cost of our raw materials. Our three principal raw materials (butadiene, styrene, and isoprene) together represented approximately 58.8%, 55.6% and 42.6% of our total cost of goods sold for the years ended December 31, 2011, 2010 and 2009, respectively. In general, increases in energy prices have led to increases in the costs of butadiene and styrene, which would lead to increases in the cost of our raw materials. Butadiene pricing has been particularly volatile in 2011 and 2010. Political unrest in the Middle East and market dislocation resulting from U.S. sanctions relating thereto could lead to increases in the price of crude oil. As described above, the market for non-captive isoprene is thin and prices are particularly volatile. Because of the significant portion of our cost of goods sold represented by these three monomers, our gross profit margins could be adversely affected by changes in the cost of these raw materials if we are unable to pass the increases on to our customers.
Our end use markets are highly competitive, and we may lose market share to other producers of styrenic block copolymers or to producers of other products that can be substituted for our products.
Our industry is highly competitive and we face significant competition from large international producers, as well as from smaller regional competitors. Our competitors may improve their competitive position in our core end use markets by successfully introducing new products, improving their manufacturing processes or expanding their capacity or manufacturing facilities. If we are unable to keep pace with our competitors product and manufacturing process innovations, our financial condition and results of operations could be materially adversely affected.
Our most significant competitors are Asahi Chemical, Chi Mei, Dynasol Elastomers, Kuraray Company, Korea Kumho P.C., Lee Chang Yung, LG Chemical, Polimeri Europa, Sinopec, Taiwan Synthetic Rubber Corporation and Zeon Corporation. Several competitors, including Lee Chang Yung, LG Chemical and Sinopec, have expanded USBC capacity over the last three years.
In addition, competition between styrenic block copolymers and other products within the end use markets in which we compete is intense. Increased competition from existing or newly developed SBC or non-SBC products may reduce demand for our products in the future and our customers may decide on alternate sources to meet their requirements. If we are unable to successfully compete with other producers of styrenic block copolymers or if other products can be successfully substituted for our products, our sales may decline.
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If we are not able to continue the technological innovation and successful commercial introduction of new products, our customers may turn to other producers to meet their requirements.
Our industry and the end use markets into which we sell our products experience periodic technological change and ongoing product improvements. In addition, our customers may introduce new generations of their own products or require new technological and increased performance specifications that would require us to develop customized products. Innovation or other changes in our customers product performance requirements may also adversely affect the demand for our products. Our future growth will depend on our ability to gauge the direction of the commercial and technological progress in all key end use markets, and upon our ability to successfully develop, manufacture and market products in such changing end use markets. In order to maintain our profit margins and our competitive position, we must continue to identify, develop and market innovative products on a timely basis to replace existing products. We may not be successful in developing new products and technology that successfully compete with newly introduced products and materials, and our customers may not accept, or may have lower demand for, any of our new products. If we fail to keep pace with evolving technological innovations or fail to modify our products in response to our customers needs, then our business, financial condition and results of operations could be adversely affected as a result of reduced sales of our products.
Our business relies on intellectual property and other proprietary information, and our failure to protect our rights could harm our competitive advantages with respect to the manufacturing of some of our products.
Our success depends to a significant degree upon our ability to protect and preserve our intellectual property and other proprietary information relating to our business. However, we may be unable to prevent third parties from using our intellectual property and other proprietary information without our authorization or independently developing intellectual property and other proprietary information that is similar to ours, particularly in those countries where the laws do not protect our proprietary rights to the same degree as in the United States. The use of our intellectual property and other proprietary information by others could reduce or eliminate any competitive advantage we have developed, cause us to lose sales or otherwise harm our business. If it becomes necessary for us to litigate to protect these rights, any proceedings could be burdensome and costly, and we may not prevail.
In addition, we acquired a significant number of patents from Shell Chemicals. Pursuant to the agreements with Shell Chemicals relating to their contribution of these patents to us and our ownership of these patents, Shell Chemicals retained for itself fully-transferable and exclusive licenses to their use outside of the elastomers business, as well as fully-transferable non-exclusive licenses within the field of elastomers for certain limited uses in non-competing activities. Shell Chemicals is permitted to sublicense these rights. Shell Chemicals also retains the right to enforce these patents outside the elastomers field and recover any damages resulting from these actions.
Any patents, issued or applied for, may not provide us with any competitive advantage and may be challenged by third parties. Our competitors also may attempt to design around our patents or copy or otherwise obtain and use our intellectual property and other proprietary information. Moreover, our competitors may already hold or have applied for patents in the United States or abroad that, if enforced or issued, could possibly prevail over our patent rights or otherwise limit our ability to manufacture or sell one or more of our products in the United States or abroad. From time to time, we oppose the issuance of patent applications in the United States and other jurisdictions that we consider overbroad or otherwise invalid in order to maintain the necessary freedom to operate fully in our various business lines without the risk of being sued for patent infringement. In general, competitors or other parties may, from time to time, assert issued patents or other intellectual property rights against us. If we are legally determined, at some future date, to infringe or violate the intellectual property rights of another party, we may have to pay damages, stop the infringing use, or attempt to obtain a license agreement with the owner of such intellectual property. With respect to our pending patent applications, we may not be successful in securing patents for these claims. Our failure to secure these patents may limit our ability to
20
protect inventions that these applications were intended to cover. In addition, the expiration of a patent can result in increased competition with consequent erosion of profit margins.
It is our policy to enter into confidentiality agreements with our employees and third parties to protect our unpatented proprietary manufacturing expertise, continuing technological innovation and other trade secrets, but our confidentiality agreements could be breached or may not provide meaningful protection for our trade secrets or proprietary manufacturing expertise. Adequate remedies may not be available in the event of an unauthorized use or disclosure of our trade secrets and manufacturing expertise. Violations by others of our confidentiality agreements and the loss of employees who have specialized knowledge and expertise could harm our competitive position and cause our sales and operating results to decline as a result of increased competition. In addition, others may obtain knowledge of our trade secrets through independent development or other access by legal means.
The applicable governmental authorities may not approve our pending service mark and trademark applications. A failure to obtain trademark registrations in the United States and in other countries could limit our ability to obtain and retain our trademarks and impede our marketing efforts in those jurisdictions. Moreover, third parties may seek to oppose our applications or otherwise challenge the resulting registrations. In the event that our trademarks are successfully challenged, we could be forced to rebrand our products, which could result in loss of brand recognition and could require us to devote resources to advertising and marketing new brands.
The failure of our patents, trademarks or confidentiality agreements to protect our intellectual property and other proprietary information, including our processes, apparatuses, technology, trade secrets, trade names and proprietary manufacturing expertise, methods and compounds, could have a material adverse effect on our competitive advantages over other producers.
Our products may infringe the intellectual property rights of others, which may cause us to incur unexpected costs or prevent us from selling our products.
Many of our competitors have a substantial amount of intellectual property that we must continually monitor to avoid infringement. We cannot guarantee that our processes and products do not and will not infringe issued patents (whether present or future) or other intellectual property rights belonging to others, including, without limitation, situations in which our products, processes or technologies may be covered by patent applications filed by other parties in the United States or abroad.
From time to time, we oppose patent applications that we consider overbroad or otherwise invalid in order to maintain the necessary freedom to operate fully in our various business lines without the risk of being sued for patent infringement. If, however, patents are subsequently issued on any such applications by other parties, or if patents belonging to others already exist that cover our products, processes or technologies, we could be liable for infringement or have to take other remedial or curative actions to continue our manufacturing and sales activities with respect to one or more products.
We may also be subject to legal proceedings and claims in the ordinary course of our business, including claims of alleged infringement of the patents, trademarks and other intellectual property rights of third parties by us or our licensees in connection with their use of our products. Intellectual property litigation is expensive and time-consuming, regardless of the merits of any claim, and could divert our managements attention from operating our business.
If we were to discover that our processes, technologies or products infringe the valid intellectual property rights of others, we might need to obtain licenses from these parties or substantially re-engineer our products in order to avoid infringement. We may not be able to obtain the necessary licenses on acceptable terms, or at all, or be able to re-engineer our products successfully. Moreover, if we are sued for infringement and lose, we could be required to pay substantial damages and/or be enjoined from using or selling the infringing products or technology. If we incur significant costs to litigate our intellectual property rights or on fees to obtain licenses, or if our inability to obtain required licenses for our processes, technologies or products prevents us from selling our products , then our business and results of operations could be materially adversely affected.
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Our business is subject to seasonality that may affect our quarterly operating results and impact the market price of our common stock.
Seasonal changes and weather conditions typically affect our Paving and Roofing end use market. In particular, sales volumes for paving products generally rise in the warmer months and generally decline during the colder months of fall and winter. Roofing product sales volumes tend to be more consistent throughout the year. In addition, abnormally cold or wet seasons may cause reduced purchases from our Paving and Roofing customers. However, because seasonal weather patterns are difficult to predict, we cannot accurately estimate fluctuations in our quarterly Paving and Roofing sales in any given year. If Paving and Roofing results cause our operating results to fall below the periodic expectations of financial analysts or investors, the market price of our common stock may decline.
Substantial indebtedness could adversely affect our financial condition and prevent us from fulfilling our obligations under the senior secured credit facility and the senior notes.
As of December 31, 2011, our indebtedness consists of:
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$142.5 million senior secured term loan under our senior secured credit facility; and |
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$250.0 million principal amount of senior unsecured notes. |
As of December 31, 2011 we have borrowing capacity available to us of $200 million under the revolving portion of the senior secured credit facility, which, if borrowed, would be senior secured indebtedness and subject to our compliance with certain covenants and other conditions. Additionally we have the option to raise up to $125 million of incremental term loans or increased revolving credit commitments without satisfying any additional financial tests under the indentures governing the senior notes, which, if borrowed, would be senior secured indebtedness.
Although the terms of our senior secured credit facility and the indenture governing the senior notes contain restrictions on the incurrence of additional indebtedness, these restrictions are subject to a number of important exceptions, and indebtedness incurred in compliance with these restrictions could be substantial. If we and our restricted subsidiaries incur significant additional indebtedness, the related risks that we face could increase.
Our indebtedness could:
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make it more difficult for us to satisfy our financial obligations; |
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increase our vulnerability to adverse economic and industry conditions; |
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increase the risk that we breach financial covenants and other restrictions in our debt agreements; |
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require us to dedicate a substantial portion of our cash flow from operations to make payments on our indebtedness, thereby reducing the availability of our cash flow to fund working capital, capital expenditures and other general corporate purposes; |
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limit our flexibility in planning for, or reacting to, changes in the business and industry in which we operate; |
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restrict us from exploiting business opportunities; |
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place us at a disadvantage compared to our competitors that have less debt and lease obligations; and |
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limit our ability to borrow additional funds for working capital, capital expenditures, acquisitions, debt service requirements, execution of our business strategy and other general corporate purposes or to refinance our existing debt. |
Our ability to pay principal of and interest on indebtedness, fund working capital, and make anticipated capital expenditures depends on our future performance, which is subject to general economic conditions and other factors, some of which are beyond our control. There can be no assurance that our business will generate sufficient cash flow from operations or that future borrowings will be available under the senior secured revolving credit facility to fund
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liquidity needs, including debt service. Furthermore, if we decide to undertake additional investments in existing or new facilities, this will likely require additional capital, and there can be no assurance that this capital will be available.
Our debt instruments, including the senior secured credit facility and the indenture governing the senior notes, impose significant operating and financial restrictions on us.
Our senior secured credit facility and the indenture governing our senior notes contain, and any future indebtedness may contain, a number of restrictive covenants that impose significant operating and financial restrictions on us. Under the terms of our senior secured credit facility, we are subject to financial covenants, including maintenance of a maximum consolidated net leverage ratio, a minimum consolidated net interest coverage ratio and maximum capital expenditures. In addition, our credit facility and indenture include restrictions on our ability to, among other things:
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place liens on our or our subsidiaries assets; |
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make investments other than permitted investments; |
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incur additional indebtedness; |
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merge, consolidate or dissolve; |
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sell assets; |
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engage in transactions with affiliates; |
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change the nature of our business; |
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change our or our subsidiaries fiscal year or organizational documents; and |
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make restricted payments (including certain equity issuances). |
A failure by us or our subsidiaries to comply with the covenants or to maintain the required financial ratios contained in the agreements governing our indebtedness could result in an event of default under such indebtedness, which could adversely affect our ability to respond to changes in our business and manage our operations. Upon the occurrence of an event of default under any of the agreements governing our indebtedness, the lenders could elect to declare all amounts outstanding to be due and payable and exercise other remedies as set forth in the agreements. Further, an event of default or acceleration of indebtedness under one instrument may constitute an event of default under another instrument. If any of our indebtedness were to be accelerated, there can be no assurance that our assets would be sufficient to repay this indebtedness in full, which could have a material adverse effect on our ability to continue to operate as a going concern.
Chemical manufacturing is inherently hazardous, which could result in accidents that disrupt our operations or expose us to significant losses or liabilities.
Hazards associated with chemical manufacturing and the related storage and transportation of raw materials, products and wastes exist in our operations and the operations of other occupants with whom we share manufacturing sites. These hazards could lead to an interruption or suspension of operations and have an adverse effect on the productivity and profitability of a particular manufacturing facility or on us as a whole. These potential risks include, but are not necessarily limited to:
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pipeline and storage tank leaks and ruptures; |
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explosions and fires; |
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inclement weather and natural disasters; |
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terrorist attacks; |
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mechanical failure; and |
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chemical spills and other discharges or releases of toxic or hazardous substances or gases. |
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These hazards may result in personal injury and loss of life, damage to property and contamination of the environment, which may result in a suspension of operations and the imposition of civil or criminal penalties, including governmental fines, expenses for remediation and claims brought by governmental entities or third parties. The loss or shutdown of operations over an extended period at our Belpre facility, which is our largest manufacturing facility, or any of our other major operating facilities could have a material adverse effect on our financial condition and results of operations. Our property, business interruption and casualty insurance may not fully insure us against all potential hazards incidental to our business.
We may be liable for damages based on product liability claims brought against our customers in our end use markets.
Many of our products provide critical performance attributes to our customers products that are sold to consumers who could potentially bring product liability suits in which we could be named as a defendant. The sale of these products entails the risk of product liability claims. If a person were to bring a product liability suit against one of our customers, the customer may attempt to seek contribution from us. A person may also bring a product liability claim directly against us. A successful product liability claim or series of claims against us in excess of our insurance coverage for payments, for which we are not otherwise indemnified, could have a material adverse effect on our financial condition or results of operations. There can be no assurance that our efforts to protect ourselves from product liability claims in this regard will ultimately protect us from any such claims.
As a global business, we are exposed to local business risks in different countries, which could have a material adverse effect on our financial condition or results of operations.
We have significant operations in foreign countries, including manufacturing facilities, research and development facilities, sales personnel and customer support operations. Currently, we operate, or others operate on our behalf, facilities in Brazil, Germany, France and Japan, in addition to our operations in the United States. We are also in negotiations to enter into a joint venture in Taiwan. Our foreign operations are subject to risks inherent in doing business in foreign countries, including, but not necessarily limited to:
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new and different legal and regulatory requirements in local jurisdictions; |
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export duties or import quotas; |
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domestic and foreign customs and tariffs or other trade barriers; |
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potential staffing difficulties and labor disputes; |
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risk of non-compliance with the United States Foreign Corrupt Practices Act or similar antibribery legislation in other countries by agents or other third-party representatives; |
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managing and obtaining support and distribution for local operations; |
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increased costs of transportation or shipping; |
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credit risk and financial conditions of local customers and distributors; |
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potential difficulties in protecting intellectual property; |
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risk of nationalization of private enterprises by foreign governments; |
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potential imposition of restrictions on investments; |
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potentially adverse tax consequences, including imposition or increase of withholding and other taxes on remittances and other payments by subsidiaries; |
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foreign currency exchange restrictions and fluctuations; |
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local political and social conditions, including the possibility of hyperinflationary conditions and political instability in certain countries; and |
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civil unrest, including labor unrest, in response to local political conditions. |
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We may not be successful in developing and implementing policies and strategies to address the foregoing risks in a timely and effective manner at each location where we do business. Consequently, the occurrence of one or more of the foregoing risks could have a material adverse effect on our international operations or upon our financial condition and results of operations.
Compliance with extensive environmental, health and safety laws could require material expenditures, changes in our operations or site remediation.
Materials such as styrene, butadiene and isoprene, which are used in the manufacture of our products, can represent potentially significant health and safety concerns. Our products are also used in a variety of end uses that have specific regulatory requirements such as those relating to products that have contact with food or medical end uses.
We use large quantities of hazardous substances and generate hazardous wastes in our manufacturing operations. Consequently, our operations are subject to extensive environmental, health and safety laws and regulations at both the national and local level in multiple jurisdictions. These laws and regulations govern, among other things, air emissions, wastewater discharges, solid and hazardous waste management, site remediation programs and chemical use and management. Many of these laws and regulations have become more stringent over time and the costs of compliance with these requirements may increase, including costs associated with any necessary capital investments. In addition, our production facilities require operating permits that are subject to renewal and, in some circumstances, revocation. The necessary permits may not be issued or continue in effect, and any issued permits may contain significant new requirements. The nature of the chemical industry exposes us to risks of liability due to the use, production, management, storage, transportation and sale of materials that are heavily regulated or hazardous and can cause contamination or personal injury or damage if released into the environment.
Because of the nature of our operations, we could be subject to legislation and regulation affecting the emission of greenhouse gases. The EPA has promulgated new regulations applicable to projects involving greenhouse gas emissions above a certain threshold, and the U.S. and certain states within the U.S. have enacted, or are considering, limitations on greenhouse gas emissions. These requirements to limit greenhouse gas emissions may require us to incur capital investments to upgrade our operations to comply with any future greenhouse gas emissions controls. While the impact of any such legislation or regulation is currently speculative, any such legislation or regulation, if enacted, may have an adverse effect on our operations or financial condition.
Compliance with environmental laws and regulations generally increases the costs of transportation and storage of raw materials and finished products, as well as the costs of storage and disposal of wastes. We may incur substantial costs, including fines, damages, criminal or civil sanctions and remediation costs, or experience interruptions in our operations for violations arising under environmental laws, regulations or permit requirements.
Regulation of our employees exposure to butadiene could require material expenditures or changes in our operations.
Butadiene is a known carcinogen in laboratory animals at high doses and is being studied for its potential adverse health effects. The Occupational Safety and Health Administration limits the permissible employee exposure to butadiene. Future studies on the health effects of butadiene may result in additional regulations or new regulations in Europe that further restrict or prohibit the use of, and exposure to, butadiene. Additional regulation of butadiene could require us to change our operations, and these changes could affect the quality of our products and materially increase our costs.
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We may be subject to losses due to lawsuits arising out of environmental damage or personal injuries associated with chemical manufacturing.
We face the risk that individuals could, in the future, seek damages for personal injury due to exposure to chemicals at our facilities or to chemicals otherwise owned or controlled by us. We may be subject to future claims with respect to workplace exposure, workers compensation and other matters that are filed after the date of our acquisition of Shell Chemicals elastomers business. While Shell Chemicals has agreed to indemnify us for certain claims brought with respect to matters occurring before our separation from Shell Chemicals in February 2001, those indemnity obligations are subject to limitations, and we cannot be certain that those indemnities will be sufficient to satisfy claims against us. In addition, we face the risk that future claims would fall outside of the scope of the indemnity due either to the limitations on the indemnity or to their arising from events and circumstances occurring after February 2001. Finally, under certain of the lease and operating agreements under which LyondellBasell leases and provides services to our sites in Wesseling, Germany, and Berre, France, we are required to indemnify LyondellBasell in certain circumstances, including in certain circumstances for loss and damages resulting from LyondellBasells negligence in performing their obligations.
Some environmental laws could impose on us the entire cost of clean-up of contamination present at a facility even though we did not cause the contamination. These laws often identify the site owner as one of the parties that can be jointly and severally liable for on-site remediation, regardless of fault or whether the original activity was legal at the time it occurred. For example, our Belpre, Ohio, facility is the subject of a required remediation program to clean up past contamination at the site and at an adjacent creek and we are a party to that site clean-up order. While Shell Chemicals has posted financial assurance of $5.2 million for this program and has taken the lead in implementing the program, we may incur costs and be required to take action under this program. Similarly, the Shell Chemicals indemnity for remediation at the Belpre facility may not cover all claims that might be brought against us.
Our Paulinia, Brazil, facility also has on-site contamination resulting from past operations of Shell Chemicals. Although an indemnity from Shell Chemicals covers claims related to specified areas within the facility, we may be required to undertake and pay for remediation of these and other areas. The indemnity coverage from Shell Chemicals is limited in time and amount and we cannot rely upon it to cover possible future claims for on-site contamination separate from the areas specified in the indemnity. The Paulinia facility is also adjacent to a former Shell Chemicals site where we believe past manufacturing of hydrocarbons resulted in significant contamination of soil and groundwater and required relocation of nearby residents. It is our understanding that the Shell Chemicals portion of the site has changed ownership several times, which may impact financial responsibility for contamination on the site. While we are not aware of any significant contamination at our Paulinia facility, we could potentially be the subject of claims related to pesticide contamination and effects at some point in the future.
In general, there is always the possibility that a third-party plaintiff or claimant, or governmental or regulatory authority, could seek to include us in an action or claim for damages, clean-up, or remediation pertaining to events or circumstances occurring or existing at one or more of our sites prior to the time of our ownership or occupation of the applicable site. In the event that any of these actions or claims were asserted against us, our results of operations could be adversely affected.
Regulatory and statutory changes applicable to us or our customers could adversely affect our financial condition and results of operations.
We and many of the applications for the products in the end use markets in which we sell our products are regulated by various national and local rules, laws and regulations. Changes in any of these areas could result in additional compliance costs, seizures, confiscations, recall or monetary fines, any of which could prevent or inhibit the development, distribution and sale of our products. For example, changes in environmental regulations restricting the use of disposable diapers could cause a decline in sales to producers of that product. In addition, we benefit from certain trade protections, including anti-dumping protection. If we were to lose these protections, our results of operations could be adversely affected.
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We are subject to customs, international trade, export control, antitrust, zoning and occupancy and labor and employment laws that could require us to modify our current business practices and incur increased costs.
We are subject to numerous regulations, including customs and international trade laws, export control, antitrust laws and zoning and occupancy laws that regulate manufacturers generally and/or govern the importation, promotion and sale of our products, the operation of factories and warehouse facilities and our relationship with our customers, suppliers and competitors. If these regulations were to change or were violated by our management, employees, suppliers, buying agents or trading companies, the costs of certain goods could increase, or we could experience delays in shipments of our goods, be subject to fines or penalties, or suffer reputational harm, which could reduce demand for our products and hurt our business and negatively impact our results of operations. In addition, changes in federal and state minimum wage laws and other laws relating to employee benefits could cause us to incur additional wage and benefits costs, which could negatively impact our profitability.
Legal requirements are frequently changed and subject to interpretation, and we are unable to predict the ultimate cost of compliance with these requirements or their effects on our operations. We may be required to make significant expenditures or modify our business practices to comply with existing or future laws and regulations, which may increase our costs and materially limit our ability to operate our business.
Fluctuations in currency exchange rates may significantly impact our results of operations and may significantly affect the comparability of our results between financial periods.
Our operations are conducted by subsidiaries in many countries. The results of the operations and the financial position of these subsidiaries are reported in the relevant foreign currencies and then translated into U.S. dollars at the applicable exchange rates for inclusion in our consolidated financial statements. The main currencies, to which we are exposed, besides the U.S. dollar, are the Euro, Japanese Yen and Brazilian Real. The exchange rates between these currencies and the U.S. dollar in recent years have fluctuated significantly and may continue to do so in the future. A depreciation of these currencies against the U.S. dollar will decrease the U.S. dollar equivalent of the amounts derived from these operations reported in our consolidated financial statements and an appreciation of these currencies will result in a corresponding increase in such amounts. Because many of our raw material costs are determined with respect to the U.S. dollar rather than these currencies, depreciation of these currencies may have an adverse effect on our profit margins or our reported results of operations. Conversely, to the extent that we are required to pay for goods or services in foreign currencies, the appreciation of such currencies against the U.S. dollar will tend to negatively impact our results of operations. In addition, currency fluctuations may affect the comparability of our results of operations between financial periods.
We incur currency transaction risk whenever we enter into either a purchase or sale transaction using a currency other than the local currency of the transacting entity. We employ hedging strategies to minimize our exposure to certain foreign currency fluctuations. Given the volatility of exchange rates, there can be no assurance that we will be able to effectively manage our currency transaction risks, that our hedging activities will be effective or that any volatility in currency exchange rates will not have a material adverse effect on our financial condition or results of operations.
Our planned joint venture in Asia is subject to risks and uncertainties.
We are currently negotiating definitive documentation with Formosa Petrochemical Corporation to construct and operate a 30 kiloton HSBC facility to be located in Mailiao, Taiwan. We cannot be certain that we will be able to acquire all necessary permitting or other approvals for the construction of the facility in a timely fashion, if at all, or be able to reach definitive agreements regarding this joint venture or, if definitive agreements are reached, that the facility will be successfully constructed and operated within our expected timeframe or budget or yield expected results. If any of these risks materialize, our prospects in Asia could be materially delayed or adversely impacted.
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Our relationship with our employees could deteriorate, which could adversely affect our operations.
As a manufacturing company, we rely on our employees and good relations with our employees to produce our products and maintain our production processes and productivity. As of December 31, 2011, we had 916 full-time employees. A significant number of our non-U.S. employees are subject to arrangements similar to collective bargaining arrangements. With respect to these employees, we may not be able to negotiate labor agreements on satisfactory terms, and actions by our employees may disrupt our business. If these workers were to engage in a strike, work stoppage or other slowdown, our operations could be disrupted or we could experience higher labor costs. In addition, if our other employees were to become unionized, in particular our employees at our Belpre, Ohio, facility, we could experience significant operating disruptions and higher ongoing labor costs, which could adversely affect our business and financial condition and results of operations. Because many of the personnel who operate our European facilities are employees of LyondellBasell, relations between LyondellBasell and its employees may also adversely affect our business and financial condition and results of operations.
Loss of key personnel or our inability to attract and retain new qualified personnel could hurt our business and inhibit our ability to operate and grow successfully.
Our success in the highly competitive markets in which we operate will continue to depend to a significant extent on our key employees. We are dependent on the expertise of our executive officers. Loss of the services of any of our executive officers could have an adverse effect on our prospects. We may not be able to retain our key employees or to recruit qualified individuals to join our company. The loss of key employees could result in high transition costs and could disrupt our operations.
We generally do not have long-term contracts with our customers, and the loss of customers could adversely affect our sales and profitability.
With some exceptions, our business is based primarily upon individual sales orders with our customers. As such, our customers could cease buying our products from us at any time, for any reason, with little or no recourse. If multiple customers elected not to purchase products from us, our business prospects, financial condition and results of operations could be adversely affected.
A decrease in the fair value of pension assets could materially increase future funding requirements of the pension plan.
We sponsor a defined benefit pension plan. The total projected benefit obligation of our defined benefit pension plan exceeded the fair value of the plan assets by approximately $44.8 million at December 31, 2011. We contributed $7.4 million to the pension plan in 2011 and, based on the actuarial and other assumptions used in our consolidated financial statements, are forecasting contributions of approximately $9.8 million in 2012. Among the key assumptions inherent in the actuarially calculated pension plan obligation and pension plan expense are the discount rate and the expected rate of return on plan assets. If interest rates and actual rates of return on invested plan assets were to decrease significantly, the pension plan obligation could increase materially. The size of future required pension contributions could result in our dedicating a substantial portion of our cash flow from operations to making the contributions, which could materially adversely affect our business, financial condition and results of operations.
Delaware law and some provisions of our organizational documents make a takeover of our company more difficult.
Provisions of our charter and bylaws may have the effect of delaying, deferring or preventing a change in control of our company. A change of control could be proposed in the form of a tender offer or takeover proposal that might result in a premium over the market price for our common stock. In addition, these provisions could
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make it more difficult to bring about a change in the composition of our board of directors, which could result in entrenchment of current management. For example, our charter and bylaws:
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establish a classified board of directors so that not all members of our board of directors are elected at one time; |
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require that the number of directors be determined, and provide that any vacancy or new board seat may be filled, only by the board; |
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do not permit stockholders to act by written consent; |
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do not permit stockholders to call a special meeting; |
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permit the bylaws to be amended by a majority of the board without shareholder approval, and require that a bylaw amendment proposed by stockholders be approved by two-thirds of all outstanding shares; |
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establish advance notice requirements for nominations for elections to our board of directors or for proposing matters that can be acted upon by stockholders at stockholder meetings; and |
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authorize the issuance of undesignated preferred stock, or blank check preferred stock, by our board of directors without shareholder approval. |
Our Kraton Performance Polymers, Inc. Executive Severance Program and the equity arrangements with our executive officers also contain change in control provisions. Under the terms of these arrangements, the executive officers are entitled to receive significant cash payments, immediate vesting of options, restricted shares and notional shares, and continued medical benefits in the event their employment is terminated under certain circumstances within one year following a change in control, and with respect to certain equity awards, within two years following a change in control.
Any Supplemental Pension Benefits a participant may have accrued under the Kraton Polymers U.S. LLC Pension Benefit Restoration Plan also vests immediately on a change of control and any amounts accrued under the Kraton Polymers LLC Executive Deferred Compensation Plan are immediately payable upon a change of control. We disclose in proxy statements filed with the SEC potential payments to our named executive officers in connection with a change of control. Further, certain change of control transactions constitute an event of default under our credit facility and would require us to offer to purchase our outstanding senior notes at 101% of their principal amount.
These arrangements and provisions of our organizational documents and Delaware law may have the effect of delaying, deferring or preventing changes of control or changes in management of our company, even if such transactions or changes would have significant benefits for our stockholders. As a result, these provisions could limit the price some investors might be willing to pay in the future for shares of our common stock.
We do not expect to pay any dividends for the foreseeable future.
We do not anticipate paying any dividends to our stockholders for the foreseeable future. The senior secured credit facility and our senior notes indenture may preclude us from paying cash dividends, and we may be subject to other restrictions on our ability to pay dividends from time to time. In addition, because we are a holding company, our ability to pay dividends depends on our receipt of cash dividends and distributions from our subsidiaries. Accordingly, investors must be prepared to rely on sales of their common stock after price appreciation to earn an investment return, which may never occur. Investors seeking cash dividends should not purchase our common stock. Any determination to pay dividends in the future will be made at the discretion of our board of directors and will depend upon our results of operations, financial conditions, contractual restrictions, restrictions imposed by applicable law or the SEC and other factors our board deems relevant.
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We are a holding company with nominal net worth and will depend on dividends and distributions from our subsidiaries to pay any dividends.
Kraton Performance Polymers is a holding company with nominal net worth. We do not have any assets or conduct any business operations other than our investments in our subsidiaries, including Kraton Polymers LLC. As a result, our ability to pay dividends, if any, will be dependent upon cash dividends and distributions or other transfers from our subsidiaries. Payments to us by our subsidiaries will be contingent upon their respective earnings and subject to any limitations on the ability of such entities to make payments or other distributions to us. In addition, our subsidiaries are separate and distinct legal entities and have no obligation to make any funds available to us.
Item 1B. | Unresolved Staff Comments. |
None.
Item 2. | Properties. |
Our principal executive offices are located at 15710 John F. Kennedy Boulevard, Suite 300, Houston, Texas 77032.
We believe that our properties and equipment are generally in good operating condition and are adequate for our present needs. Production capacity at our sites can vary greatly depending upon feedstock, product mix and operating conditions.
Our properties consist primarily of manufacturing and research and development facilities for the production of specialty chemicals. The following table sets forth our principal facilities:
Location |
Acres |
Approximate
Square Footage |
Use | Owned/Leased | ||||||||
Belpre, Ohio |
350 | 3,600,000 | Manufacturing | Owned | (1) | |||||||
Wesseling, Germany |
8.1 | 354,000 | Manufacturing | Owned | (2) | |||||||
Berre, France |
9.0 | 392,000 | Manufacturing | Owned | (2) | |||||||
Paulinia, Brazil |
179 | 2,220,000 | Manufacturing | Owned | ||||||||
Kashima, Japan |
11.6 | 395,000 | Manufacturing | Owned | (3) | |||||||
Houston, Texas |
N/A | 105,500 | R&D | Leased | (4) | |||||||
Shanghai, China |
N/A | 33,000 | R&D | Leased | (4) | |||||||
Amsterdam, the Netherlands |
N/A | 32,015 | R&D | Leased | (4) | |||||||
Tsukuba, Japan |
4.5 | 23,327 | R&D | Leased | (4) |
(1) | A portion of the HSBC capacity at the Belpre facility is owned by Infineum USA, a joint venture between Shell Chemicals and ExxonMobil. |
(2) | We lease the land, but own the manufacturing facility and production equipment. |
(3) | The Kashima, Japan, facility is owned by our 50%-50% joint venture with JSR. |
(4) | We lease the facility, but own the equipment. |
Belpre, Ohio . Our Belpre site is our largest manufacturing facility, with connections to barge, rail and truck shipping and receiving facilities. The Belpre site has approximately 192 kilotons of production capacity to which we are entitled. The Belpre facility currently produces USBC, HSBC, and Cariflex TM products. A portion of the HSBC capacity at Belpre is owned by Infineum USA. Infineum is a joint venture between Shell Chemicals and ExxonMobil that makes products for the lubricant additives business. Under a facility sharing agreement that terminates in 2030, we operate Infineums share of the HSBC assets to manufacture a line of products for Infineum, and Infineum is entitled to a portion of the HSBC capacity at Belpre. Other than those assets owned by Infineum, we own the Belpre facility and the land on which it is located.
30
Wesseling, Germany . Our Wesseling manufacturing site is located on the premises of LyondellBasell. The site has direct access to major highways and extensive railway connections. Production capacity is approximately 96 kilotons. LyondellBasell owns the land on the premises and leases it to us. The lease is for a term of 30 years, beginning from March 31, 2000 and is extended automatically for a successive period of 10 years unless terminated upon one-years written notice by either party. We own the SBC manufacturing facility and production equipment in the facility. The Wesseling facility currently produces USBC products. LyondellBasell provides us operating and site services, utilities, materials and facilities under a long-term production agreement. LyondellBasell has the right to approve any expansion of our facility at Wesseling although its consent may only be withheld if an expansion would be detrimental to the site.
Berre, France . Our Berre site is located in southeastern France. The facility has direct access to sea, rail and road transport and has a production capacity of approximately 87 kilotons. The Berre site is leased to us by LyondellBasell, which operates the site and with which our lease exists under a long-term lease due to expire in 2030. We own the SBC manufacturing facility and production equipment at Berre. We currently produce USBC and HSBC products there. We have an operating agreement with LyondellBasell for various site services, utilities and facilities under a long-term agreement.
Paulinia, Brazil . Our Paulinia site is located with access to major highways. The facility currently has a production capacity of approximately 29 kilotons of USBC in addition to capacity dedicated to producing Cariflex TM products. We own the facility and the land at Paulinia. BASF owns the adjacent site and shares title to the facilities that are common to the two companies such as the administration building, cafeteria and maintenance facilities.
Kashima, Japan . Our Kashima site is owned and operated by a manufacturing joint venture named Kraton JSR Elastomers K.K., or KJE, between us and JSR. The Kashima site is located northeast of Tokyo on the main island of Honshu at a JSR site that includes several synthetic rubber plants and butadiene and isoprene extraction units. This site is serviced by rail, barge and truck connections. Production capacity is approximately 42 kilotons of USBC products, and we are generally entitled to 50% of this production pursuant to our joint venture agreement. The SBC manufacturing facility is leased to KJE.
JSR markets its portion of the production under its own trademarks, and we market our portion of the production under the Kraton ® brand name although this amount may vary from time to time based on the economic interest of the joint venture. We and JSR each have a right of first refusal on the transfer of the joint venture interests of the other.
Research, Development and Technical Service Facilities . Our research and development activities are primarily conducted in laboratories in Houston, Texas, and Amsterdam, the Netherlands. We support our customers via a technical service network of laboratories around the globe. Our technical service laboratories are located in Shanghai, China, Tsukuba, Japan, and Paulina, Brazil. In addition we have a technical service office in Mont St. Guibert, Belgium.
We perform application development and technical service support in all locations. In addition, our research and development centers in Houston and Amsterdam carry out polymer and process development. We are operating pilot lines in our Houston facility to provide scale up support to our manufacturing sites as well as our customers.
Item 3. | Legal Proceedings. |
Kraton and LyondellBasell have negotiated and concluded the terms of an agreed arbitration proceeding (to take place in London, England) to determine the ongoing effect of a multi-year term sheet that had been reached between the parties and put into effect in January 2009, covering certain terms and conditions applicable to operations and butadiene sales by LyondellBasell (for and to Kraton) at Berre, France, and Wesseling, Germany.
31
The parties had been dealing with one another in accordance with the term sheet from January 2009 until LyondellBasell notified Kraton on September 9, 2010 that LyondellBasell would no longer follow the term sheet. Since receiving the September 9, 2010 notice, Kraton has been paying an increased net amount to LyondellBasell on a monthly basis (under protest) to reflect the pre-term sheet circumstances between the parties.
The outcome of the arbitration cannot be predicted with accuracy at this time. However, we do not believe it is probable that LyondellBasell will prevail in the arbitration, and we do not expect the final resolution of this matter to have a material impact on our financial position, results of operations or cash flows. For the year ended December 31, 2011, we recognized a charge of $5.7 million, on a pre-tax basis, to cost of goods sold for the net excess payments to LyondellBasell.
In 2011, we were notified by the tax authorities in France that we owed an additional 6.9 million related to the 2009 tax year. The tax authorities claim that we did not timely file forms that serve to cap taxes for 2009. We believe that all such forms were timely filed and we are otherwise in compliance with all filing requirements, and we are owed a refund of 0.3 million. While the outcome of this proceeding cannot be predicted with certainty, we do not expect this matter to have a material adverse effect upon our financial position, results of operations or cash flows.
We and certain of our subsidiaries, from time to time, are parties to various other legal proceedings, claims and disputes that have arisen in the ordinary course of business. These claims may involve significant amounts, some of which would not be covered by insurance. While the outcome of these proceedings cannot be predicted with certainty, our management does not expect any of these other existing matters, individually or in the aggregate, to have a material adverse effect upon our financial position, results of operations or cash flows. Furthermore, Shell Chemicals has agreed, subject to certain limitations, to indemnify us for certain claims brought with respect to matters occurring before February 28, 2001. As of the date of this Form 10-K, we have not been named as parties in any of these claims. Our right to indemnification from Shell Chemicals is subject to certain time limitations. A substantial settlement payment or judgment in excess of our accruals could have a material adverse effect on our financial position, results of operations or cash flows.
For information regarding legal proceedings, including environmental matters, see Part I, Item 1. BusinessEnvironmental Regulation and Note 11 Commitments and Contingencies (subsections (b) and (d) of which are incorporated herein by reference) to the consolidated financial statements for further discussion.
Item 4. | Mine Safety Disclosures. |
Not applicable.
32
Item 5. | Market for Registrants Common Equity, Related Stockholder Matters and Issuer Purchases of Equity Securities. |
Our common stock has been listed on the New York Stock Exchange (NYSE) under the symbol KRA since December 17, 2009. Prior to that date, our equity securities were not listed on any exchange in each period indicated or traded on any public trading market. The following table sets forth the high and low intraday sales prices of our common stock per share, as reported by the New York Stock Exchange.
We have not previously declared or paid any dividends or distributions on our common stock. As of February 24, 2012, we had approximately 94 shareholders of record of our common stock and approximately 12,000 beneficial owners.
33
Stock Performance Graph
The following graph reflects the comparative changes in the value from December 17, 2009, the first trading day of our common stock on the NYSE, through December 31, 2011, assuming an initial investment of $100 and the reinvestment of dividends, if any, in (1) our common stock, (2) the S&P SmallCap 600 Index, and (3) the Dow Jones U.S. Specialty Chemicals Index. The information under this caption is not deemed to be soliciting material or to be filed with the SEC or subject to Regulation 14A or 14C under the Securities Exchange Act of 1934 or to the liabilities of Section 18 of the Securities Exchange Act of 1934, and will not be deemed to be incorporated by reference into any filing under the Securities Act of 1933 or the Securities Exchange Act of 1934, except to the extent we specifically incorporate it by reference into such a filing. Historical performance should not be considered indicative of future stockholder returns.
Total Return To Shareholders
(Includes reinvestment of dividends)
Annual Return
Percentage,
Years Ending |
||||||||||||||||
Company Name / Index | 12/31/09 | 12/31/10 | 12/31/11 | |||||||||||||
Kraton Performance Polymers, Inc. |
0.37 | % | 128.24 | % | (34.41 | )% | ||||||||||
S&P SmallCap 600 Index |
3.68 | % | 26.31 | % | 1.02 | % | ||||||||||
Dow Jones U.S. Specialty Chemicals |
1.04 | % | 37.19 | % | (2.82 | )% | ||||||||||
Cumulative Value of $100 Investment, through
December 31, 2011 |
||||||||||||||||
Company Name / Index |
Base
Period
12/17/09 |
12/31/09 | 12/31/10 | 12/31/11 | ||||||||||||
Kraton Performance Polymers, Inc. |
$ | 100.00 | $ | 100.37 | $ | 229.09 | $ | 150.26 | ||||||||
S&P SmallCap 600 Index |
$ | 100.00 | $ | 103.68 | $ | 130.95 | $ | 132.28 | ||||||||
Dow Jones U.S. Specialty Chemicals |
$ | 100.00 | $ | 101.04 | $ | 138.62 | $ | 134.70 |
34
Dividends
We have not previously declared or paid any dividends or distributions on our common stock. We currently intend to retain all available funds and any future earnings to fund the development and growth of our business, and we do not anticipate paying any cash dividends in the foreseeable future. We are currently restricted in our ability to pay cash dividends on our common stock by the covenants in the senior secured credit facility and may be further restricted by the terms of any of our future debt or preferred securities. In addition, because we are a holding company, our ability to pay dividends depends on our receipt of cash dividends and distributions from our subsidiaries. The terms of our senior notes also restrict our ability and the ability of our subsidiaries to pay dividends. For more information about these restrictions, see Note 7 Long-Term Debt to the consolidated financial statements.
Any future determination to pay dividends will be at the discretion of our board of directors and will depend on our financial condition, results of operations, capital expenditure requirements, restrictions contained in current and future financing instruments and other factors that our board of directors deems relevant.
Kraton Polymers LLCDebt Refinancing
On February 11, 2011, we refinanced our existing indebtedness by completing an offering of $250.0 million in aggregate principal amount of 6.75% senior notes due 2019 through an institutional private placement and entering into a $350.0 million senior secured credit agreement with a maturity date of February 11, 2016. The terms of our senior notes restricts our ability and the ability of our subsidiaries to pay dividends. See Note 7 Long-Term Debt to the consolidated financial statements for further discussion.
35
Item 6. | Selected Financial Data. |
The selected financial data below should be read in conjunction with Managements Discussion and Analysis of Financial Condition and Results of Operations included under Item 7 of this Form 10-K as well as the consolidated financial statements and the related notes.
Years ended December 31, | ||||||||||||||||||||
2011 | 2010 | 2009 | 2008 | 2007 | ||||||||||||||||
(in thousands, except per share data) | ||||||||||||||||||||
Consolidated statements of operations data: |
||||||||||||||||||||
Operating revenues: |
||||||||||||||||||||
Sales |
$ | 1,437,479 | $ | 1,228,425 | $ | 920,362 | $ | 1,171,253 | $ | 1,066,044 | ||||||||||
Other(1) |
0 | 0 | 47,642 | 54,780 | 23,543 | |||||||||||||||
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|
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|
|
|
|
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Total operating revenues |
1,437,479 | 1,228,425 | 968,004 | 1,226,033 | 1,089,587 | |||||||||||||||
Cost of goods sold |
1,121,293 | 927,932 | 792,472 | 971,283 | 938,556 | |||||||||||||||
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|
|
|
|
|
|
|
|
|||||||||||
Gross profit |
316,186 | 300,493 | 175,532 | 254,750 | 151,031 | |||||||||||||||
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|
|
|
|
|
|
|
|
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Operating expenses |
||||||||||||||||||||
Research and development |
27,996 | 23,628 | 21,212 | 27,049 | 24,865 | |||||||||||||||
Selling, general and administrative |
101,606 | 92,305 | 79,504 | 101,431 | 69,020 | |||||||||||||||
Depreciation and amortization |
62,735 | 49,220 | 66,751 | 53,162 | 51,917 | |||||||||||||||
|
|
|
|
|
|
|
|
|
|
|||||||||||
Total operating expenses |
192,337 | 165,153 | 167,467 | 181,642 | 145,802 | |||||||||||||||
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|
|
|
|
|
|
|
|
|
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Gain (loss) on extinguishment of debt |
(2,985 | ) | 0 | 23,831 | 0 | 0 | ||||||||||||||
Earnings of unconsolidated joint venture(2) |
529 | 487 | 403 | 437 | 626 | |||||||||||||||
Interest expense, net |
29,884 | 23,969 | 33,956 | 36,695 | 43,484 | |||||||||||||||
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|
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Income (loss) before income taxes |
91,509 | 111,858 | (1,657 | ) | 36,850 | (37,629 | ) | |||||||||||||
Income tax expense (benefit) |
584 | 15,133 | (1,367 | ) | 8,431 | 6,120 | ||||||||||||||
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|
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|
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|
|
|
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Net income (loss) |
$ | 90,925 | $ | 96,725 | $ | (290 | ) | $ | 28,419 | $ | (43,749 | ) | ||||||||
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Earnings (loss) per common share |
||||||||||||||||||||
Basic |
$ | 2.85 | $ | 3.13 | $ | (0.01 | ) | $ | 1.46 | $ | (2.26 | ) | ||||||||
Diluted |
$ | 2.81 | $ | 3.07 | $ | (0.01 | ) | $ | 1.46 | $ | (2.26 | ) | ||||||||
Weighted average common shares outstanding |
||||||||||||||||||||
Basic |
31,786 | 30,825 | 19,808 | 19,387 | 19,375 | |||||||||||||||
Diluted |
32,209 | 31,379 | 19,808 | 19,464 | 19,375 |
(1) | Other revenues include the sale of by-products generated in the production of IR and SIS at Pernis. |
(2) | Represents our 50% joint venture interest in Kraton JSR Elastomers K.K., which is accounted for using the equity method of accounting. |
As of December 31, | ||||||||||||||||||||
2011 | 2010 | 2009 | 2008 | 2007 | ||||||||||||||||
(in thousands) | ||||||||||||||||||||
Consolidated balance sheets data: |
||||||||||||||||||||
Cash and cash equivalents |
$ | 88,579 | $ | 92,750 | $ | 69,291 | $ | 101,396 | $ | 48,277 | ||||||||||
Total assets |
$ | 1,153,756 | $ | 1,080,723 | $ | 974,499 | $ | 1,031,874 | $ | 984,894 | ||||||||||
Total debt |
$ | 392,500 | $ | 382,675 | $ | 384,979 | $ | 575,316 | $ | 538,686 | ||||||||||
2011 | 2010 | 2009 | 2008 | 2007 | ||||||||||||||||
Other data: |
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Ratio of earnings to fixed charges |
3.54:1.00 | 5.07:1.00 | 0.95:1.00 | 1.93:1.00 | 0.20:1.00 |
36
Our earnings were insufficient to cover our fixed charges by approximately $1.6 million and $38.1 million, for the years ended December 31, 2009 and 2007, respectively.
EBITDA and Adjusted EBITDA
We consider EBITDA and Adjusted EBITDA as important supplemental measures of our performance and believe they are frequently used by investors, securities analysts and other interested parties in the evaluation of our performance and companies in our industry. In addition, management uses these measures to evaluate operating performance; our executive compensation plan bases incentive compensation payments on our EBITDA performance, along with other factors; and our long-term debt agreements use EBITDA (with additional adjustments) to measure our compliance with certain financial covenants such as leverage and interest coverage. EBITDA and Adjusted EBITDA have limitations as an analytical tool, and you should not consider them in isolation, or as substitutes for analysis of our results under generally accepted accounting principles (GAAP) in the United States.
Years ended December 31, | ||||||||||||
2011 | 2010 | 2009 | ||||||||||
(in thousands) | ||||||||||||
EBITDA(1) |
$ | 184,128 | $ | 185,047 | $ | 99,050 | ||||||
Adjusted EBITDA(2) |
194,327 | 194,906 | 91,359 |
(1) | EBITDA represents net income before interest, taxes, depreciation and amortization. |
Some of the limitations for EBITDA as an analytical tool are:
| EBITDA does not reflect our cash expenditures, or future requirements for capital expenditures or contractual commitments; |
| EBITDA does not reflect changes in, or cash requirements for, our working capital needs; |
| EBITDA does not reflect the significant interest expense, or the cash requirements necessary to service interest or principal payments, on our debt; |
| although depreciation and amortization are non-cash charges, the assets being depreciated and amortized will often have to be replaced in the future, and EBITDA does not reflect any cash requirements for such replacements; and |
| other companies in our industry may calculate EBITDA differently than we do, limiting its usefulness as a comparative measure. |
(2) | We present Adjusted EBITDA as a further supplemental measure of our performance and because we believe these additional adjustments provide helpful information to securities analysts, investors and other interested parties evaluating our performance. We prepare Adjusted EBITDA by adjusting EBITDA to eliminate the impact of a number of items we do not consider indicative of our ongoing operating performance. We explain how each adjustment is derived and why we believe it is helpful and appropriate in the reconciliation below. You are encouraged to evaluate each adjustment and the reasons we consider it appropriate for supplemental analysis. As an analytical tool, Adjusted EBITDA is subject to all the limitations applicable to EBITDA. In addition, in evaluating Adjusted EBITDA, you should be aware that in the future we may incur expenses similar to the adjustments in this presentation. Our presentation of Adjusted EBITDA should not be construed as an inference that our future results will be unaffected by unusual or non-recurring items. |
Because of these and other limitations, EBITDA and Adjusted EBITDA should not be considered as a measure of discretionary cash available to us to invest in the growth of our business. We compensate for these limitations by relying primarily on our GAAP results and using EBITDA and Adjusted EBITDA only as supplemental measures. See the Consolidated Statements of Cash Flows included in our financial statements included elsewhere in this Form 10-K.
37
We reconcile net income (loss) to EBITDA and Adjusted EBITDA as follows:
Years ended December 31, | ||||||||||||
2011 | 2010 | 2009 | ||||||||||
(in thousands) | ||||||||||||
Net income (loss) |
$ | 90,925 | $ | 96,725 | $ | (290 | ) | |||||
Add (deduct): |
||||||||||||
Interest expense, net |
29,884 | 23,969 | 33,956 | |||||||||
Income tax expense (benefit) |
584 | 15,133 | (1,367 | ) | ||||||||
Depreciation and amortization expenses |
62,735 | 49,220 | 66,751 | |||||||||
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EBITDA |
$ | 184,128 | $ | 185,047 | $ | 99,050 | ||||||
Add (deduct): |
||||||||||||
Management fees and expenses |
0 | 0 | 2,000 | |||||||||
Restructuring and related charges(a) |
1,755 | 6,387 | 9,677 | |||||||||
Non-cash expenses(b) |
5,459 | 3,472 | 4,463 | |||||||||
(Gain) loss on extinguishment of debt |
2,985 | 0 | (23,831 | ) | ||||||||
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Adjusted EBITDA |
$ | 194,327 | $ | 194,906 | $ | 91,359 | ||||||
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(a) | 2011 includes charges related to our debt refinancing. 2011 and 2010 restructuring and related charges consisted primarily of consulting fees, severance expenses, and other charges associated with the restructuring of our European organization as well as expenses associated with the March 2011 secondary public offering of our common stock. 2009 charges consisted primarily of costs associated with the exit of the Pernis facility. All periods also reflect charges associated with evaluating merger and acquisition transactions. |
(b) | For all periods, consists primarily of non-cash compensation. For 2009, also reflects the non-cash inventory impairment to lower inventory from FIFO cost to market value and losses on the sale of fixed assets. |
Restructuring and related charges discussed above were recorded as follows:
Years ended December 31, | ||||||||||||
2011 | 2010 | 2009 | ||||||||||
(in thousands) | ||||||||||||
Cost of goods sold |
$ | 0 | $ | 0 | $ | 6,747 | ||||||
Selling, general and administrative |
1,755 | 6,387 | 2,930 | |||||||||
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Total restructuring and related charges |
$ | 1,755 | $ | 6,387 | $ | 9,677 | ||||||
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38
Item 7. | Managements Discussion and Analysis of Financial Condition and Results of Operations |
INTRODUCTION
Managements Discussion and Analysis of Financial Condition and Results of Operations should be read in conjunction with the Item 8. Financial Statements and Supplementary Data. This discussion contains forward-looking statements and involves numerous risks and uncertainties, including, but not limited to those described in the Item 1A. Risk Factors and below under the caption Factors Affecting Our Results of Operations. Actual results may differ materially from those contained in any forward-looking statements.
OVERVIEW
Kraton Performance Polymers, Inc. is a leading global producer of styrenic block copolymers (SBCs) and other engineered polymers. We market our products under the Kraton ® brand. SBCs are highly-engineered synthetic elastomers, which we invented and commercialized almost 50 years ago, that enhance the performance of numerous end use products, imparting greater flexibility, resilience, strength, durability and processability. Our polymers are typically formulated or compounded with other products to achieve improved, customer specific performance characteristics in a variety of applications. Our SBC products are found in many everyday applications, including disposable diapers, the rubberized grips of toothbrushes, razor blades and power tools and asphalt formulations used to pave roads. We also produce Cariflex TM isoprene rubber (IR) and isoprene rubber latex (IRL). Our Cariflex TM products are highly-engineered, non-SBC synthetic substitutes for natural rubber latex. Our IRL products, which have not been found to contain the proteins present in natural rubber latex and are, therefore, not known to cause allergies, are used in applications such as surgical gloves and condoms.
We offer our customers a broad portfolio of products that includes 250 core commercial grades of SBCs. We manufacture our products along the following primary product lines based upon polymer chemistry and process technologies:
|
unhydrogenated SBCs (USBCs); |
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hydrogenated SBCs (HSBCs); |
|
isoprene rubber (IR) and IRL; and |
|
compounds. |
We offer 119, 89, 11 and 31 core commercial grades of USBC, HSBC, IR and IRL and compounds, respectively. The majority of worldwide SBC capacity is dedicated to the production of USBCs, which are primarily used in paving and roofing, in adhesives, sealants and coatings and in footwear applications. HSBCs, which are significantly more complex and capital-intensive to manufacture than USBCs, are used in more differentiated applications, such as soft touch and flexible materials, personal hygiene products, medical products, automotive components and certain adhesives and sealant applications.
Product Line Sales Revenue(1): |
2011 | 2010 | 2009 | |||||||||
USBCs |
59.5 | % | 59.1 | % | 56.6 | % | ||||||
HSBCs |
31.7 | % | 31.2 | % | 31.6 | % | ||||||
Cariflex TM |
6.9 | % | 7.5 | % | 9.1 | % | ||||||
Compounds |
1.9 | % | 2.2 | % | 2.7 | % |
(1) | The percentage of sales revenue in our product line discussion excludes $4.6 million of other sales in 2011 and $47.6 million of by-product sales reported as other in 2009. |
39
In 2011, we realigned our core end use markets. The Emerging Businesses end use, which previously was comprised primarily of IR and IRL sales, has been renamed Cariflex TM , and IR sales previously reported in our Advanced Materials and in our Adhesives, Sealants and Coatings end use markets are now reported in the Cariflex TM end use. Additionally, sales of lubricant additives, which were previously not included in our four core end uses, are now reported in our Adhesives, Sealants and Coatings end use. Percentages of sales revenue and other data for our core end use markets are reported below on this realigned basis for 2011, as well as for prior periods.
Sales Revenue
Mix (1) |
||||||||||||
End Use Markets |
2011 | 2010 | 2009 | |||||||||
Advanced Materials |
28.0 | % | 29.8 | % | 28.8 | % | ||||||
Adhesives, Sealants and Coatings |
34.8 | % | 34.3 | % | 34.9 | % | ||||||
Paving and Roofing |
29.9 | % | 27.8 | % | 26.4 | % | ||||||
Cariflex TM |
6.9 | % | 7.5 | % | 9.1 | % |
(1) | Based on 2011, 2010 and 2009 sales revenue of $1,437.5 million, $1,228.4 million and $920.4 million. Excluded from the table is $47.6 million of sales of by-products associated with production at Pernis, which we exited in 2009. |
2011 Financial Highlights
|
Sales revenue increased 17.0% in 2011 compared to 2010. |
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Gross profit increased $15.7 million to $316.2 million in 2011 compared to $300.5 million in 2010. |
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Net income declined $5.8 million to $90.9 million or $2.81 per diluted share for 2011, compared to net income of $96.7 million, or $3.07 per diluted share for 2010. |
|
Adjusted EBITDA decreased $0.6 million to $194.3 million in 2011 compared to $194.9 million in 2010. |
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Cash provided by operating activities increased $9.4 million to $64.8 million in 2011 compared to $55.4 million in 2010. |
Results of Operations
Factors Affecting Our Results of Operations
Sales Revenues . We implemented a series of global price increases in 2011, which were generally broad-based across our end use markets in response to higher raw material costs and other factors.
Cost of Raw Materials . Our results of operations are directly affected by the cost of raw materials. We use butadiene, styrene, and isoprene as our primary raw materials in manufacturing our products. These monomers together represented approximately 58.8%, 55.6%, and 42.6% of our total cost of goods sold for the years ended December 31, 2011, 2010, and 2009, respectively. The cost of these monomers has generally correlated with changes in crude oil prices and prices have fluctuated significantly during the period covered by this report due to volatility in the global supply and demand of crude oil and global economic conditions. Not withstanding any volatility within a given year, our overall cost for these monomers was higher in the year ended December 31, 2011 relative to the year ended December 31, 2010 and higher in 2010 than 2009.
Butadiene, styrene and isoprene pricing has increased from 2009 through 2011 principally due to worldwide supply and demand of butadiene and natural rubber and prevailing energy prices; worldwide supply and demand of styrene, the cost of ethylene and benzene, and prevailing energy prices; the supply and demand of isoprene, the supply and prices of natural and synthetic rubber and prevailing energy prices.
40
We use the first-in, first out (FIFO) basis of accounting for inventory and cost of goods sold, and therefore gross profit. In periods of raw material price volatility, reported results under FIFO will differ from what the results would have been if cost of goods sold were based on estimated current replacement cost (ECRC). Specifically, in periods of rising raw material costs, reported gross profit will be higher under FIFO than under estimated current replacement costs. Conversely, in periods of declining raw material costs, reported gross profit will be lower under FIFO than under ECRC. In recognition of the fact that the cost of raw materials affects our results of operations and the comparability of our results of operations we provide the spread between FIFO and ECRC.
|
In 2011, reported results under FIFO were higher than results would have been on an ECRC basis by $66.3 million; |
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In 2010, reported results under FIFO were higher than results would have been on an ECRC basis by $12.1 million; |
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In 2009, reported results under FIFO were lower than results would have been on an ECRC basis by $17.6 million. |
International Operations and Currency Fluctuations . We operate a geographically diverse business, serving customers in over 60 countries from five manufacturing facilities on four continents. We generated approximately 41.0%, 40.0% and 19.0% of our 2011 sales from customers located in the Americas, Europe and Asia Pacific region, respectively. For both years ended December 31, 2010 and 2009, we generated approximately 42.0%, 37.0%, and 21.0% of our total operating revenues from customers located in the Americas, Europe and Asia Pacific regions, respectively. Although we sell and manufacture our products in many countries, our sales and production costs are mainly denominated in U.S. dollars, Euros, Japanese Yen and Brazilian Real. From time to time, we use hedging strategies to reduce our exposure to currency fluctuations.
Our financial results are subject to gains and losses on currency translations, which occur when the financial statements of foreign operations are translated into U.S. dollars. The financial statements of operations outside the United States where the local currency is considered to be the functional currency are translated into U.S. dollars using the exchange rate at each balance sheet date for assets and liabilities and the average exchange rate for each period for revenues, expenses, gains and losses, and cash flows. The effect of translating the balance sheet into U.S. dollars is included as a component of accumulated other comprehensive income (loss). Any appreciation of the functional currencies against the U.S. dollar will increase the U.S. dollar equivalent of amounts of revenues, expenses, gains and losses, and cash flows, and any depreciation of the functional currencies will decrease the U.S. dollar amounts reported. Our results of operations are also subject to currency transaction risk. We incur currency transaction risk when we enter into either a purchase or sale transaction using a currency other than the local currency of the transacting entity
The estimated impact from currency fluctuations amounted to pre-tax income of $1.1 million for the year ended December 31, 2011 and pre-tax losses of $5.5 million and $3.3 million for the years ended December 31, 2010 and 2009, respectively.
Seasonality . Seasonal changes and weather conditions, although difficult to predict, typically affect the Paving and Roofing end use market resulting in higher sales volumes into this end use market in the second and third quarters of the calendar year versus the first and fourth quarters of the calendar year. Our other end use markets tend to show relatively little seasonality.
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Outlook
Prices for our primary raw materials were volatile in 2011 as evidenced by the increase in the North American contract price for butadiene from $0.86 per pound in December 2010 to a high of $1.77 per pound in August 2011. Butadiene prices declined in the fourth quarter of 2011, with the North American contract price ending the year at $0.98 per pound. Due to capacity outages in the first quarter 2012 and other supply/demand fundamentals, the price of butadiene has increased in early 2012, with the February North American contract price for butadiene at $1.19 per pound. We currently expect that the cost of our raw materials will continue to increase into the second quarter 2012.
Although the global economy has yet to recover, and despite recent increases in raw material prices, we are encouraged by customer order patterns experienced in the first two months of the first quarter. As a result, we remain optimistic about the outlook for the full year as we continue to work with our customers to penetrate new market applications with Kraton.
Summary Operating Results
Below are our operating results derived from our Consolidated Statements of Operations.
Years ended December 31, | ||||||||||||
2011 | 2010 | 2009 | ||||||||||
(in thousands, except per share data) | ||||||||||||
Operating revenues: |
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Sales |
$ | 1,437,479 | $ | 1,228,425 | $ | 920,362 | ||||||
Other(1) |
0 | 0 | 47,642 | |||||||||
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Total operating revenues |
1,437,479 | 1,228,425 | 968,004 | |||||||||
Cost of goods sold |
1,121,293 | 927,932 | 792,472 | |||||||||
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Gross profit |
316,186 | 300,493 | 175,532 | |||||||||
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Operating expenses: |
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Research and development |
27,996 | 23,628 | 21,212 | |||||||||
Selling, general and administrative |
101,606 | 92,305 | 79,504 | |||||||||
Depreciation and amortization |
62,735 | 49,220 | 66,751 | |||||||||
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Total operating expenses |
192,337 | 165,153 | 167,467 | |||||||||
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Gain (loss) on extinguishment of debt |
(2,985 | ) | 0 | 23,831 | ||||||||
Earnings of unconsolidated joint venture(2) |
529 | 487 | 403 | |||||||||
Interest expense, net |
29,884 | 23,969 | 33,956 | |||||||||
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Income (loss) before income taxes |
91,509 | 111,858 | (1,657 | ) | ||||||||
Income tax expense (benefit) |
584 | 15,133 | (1,367 | ) | ||||||||
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Net income (loss) |
$ | 90,925 | $ | 96,725 | $ | (290 | ) | |||||
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Earnings (loss) per common share: |
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Basic |
$ | 2.85 | $ | 3.13 | $ | (0.01 | ) | |||||
Diluted |
$ | 2.81 | $ | 3.07 | $ | (0.01 | ) | |||||
Weighted average common shares outstanding: |
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Basic |
31,786 | 30,825 | 19,808 | |||||||||
Diluted |
32,209 | 31,379 | 19,808 |
(1) | Other revenues include the sale of by-products generated in the production of IR and SIS at Pernis, which we exited in 2009. |
(2) | Represents our 50% joint venture interest in Kraton JSR Elastomers K.K., which is accounted for using the equity method of accounting. |
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The following table summarizes certain information relating to our operating results as a percentage of total operating revenues and is derived from the financial information presented above. We believe this presentation is useful to investors in comparing historical results. Certain amounts in the table may not sum due to the rounding of individual components.
Years ended December 31, | ||||||||||||
2011 | 2010 | 2009 | ||||||||||
Operating revenues: |
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Sales |
100.0 | % | 100.0 | % | 95.1 | % | ||||||
Other |
0.0 | 0.0 | 4.9 | |||||||||
Cost of goods sold |
78.0 | 75.5 | 81.9 | |||||||||
Gross profit |
22.0 | 24.5 | 18.1 | |||||||||
Operating expenses: |
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Research and development |
1.9 | 1.9 | 2.2 | |||||||||
Selling, general and administrative |
7.1 | 7.5 | 8.2 | |||||||||
Depreciation and amortization |
4.4 | 4.0 | 6.9 | |||||||||
Total operating expenses |
13.4 | 13.4 | 17.3 | |||||||||
Gain (loss) on extinguishment of debt |
(0.2 | ) | 0.0 | 2.5 | ||||||||
Interest expense, net |
2.1 | 2.0 | 3.5 | |||||||||
Income (loss) before income taxes |
6.4 | 9.1 | (0.2 | ) | ||||||||
Income tax expense (benefit) |
0.0 | 1.2 | (0.1 | ) | ||||||||
Net income (loss) |
6.3 | % | 7.9 | % | 0.0 | % |
Year Ended December 31, 2011 Compared to Year Ended December 31, 2010
Sales Revenues
Total sales revenue increased $209.1 million or 17.0% to $1,437.5 million from $1,228.4 million for the years ended December 31, 2011 and 2010, respectively. The increase was largely due to global product sales price increases of $177.8 million, which were primarily in response to higher raw material costs and changes in foreign currency exchange rates of $42.0 million, partially offset by decreased sales volumes of $15.3 million. Sales volumes were 303.0 kilotons and 307.1 kilotons for the years ended December 31, 2011 and 2010, respectively.
The following factors influenced our sales revenue in each of our core end use markets:
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Advanced Materials. Sales revenue increased $36.4 million or 9.9% to $402.6 million from $366.2 million for the years ended December 31, 2011 and 2010, respectively. Sales revenue increased primarily due to global price increases implemented in response to rising raw material costs, on lower volumes. We saw continued growth of innovation-led volumes, driven by growth in European and Asia Pacific PVC replacement in medical and certain personal care applications. The innovation-led volume increases were offset by volume declines in less differentiated applications. |
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Adhesives, Sealants and Coatings. Sales revenue increased $78.6 million or 18.7% to $499.7 million from $421.1 million for the years ended December 31, 2011 and 2010, respectively. Sales revenue growth was primarily due to global price increases implemented in response to rising raw material costs. The increase was also attributable to increased sales volume into lubricant and additives applications, as well as higher volumes in our more differentiated HSBC polymer grades, including innovation-led volume growth in health and beauty gel applications, and innovation-led USBC growth in polychloroprene rubber replacement applications. These increases were partially offset by volume declines in our less differentiated polymer grades within our USBC portfolio. |
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Paving and Roofing. Sales revenue increased $88.0 million or 25.8% to $429.3 million from $341.3 million for the years ended December 31, 2011 and 2010, respectively. The increase was primarily due |
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to global price increases implemented in response to rising raw material costs. We experienced improved European demand for our paving products and, to a lesser extent, in North America. Global roofing demand was down primarily due to lower demand in North America, partially offset by innovation-led volume gains in Europe. |
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Cariflex TM . Sales revenue increased $7.4 million or 8.1% to $99.3 million from $91.9 million for the years ended December 31, 2011 and 2010, respectively. The increase reflects the continued volume growth of our Cariflex TM IRL, primarily used in surgical glove and condom applications. Furthermore, we saw continued volume growth for Cariflex TM IR in medical and coating applications. |
Cost of Goods Sold
Cost of goods sold increased $193.4 million or 20.8% to $1,121.3 million from $927.9 million for the years ended December 31, 2011 and 2010, respectively. The increase was driven largely by increased monomer costs, and to a lesser extent higher operating costs, aggregating $166.6 million and, a $39.3 million increase from changes in foreign currency exchange rates, partially offset by $12.5 million due to lower sales volumes.
Gross Profit
Gross profit increased $15.7 million or 5.2% to $316.2 million from $300.5 million for the years ended December 31, 2011 and 2010, respectively. For the years ended December 31, 2011 and 2010, our reported gross profit under FIFO was higher than what it would have been under ECRC by approximately $66.3 million and $12.1 million, respectively. See Factors Affecting Our Results of Operations Cost of Raw Materials above.
Operating Expenses
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Research and Development. Research and development expense increased $4.4 million or 18.5% primarily due to an increase in employee related costs commensurate with additions to staffing levels among our scientists and higher maintenance and operational costs. Research and development expenses were 1.9% of sales revenues for both of the years ended December 31, 2011 and 2010. |
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Selling, General and Administrative. Selling, general and administrative expenses increased $9.3 million or 10.1% primarily due to an increase in employee related costs as well as approximately $3.6 million of costs incurred during the year ended December 31, 2011 associated with the proposed joint venture with FPCC. Selling, general and administrative expenses were 7.1% and 7.5% of sales revenue for the years ended December 31, 2011 and 2010, respectively. |
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Depreciation and Amortization. Depreciation and amortization expense increased $13.5 million or 27.5% primarily due to higher levels of capital expenditures and the accelerated depreciation of the coal-burning boilers at our Belpre, Ohio facility associated with the EPA regulations for controlling hazardous air emission from industry boilers. |
Loss on Extinguishment of Debt
In connection with the refinancing of our indebtedness in the first quarter of 2011, we incurred a $3.0 million loss on the extinguishment of debt.
Interest Expense, Net
Interest expense, net increased $5.9 million or 24.6% to $29.9 million from $24.0 million for the years ended December 31, 2011 and 2010, respectively, primarily due to a $4.2 million write-off of debt issuance costs and a $1.0 million payment to exit an interest rate swap agreement related to the debt refinancing that occurred in the first quarter of 2011. The average debt balances outstanding were $397.9 million at an average effective interest rate of 7.5% (6.2% excluding the above mentioned write-off of debt issuance costs and the settlement of our interest rate swap agreement associated with the debt refinancing) and $388.3 million at an average effective interest rate of 6.2% for the years ended December 31, 2011 and 2010, respectively.
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Income Tax Expense
Our income tax expense was $0.6 million and $15.1 million for the years ended December 31, 2011 and 2010, respectively. Our effective tax rates were 0.6% and 13.5% for the years ended December 31, 2011 and 2010, respectively. Our effective tax rates were lower than the statutory tax rate of 35.0% primarily due to the mix of pre-tax income earned in foreign jurisdictions and the partial release of our valuation allowance during these periods. Excluding the release of our valuation allowance, our effective tax rates would have been 19.5% and 33.9% for the years ended December 31, 2011 and 2010, respectively.
Our pre-tax income is generated in a number of tax jurisdictions and as such are subject to a number of different effective tax rates that are significantly lower than the statutory tax rate of 35.0%. In 2011, we earned $83.6 million of pre-tax income that was taxed at an effective tax rate of 11.6%. In 2010, we earned $48.5 million of pre-tax income that was taxed at an effective tax rate of 24.1%.
As of December 31, 2011 and 2010, a valuation allowance of $54.2 million and $66.4 million, respectively, had been provided for net operating loss carryforwards and other deferred tax assets in certain jurisdictions. We record a valuation allowance when it is more likely than not that some portion or all of the deferred tax assets will not be realized. For the year ended December 31, 2011, we recorded changes in the valuation allowance on deferred tax assets as a result of our assessed ability to realize the tax benefit of our net operating loss carryforwards in the United States and France. We reduced our valuation allowance by $12.2 million in 2011 of which $17.3 million represents the benefit of utilizing net operating losses in 2011 and the assessment of the ability to utilize net operating losses in future periods partially offset by a $5.1 million increase in our valuation allowance to account for changes in other comprehensive income. We consider the reversal of deferred tax liabilities within the net operating loss carryforward period, projected future taxable income and tax planning strategies in making this assessment.
Net Income
Net income was $90.9 million or $2.81 per diluted share for the year ended December 31, 2011, a decrease of $5.8 million compared to net income of $96.7 million or $3.07 per diluted share for the year ended December 31, 2010. The impact of the release of our valuation allowance increased our diluted earnings per share by $0.54 and $0.73 for the years ended December 31, 2011 and 2010, respectively.
Year Ended December 31, 2010 Compared to Year Ended December 31, 2009
Operating Revenues
Operating revenues include revenue from the sale of our core products and, prior to the exit of our Pernis facility on December 31, 2009, the sale of small quantities of by-products resulting from the manufacturing process of IR. For the year ended December 31, 2010, total operating revenues increased $260.4 million or 26.9% compared to the same period in 2009.
Sales increased $308.1 million or 33.5% compared to 2009 sales largely due to increased sales volumes of approximately $167.0 million, primarily related to the positive worldwide economic climate, increases in global product sales prices primarily in response to higher raw material costs and increased demand for our products of approximately $159.8 million, partially offset by a decrease of approximately $18.7 million from changes in foreign currency exchange rates.
In addition to the aforementioned increase in global product sales prices, which was evidenced in each of the end-uses, the following factors also influenced our sales revenue in each of our end use markets:
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Advanced Materials . Sales amounted to $366.2 million in 2010, an increase of $101.0 million or 38.1% compared to 2009 sales of $265.2 million. Sales growth was primarily driven by higher demand in automotive, consumer electronics, personal care and medical device applications. In addition, growth was also realized in our innovation products, notably wire and cable, medical device, and personal care applications. |
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Adhesives, Sealants and Coatings . Sales amounted to $421.1 million in 2010, an increase of $99.9 million or 31.1% compared to 2009 sales of $321.2 million. The increase was primarily driven by |
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strong core volume growth in North America and Europe, including the positive effect from the global economic recovery which spurred increased demand in personal care and specialty tape applications. Sales of innovation products progressed, as we gained momentum in removable protective films, health and beauty gels, and white elastomeric roof coatings. |
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Paving and Roofing . Sales amounted to $341.3 million in 2010, an increase of $98.4 million or 40.5% compared to 2009 sales of $242.9 million. We experienced improved European and emerging market growth for our roofing products and to a lesser extent, increased demand in North America roofing. Global paving demand was essentially flat compared to 2009. |
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Cariflex TM . Sales amounted to $91.9 million in 2010, an increase of $7.8 million or 9.3% compared to 2009 sales of $84.1 million. The increase reflected the continued volume growth of our isoprene rubber products in applications such as surgical gloves and condoms. |
As a result of our exit from our Pernis facility, other revenue, which had been derived from the sale of by-products generated at the Pernis facility, decreased $47.6 million or 100.0% compared to 2009 other revenue.
Cost of Goods Sold
Cost of goods sold increased $135.5 million or 17.1% to $927.9 million from $792.4 million for the years ended December 31, 2010 and 2009, respectively. The increase was driven primarily by a $133.5 million increase in monomer and other production costs and a $92.6 million increase related to the increase in sales volume. These increases were partially offset by a $47.6 million decrease in by-product costs, a $11.8 million decrease in plant turnaround costs, and a $12.4 million decrease from changes in foreign currency exchange rates. Furthermore, we also realized an $18.8 million decrease in costs associated with the 2009 shutdown of our Pernis site, which includes ongoing operating cost reductions of $11.7 million, lower restructuring costs of $6.0 million and a $1.1 million non-cash charge to write-down our inventory of spare-parts recognized in the third quarter 2009.
Gross Profit
Gross profit increased $125.0 million or 71.2% to $300.5 million from $175.5 for the years ended December 31, 2010 and 2009, respectively. For the year ended December 31, 2010, our reported gross profit under FIFO was higher than what it would have been under ECRC by approximately $12.1 million and $17.6 million lower than what it would have been for the year ended December 31, 2009. See Factors Affecting Our Results of Operations Cost of Raw Materials above.
Operating Expenses
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Research and Development . Research and development expense increased $2.4 million or 11.4% largely due to higher operating costs. Research and development expense was 1.9% of operating revenues for the year ended December 31, 2010 compared to 2.2% for the same period in 2009. |
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Selling, General and Administrative . Selling, general and administrative expenses increased $12.8 million or 16.1% primarily due to an increase in employment related costs of $16.5 million, which includes an increase in incentive compensation costs of $10.2 million, salaries of $5.0 million, and stock-based compensation costs of $1.3 million. Furthermore, restructuring and related costs increased by approximately $3.5 million. These increases were partially offset by $4.6 million of savings from the implementation of our global ERP system, and a $2.0 million decline in management fees. Selling, general and administrative expenses were 7.5% of operating revenues for the year ended December 31, 2010 compared to 8.2% for the same period in 2009. |
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Depreciation and Amortization . Depreciation and amortization expense decreased $17.5 million or 26.3% largely due to the exit from our Pernis facility in December 2009. |
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Gain on Extinguishment of Debt
We recorded a $23.8 million non-recurring cash gain related to the bond repurchase in the first half of 2009.
Interest Expense, Net
Interest expense, net for the year ended December 31, 2010 decreased $10.0 million or 29.4% to $24.0 million compared to $34.0 million during the same period in 2009 primarily due to the decline in outstanding indebtedness. The average debt balances outstanding were $388.3 million at an average effective interest rate of 6.2% and $531.0 million at an average effective interest rate of 6.4% for the years ended December 31, 2010 and 2009, respectively.
Income Tax Expense (Benefit)
Our income tax expense for the year ended December 31, 2010 was $15.1 million compared to an income tax benefit of $1.4 million for the year ended December 31, 2009. Our effective tax rates were 13.5% and (82.5)% for the years ended December 31, 2010 and 2009, respectively. Our effective tax rate was lower than the statutory tax rate of 35.0% primarily due to the mix of pre-tax income earned in foreign jurisdictions and the partial release of our valuation allowance during 2010. Our effective tax rate was more beneficial than the statutory tax rate of 35.0% primarily due to the partial release of our valuation allowance and tax accrual adjustments during 2009. Excluding the release of our valuation allowance, our effective tax rates would have been 33.9% and (25.5)% for the years ended December 31, 2010 and 2009, respectively.
As of December 31, 2010 and 2009, a valuation allowance of $66.4 million and $86.4 million, respectively, had been provided for net operating loss carryforwards and other deferred tax assets in certain jurisdictions. We record a valuation allowance when it is more likely than not that some portion or all of the deferred tax assets will not be realized. For the year ended December 31, 2010, we recorded changes in the valuation allowance on deferred tax assets as a result of our assessed ability to realize the tax benefit of our net operating loss carryforwards in the United States and France. We reduced our valuation allowance by $20.0 million in 2010 of which $22.8 million represents the benefit of utilizing net operating losses in 2010, partially offset by a $2.8 million increase in our valuation allowance to account for changes in other comprehensive income. We consider the reversal of deferred tax liabilities within the net operating loss carryforward period, projected future taxable income and tax planning strategies in making this assessment.
Net Income (Loss)
Net income was $96.7 million or $3.07 per diluted share for the year ended December 31, 2010, an increase of $97.0 million compared to a net loss of $0.3 million or $(0.01) per diluted share in the same period in 2009. For the year ended December 31, 2009, we realized a gain on the extinguishment of debt that amounted to $1.20 per diluted share. The impact of the release of our valuation allowance increased our diluted earnings per share by $0.73 and $0.05 for the years ended December 31, 2010 and 2009, respectively.
Critical Accounting Policies
The preparation of financial statements in conformity with accounting principles generally accepted in the United States of America requires management to make assumptions and estimates that directly affect the amounts reported in the consolidated financial statements. Certain critical accounting policies requiring significant judgments, estimates, and assumptions are detailed in this section. We consider an accounting estimate to be critical if (1) it requires assumptions to be made that are uncertain at the time the estimate is made, and (2) changes to the estimate or different estimates that could have reasonably been used would have materially changed our consolidated financial statements.
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We believe the current assumptions and other considerations used to estimate amounts reflected in our consolidated financial statements are appropriate. However, should our actual experience differ from these assumptions and other considerations used in estimating these amounts, the impact of these differences could have a material impact on our consolidated financial statements.
Allowance for Doubtful Accounts. The allowance for doubtful accounts is our best estimate of the amount of probable credit losses in our existing receivables and is determined based on our assessment of the credit worthiness of individual customers, historical write-off experience and global economic data. We review the allowance for doubtful accounts quarterly. Account balances are charged off against the allowance after all means of collection have been exhausted and the potential for recovery is considered remote. We do not have any off-balance sheet credit exposure related to our customers.
Inventories . Our inventory is principally comprised of finished goods inventory. Inventories are stated at the lower of cost or market as determined on a first-in, first-out basis. We evaluate the carrying cost of our inventory on a quarterly basis for this purpose. If the cost of the inventories exceeds their market value, provisions are made for the difference between the cost and the market value.
Property, Plant and Equipment . Property, plant and equipment are recorded at cost. Major renewals and improvements that extend the useful lives of equipment are capitalized. Repair and maintenance costs are expensed as incurred. Disposals are removed at carrying cost less accumulated depreciation with any resulting gain or loss reflected in earnings. We capitalize interest costs which are incurred as part of the cost of constructing major facilities and equipment. Approximately $2.3 million, $0.5 million and $0.0 million of interest cost were capitalized in 2011, 2010 and 2009, respectively. Depreciation is recognized using the straight-line method over the following estimated useful lives:
Machinery and equipment |
20 years | |||
Building and land improvements |
20 years | |||
Manufacturing Control Equipment |
10 years | |||
Office equipment |
5 years | |||
Research equipment and facilities |
5 years | |||
Vehicles |
5 years | |||
Computer hardware/information systems |
3 years |
Long-Lived Assets . In accordance with Impairment or Disposal of Long-Lived Assets Subsections of FASB ASC Subtopic 360-10, Property, Plant, and EquipmentOverall , (FASB Statement No. 144, Accounting for the Impairment or Disposal of Long-Lived Assets) , long-lived assets, such as property, plant, and equipment, and purchased intangible assets subject to amortization are reviewed for impairment whenever events or changes in circumstances indicate that the carrying amount of an asset may not be recoverable. If circumstances require a long-lived asset or asset group be tested for possible impairment, we first compare undiscounted cash flows expected to be generated by that asset or asset group to its carrying value. If the carrying value of the long-lived asset or asset group is not recoverable on an undiscounted cash flow basis, an impairment is recognized to the extent that the carrying value exceeds its fair value. Fair value is determined through various valuation techniques including discounted cash flow models, quoted market values and third-party independent appraisals, as considered necessary.
Asset Retirement Obligations (ARO) . Our ARO consists of estimated costs of dismantlement, removal, site reclamation and similar activities associated with our facilities. We recognize the fair value of a liability for an ARO in the period in which we have an existing legal obligation associated with the retirement of our facilities and the obligation can reasonably be estimated. The associated asset retirement cost is capitalized as part of the carrying cost of the asset. The recognition of an ARO requires that management make numerous estimates, assumptions and judgments regarding such factors as the existence of a legal obligation for an ARO;
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estimated probabilities, amounts and timing of settlements; the credit-adjusted risk-free rate to be used; discount rate and inflation rates. In periods subsequent to initial measurement of the ARO, we recognize changes in the liability resulting from the accretion of the liability to its non-discounted amount and revisions to either the timing or the amount of the original estimate of undiscounted cash flows. Revisions also result in increases or decreases in the carrying cost of these assets. Increases in the ARO liability due to accretion is charged to depreciation and amortization expense. The related capitalized cost, including revisions thereto, is charged to depreciation and amortization expense. Our ARO totaled $9.0 million at December 31, 2011. See Note 11 Commitments and Contingencies (subsection (c)) to the consolidated financial statements.
Contingencies . We are routinely involved in other litigation, claims and disputes incidental to our business, which at times involve claims for significant monetary amounts, some of which would not be covered by insurance. In the opinion of management, none of these other existing litigation matters or claims or disputes will have a material adverse effect on our financial position, results of operations or cash flows. However, a substantial settlement payment or judgment in excess of our accruals could have a material adverse effect on our financial position, results of operations or cash flows.
Share-Based Compensation . Share-based compensation cost is measured at the grant date based on the fair value of the award. We recognize these costs using the straight-line method over the requisite service period. The Kraton Performance Polymers, Inc. Equity Incentive Plan (the Equity Plan) allows for the grant to key employees, independent contractors, and eligible non-employee directors of incentive stock options, non-qualified stock options (which together with the incentive stock options, are referred to herein as (Options)), stock appreciation rights, restricted stock awards and restricted stock unit awards, in addition to other equity or equity-based awards as our board determines from time to time. We estimate the fair value of stock options using the Black-Scholes valuation model. Since our equity interests were privately held prior to the initial public offering, the estimated volatility is based on the historical volatility of similar companies stock that is publicly traded. Until such time we have enough publicly traded stock history, we will continue to estimate volatility of options granted (including options granted in 2011) based on the historical volatility of similar companies stock that is publicly traded. The expected term of options represents the period of time that options granted are expected to be outstanding. For all periods presented, we used the simplified method to calculate the expected term of options. The risk free interest rate for the periods within the contractual life of the option is based on the U.S. Treasury yield curve in effect at the time of grant. For all periods presented, the dividend yield is assumed to be zero based on historical and expected dividend activity. Forfeitures are based substantially on the history of cancellations of similar awards granted in prior years. See Note 3 Share-Based Compensation to the consolidated financial statements.
Income Taxes . We conduct operations in separate legal entities in different jurisdictions. As a result, income tax amounts are reflected in our consolidated financial statements for each of those jurisdictions.
Net operating losses and credit carryforwards are recorded in the event such benefits are expected to be realized. Deferred taxes result from differences between the financial and tax bases of our assets and liabilities and are adjusted for changes in tax rates and tax laws when changes are enacted. Valuation allowances are recorded to reduce deferred tax assets when it is more likely than not that a tax benefit will not be realized. In determining whether a valuation allowance is required, the company evaluates primarily (a) the impact of cumulative losses in past years, and (b) current and/or recent losses. A recent trend in earnings despite cumulative losses is a prerequisite to considering not recording a valuation allowance.
In assessing the realizability of deferred tax assets, we consider whether it is more likely than not that some portion or all of the deferred tax assets will not be realized. The ultimate realization of deferred tax assets is dependent upon the generation of future taxable income during the periods in which those temporary differences become deductible. We consider the scheduled reversal of deferred tax liabilities, projected future taxable income and tax planning strategies in making this assessment. Based upon the level of historical taxable income and projections for future taxable income over the periods in which the deferred tax assets are deductible, we believe
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it is more likely than not that we will realize the benefits of these deductible differences, net of the existing valuation allowances.
Benefit Plan Valuations . We sponsor a noncontributory defined benefit pension plan (Pension Plan), a non-qualified defined benefit pension plan, and an additional post-retirement benefit plan (Retiree Medical Plan). Management annually evaluates significant assumptions related to the benefits and obligations of these plans. Managements estimation of the projected benefit obligations and related benefit expense requires that certain assumptions be made regarding such variables as expected return on plan assets, discount rates, rates of future compensation increases, estimated future employee turnover rates and retirement dates, distribution election rates, mortality rates, retiree utilization rates for health care services and health care cost trend rates. The determination of the appropriate assumptions requires considerable judgment concerning future events and has a significant impact on the amount of the obligations and expense recorded. Our management relies in part on actuarial studies when determining the appropriateness of certain of the assumptions used in determining the benefit obligations and the annual expenses for these plans.
The discount rates are determined annually and are based on rates of return of high-quality long-term fixed income securities currently available with maturities consistent with the projected benefit payout period. The expected long-term rate of return on assets is derived from a review of anticipated future long-term performance of individual asset classes and consideration of an appropriate asset allocation strategy, given the anticipated requirements of the Pension Plan, to determine the average rate of earnings expected on the funds invested to provide for the pension plan benefits. Management also considers recent fund performance and historical returns in establishing the expected rate of return.
Movements in the capital markets impact the market value of the investment assets used to fund our Pension Plan. Future changes in plan asset returns, assumed discount rates and various other factors related to our pension and post-retirement plans will impact future pension expenses and liabilities.
The estimated effect of alternate assumptions on the 2012 estimated annual expense for the Pension Plan and Retiree Medical Plan were performed at varying discount rates, expected return on assets, expected salary increase, and, in the case of our Retiree Medical Plan, health care cost increases.
The measurement date of the Pension Plans assets and obligations was December 31, 2011. Management applied a 4.83% discount rate, assumed an 8.5% long term rate of return on plan assets and assumed an expected salary rate increase of 3.0%. The percentage of equity securities in our Pension Plan as of December 31, 2011 was approximately 44.6%, up from approximately 38.0% as of December 31, 2010, and the percentage of debt securities as of December 31, 2011 was approximately 44.9%, down from approximately 52.8% as of December 31, 2010. The plans strategic target asset allocation as of December 31, 2011 was 50% equity, 30% debt and 20% other, with the other component consisting of real estate funds, hedge funds and commodity funds. We have assumed that the funds in the other category together would behave similarly to debt and therefore included the 20% other as bonds in our assessment. Our management estimated a range of returns on the plan assets using a historical stochastic simulation model that determines the compound average annual return (assuming these asset classesstocks, bonds and cash) over a 20-year historical period (the approximate duration of our liabilities under the Pension Plan). The distribution of results from these simulations provides the best estimate range, 25% of the simulations lie above and 25% of the simulations lie below this range. Based on the plans current target asset allocation, the reasonably anticipated range for asset returns (before non-investment expenses) was 6.5% to 10.5%. The asset return assumption set for determining the 2012 FASB ASC 715 expense was 8.5%, after non-investment expenses paid by the Trust. This is equivalent to a gross assumption of an 8.8% rate of return, less 0.3% for non-investment expenses, resulting in a return of 8.5% net of expenses. This assumed 8.8% rate falls within the best-estimate range, between the 50th and 75th percentile. For the Pension Plan, a 100 basis point decrease in the assumed discount rate would result in a corresponding increase of $2.1 million in our estimated Pension Plan expense for 2012. A 100 basis point decrease from 8.5% in the rate of return on plan assets would result in a corresponding increase of $0.7 million, and a 100 basis point
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increase in the expected salary rate would result in a corresponding increase of $1.0 million in expenses for 2012, in each case holding all other assumptions and factors constant.
For the Retiree Medical Plan, a 100 basis point decrease in the assumed discount rate would result in a corresponding increase of $0.3 million in our estimated expense and a 100 basis point increase in the assumed health care trend rate would result in a corresponding increase of $0.1 million in our estimated expense for 2012, in each case holding all other assumptions and factors constant. For additional information about our benefit plans, See Note 12 Employee Benefits to the consolidated financial statements.
Revenue Recognition. Sales are recognized in accordance with the provisions of ASC 605, Revenue RecognitionOverall , when the revenue is realized or realizable, and has been earned. Revenue for product sales is recognized when risk and title to the product transfer to the customer, which usually occurs at the time shipment is made. Our products are generally sold free on board shipping point or, with respect to countries other than the United States, an equivalent basis. As such, title to the product passes when the product is delivered to the freight carrier. Our standard terms of delivery are included in our contracts of sale, order confirmation documents and invoices. Shipping and other transportation costs charged to customers are recorded in both sales and cost of sales.
We have entered into agreements with some of our customers whereby they earn rebates from us when the volume of their purchases of our product reach certain agreed upon levels. We recognize the rebate obligation ratably, as a reduction of revenue.
LIQUIDITY AND CAPITAL RESOURCES
Known Trends and Uncertainties
Kraton Performance Polymers, Inc. is a holding company without any operations or assets other than the operations of its subsidiaries.
Based upon current and anticipated levels of operations, we believe that cash flows from operations of our subsidiaries, cash on hand, and borrowings available to us will be sufficient to fund our working capital requirements, scheduled debt payments, interest payments, capital expenditures, benefit plan contributions, and income tax obligations. However, these cash flows are subject to a number of factors, including, but not limited to, earnings, sensitivities to the cost of raw materials, seasonality and fluctuations in foreign currency exchange rates. Because feedstock costs generally represent approximately 50% of our cost of goods sold (58.8% in 2011), in periods of rising feedstock costs, we consume cash in operating activities due to increases in accounts receivable and inventory costs, partially offset by increased value of accounts payable. Conversely, during periods in which feedstock costs are declining, we generate cash flow from decreases in working capital.
Going forward there can be no assurance that our business will generate sufficient cash flow from operations or that future borrowings will be available under the senior secured credit facility to fund liquidity needs and enable us to service our indebtedness. At December 31, 2011, we had $88.6 million of cash and cash equivalents. Our available cash and cash equivalents are held in accounts managed by third-party financial institutions and consist of cash invested in interest bearing funds and operating accounts. To date, we have not experienced any losses or lack of access to our invested cash or cash equivalents; however, we cannot provide any assurances that adverse conditions in the financial markets will not impact access to our invested cash and cash equivalents.
We have in place a $350 million senior secured credit agreement that provides for financing consisting of a $200 million senior secured revolving credit facility, a $150 million senior secured term loan facility and an option to raise up to $125 million of incremental term loans or incremental revolving credit commitments. We have borrowed substantially all of the available commitments under the term loan portion of our credit facility.
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Under the terms of our senior secured credit facility, we are subject to certain financial covenants, including maintenance of a maximum consolidated net leverage ratio, a minimum consolidated net interest coverage ratio and maximum capital expenditures. Our failure to comply with any of these financial covenants would give rise to a default under the senior secured credit facility. The maintenance of these financial ratios is based on our level of profitability. If factors arise that negatively impact our profitability, we may not be able to satisfy our covenants. If we are unable to satisfy such covenants or other provisions at any future time we would need to seek an amendment or waiver of such financial covenants or other provisions. The respective lenders under our senior secured credit facility may not consent to any amendment or waiver requests that we may make in the future, and, if they do consent, they may not do so on terms that are favorable to us. In the event that we were unable to obtain any such waiver or amendment and we were not able to refinance or repay our senior secured credit facility, our inability to meet the financial covenants or other provisions of our senior secured credit facility would constitute an event of default under our senior secured credit facility, which would permit the bank lenders to accelerate the senior secured credit facility. Such acceleration may in turn constitute an event of default under our senior notes or other debt instruments.
As of the date of the filing of this report, we have no outstanding draws under the revolving portion of our senior secured credit facility and therefore have available to us, upon covenant compliance under the credit agreement, $200.0 million under such revolving portion. While we expect to meet the conditions required to provide us full access to the revolving portion of the senior secured credit facility, we cannot guarantee that all of the counterparties contractually committed to fund a revolving credit draw request will actually fund future requests, although we currently believe that each of the counterparties would meet their funding requirements. The term loan and revolving portions of the facility mature in February 2016. For additional information regarding our credit agreement, see Senior Secured Credit Agreement in Note 7 Long-Term Debt to the consolidated financial statements, which is incorporated herein by reference.
We currently expect 2012 capital expenditures will be approximately $70.0 million to $80.0 million. Included in this estimate is approximately $20.0 million related to the semi-works plant and health, safety and environmental infrastructure and maintenance projects which typically range from $16.0 million to $22.0 million. The remaining 2012 capital expenditures are primarily associated with projects to optimize the production capabilities of our manufacturing assets. In addition, we currently estimate our share of the funding for the joint venture with FPCC to be approximately $70.0 million in 2012. This estimate is dependent on a number of factors, including final project cost, timing, and the extent to which the project can be funded through third party debt financing, which will impact the equity contributions to be made by us and FPCC. We currently anticipate funding our 2012 contributions with available liquidity and/or through alternative incremental funding sources.
We made contributions of $7.4 million to our pension plan in fiscal year 2011 and expect total contributions to be $9.8 million in 2012. If the market value of these assets does not improve during 2012, higher levels of contributions could be required in 2013 and beyond.
As of December 31, 2011, we had $82.5 million of cash and short-term investments related to foreign operations that management asserts are permanently reinvested. As a result of certain net operating loss carryforwards, management estimates approximately $1.7 million of additional tax expense would be incurred if this cash were repatriated.
Turbulence in U.S. and international markets and economies may adversely affect our liquidity and financial condition, and the liquidity and financial condition of our customers, and our ability to timely replace maturing liabilities and access the capital markets to meet liquidity needs, resulting in adverse effects on our financial condition and results of operations. However, to date we have been able to access borrowings available to us in amounts sufficient to fund liquidity needs.
Our ability to pay principal and interest on our indebtedness, fund working capital, make anticipated capital expenditures and fund our investment in the joint venture with FPCC depends on our future performance, which is subject to general economic conditions and other factors, some of which are beyond our control. See Part I, Item 1A. Risk Factors for further discussion.
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Operating Cash Flows
Net cash provided by operating activities totaled $64.8 million and $55.4 million for the years ended December 31, 2011 and 2010, respectively. This represents a net increase of $9.4 million of which $8.1 million was driven by changes in working capital including:
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$23.5 million due to lower value added taxes receivable largely due to timing; |
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$14.6 million due to improved collection of accounts receivables; and |
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$7.3 million increase in trade accounts payable primarily due to increases in the cost of raw materials and the timing of payments; partially offset by |
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$28.3 million higher inventories of products, materials and supplies, largely due to increases in the cost of raw materials; and |
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$12.1 million due to the timing of payments associated with employee related costs, maintenance and payments to our joint venture in Japan. |
Cash and cash equivalents decreased to $88.6 million at December 31, 2011 from $92.8 million at December 31, 2010. Amounts undrawn on the revolving portion of our credit facility amounted to $200.0 million and $80.0 million at December 31, 2011 and 2010, respectively. Therefore, liquidity amounted to $288.6 million and $172.8 million at December 31, 2011 and 2010, respectively.
Net cash provided by operating activities totaled $55.4 million for the year ended December 31, 2010 compared to $72.8 million for the year ended December 31, 2009. This represents a decline of $17.4 million or 24.0% largely due to higher levels of working capital, partially offset by higher net earnings. Net income for the year ended December 31, 2010 was $97.0 million higher than the year ended December 31, 2009. After adjusting net income for certain items, including, but not limited to, depreciation and amortization, the gain on extinguishment of debt and deferred taxes that are necessary to reconcile net income to cash provided by operating activities, we generated $113.6 million more cash in 2010 than in 2009. However, this increase was more than offset by higher levels of working capital which consumed $101.8 million of cash in the year ended December 31, 2010 compared to providing $29.2 million of cash in 2009. This $131.0 million decrease in cash flows period over period was primarily driven by:
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a $90.8 million increase in inventories of products, materials and supplies, largely due to increases in the cost of raw materials and inventory quantity; |
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a $24.6 million increase in other assets; and |
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a $14.4 million decrease in other payables and accruals. |
Cash and cash equivalents increased to $92.8 million at December 31, 2010 from $69.3 million at December 31, 2009. Amounts undrawn on the revolving portion of our credit facility, amounted to $80.0 million at December 31, 2010 and 2009, respectively. Therefore, liquidity, amounted to $172.8 million and $149.3 million and at December 31, 2010 and 2009, respectively.
Investing Cash Flows
Net cash used in investing activities totaled $64.4 million and $55.7 million for the years ended December 31, 2011 and 2010, respectively. Capital projects in 2011 included the following:
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$14.0 million to replace IR production from the closure of our Pernis facility; |
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$7.2 million related to the Asia HSBC facility; |
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$4.1 million for IRL expansion at our Paulinia facility; and |
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$3.2 million for the multi-year systems and control upgrades at our Belpre facility. |
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The remaining 2011 capital expenditures were primarily associated with projects to optimize the production capabilities of our manufacturing assets and ongoing health, safety and environmental infrastructure and maintenance projects.
Net cash used in investing activities totaled $55.7 million in 2010 compared to net cash used in investing activities of $49.6 million during the same period in 2009. Capital projects in 2010 included the following:
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$13.9 million associated with transferring IR production from Pernis to our Belpre facility; |
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$8.2 million for upgrades of certain systems and operating controls at our Belpre facility; |
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$6.7 million for the IRL debottleneck and expansion project at our Paulinia facility. |
The remaining 2010 capital expenditures were primarily associated with projects to optimize the production capabilities of our manufacturing assets and ongoing health, safety and environmental infrastructure and maintenance projects.
Financing Cash Flows and Liquidity
Our consolidated capital structure as of December 31, 2011 was approximately 56.9% equity and 43.1% debt compared to approximately 54.2% equity and 45.8% debt as of December 31, 2010.
Net cash used in financing activities totaled $0.1 million and cash provided by financing activities totaled $16.5 million for the years ended December 31, 2011 and 2010, respectively. The $16.6 million decrease was driven primarily by:
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$15.2 million paid for debt issuance costs related to the debt refinancing in February 2011; and |
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$10.7 million in net proceeds from the exercise of the underwriters over-allotment option in January 2010 related to our initial public offering in December 2009; partially offset by |
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$9.1 million increase in net proceeds from debt. |
Net cash provided by financing activities totaled $16.5 million in 2010 compared to $40.6 million net cash used in financing activities during the same period in 2009. The $57.1 million increase was driven primarily by:
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$10.7 million in net proceeds from the exercise, in January 2010, of the underwriters over-allotment option related to our initial public offering; |
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$8.0 million of proceeds received from employees exercising of stock options; and |
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In 2009, $11.2 million of cash was used to purchase and extinguish $30.7 million face value of our senior subordinated notes; and cash repayments of $50.0 million and $100 million were made on the senior secured credit facility in June 2009 and December 2009, respectively; partially offset by |
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$126.7 million in proceeds from the issuance of common stock from our initial public offering in December 2009. |
2011 Refinancing
On February 11, 2011, we refinanced our existing indebtedness by completing an offering of $250.0 million in aggregate principal amount of 6.75% Senior Notes due 2019 and entering into our $350.0 million senior secured credit agreement, which is described above. The notes are unsecured obligations of our subsidiaries Kraton Polymers LLC and Kraton Polymers Capital Corporation, guaranteed by us and all of our wholly owned domestic subsidiaries. Prior to March 1, 2015, we may redeem some or all of the notes for their principal amount plus a make-whole premium. After that date we can redeem some or all of the notes for 103.375% of their principal amount and decreasing premiums each year thereafter to par. Prior to March 1, 2014, we may redeem up to 35% of the notes with proceeds from certain equity offerings at 106.75% of their principal amount. The
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notes and our credit agreement contain restrictions on our and our subsidiaries ability to, among other things, place liens on our or our subsidiaries assets; make investments other than permitted investments; incur additional indebtedness; merge, consolidate or dissolve; sell assets; engage in transactions with affiliates; change the nature of our business; change our or our subsidiaries fiscal year or organizational documents; and make restricted payments (including certain equity issuances). See Note 7 Long-Term Debt to the consolidated financial statements accompanying this report for further discussion.
Other Contingencies
As a chemicals manufacturer, our operations in the United States and abroad are subject to a wide range of environmental laws and regulations at both the national and local levels. These laws and regulations govern, among other things, air emissions, wastewater discharges, solid and hazardous waste management, site remediation programs and chemical use and management.
Pursuant to these laws and regulations, our facilities are required to obtain and comply with a wide variety of environmental permits for different aspects of their operations. Generally, many of these environmental laws and regulations are becoming increasingly stringent, and the cost of compliance with these various requirements can be expected to increase over time.
In the context of the separation in February 2001, Shell Chemicals agreed to indemnify us for specific categories of environmental claims brought with respect to matters occurring before the separation. However, the indemnity from Shell Chemicals is subject to dollar and time limitations. Coverage under the indemnity also varies depending upon the nature of the environmental claim, the location giving rise to the claim and the manner in which the claim is triggered. Therefore, if claims arise in the future related to past operations, we cannot give assurances that those claims will be covered by the Shell Chemicals indemnity and also cannot be certain that any amounts recoverable will be sufficient to satisfy claims against us.
In addition, we may in the future be subject to claims that arise solely from events or circumstances occurring after February 2001, which would not, in any event, be covered by the Shell Chemicals indemnity. While we recognize that we may in the future be held liable with respect for remediation activities beyond those identified to date, at present we are not aware of any circumstances that are reasonably expected to give rise to remediation claims that would have a material adverse effect on our results of operations or cause us to exceed our projected level of anticipated capital expenditures.
The EPA issued new MACT standards for controlling hazardous air emissions from industrial boilers. The Boiler MACT standards are required under Sections 112 of the Clean Air Act. The Boiler MACT rule applies to the coal-burning boilers at our Belpre, Ohio, facility. The final rule was published in the Federal Register on March 21, 2011 and was to have become effective 60 days later on May 20, 2011, if it was not otherwise changed or delayed. On May 16, 2011, the EPA announced a stay and reconsideration of the Boiler MACT rule and established a new comment period, which was open until July 15, 2011, in order to allow the EPA to continue to seek additional public comment before proposing a revised Boiler MACT rule. In December 2011, the EPA proposed a reconsidered Boiler MACT rule in lieu of the March 2011 version that was subject to a 60-day comment period. Litigation against the EPA by environmental interest groups resulted in the EPAs delay notice being vacated by the Federal court in January 2012. The Boiler MACT rule will likely impact the operation of the Belpre coal-burning boilers after the compliance date. Capital expenditures necessary to comply with the Boiler MACT rule are estimated to be $40.0 million to $50.0 million, of which approximately $0.9 million was incurred in 2011, $2.2 million is expected to be incurred in 2012 and the balance is expected to be incurred between 2013 and 2015, if the above rule is finalized.
Except for the foregoing, we currently estimate that any expenses incurred in maintaining compliance with environmental laws and regulations will not materially affect our results of operations or cause us to exceed our
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level of anticipated capital expenditures. However, we cannot give assurances that regulatory requirements or permit conditions will not change, and we cannot predict the aggregate costs of additional measures that may be required to maintain compliance as a result of such changes or expenses.
We had no material operating expenditures for environmental fines, penalties, government imposed remedial or corrective actions during the years ended December 31, 2011, 2010, or 2009. Management believes that we are in material compliance with all current environmental laws and regulations.
Off-Balance Sheet Arrangements
We are not a party to any material off-balance sheet arrangements as of December 31, 2011.
Contractual Obligations
Our principal outstanding contractual obligations relate to the term loan under the senior secured credit facility and the senior notes, the operating leases of some of our facilities and the feedstock contracts with Shell Chemicals, or its affiliates, LyondellBasell and others to provide us with styrene, butadiene and isoprene. The following table summarizes our contractual cash obligations for the periods indicated. Contractual Obligations as of December 31, 2011 are as follows:
Payments Due by Period | ||||||||||||||||||||||||||||
Dollars in Millions |
Total | 2012 | 2013 | 2014 | 2015 | 2016 |
2017 and
after |
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Long-term debt obligations |
$ | 392.5 | $ | 7.5 | $ | 11.2 | $ | 15.0 | $ | 108.8 | $ | 0 | $ | 250.0 | ||||||||||||||
Estimated interest payments on debt |
147.6 | 23.6 | 23.5 | 24.7 | 20.8 | 18.4 | 36.6 | |||||||||||||||||||||
Operating lease obligations(2) |
50.0 | 11.2 | 6.2 | 5.1 | 4.9 | 4.2 | 18.4 | |||||||||||||||||||||
Purchase obligations(1)(2) |
2,058.9 | 153.9 | 114.6 | 88.0 | 89.8 | 82.1 | 1,530.5 | |||||||||||||||||||||
Estimated Pension obligations(3) |
34.5 | 8.1 | 5.8 | 5.8 | 5.0 | 4.5 | 5.3 | |||||||||||||||||||||
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Total contractual cash obligations |
$ | 2,683.5 | $ | 204.3 | $ | 161.3 | $ | 138.6 | $ | 229.3 | $ | 109.2 | $ | 1,840.8 | ||||||||||||||
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(1) | Pursuant to the styrene and butadiene feedstock supply contracts with Shell Chemicals and its affiliates, we are obligated to purchase minimum quantities. The contracts do not contain a stated penalty for failure to purchase the minimum quantities. However, if we do not purchase the minimum requirements, it is required under the terms of the contracts that we meet with Shell Chemicals in an effort to determine a resolution equitable to both parties. |
(2) | Pursuant to production agreements with LyondellBasell, we are currently paying the costs incurred by them in connection with the operation and maintenance of, and other services related to, our European facilities. These obligations are not included in this table. The terms of these agreements range between 20 years and 40 years and each agreement includes bilateral renewal rights. |
(3) | This represents our future pension contributions utilizing the following assumptions: |
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The plan was frozen at December 31, 2011; |
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All assets at December 31, 2011 were moved into a portfolio of high quality bonds whose cash flow matches the expected cash flow of the frozen plan and assets were assumed to remain in such portfolio until all obligations of the plan were paid out; |
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An estimated Pension Protection Act of 2006 effective rate as of January 1, 2012 of 5.7%; |
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All contributions are made at the latest date allowable by law; and |
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All other assumptions as used in the 2011 funding actuarial valuation of the plan are met. |
Impact of Inflation. Our results of operations and financial condition are presented based on historical cost. While it is difficult to accurately measure the impact of inflation due to the imprecise nature of the estimates required, we believe the effects of inflation, if any, on our results of operations and financial condition have been immaterial.
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Item 7A. | Quantitative and Qualitative Disclosures About Market Risk. |
We are exposed to certain market risks, including risks from changes in interest rates, foreign currency exchange rates, and commodity prices, which could impact our financial condition, results of operations and cash flows. We manage our exposure to these and other market risks through regular operating and financing activities as well as through the use of market risk sensitive instruments. We use such financial instruments as risk management tools and not for speculative investment purposes. The market risk sensitive instruments that we have entered into as of December 31, 2011 consist of an interest rate swap to hedge our variable rate debt, foreign currency option contracts and forward contracts to purchase raw materials.
Interest Rate Risk . We are exposed to interest rate risk as a result of our outstanding variable rate debt under our senior secured credit agreement. Periodically, we enter into interest rate swap agreements to hedge or otherwise protect against interest rate fluctuations on a portion of our variable rate debt. These interest rate swap agreements are designated as cash flow hedges on the exposure of the variability of future cash flows. In June 2011, we entered into a $75.0 million notional amount interest rate swap agreement. This agreement was effective as of July 15, 2011 and matures on June 15, 2014. The interest rate swap agreement provides for a fixed rate of 1.0%; therefore, including the current 3.0% margin on our Term Loan, our current hedged fixed rate is 4.0%. We recorded an unrealized loss of $0.8 million in accumulated other comprehensive income (loss) related to the effective portion of this interest rate swap for the year ended December 31, 2011. This financial instrument is recorded at its fair value as of December 31, 2011, which is driven by the 30-day LIBOR forward curve. We performed a hypothetical analysis to determine the impact to our financial position if the LIBOR forward rates increased or decreased by 10 basis points, from the rates as of December 31, 2011 for the life of the interest rate swap agreement. This hypothetical scenario would result in a change of $0.2 million in accumulated other comprehensive income (loss) as of December 31, 2011.
Foreign Currency Risk. We conduct operations in many countries around the world. Our results of operations are subject to both currency transaction risk and currency translation risk. We incur currency transaction risk when we enter into either a purchase or sale transaction using a currency other than the local currency of the transacting entity. We are subject to currency translation risk because our financial condition and results of operations are measured and recorded in the relevant domestic currency and then translated into U.S. dollars for inclusion in our historical consolidated financial statements. As of December 31, 2011, we did not have any material foreign exchange financial instruments.
Commodity Price Risk. We are exposed to commodity price risk due to our forward contractual purchase commitments for raw materials. Styrene, butadiene and isoprene are primarily supplied by a portfolio of suppliers under long-term supply contracts and arrangements with various expiration dates. We are subject to future purchase commitments for commodities under minimum purchase contracts for raw materials. Based on pricing as of December 31, 2011, a hypothetical 10.0% change in the market price for these raw materials would change our 2012 cost of goods sold by $49.3 million.
Item 8. | Financial Statements and Supplementary Data. |
The financial statements are set forth herein commencing on page F-5 of this report.
Item 9. | Changes in and Disagreements with Accountants on Accounting and Financial Disclosure. |
None.
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Item 9A. | Controls and Procedures. |
Evaluation of Disclosure Controls and Procedures
An evaluation of the effectiveness of the design and operation of our disclosure controls and procedures (as defined in Rule 13a-15 under the Securities Exchange Act of 1934) was carried out under the supervision and with the participation of our management, including our Chief Executive Officer and Chief Financial Officer. As of December 31, 2011, based upon that evaluation, the Chief Executive Officer and Chief Financial Officer concluded that the design and operation of these disclosure controls and procedures were effective.
Managements Annual Report on Internal Control Over Financial Reporting
See Managements Annual Report on Internal Control Over Financial Reporting under Item 8 of this Form 10-K.
Attestation Report of the Registered Public Accounting Firm
See Report of Independent Registered Public Accounting Firm under Item 8 of this Form 10-K.
Changes in Internal Control Over Financial Reporting
There has been no change in our internal control over financial reporting that occurred during the three months ended December 31, 2011 that has materially affected, or is reasonably likely to materially affect, our internal control over financial reporting.
Item 9B. | Other Information. |
None.
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Item 10. | Directors, Executive Officers and Corporate Governance. |
Information in response to this item is incorporated by reference from our Proxy Statement relating to our 2012 annual meeting of shareholders. The Proxy Statement will be filed with the SEC within 120 days after the end of the fiscal year covered by this Form 10-K pursuant to Regulation 14A under the Exchange Act.
Item 11. | Executive Compensation. |
Information in response to this item is incorporated by reference from our Proxy Statement relating to our 2012 annual meeting of shareholders. The Proxy Statement will be filed with the SEC within 120 days after the end of the fiscal year covered by this Form 10-K pursuant to Regulation 14A under the Exchange Act.
Item 12. | Security Ownership of Certain Beneficial Owners and Management and Related Stockholder Matters. |
Information in response to this item is incorporated by reference from our Proxy Statement relating to our 2012 annual meeting of shareholders.
Item 13. | Certain Relationships and Related Transactions, and Director Independence. |
Information in response to this item is incorporated by reference from our Proxy Statement relating to our 2012 annual meeting of shareholders.
Item 14. | Principal Accountant Fees and Services. |
Information in response to this item is incorporated by reference from our Proxy Statement relating to our 2012 annual meeting of shareholders.
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Item 15. | Exhibits and Financial Statement Schedules. |
(a) 1. Financial Statements
The following financial statements are included in Item 8:
Kraton Performance Polymers, Inc.
(i) | The reports of KPMG LLP, Independent Registered Public Accounting Firm |
(ii) | Consolidated Balance Sheets as of December 31, 2011 and 2010 |
(iii) | Consolidated Statements of Operationsyears ended December 31, 2011, 2010, and 2009 |
(iv) | Consolidated Statements of Changes in Stockholders and Members Equity and Other Comprehensive Incomeyears ended December 31, 2011, 2010, and 2009 |
(v) | Consolidated Statements of Cash Flowsyears ended December 31, 2011, 2010, and 2009 |
(vi) | Notes to consolidated financial statements |
2. Exhibits
The exhibits listed on the accompanying Exhibit Index are filed as part of this report and are on file with us.
(b) Exhibits
See Item 15(a) 2 above.
(c) Financial Statement Schedule
See Schedule II.
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SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized.
Date: February 29, 2012
Kraton Performance Polymers, Inc. |
/S/ K EVIN M. F OGARTY Kevin M. Fogarty President and Chief Executive Officer |
This report has been signed below by the following persons on behalf of the registrant and in the capacities indicated on February 29, 2012.
Signature |
Title |
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/ S / K EVIN M. F OGARTY Kevin M. Fogarty |
President, Chief Executive Officer and a Director (Principal Executive Officer) |
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/S/ S TEPHEN E. T REMBLAY Stephen E. Tremblay |
Vice President and Chief Financial Officer (Principal Financial Officer) |
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/S/ J ASON P. C LARK Jason P. Clark |
Chief Accounting Officer (Principal Accounting Officer) |
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/S/ R ICHARD C. B ROWN * Richard C. Brown |
Director |
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/S/ A NNA C. C ATALANO * Anna C. Catalano |
Director |
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/S/ S TEVEN J. D EMETRIOU * Steven J. Demetriou |
Director |
|
Dominique Fournier |
Director |
|
/S/ J OHN J. G ALLAGHER , III* John J. Gallagher |
Director |
|
/S/ B ARRY J. G OLDSTEIN * Barry J. Goldstein |
Director |
|
/S/ F RANCIS S. K ALMAN * Francis S. Kalman |
Director |
|
/S/ D AN F. S MITH * Dan F. Smith |
Director |
|
/S/ K AREN A. T WITCHELL * Karen A. Twitchell |
Director |
*By: |
/ S / S TEPHEN E. T REMBLAY Stephen E. Tremblay As attorney-in-fact |
61
KRATON PERFORMANCE POLYMERS, INC.
INDEX TO CONSOLIDATED FINANCIAL STATEMENTS
F-1
Managements Annual Report on Internal Control Over Financial Reporting
Our management is responsible for establishing and maintaining adequate internal control over financial reporting, as defined in Rules 13a-15(f) and 15d-15(f) of the Securities Exchange Act of 1934, as amended. Internal control over financial reporting, no matter how well designed, has inherent limitations. Therefore, even those systems determined to be effective can provide only reasonable assurance with respect to financial statement preparation and presentation. Further, because of changes in conditions, the effectiveness of internal control over financial reporting may vary over time.
Under the supervision and with the participation of our management, including our chief executive officer and chief financial officer, we conducted an evaluation to assess the effectiveness of our internal control over financial reporting as of December 31, 2011 based upon criteria set forth in the Internal Control - Integrated Framework issued by the Committee of Sponsoring Organizations of the Treadway Commission. Based on our assessment, we believe that, as of December 31, 2011, our internal control over financial reporting is effective.
The effectiveness of our internal control over financial reporting as of December 31, 2011 has been audited by KPMG LLP, an independent registered public accounting firm, as stated in their report that is included herein.
F-2
Report of Independent Registered Public Accounting Firm
The Board of Directors and Stockholders
Kraton Performance Polymers, Inc.:
We have audited Kraton Performance Polymers, Inc.s internal control over financial reporting as of December 31, 2011, based on criteria established in Internal ControlIntegrated Framework issued by the Committee of Sponsoring Organizations of the Treadway Commission (COSO). Kraton Performance Polymers, Inc.s management is responsible for maintaining effective internal control over financial reporting and for its assessment of the effectiveness of internal control over financial reporting, included in the accompanying Managements Annual Report on Internal Control Over Financial Reporting. Our responsibility is to express an opinion on the Companys internal control over financial reporting based on our audit.
We conducted our audit in accordance with the standards of the Public Company Accounting Oversight Board (United States). Those standards require that we plan and perform the audit to obtain reasonable assurance about whether effective internal control over financial reporting was maintained in all material respects. Our audit included obtaining an understanding of internal control over financial reporting, assessing the risk that a material weakness exists, and testing and evaluating the design and operating effectiveness of internal control based on the assessed risk. Our audit also included performing such other procedures as we considered necessary in the circumstances. We believe that our audit provides a reasonable basis for our opinion.
A companys internal control over financial reporting is a process designed to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles. A companys internal control over financial reporting includes those policies and procedures that (1) pertain to the maintenance of records that, in reasonable detail, accurately and fairly reflect the transactions and dispositions of the assets of the company; (2) provide reasonable assurance that transactions are recorded as necessary to permit preparation of financial statements in accordance with generally accepted accounting principles, and that receipts and expenditures of the company are being made only in accordance with authorizations of management and directors of the company; and (3) provide reasonable assurance regarding prevention or timely detection of unauthorized acquisition, use, or disposition of the companys assets that could have a material effect on the financial statements.
Because of its inherent limitations, internal control over financial reporting may not prevent or detect misstatements. Also, projections of any evaluation of effectiveness to future periods are subject to the risk that controls may become inadequate because of changes in conditions, or that the degree of compliance with the policies or procedures may deteriorate.
In our opinion, Kraton Performance Polymers, Inc. maintained, in all material respects, effective internal control over financial reporting as of December 31, 2011, based on criteria established in Internal ControlIntegrated Framework issued by the Committee of Sponsoring Organizations of the Treadway Commission.
We also have audited, in accordance with the standards of the Public Company Accounting Oversight Board (United States), the consolidated balance sheets of Kraton Performance Polymers, Inc. and subsidiaries as of December 31, 2011 and 2010, and the related consolidated statements of operations, changes in stockholders and members equity and other comprehensive income, and cash flows for each of the years in the three-year period ended December 31, 2011, and our report dated February 29, 2012 expressed an unqualified opinion on those consolidated financial statements.
/s/ KPMG LLP
Houston, Texas
February 29, 2012
F-3
Report of Independent Registered Public Accounting Firm
The Board of Directors and Stockholders
Kraton Performance Polymers, Inc.:
We have audited the accompanying consolidated balance sheets of Kraton Performance Polymers, Inc. and subsidiaries as of December 31, 2011 and 2010, and the related consolidated statements of operations, changes in stockholders and members equity and other comprehensive income, and cash flows for each of the years in the three-year period ended December 31, 2011. These consolidated financial statements are the responsibility of Kraton Performance Polymers, Inc.s management. Our responsibility is to express an opinion on these consolidated financial statements based on our audits.
We conducted our audits in accordance with the standards of the Public Company Accounting Oversight Board (United States). Those standards require that we plan and perform the audit to obtain reasonable assurance about whether the financial statements are free of material misstatement. An audit includes examining, on a test basis, evidence supporting the amounts and disclosures in the financial statements. An audit also includes assessing the accounting principles used and significant estimates made by management, as well as evaluating the overall financial statement presentation. We believe that our audits provide a reasonable basis for our opinion.
In our opinion, the consolidated financial statements referred to above present fairly, in all material respects, the financial position of Kraton Performance Polymers, Inc. and subsidiaries as of December 31, 2011 and 2010, and the results of their operations and their cash flows for each of the years in the three-year period ended December 31, 2011, in conformity with U.S. generally accepted accounting principles.
We also have audited, in accordance with the standards of the Public Company Accounting Oversight Board (United States), Kraton Performance Polymers, Inc.s internal control over financial reporting as of December 31, 2011, based on criteria established in Internal ControlIntegrated Framework issued by the Committee of Sponsoring Organizations of the Treadway Commission (COSO), and our report dated February 29, 2012 expressed an unqualified opinion on the effectiveness of Kraton Performance Polymers, Inc.s internal control over financial reporting.
/s/ KPMG LLP
Houston, Texas
February 29, 2012
F-4
KRATON PERFORMANCE POLYMERS, INC.
CONSOLIDATED BALANCE SHEETS
(In thousands, except par value)
December 31,
2011 |
December 31,
2010 |
|||||||
ASSETS |
||||||||
Current assets : |
||||||||
Cash and cash equivalents |
$ | 88,579 | $ | 92,750 | ||||
Receivables, net of allowances of $549 and $947 |
142,696 | 136,132 | ||||||
Inventories of products, net |
394,796 | 325,120 | ||||||
Inventories of materials and supplies, net |
9,996 | 9,631 | ||||||
Deferred income taxes |
2,140 | 0 | ||||||
Other current assets |
27,328 | 38,749 | ||||||
|
|
|
|
|||||
Total current assets |
665,535 | 602,382 | ||||||
|
|
|
|
|||||
Property, plant and equipment, less accumulated depreciation of $281,442 and $252,387 |
372,973 | 365,366 | ||||||
Identifiable intangible assets, less accumulated amortization of $58,530 and $50,123 |
66,184 | 70,461 | ||||||
Investment in unconsolidated joint venture |
13,350 | 13,589 | ||||||
Debt issuance costs |
11,106 | 3,172 | ||||||
Other long-term assets |
24,608 | 25,753 | ||||||
|
|
|
|
|||||
Total assets |
$ | 1,153,756 | $ | 1,080,723 | ||||
|
|
|
|
|||||
LIABILITIES AND STOCKHOLDERS EQUITY |
||||||||
Current liabilities: |
||||||||
Current portion of long-term debt |
$ | 7,500 | $ | 2,304 | ||||
Accounts payable-trade |
88,026 | 86,699 | ||||||
Other payables and accruals |
51,253 | 60,782 | ||||||
Deferred income taxes |
0 | 595 | ||||||
Due to related party |
14,311 | 19,264 | ||||||
|
|
|
|
|||||
Total current liabilities |
161,090 | 169,644 | ||||||
Long-term debt, net of current portion |
385,000 | 380,371 | ||||||
Deferred income taxes |
6,214 | 14,089 | ||||||
Other long-term liabilities |
83,658 | 64,242 | ||||||
|
|
|
|
|||||
Total liabilities |
635,962 | 628,346 | ||||||
|
|
|
|
|||||
Commitments and contingencies (note 11) |
||||||||
Stockholders equity: |
||||||||
Preferred stock, $0.01 par value; 100,000 shares authorized; none issued |
||||||||
Common stock, $0.01 par value; 500,000 shares authorized; 32,092 shares issued and outstanding at December 31, 2011; 31,390 shares issued and outstanding at December 31, 2010 |
321 | 314 | ||||||
Additional paid in capital |
347,455 | 334,457 | ||||||
Retained earnings |
187,636 | 96,711 | ||||||
Accumulated other comprehensive income (loss) |
(17,618 | ) | 20,895 | |||||
|
|
|
|
|||||
Total stockholders equity |
517,794 | 452,377 | ||||||
|
|
|
|
|||||
Total liabilities and stockholders equity |
$ | 1,153,756 | $ | 1,080,723 | ||||
|
|
|
|
See Notes to Consolidated Financial Statements
F-5
KRATON PERFORMANCE POLYMERS, INC.
CONSOLIDATED STATEMENTS OF OPERATIONS
(In thousands, except per share data)
Years ended December 31, | ||||||||||||
2011 | 2010 | 2009 | ||||||||||
Operating revenues: |
||||||||||||
Sales |
$ | 1,437,479 | $ | 1,228,425 | $ | 920,362 | ||||||
Other |
0 | 0 | 47,642 | |||||||||
|
|
|
|
|
|
|||||||
Total operating revenues |
1,437,479 | 1,228,425 | 968,004 | |||||||||
Cost of goods sold |
1,121,293 | 927,932 | 792,472 | |||||||||
|
|
|
|
|
|
|||||||
Gross profit |
316,186 | 300,493 | 175,532 | |||||||||
|
|
|
|
|
|
|||||||
Operating expenses: |
||||||||||||
Research and development |
27,996 | 23,628 | 21,212 | |||||||||
Selling, general and administrative |
101,606 | 92,305 | 79,504 | |||||||||
Depreciation and amortization |
62,735 | 49,220 | 66,751 | |||||||||
|
|
|
|
|
|
|||||||
Total operating expenses |
192,337 | 165,153 | 167,467 | |||||||||
|
|
|
|
|
|
|||||||
Gain (loss) on extinguishment of debt |
(2,985 | ) | 0 | 23,831 | ||||||||
Earnings of unconsolidated joint venture |
529 | 487 | 403 | |||||||||
Interest expense, net |
29,884 | 23,969 | 33,956 | |||||||||
|
|
|
|
|
|
|||||||
Income (loss) before income taxes |
91,509 | 111,858 | (1,657 | ) | ||||||||
Income tax expense (benefit) |
584 | 15,133 | (1,367 | ) | ||||||||
|
|
|
|
|
|
|||||||
Net income (loss) |
$ | 90,925 | $ | 96,725 | $ | (290 | ) | |||||
|
|
|
|
|
|
|||||||
Earnings (loss) per common share: |
||||||||||||
Basic |
$ | 2.85 | $ | 3.13 | $ | (0.01 | ) | |||||
Diluted |
$ | 2.81 | $ | 3.07 | $ | (0.01 | ) | |||||
Weighted average common shares outstanding: |
||||||||||||
Basic |
31,786 | 30,825 | 19,808 | |||||||||
Diluted |
32,209 | 31,379 | 19,808 |
See Notes to Consolidated Financial Statements
F-6
KRATON PERFORMANCE POLYMERS, INC.
CONSOLIDATED STATEMENTS OF CHANGES IN STOCKHOLDERS AND MEMBERS EQUITY AND OTHER COMPREHENSIVE INCOME
(In thousands)
Common
Stock |
Additional
Paid in Capital |
Retained
Earnings (post 12/17/2009) |
Common
Equity (pre 12/17/2009) |
Accumulated
Other Comprehensive Income (loss) |
Total | |||||||||||||||||||
Balance at January 1, 2009 |
$ | 0 | $ | 0 | $ | 0 | $ | 182,553 | $ | 5,823 | $ | 188,376 | ||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||
Net loss |
0 | 0 | (14 | ) | (276 | ) | 0 | (290 | ) | |||||||||||||||
Other comprehensive income: |
||||||||||||||||||||||||
Foreign currency translation adjustments, net of tax |
0 | 0 | 0 | 0 | 14,023 | 14,023 | ||||||||||||||||||
Decrease in unrealized loss of interest rate swaps |
0 | 0 | 0 | 0 | 3,158 | 3,158 | ||||||||||||||||||
Reclassification of gain on interest rate swap into earnings |
0 | 0 | 0 | 0 | (2,827 | ) | (2,827 | ) | ||||||||||||||||
Decrease in pension liability, net of tax |
0 | 0 | 0 | 0 | 16,659 | 16,659 | ||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||
Total comprehensive income |
30,723 | |||||||||||||||||||||||
Non-cash compensation related to equity awards |
0 | 0 | 0 | 2,160 | 0 | 2,160 | ||||||||||||||||||
Liquidation of Kraton Polymers Management LLC |
0 | 0 | 0 | (1,760 | ) | 0 | (1,760 | ) | ||||||||||||||||
Non-cash contribution from member |
0 | 0 | 0 | 2,560 | 0 | 2,560 | ||||||||||||||||||
Equity conversionDecember 16, 2009 |
194 | 185,043 | 0 | (185,237 | ) | 0 | 0 | |||||||||||||||||
Public stock offering, December 17, 2009 |
103 | 126,622 | 0 | 0 | 0 | 126,725 | ||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||
Balance at December 31, 2009 |
$ | 297 | $ | 311,665 | $ | (14 | ) | $ | 0 | $ | 36,836 | $ | 348,784 | |||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||
Net income |
0 | 0 | 96,725 | 0 | 0 | 96,725 | ||||||||||||||||||
Other comprehensive income: |
||||||||||||||||||||||||
Foreign currency translation adjustments, net of tax |
0 | 0 | 0 | 0 | (5,364 | ) | (5,364 | ) | ||||||||||||||||
Decrease in unrealized loss of interest rate swaps |
0 | 0 | 0 | 0 | 1,157 | 1,157 | ||||||||||||||||||
Reclassification of gain on interest rate swap into earnings |
0 | 0 | 0 | 0 | (450 | ) | (450 | ) | ||||||||||||||||
Decrease in fair value of foreign currency net investment hedge |
0 | 0 | 0 | 0 | 899 | 899 | ||||||||||||||||||
Increase in pension liability, net of tax |
0 | 0 | 0 | 0 | (12,183 | ) | (12,183 | ) | ||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||
Total comprehensive income |
80,784 | |||||||||||||||||||||||
Issuance of common stock |
9 | 11,188 | 0 | 0 | 0 | 11,197 | ||||||||||||||||||
Costs associated with the issuance of common stock |
0 | (534 | ) | 0 | 0 | 0 | (534 | ) | ||||||||||||||||
Exercise of stock options |
8 | 8,666 | 0 | 0 | 0 | 8,674 | ||||||||||||||||||
Non-cash compensation related to equity awards |
0 | 3,472 | 0 | 0 | 0 | 3,472 | ||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||
Balance at December 31, 2010 |
$ | 314 | $ | 334,457 | $ | 96,711 | $ | 0 | $ | 20,895 | $ | 452,377 | ||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||
Net income |
0 | 0 | 90,925 | 0 | 0 | 90,925 | ||||||||||||||||||
Other comprehensive income: |
||||||||||||||||||||||||
Foreign currency translation adjustments, net of tax |
0 | 0 | 0 | 0 | (20,851 | ) | (20,851 | ) | ||||||||||||||||
Decrease in unrealized loss of interest rate swaps |
0 | 0 | 0 | 0 | 264 | 264 | ||||||||||||||||||
Increase in pension liability, net of tax |
0 | 0 | 0 | 0 | (17,926 | ) | (17,926 | ) | ||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||
Total comprehensive income |
52,412 | |||||||||||||||||||||||
Exercise of stock options |
7 | 7,539 | 0 | 0 | 0 | 7,546 | ||||||||||||||||||
Non-cash compensation related to equity awards |
0 | 5,459 | 0 | 0 | 0 | 5,459 | ||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||
Balance at December 31, 2011 |
$ | 321 | $ | 347,455 | $ | 187,636 | $ | 0 | $ | (17,618 | ) | $ | 517,794 | |||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
See Notes to Consolidated Financial Statements
F-7
KRATON PERFORMANCE POLYMERS, INC.
CONSOLIDATED STATEMENTS OF CASH FLOWS
(In thousands)
Years ended December 31, | ||||||||||||
2011 | 2010 | 2009 | ||||||||||
CASH FLOWS FROM OPERATING ACTIVITIES |
||||||||||||
Net income (loss) |
$ | 90,925 | $ | 96,725 | $ | (290 | ) | |||||
Adjustments to reconcile net income (loss) to net cash provided by operating activities: |
||||||||||||
Depreciation and amortization |
62,735 | 49,220 | 66,751 | |||||||||
Amortization of debt issuance costs |
6,722 | 2,071 | 4,090 | |||||||||
Accretion of debt discount |
0 | 0 | 5 | |||||||||
Inventory impairment |
0 | 0 | 1,769 | |||||||||
(Gain) loss on disposal of fixed assets |
90 | (54 | ) | 348 | ||||||||
(Gain) loss on extinguishment of debt |
2,985 | 0 | (23,831 | ) | ||||||||
Gain on settlement of insurance note payable |
0 | (131 | ) | 0 | ||||||||
Reclassification of gain on interest rate swap into earnings |
0 | (450 | ) | (2,827 | ) | |||||||
Net distributed earnings from unconsolidated joint venture |
(14 | ) | (84 | ) | 30 | |||||||
Deferred income tax expense (benefit) |
(10,461 | ) | 6,389 | (4,623 | ) | |||||||
Share-based compensation |
5,459 | 3,472 | 2,160 | |||||||||
Decrease (increase) in : |
||||||||||||
Accounts receivable |
(7,704 | ) | (22,315 | ) | (16,680 | ) | ||||||
Inventories of products, materials and supplies |
(74,965 | ) | (46,711 | ) | 44,060 | |||||||
Other assets |
7,841 | (24,871 | ) | (305 | ) | |||||||
Increase (decrease) in : |
||||||||||||
Accounts payable-trade, other payables and accruals, and other long-term liabilities |
(12,727 | ) | (6,055 | ) | 8,328 | |||||||
Due to related party |
(6,111 | ) | (1,846 | ) | (6,180 | ) | ||||||
|
|
|
|
|
|
|||||||
Net cash provided by operating activities |
64,775 | 55,360 | 72,805 | |||||||||
|
|
|
|
|
|
|||||||
CASH FLOWS FROM INVESTING ACTIVITIES |
||||||||||||
Purchase of property, plant and equipment |
(60,311 | ) | (53,435 | ) | (38,101 | ) | ||||||
Purchase of software |
(4,129 | ) | (2,242 | ) | (15,322 | ) | ||||||
Proceeds from sale of property, plant and equipment |
0 | 30 | 3,870 | |||||||||
|
|
|
|
|
|
|||||||
Net cash used in investing activities |
(64,440 | ) | (55,647 | ) | (49,553 | ) | ||||||
|
|
|
|
|
|
|||||||
CASH FLOWS FROM FINANCING ACTIVITIES |
||||||||||||
Proceeds from debt |
400,000 | 69,000 | 144,000 | |||||||||
Repayments of debt |
(393,160 | ) | (71,304 | ) | (308,131 | ) | ||||||
Proceeds from issuance of common stock |
0 | 11,197 | 126,725 | |||||||||
Costs associated with the issuance of common stock |
0 | (534 | ) | 0 | ||||||||
Proceeds from the exercise of stock options |
8,271 | 7,974 | 0 | |||||||||
Proceeds from insurance note payable |
4,734 | 3,518 | 3,706 | |||||||||
Repayments of insurance note payable |
(4,734 | ) | (3,387 | ) | (3,706 | ) | ||||||
Debt issuance costs |
(15,231 | ) | 0 | (3,216 | ) | |||||||
|
|
|
|
|
|
|||||||
Net cash provided by (used in) financing activities |
(120 | ) | 16,464 | (40,622 | ) | |||||||
|
|
|
|
|
|
|||||||
Effect of exchange rate differences on cash |
(4,386 | ) | 7,282 | (14,735 | ) | |||||||
|
|
|
|
|
|
|||||||
Net increase (decrease) in cash and cash equivalents |
(4,171 | ) | 23,459 | (32,105 | ) | |||||||
Cash and cash equivalents, beginning of period |
92,750 | 69,291 | 101,396 | |||||||||
|
|
|
|
|
|
|||||||
Cash and cash equivalents, end of period |
$ | 88,579 | $ | 92,750 | $ | 69,291 | ||||||
|
|
|
|
|
|
|||||||
Supplemental disclosures |
||||||||||||
Cash paid during the period for income taxes, net of refunds received |
$ | 6,817 | $ | 4,625 | $ | 9,164 | ||||||
Cash paid during the period for interest, net of capitalized interest |
$ | 22,829 | $ | 23,723 | $ | 34,707 |
See Notes to Consolidated Financial Statements
F-8
KRATON PERFORMANCE POLYMERS, INC.
Notes to Consolidated Financial Statements
PAGE | ||||
1. Description of Business, Basis of Presentation, and Significant Accounting Policies |
F-9 | |||
F-14 | ||||
F-16 | ||||
F-18 | ||||
F-19 | ||||
F-20 | ||||
F-22 | ||||
F-24 | ||||
F-24 | ||||
F-27 | ||||
F-30 | ||||
F-33 | ||||
F-42 | ||||
F-44 | ||||
F-44 | ||||
F-53 | ||||
F-54 |
1. Description of Business, Basis of Presentation, and Significant Accounting Policies
Description of Business . We are a leading global producer of styrenic block copolymers (SBCs) and other engineered polymers. We market our products under the Kraton ® brand. SBCs are highly-engineered synthetic elastomers, which we invented and commercialized almost 50 years ago, that enhance the performance of numerous end use products, by imparting greater flexibility, resilience, strength, durability and processability. Our polymers are typically formulated or compounded with other products to achieve improved, customer specific performance characteristics in a variety of applications. Our SBC products are found in many everyday applications, including disposable diapers, the rubberized grips of toothbrushes, razor blades, power tools and asphalt formulations used to pave roads. We also produce Cariflex TM isoprene rubber (IR) and isoprene rubber latex (IRL). Our Cariflex TM products are highly-engineered, non-SBC synthetic substitutes for natural rubber latex. Our IRL products, which have not been found to contain the proteins present in natural rubber latex and are, therefore, not known to cause allergies, are used in applications such as surgical gloves and condoms. We believe the versatility of IRL provides opportunities for new, high-margin applications. In addition to IRL, we have a portfolio of innovations at various stages of development and commercialization, including PVC alternatives for wire, cable and medical applications, and polymers used in slush molding for automotive applications, and our Nexar TM family of membrane polymers for water filtration and breathable fabrics. We manufacture our polymers at five manufacturing facilities globally, including our flagship facility in Belpre, Ohio, as well as facilities in Germany, France, Brazil, and Japan. The facility in Japan is operated by an unconsolidated manufacturing joint venture. The terms Kraton, our company, we, our, ours and us as used in this report refer collectively to Kraton Performance Polymers, Inc. and its consolidated subsidiaries.
Basis of Presentation . The accompanying consolidated financial statements presented herein are for us and our consolidated subsidiaries, each of which is a wholly-owned subsidiary. Polymer Holdings LLC (Polymer Holdings,) and its consolidated subsidiaries are treated as our predecessor entity for financial statement reporting purposes. The consolidated financial statements present our historical financial statements and the historical financial statements of our predecessor. Accordingly the information for periods prior to December 22, 2009, is that of Polymer Holdings. The historical consolidated financial statements presented for the years ended December 31, 2011, 2010, and 2009 have been derived from our audited consolidated financial statements.
F-9
KRATON PERFORMANCE POLYMERS, INC.
Notes to Consolidated Financial Statements(Continued)
Significant Accounting Policies . These financial statements reflect all normal recurring adjustments that are, in the opinion of management, necessary to fairly present our results of operations and financial position.
Use of Estimates . The preparation of consolidated financial statements in conformity with accounting principles generally accepted in the United States of America requires management to make estimates and assumptions that affect the reported amounts of assets and liabilities and disclosure of contingent assets and liabilities at the date of the consolidated financial statements and the reported amounts of revenues and expenses during the reporting period. Actual results could differ from those estimates. Significant items subject to such estimates and assumptions include the useful lives of fixed assets; allowances for doubtful accounts and sales returns; the valuation of derivatives, deferred tax assets, property, plant and equipment, inventory, investments and share-based compensation; and liabilities for employee benefit obligations, asset retirement obligations (ARO), income tax uncertainties and other contingencies.
Reclassifications . Certain amounts reported in the consolidated financial statements and notes to the consolidated financial statements for the prior periods have been reclassified to conform to the current reporting presentation.
Cash and Cash Equivalents . It is our policy to invest our excess cash in investment instruments whose value is not subject to market fluctuations, such as bank deposits or certificates of deposit. Other permitted investments include commercial paper of major U.S. corporations with ratings of A1 by Standard & Poors Ratings Group or P1 by Moodys Investor Services, Inc., loan participations of major U.S. corporations with a short term credit rating of A1/P1 and direct obligations of the U.S. government or its agencies. We consider all investments having a remaining maturity of three months or less to be cash equivalents.
Receivables . Receivables are recorded at the invoiced amount and do not bear interest. The allowance for doubtful accounts is our best estimate of the amount of probable credit losses in our existing receivables and is determined based on our assessment of the credit worthiness of individual customers, historical write-off experience and global economic data. We review the allowance for doubtful accounts quarterly. Account balances are charged off against the allowance after all means of collection have been exhausted and the potential for recovery is considered remote. We do not have any off-balance sheet credit exposure related to our customers.
Inventories . Our inventory is principally comprised of finished goods inventory. Inventories are stated at the lower of cost or market as determined on a first-in, first-out basis. We evaluate the carrying cost of our inventory on a quarterly basis for this purpose. If the cost of the inventories exceeds their market value, provisions are made for the differences between the cost and the market value.
Derivative Instruments and Hedging Activities . We account for derivatives and hedging activities in accordance with ASC 815, Derivatives and Hedging, which requires entities to recognize all derivative instruments as either assets or liabilities in the balance sheet at their respective fair values. For derivatives designated in cash flow hedging relationships, changes in the fair value are either offset through earnings against the change in fair value of the hedged item attributable to the risk being hedged or recognized in accumulated other comprehensive income (loss), to the extent the derivative is effective at offsetting the changes in cash flows being hedged until the hedged item affects earnings.
For all hedging relationships, we formally document the hedging relationship and our risk-management objective and strategy for undertaking the hedge, the hedging instrument, the hedged transaction, the nature of the risk being hedged, how the hedging instruments effectiveness in offsetting the hedged risk will be assessed prospectively and retrospectively, and a description of the method used to measure ineffectiveness. We also
F-10
KRATON PERFORMANCE POLYMERS, INC.
Notes to Consolidated Financial Statements(Continued)
formally assess both at the inception of the hedging relationship and on an ongoing basis, whether the derivatives that are used in hedging relationships are highly effective in offsetting changes in cash flows of hedged transactions. For derivative instruments that are designated and qualify as part of a cash flow hedging relationship, the effective portion of the gain or loss on the derivative is reported as a component of other comprehensive income and reclassified into earnings in the same period or periods during which the hedged transaction affects earnings. Gains and losses on the derivative representing either hedge ineffectiveness or hedge components excluded from the assessment of effectiveness are recognized in current earnings.
We discontinue hedge accounting prospectively when we determine that the derivative is no longer effective in offsetting cash flows attributable to the hedged risk, the derivative expires or is sold, terminated, or exercised, the cash flow hedge is de-designated because a forecasted transaction is not probable of occurring, or management removes the designation of the cash flow hedge.
In all situations in which hedge accounting is discontinued and the derivative remains outstanding, we continue to carry the derivative at its fair value on the balance sheet and recognize any subsequent changes in its fair value in earnings. When it is probable that a forecasted transaction will not occur, we discontinue hedge accounting and recognize immediately in earnings gains and losses that were accumulated in other comprehensive income related to the hedging relationship.
Property, Plant and Equipment. Property, plant and equipment are recorded at cost. Major renewals and improvements which extend the useful lives of equipment are capitalized. Repair and maintenance costs are expensed as incurred. Disposals are removed at carrying cost less accumulated depreciation with any resulting gain or loss reflected in earnings. We capitalize interest costs which are incurred as part of the cost of constructing major facilities and equipment. Approximately $2.3 million, $0.5 million and $0.0 million of interest cost were capitalized in 2011, 2010 and 2009, respectively. Depreciation is recognized using the straight-line method over the following estimated useful lives:
Machinery and equipment |
20 years | |||
Building and land improvements |
20 years | |||
Manufacturing control equipment |
10 years | |||
Office equipment |
5 years | |||
Research equipment and facilities |
5 years | |||
Vehicles |
5 years | |||
Computer hardware and information systems |
3 years |
Major Maintenance Activities. Major maintenance or turnaround costs are expensed as incurred.
Asset Retirement Obligations. We account for AROs pursuant to the provisions of ASC 410-20, Asset Retirement Obligations. ASC 410-20 requires us to record the fair value of an ARO as a liability in the period in which we have a legal obligation associated with the retirement of tangible long-lived assets that result from the acquisition, construction, development, and/or normal use of the assets. The ARO is also capitalized as part of the carrying cost of the asset and is depreciated over the life of the asset. Subsequent to the initial measurement of the ARO, the obligation is to be adjusted at the end of each period to reflect accretion of the liability to its non-discounted amount and changes in either the timing or the amount of the original estimated future cash flows underlying the obligation.
We have no assets that are legally restricted for purposes of settling AROs. We have determined that we have contractual or regulatory requirements to decommission and perform other remediation for many of our
F-11
KRATON PERFORMANCE POLYMERS, INC.
Notes to Consolidated Financial Statements(Continued)
manufacturing facilities and other assets upon retirement. These manufacturing facilities have historically been profitable, and we plan to continue to upgrade these assets and expand the manufacturing capacity in conjunction with the growing market for our products. We plan to operate our manufacturing facilities for the foreseeable future and there are no current plans to close or convert these assets for use in the manufacture of fundamentally different products. Unlike our manufacturing assets in the United States and Brazil, our manufacturing assets in Europe are all located on leased land. For these assets, we used the lease termination dates as the estimate for when our AROs related to those assets will be settled.
Long-Lived Assets. In accordance with the Impairment or Disposal of Long-Lived Assets Subsections of ASC 360-10, Property, Plant, and EquipmentOverall, long-lived assets, such as property, plant, and equipment, and purchased intangible assets subject to amortization, are reviewed for impairment whenever events or changes in circumstances indicate that the carrying amount of an asset may not be recoverable. If circumstances require a long-lived asset or asset group be tested for possible impairment, we first compare undiscounted cash flows expected to be generated by that asset or asset group to its carrying value. If the carrying value of the long-lived asset or asset group is not recoverable on an undiscounted cash flow basis, an impairment is recognized to the extent that the carrying value exceeds its fair value. Fair value is determined through various valuation techniques including discounted cash flow models, quoted market values and third-party independent appraisals, as considered necessary.
Identifiable Intangible Assets. We have identifiable intangible assets related to technology, tradenames/trademarks, customer relationships and software as detailed in Note 5 Detail of Certain Balance Sheet Accounts to the consolidated financial statements. Identifiable intangible assets are amortized on the straight-line method over the estimated useful lives of the assets. The estimated useful life of technology, tradenames/trademarks and customer relationships is 15 years, while the estimated useful life of software is 10 years.
Pension and Other Postretirement Plans. We have a noncontributory defined benefit pension plan covering substantially all of our employees upon their retirement. The benefits are based on age, years of service and the level of compensation during the five years before retirement. We also sponsor a defined benefit health care plan for substantially all retirees and full-time employees.
We record annual amounts relating to our pension and postretirement plans based on calculations that incorporate various actuarial and other assumptions, including discount rates, mortality rates, assumed rates of return, compensation increases, turnover rates and healthcare cost trend rates. We review our assumptions on an annual basis and make modifications to the assumptions based on current rates and trends when it is appropriate to do so. The effect of modifications to the assumptions is recorded in accumulated other comprehensive income (loss) and amortized to net periodic pension cost over future periods using the corridor method. We believe that the assumptions utilized in recording our obligations under our plans are reasonable based on our experience and market conditions.
The net periodic pension costs are recognized as employees render the services necessary to earn the postretirement benefits.
Investment in Unconsolidated Joint Venture. Our 50% equity investment in a manufacturing joint venture at our Kashima site is accounted for under the equity method with our share of the operating results of the joint venture classified within earnings of unconsolidated joint venture.
We evaluate our equity method investment for impairment when events or changes in circumstances indicate, in managements judgment, that the carrying value of such investment may have experienced an other-
F-12
KRATON PERFORMANCE POLYMERS, INC.
Notes to Consolidated Financial Statements(Continued)
than-temporary decline in value. When evidence of loss in value has occurred, management compares the estimated fair value of the investment to the carrying value of the investment to determine whether an impairment has occurred. Management assesses the fair value of its equity method investment using commonly accepted techniques, and may use more than one method, including, but not limited to, recent third party comparable sales, internally developed analysis and analysis from outside advisors. If the estimated fair value is less than the carrying value and management considers the decline in value to be other than temporary, the excess of the carrying value over the estimated fair value is recognized in the financial statements as an impairment.
Debt Issuance Costs. We capitalize financing fees and other costs related to issuing long-term debt. We amortize these costs using the effective interest method, except for costs related to revolving debt, which are amortized using the straight-line method and recorded in interest expense.
Contingencies. We are routinely involved in other litigation, claims and disputes incidental to our business, which at times involve claims for significant monetary amounts, some of which would not be covered by insurance. In the opinion of management, none of these other existing litigation matters or claims or disputes will have a material adverse effect on our financial position, results of operations or cash flows. However, a substantial settlement payment or judgment in excess of our accruals could have a material adverse effect on our financial position, results of operations or cash flows.
Environmental Costs. Environmental costs are expensed as incurred unless the expenditures extend the economic useful life of the relevant assets. Costs that extend the economic useful life of assets are capitalized and depreciated over the remaining life of those assets. Liabilities are recorded when environmental assessments, or remedial efforts are probable, and the cost can be reasonably estimated.
Disclosures about Fair Value of Financial Instruments. For cash and cash equivalents, receivables, accounts payable and certain accrued expenses the carrying amount approximates fair value due to the short maturities of these instruments. For long-term debt instruments and the interest rate swap agreements fair value is estimated based upon market values (if applicable) or on the current interest rates available to us for debt with similar terms and remaining maturities. Considerable judgment is required in developing these estimates.
Revenue Recognition. Operating revenues are recognized in accordance with the provisions of ASC 605, Revenue RecognitionOverall, when the revenue is realized or realizable, and has been earned. Revenue for product sales is recognized when risk and title to the product transfer to the customer, which usually occurs at the time shipment is made. Our products are generally sold free on board shipping point or, with respect to countries other than the United States, an equivalent basis. As such, title to the product passes when the product is delivered to the freight carrier. Our standard terms of delivery are included in our contracts of sale, order confirmation documents and invoices. Shipping and other transportation costs charged to customers are recorded in both sales and cost of sales.
We have entered into agreements with some of our customers whereby they earn rebates from us when the volume of their purchases of our product reach certain agreed upon levels. We recognize the rebate obligation ratably, as a reduction of revenue.
Research and Development Expenses. Research and development expenses are expensed as incurred.
Share-Based Compensation . Share-based compensation cost is measured at the grant date based on the fair value of the award. We recognize these costs using the straight-line method over the requisite service period. The Kraton Performance Polymers, Inc. Equity Incentive Plan (the Equity Plan) allows for the grant to key
F-13
KRATON PERFORMANCE POLYMERS, INC.
Notes to Consolidated Financial Statements(Continued)
employees, independent contractors, and eligible non-employee directors of incentive stock options, non-qualified stock options (which together with the incentive stock options, are referred to herein as (Options)), stock appreciation rights, restricted stock awards and restricted stock unit awards, in addition to other equity or equity-based awards as our board determines from time to time. We estimate the fair value of stock options using the Black-Scholes valuation model. Since our equity interests were privately held prior to the initial public offering, the estimated volatility is based on the historical volatility of similar companies stock that is publicly traded. Until such time we have enough publicly traded stock history, we will continue to estimate volatility of options granted (including options granted in 2011) based on the historical volatility of similar companies stock that is publicly traded. The expected term of options represents the period of time that options granted are expected to be outstanding. For all periods presented, we used the simplified method to calculate the expected term of options. The risk free interest rate for the periods within the contractual life of the option is based on the U.S. Treasury yield curve in effect at the time of grant. For all periods presented, the dividend yield is assumed to be zero based on historical and expected dividend activity. Forfeitures are based substantially on the history of cancellations of similar awards granted in prior years. See Note 3 Share-Based Compensation to the consolidated financial statements.
Leases. All leases entered into as of December 31, 2011 are classified as operating leases. For those leases which contain escalating rent payment clauses, we use the straight-line method to record lease expense.
Income Taxes. We conduct operations in separate legal entities; as a result, income tax amounts are reflected in these consolidated financial statements for each of those jurisdictions.
Net operating losses and credit carryforwards are recorded in the event such benefits are expected to be realized. Deferred taxes result from differences between the financial and tax bases of our assets and liabilities and are adjusted for changes in tax rates and tax laws when changes are enacted. Valuation allowances are recorded to reduce deferred tax assets when it is more likely than not that a tax benefit will not be realized.
In assessing the realizability of deferred tax assets, we consider whether it is more likely than not that some portion or all of the deferred tax assets will not be realized. The ultimate realization of deferred tax assets is dependent upon the generation of future taxable income during the periods in which those temporary differences become deductible. We consider the scheduled reversal of deferred tax liabilities, projected future taxable income and tax planning strategies in making this assessment. Based upon the level of historical taxable income and projections for future taxable income over the periods in which the deferred tax assets are deductible, we believe it is more likely than not that we will realize the benefits of these deductible differences, net of the existing valuation allowances.
Foreign Currency Translation and Foreign Currency Exchange Rates. Financial statements of our operations outside the United States where the local currency is considered to be the functional currency are translated into U.S. dollars using the exchange rate at each balance sheet date for assets and liabilities and the average exchange rate for each period for revenues, expenses, gains, losses and cash flows. The effects of translating such operations into U.S. dollars are included as a component of accumulated other comprehensive income (loss).
2. New Accounting Pronouncements
Adoption of Accounting Standards. We have implemented all new accounting pronouncements that are in effect and that management believes would materially impact our financial statements and do not believe that there are any other new accounting pronouncements that have been issued that might have a material impact on our financial position or results of operations.
F-14
KRATON PERFORMANCE POLYMERS, INC.
Notes to Consolidated Financial Statements(Continued)
Future Adoption of Accounting Standards. The following new accounting pronouncements have been issued, but have not yet been adopted as of December 31, 2011:
In December 2011, the Financial Accounting Standards Board (FASB) issued Accounting Standards Update (ASU) No. 2011-11, Balance Sheet (Topic 210): Disclosures about Offsetting Assets and Liabilities (ASU 2011-11). This newly issued accounting standard requires an entity to disclose both gross and net information about instruments and transactions eligible for offset in the statement of financial position as well as instruments and transactions executed under a master netting or similar arrangement and was issued to enable users of financial statements to understand the effects or potential effects of those arrangements on its financial position. This ASU is required to be applied retrospectively and is effective for fiscal years, and interim periods within those years, beginning on or after January 1, 2013. As this accounting standard only requires enhanced disclosure, the adoption of this standard is not expected to have a material impact on our financial position or results of operations.
In June 2011, the FASB issued ASU No. 2011-05, Comprehensive Income (Topic 220): Presentation of Comprehensive Income (ASU 2011-05). This newly issued accounting standard (1) eliminates the option to present the components of other comprehensive income as part of the statement of changes in stockholders equity; (2) requires the presentation of each component of net income along with total net income and each component of other comprehensive income along with a total for other comprehensive income, either in a single continuous statement of comprehensive income or in two separate but consecutive statements; and (3) requires an entity to present reclassification adjustments on the face of the financial statements from other comprehensive income to net income. The amendments in this ASU do not change the items that must be reported in other comprehensive income or when an item of other comprehensive income must be reclassified to net income nor do the amendments affect how earnings per share is calculated or presented. In December 2011, the FASB issued ASU No. 2011-12, Deferral of the Effective Date for Amendments to the Presentation of Reclassifications of Items Out of Accumulated Other Comprehensive Income (ASU No. 2011-05), which defers the requirement within ASU 2011-05 to present on the face of the financial statements the effects of reclassifications out of accumulated other comprehensive income on the components of net income and other comprehensive income for all periods presented. During the deferral, entities should continue to report reclassifications out of accumulated other comprehensive income consistent with the presentation requirements in effect prior to the issuance of ASU 2011-05. These ASUs are required to be applied retrospectively and are effective for fiscal years, and interim periods within those years, beginning after December 15, 2011, which for us means January 1, 2012. As these accounting standards do not change the items that must be reported in other comprehensive income or when an item of other comprehensive income must be reclassified to net income, the adoption of these standards is not expected to have a material impact on our financial position or results of operations.
In May 2011, the FASB issued ASU No. 2011-04, Fair Value Measurement (Topic 820): Amendments to Achieve Common Fair Value Measurement and Disclosure Requirements in U.S. GAAP and IFRSs (ASU 2011-04). This newly issued accounting standard requires additional disclosures for the transfers between Level 1 and Level 2 of the fair value hierarchy and Level 3 fair value measurements. For Level 3 fair value measurements, these additional disclosures are required: (1) quantitative information about significant unobservable inputs used for all Level 3 measurements; (2) a qualitative discussion about the sensitivity of the fair value measurement to changes in the unobservable inputs and the interrelationship between inputs; and (3) a description of the entitys valuation process. This ASU is effective on a prospective basis for annual and interim reporting periods beginning on or after December 15, 2011, which for us means January 1, 2012. The adoption of this standard is not expected to have a material impact on our financial position or results of operations.
F-15
KRATON PERFORMANCE POLYMERS, INC.
Notes to Consolidated Financial Statements(Continued)
We account for share-based awards under the provisions of ASC 718, Share-Based Payment, which established the accounting for share-based awards exchanged for employee services. Accordingly, share-based compensation cost is measured at the grant date based on the fair value of the award and we expense these costs using the straight-line method over the requisite service period. Share-based compensation expense was approximately $5.5 million, $3.4 million and $1.4 million, net of tax effects of $0.0 million, $0.1 million, and $0.8 million, for the years ended December 31, 2011, 2010 and 2009, respectively. We record these costs in selling, general and administrative expenses. At December 31, 2011, there was approximately $6.7 million of unrecognized compensation expense related to nonvested option awards to be recognized over a weighted-average period of 2.68 years, and $3.8 million of unrecognized compensation expense related to restricted stock awards and restricted stock units expected to be recognized over a weighted-average period of 2.18 years.
Kraton Performance Polymers, Inc. 2009 Equity Incentive Plan. On November 30, 2009, our board of directors and our stockholders approved the Kraton Performance Polymers, Inc. Equity Incentive Plan (the Equity Plan) and on May 25, 2011, our board of directors and stockholders approved the amendment and restatement of the Equity Plan. The Equity Plan allows for the grant to key employees, independent contractors, and eligible non-employee directors of incentive stock options, non-qualified stock options (which together with the incentive stock options, are referred to herein as (Options)), stock appreciation rights, restricted stock awards and restricted stock unit awards, in addition to other equity or equity-based awards as our board determines from time to time.
Under this plan, there were 3,158,536 and 3,599,484 shares of common stock available for issuance as of December 31, 2011 and 2010, respectively. There are a total of 4,350,000 shares of common stock reserved for issuance. We awarded 129,328 and 22,202 shares of restricted stock to our employees, which are subject to a three-year cliff vesting, during the years ended December 31, 2011 and 2010, respectively. We issued 19,731 and 32,517 shares of restricted stock to members of the board of directors during the years ended December 31, 2011 and 2010, respectively, which vested on the grant date. We granted 432,155, 641,789 and 0 options to our employees during the years ended December 31, 2011, 2010 and 2009, respectively. These options have a ten year term and vest in equal installments over three or five years. The weighted-average grant-date fair value of options granted during the years ended December 31, 2011 and 2010 were $17.15 and $7.98, respectively.
Stock Option Activity
Option activities for the year ended December 31, 2011 are as follows:
Options |
Weighted
Average Exercise Price |
|||||||
(in thousands) | ||||||||
Outstanding at December 31, 2010 |
1,559 | $ | 14.31 | |||||
Granted |
432 | 35.95 | ||||||
Exercised |
556 | 13.57 | ||||||
Forfeited |
142 | 16.85 | ||||||
|
|
|||||||
Outstanding at December 31, 2011. |
1,293 | 21.57 | ||||||
|
|
|||||||
Exercisable at December 31, 2011 |
477 | $ | 13.94 | |||||
|
|
F-16
KRATON PERFORMANCE POLYMERS, INC.
Notes to Consolidated Financial Statements(Continued)
There were 555,619 and 644,185 options exercised during the years ended December 31, 2011 and 2010, respectively. The total intrinsic value of the options exercised was $11.3 million and $8.7 million for the years ended December 31, 2011 and 2010, respectively. No options were exercised in the year ended December 31, 2009.
The following table summarizes additional information regarding the outstanding and exercisable options at December 31, 2011.
Options |
Weighted
Average Exercise Price |
Aggregate
Intrinsic Value(1) |
Weighted
Average Remaining Contractual Term |
|||||||||||||
(in thousands) | (in thousands) | (in years) | ||||||||||||||
Outstanding options |
1,293 | $ | 21.57 | $ | 4,891 | 7.62 | ||||||||||
Exercisable options |
477 | $ | 13.94 | $ | 3,035 | 5.76 |
(1) | The intrinsic value of a stock option is the amount by which the market value of the underlying stock exceeds the exercise price of the option as of December 31, 2011. |
Weighted-Average Assumptions for Option Pricing
2011 | 2010 | 2009 | ||||||||||
Risk-free interest rate |
2.46 | % | 3.01 | % | n/a | |||||||
Expected dividend yield |
0 | % | 0.00 | % | n/a | |||||||
Expected volatility |
0.47 | 0.50 | n/a | |||||||||
Expected term |
6.0 years | 6.4 years | n/a |
Since our equity interests were privately held prior to our initial public offering, the estimated volatility is based on the historical volatility of similar companies stock that is publicly traded. Until such time we have enough publicly traded stock history, we will continue to estimate volatility of options granted based on the historical volatility of similar companies stock that is publicly traded. The expected term of options represents the period of time that options granted are expected to be outstanding. For all periods presented, we used the simplified method to calculate the expected term of options. The risk free interest rate for the periods within the contractual life of the option is based on the U.S. Treasury yield curve in effect at the time of grant. For all periods presented, the dividend yield is assumed to be zero based on historical and expected dividend activity.
We may grant time-vested restricted stock awards and time-vested restricted stock units to certain employees. Holders of restricted stock units do not have any beneficial ownership in the underlying restricted stock units and the grant represents an unsecured promise to deliver restricted stock on a future date. Actual stock units underlying the restricted stock units will not be issued until the earlier of a change in control or the termination of the grantees employment.
F-17
KRATON PERFORMANCE POLYMERS, INC.
Notes to Consolidated Financial Statements(Continued)
The following table represents the nonvested restricted stock awards and restricted stock units granted, vested and forfeited during 2011.
Shares |
Weighted-
average Grant-date Fair Value |
|||||||
(in thousands) | ||||||||
Nonvested shares at December 31,2010 |
118 | $ | 13.51 | |||||
Granted |
149 | 35.51 | ||||||
Vested |
35 | 23.66 | ||||||
Forfeited |
33 | 16.12 | ||||||
|
|
|||||||
Nonvested shares at December 31, 2011 |
199 | $ | 27.75 | |||||
|
|
The total fair value of shares vested during the years ended December 31, 2011 and 2010 was $0.8 million and $0.4 million, respectively.
4. Restructuring and Restructuring-related Costs
As part of our ongoing efforts to improve efficiencies and increase productivity, we have implemented a number of restructuring initiatives in recent years.
European Office Consolidation. In the third quarter of 2010, we consolidated our transactional functions as well as much of our European management to a new European central office in Amsterdam, the Netherlands. We completed this consolidation during the first quarter of 2011 and our aggregate total cost was $1.1 million and $4.6 million for the years ended December 31, 2011 and 2010, respectively. These restructuring charges were primarily comprised of employee severance, consulting expenses and other charges, which are recorded in selling, general and administrative expenses. The following is a summary of the activity associated with our European office consolidation.
Europe
Restructuring |
||||
(in thousands) | ||||
Accrued European office consolidation restructuring at December 31, 2009 |
$ | 0 | ||
Restructuring costs |
4,588 | |||
Payments |
(3,199 | ) | ||
|
|
|||
Accrued European office consolidation restructuring at December 31, 2010 |
$ | 1,389 | ||
Restructuring costs |
1,137 | |||
Payments |
(2,157 | ) | ||
|
|
|||
Accrued European office consolidation restructuring at December 31, 2011 |
$ | 369 | ||
|
|
Pernis Restructuring. We ceased production at our Pernis, the Netherlands, facility on December 31, 2009, where, prior to the exit, we manufactured isoprene rubber. In connection with the exit, in 2009 we incurred $3.9 million in ARO, $6.0 million in restructuring costs and a $1.1 million non-cash charge to write-down our inventory of spare parts. We recorded the ARO in depreciation and amortization and the restructuring costs and write-down of inventory in cost of goods sold.
F-18
KRATON PERFORMANCE POLYMERS, INC.
Notes to Consolidated Financial Statements(Continued)
5. Detail of Certain Balance Sheet Accounts
December 31, | ||||||||
2011 | 2010 | |||||||
(in thousands) | ||||||||
Inventories of products, net: |
||||||||
Finished products |
$ | 289,921 | $ | 252,056 | ||||
Work in progress |
5,048 | 4,319 | ||||||
Raw materials |
99,827 | 68,745 | ||||||
|
|
|
|
|||||
$ | 394,796 | $ | 325,120 | |||||
|
|
|
|
|||||
Property, plant and equipment: |
||||||||
Land |
$ | 11,021 | $ | 11,176 | ||||
Buildings |
43,135 | 39,111 | ||||||
Plant and equipment |
562,512 | 527,418 | ||||||
Construction in progress |
37,747 | 40,048 | ||||||
|
|
|
|
|||||
654,415 | 617,753 | |||||||
Less accumulated depreciation |
281,442 | 252,387 | ||||||
|
|
|
|
|||||
$ | 372,973 | $ | 365,366 | |||||
|
|
|
|
|||||
Identifiable intangible assets: |
||||||||
Cost: |
||||||||
Technology |
$ | 44,726 | $ | 44,726 | ||||
Customer relationships |
35,145 | 35,145 | ||||||
Tradenames/trademarks |
23,149 | 23,149 | ||||||
Software |
21,694 | 17,564 | ||||||
|
|
|
|
|||||
124,714 | 120,584 | |||||||
Accumulated amortization: |
||||||||
Technology |
$ | 23,924 | $ | 20,953 | ||||
Customer relationships |
18,798 | 16,463 | ||||||
Tradenames/trademarks |
12,403 | 10,862 | ||||||
Software |
3,405 | 1,845 | ||||||
|
|
|
|
|||||
58,530 | 50,123 | |||||||
|
|
|
|
|||||
$ | 66,184 | $ | 70,461 | |||||
|
|
|
|
Aggregate depreciation expense for property, plant and equipment was approximately $54.3 million, $41.8 million and $60.2 million for the years ended December 31, 2011, 2010 and 2009, respectively.
Aggregate amortization expense for intangible assets was approximately $8.4 million, $7.4 million and $6.6 million for the years ended December 31, 2011, 2010 and 2009, respectively. Estimated amortization expense for each of the next five years is approximately $9.1 million.
F-19
KRATON PERFORMANCE POLYMERS, INC.
Notes to Consolidated Financial Statements(Continued)
December 31, | ||||||||
2011 | 2010 | |||||||
(in thousands) | ||||||||
Other payables and accruals: |
||||||||
Employee related |
$ | 11,639 | $ | 17,807 | ||||
Income taxes payable |
12,254 | 7,258 | ||||||
Other |
27,360 | 35,717 | ||||||
|
|
|
|
|||||
$ | 51,253 | $ | 60,782 | |||||
|
|
|
|
|||||
Other long-term liabilities: |
||||||||
Pension |
$ | 74,304 | $ | 59,479 | ||||
Other |
9,354 | 4,763 | ||||||
|
|
|
|
|||||
$ | 83,658 | $ | 64,242 | |||||
|
|
|
|
|||||
Accumulated other comprehensive income (loss) consists of the following: |
||||||||
Foreign currency adjustments |
$ | 29,550 | $ | 50,401 | ||||
Net unrealized loss on interest rate swaps |
(809 | ) | (1,073 | ) | ||||
Net unrealized gain on investment hedge |
899 | 899 | ||||||
Pension liability |
(47,258 | ) | (29,332 | ) | ||||
|
|
|
|
|||||
$ | (17,618 | ) | $ | 20,895 | ||||
|
|
|
|
Basic earnings per share (EPS) is computed by dividing net income by the weighted-average number of common shares outstanding during the period.
Diluted EPS is computed by dividing net income by the diluted weighted-average number of common shares outstanding during the period and, accordingly, reflects the potential dilution that could occur if securities or other agreements to issue common stock, such as stock options, were exercised, settled or converted into common stock and were dilutive. The diluted weighted-average number of common shares used in our diluted EPS calculation is determined using the treasury stock method.
Unvested awards of share-based payments with rights to receive dividends or dividend equivalents, such as our restricted stock awards are considered to be participating securities and therefore the two-class method is used for purposes of calculating EPS. Under the two-class method, a portion of net income is allocated to these participating securities and therefore is excluded from the calculation of EPS allocated to common stock. Restricted stock awards outstanding totaled 199,615, 118,413 and 119,892 at December 31, 2011, 2010 and 2009, respectively. These shares are subject to forfeiture and restrictions on transfer until vested and have identical voting, income and distribution rights to the unrestricted common shares outstanding. Our weighted average restricted stock awards outstanding were 171,101, 127,237 and 35,758 for the years ended December 31, 2011, 2010 and 2009, respectively.
Restricted share units in the amount of 29,491, 35,098 and 137,229 and stock options in the amount of 1,292,751, 1,559,354 and 1,584,970 were outstanding at December 31, 2011, 2010 and 2009, respectively. For the years ended December 31, 2011 and 2010, our weighted average restricted share units outstanding were 31,089 and 35,098, respectively, and are included in the computation of our diluted EPS.
F-20
KRATON PERFORMANCE POLYMERS, INC.
Notes to Consolidated Financial Statements(Continued)
The computation of diluted earnings per share excludes the effect of the potential exercise of stock options that are anti-dilutive. The number of stock options excluded from the computation was 418,662, 150,000 and 1,584,970 for the years ended December 31, 2011, 2010 and 2009, respectively. Our weighted average restricted share units for the year ended December 31, 2009 were 78,197, which were excluded from our computation of diluted earnings per share as a result of the losses incurred for the year ended December 31, 2009.
The effects of share-based compensation awards on the diluted weighted- average number of shares outstanding used in calculating diluted EPS are as follows:
Year ended December 31, 2011 | ||||||||||||
Net
Income |
Weighted
Average Shares Outstanding |
Earnings
Per Share |
||||||||||
(in thousands, except per share data) | ||||||||||||
Basic: |
||||||||||||
As reported |
$ | 90,925 | 31,957 | |||||||||
Less: amounts allocated to unvested restricted shares |
(487 | ) | (171 | ) | ||||||||
|
|
|
|
|||||||||
Amounts available to common stockholders |
$ | 90,438 | 31,786 | $ | 2.85 | |||||||
Diluted: |
||||||||||||
Add: amounts allocated to unvested restricted shares |
487 | 171 | ||||||||||
Restricted share unitsnon participating |
31 | |||||||||||
Stock options added to the denominator under the treasury stock method |
392 | |||||||||||
Less: amounts reallocated to unvested restricted shares |
(480 | ) | (171 | ) | ||||||||
|
|
|
|
|||||||||
Amounts available to common stockholders and assumed conversions |
$ | 90,445 | 32,209 | $ | 2.81 | |||||||
|
|
|
|
|
|
Year ended December 31, 2010 | ||||||||||||
Net
Income |
Weighted
Average Shares Outstanding |
Earnings
Per Share |
||||||||||
(in thousands, except per share data) | ||||||||||||
Basic: |
||||||||||||
As reported |
$ | 96,725 | 30,952 | |||||||||
Less: amounts allocated to unvested restricted shares |
(396 | ) | (127 | ) | ||||||||
|
|
|
|
|||||||||
Amounts available to common stockholders |
$ | 96,329 | 30,825 | $ | 3.13 | |||||||
Diluted: |
||||||||||||
Add: amounts allocated to unvested restricted shares |
396 | 127 | ||||||||||
Restricted share unitsnon participating |
35 | |||||||||||
Stock options added to the denominator under the treasury stock method |
519 | |||||||||||
Less: amounts reallocated to unvested restricted shares |
(388 | ) | (127 | ) | ||||||||
|
|
|
|
|||||||||
Amounts available to common stockholders and assumed conversions |
$ | 96,337 | 31,379 | $ | 3.07 | |||||||
|
|
|
|
|
|
F-21
KRATON PERFORMANCE POLYMERS, INC.
Notes to Consolidated Financial Statements(Continued)
Year ended December 31, 2009 | ||||||||||||
Net
Income |
Weighted
Average Shares Outstanding |
Earnings
Per Share |
||||||||||
(in thousands, except per share data) | ||||||||||||
Basic: |
||||||||||||
As reported |
$ | (290 | ) | 19,844 | ||||||||
Less: amounts allocated to unvested restricted shares |
1 | (36 | ) | |||||||||
|
|
|
|
|||||||||
Amounts available to common stockholders |
$ | (289 | ) | 19,808 | $ | (0.01 | ) | |||||
Diluted: |
||||||||||||
Add: amounts allocated to unvested restricted shares |
(1 | ) | 36 | |||||||||
Restricted share unitsnon participating |
0 | |||||||||||
Stock options added to the denominator under the treasury stock method |
0 | |||||||||||
Less: amounts reallocated to unvested restricted shares |
1 | (36 | ) | |||||||||
|
|
|
|
|||||||||
Amounts available to common stockholders and assumed conversions |
$ | (289 | ) | 19,808 | $ | (0.01 | ) | |||||
|
|
|
|
|
|
On February 11, 2011, we refinanced our existing indebtedness by completing an offering of $250.0 million in aggregate principal amount of 6.75% senior notes due 2019 through an institutional private placement and entering into a $350.0 million senior secured credit agreement with a maturity date of February 11, 2016. The credit agreement provides for senior secured financing consisting of:
|
a $200.0 million senior secured revolving credit facility; |
|
a $150.0 million senior secured term loan facility; and |
|
an option to raise up to $125.0 million of incremental term loans or incremental revolving credit commitments. |
In connection with this refinancing we repaid in full all outstanding borrowings under our previously existing term and revolving loans. In addition, we purchased $151.0 million principal amount of our outstanding 8.125% senior notes through a tender offer and redeemed the remaining $12.0 million principal amount of these notes. We also redeemed the remaining $0.3 million outstanding principal amount of our 12% Discount Notes. In these notes to the consolidated financial statements, the loans made under the current or former revolving credit facility are referred to as the Revolving Loans, and the loans made under the current or former term loan facility are referred to as the Term Loans.
Long-term debt consists of the following:
December 31, | ||||||||
2011 | 2010 | |||||||
(in thousands) | ||||||||
Term loans |
$ | 142,500 | $ | 219,425 | ||||
6.75% unsecured notes |
250,000 | 0 | ||||||
12.0% discount notes |
0 | 250 | ||||||
8.125% notes |
0 | 170,000 | ||||||
8.125% notes held in treasury |
0 | (7,000 | ) | |||||
|
|
|
|
|||||
Total debt |
392,500 | 382,675 | ||||||
Less current portion of long-term debt |
7,500 | 2,304 | ||||||
|
|
|
|
|||||
Total long-term debt |
$ | 385,000 | $ | 380,371 | ||||
|
|
|
|
F-22
KRATON PERFORMANCE POLYMERS, INC.
Notes to Consolidated Financial Statements(Continued)
Senior Secured Credit Agreement. Kraton Polymers LLC is the borrower under our senior secured credit agreement effective as of February 11, 2011, which is unconditionally guaranteed by Kraton Performance Polymers, Inc. and the wholly-owned domestic subsidiaries of Kraton Polymers LLC, and is required to be guaranteed by all future direct and indirect material domestic subsidiaries. Borrowings under the Revolving Loans bear interest at a rate per annum equal to, at our option, either (a) a base rate determined by reference to the higher of (1) the federal funds rate plus 0.50% and (2) the prime rate of Bank of America, N.A., in each case plus a margin of 2.00% through December 31, 2011 and thereafter 1.75% to 2.25% depending on a consolidated net leverage ratio, or (b) a LIBOR rate determined by reference to the costs of funds for U.S. dollar deposits for the interest period relevant to such borrowing adjusted for certain additional costs plus a margin of 3.00% through December 31, 2011 and thereafter 2.75% to 3.25% depending on a consolidated net leverage ratio.
Borrowings under the Term Loans bear interest at a rate per annum equal to, at our option, either (a) a base rate determined by reference to the higher of (1) the federal funds rate plus 0.50% and (2) the prime rate of Bank of America, N.A., in each case plus a margin of 2.00% per annum, or (b) a LIBOR rate determined by reference to the costs of funds for U.S. dollar deposits for the interest period relevant to such borrowing adjusted for certain additional costs plus a margin of 3.00% per annum. The average effective interest rates, including debt issuance costs, on the Term Loans for the years ended December 31, 2011 and 2010 were 6.2% (4.0% excluding a $2.4 million write-off of debt issuance costs related to the term loan and a $1.0 million payment to exit an interest rate swap agreement related to the debt refinancing that occurred in the first quarter of 2011) and 3.8%, respectively.
In addition to paying interest on outstanding principal under the Revolving Loans and Term Loans, we are required to pay a commitment fee ranging from 0.50% to 0.75%, depending on our consolidated net leverage ratio, related to the unutilized commitments under the Revolving Loans, as well as pay customary letter of credit fees and agency fees.
6.75% Senior Notes due 2019. Kraton Polymers LLC and its wholly-owned financing subsidiary Kraton Polymers Capital Corporation issued $250.0 million aggregate principal amount of 6.75% senior notes that mature on March 1, 2019 pursuant to an indenture, dated as of February 11, 2011. The indenture provides that the notes are general unsecured, senior obligations and will be unconditionally guaranteed on a senior unsecured basis. We will pay interest on the notes at 6.75% per annum, semi-annually in arrears on March 1 and September 1. In June 2011, we completed a registered exchange offer for all of our outstanding 6.75% senior notes, which were not registered under the Securities Act of 1933, as amended, for an equal principal amount of our 6.75% senior notes, which have been registered under the Securities Act. The entire $250.0 million aggregate principal amount of the senior notes was tendered and exchanged in the exchange offer.
Debt Maturities . The principal payments on our outstanding total debt as of December 31, 2011, are as follows:
December 31: |
Principal
Payments |
|||
(in thousands) | ||||
2012 |
$ | 7,500 | ||
2013 |
$ | 11,250 | ||
2014 |
$ | 15,000 | ||
2015 |
$ | 108,750 | ||
Thereafter |
$ | 250,000 | ||
|
|
|||
Total debt |
$ | 392,500 | ||
|
|
F-23
KRATON PERFORMANCE POLYMERS, INC.
Notes to Consolidated Financial Statements(Continued)
As of December 31, 2011, we were in compliance with the applicable financial ratios and the other covenants for the senior secured credit facility and the indentures governing the 6.75% senior notes.
See Note 9 Financial Instruments and Credit Risk to the consolidated financial statements.
We capitalize the debt issuance costs related to issuing long-term debt and amortize these costs using the effective interest method, except for costs related to revolving debt, which are amortized using the straight-line method. We had net debt issuance costs of $13.7 million and $5.2 million (of which $2.6 million and $2.1 million were included in other current assets) as of December 31, 2011 and 2010, respectively. In connection with the refinancing of our indebtedness in the first quarter of 2011, we charged to interest expense approximately $4.2 million of unamortized debt issuance costs related to extinguished indebtedness and we capitalized $15.2 million of debt issuance costs related to the new indebtedness. We amortized $2.5 million (which excludes the $4.2 million of accelerated amortization), $2.1 million, and $4.1 million of debt issuance costs in the years ended 2011, 2010, and 2009, respectively.
9. Financial Instruments and Credit Risk
Financial Instruments
I nterest Rate Swap Agreements. Periodically, we enter into interest rate swap agreements to hedge or otherwise protect against interest rate fluctuations on a portion of our variable rate debt. These interest rate swap agreements are designated as cash flow hedges on the exposure of the variability of future cash flows.
In June 2011, we entered into a $75.0 million notional amount interest rate swap agreement with respect to a portion of our outstanding Term loans. This agreement was effective as of July 15, 2011 and matures on June 15, 2014. The interest rate swap agreement provides for a fixed rate of 1.0%; therefore, including the current 3.0% margin on our Term Loan, our current hedged fixed rate is 4.0%. We recorded an unrealized loss of $0.8 million in accumulated other comprehensive income (loss) related to the effective portion of this interest rate swap for the year ended December 31, 2011.
In June 2010, we entered into a $215.0 million notional amount interest rate swap agreement. This agreement was effective on January 3, 2011 and was set to expire on January 3, 2012. However, on February 10, 2011, in connection with the refinancing of our previously existing indebtedness, we terminated and settled the interest rate swap agreement, and as a result, recognized $1.0 million of interest expense.
In May 2009, we entered into a $310 million notional amount interest rate swap agreement. This agreement was effective on January 4, 2010 and expired on January 3, 2011 and had a fixed rate of 1.53%; therefore, including the margin of 2.00% on the previously existing term loan agreement, our hedged fixed rate was 3.53%. In December 2009, we made a $100.0 million payment of outstanding indebtedness under the Term Loans reducing the principal amount outstanding from approximately $323.0 million to $223.0 million. As a result, we were required to discontinue hedge accounting prospectively as the hedging relationship failed to meet all of the criteria set forth in ASC 815, Derivatives and Hedging specifically the notional amount of the swap and the principal amount of the debt were no longer equal and the forecasted transaction was no longer probable of occurring based on the original hedge documentation. During 2010, we elected to re-designate the cash flow hedge relationship for approximately $218.0 million notional amount out of the total $310.0 million notional amount interest rate swap agreement. Interest expense of $3.1 million and $0.8 million were recorded in the Consolidated Statements of Operations for the ineffective portion of the hedge for the years ended December 31, 2010 and 2009, respectively. Additionally, we recorded a gain of $2.1 million as a component of accumulated other comprehensive income (loss) for the effective portion of the hedge for the year ended December 31, 2010.
F-24
KRATON PERFORMANCE POLYMERS, INC.
Notes to Consolidated Financial Statements(Continued)
Net Investment Hedges. In May 2010, we entered into multiple non-deliverable forward contracts to reduce our exposure to fluctuations in the Brazilian Real to the U.S. dollar associated with the funding of the debottleneck and expansion of our IRL capacity at our Paulina, Brazil, facility, for the notional amounts of R$2.7 million, R$7.1 million, and R$7.8 million with expiration dates of June 30, September 30, and December 31, 2010, respectively. The non-deliverable forward contracts qualified for hedge accounting and were designated as net investment hedges in accordance with ASC 815-35 Net Investment Hedges. We recorded a $0.9 million gain in accumulated other comprehensive income (loss) related to the effective portion of the hedge for the year ended December 31, 2010.
Foreign Currency Hedges. Periodically, we enter into foreign currency agreements to hedge or otherwise protect against fluctuation in foreign currency exchange rates. These typically do not qualify for hedge accounting and gains/losses resulting from both the up-front premiums and/or settlement of the hedges at expiration of the agreements are recognized in the period in which they are incurred. In the fourth quarter of 2011, we entered into four foreign currency option contracts to reduce our exposure to fluctuations in the Euro to U.S. dollar exchange rate. The option contracts were structured such that underlying foreign exchange gains/losses would be offset by the mark-to-market impact of the hedging instruments and reduce the impact of foreign exchange volatility. The option contracts did not qualify for hedge accounting. We settled these hedges and recorded an aggregate loss of $1.7 million, which offset underlying foreign exchange gains and were recorded in selling, general, and administrative expenses.
Fair Value of Financial Instruments. ASC 820, Fair Value Measurements and Disclosures defines fair value, establishes a consistent framework for measuring fair value and expands disclosure requirements about fair value measurements. ASC 820 requires entities to, among other things, maximize the use of observable inputs and minimize the use of unobservable inputs when measuring fair value.
ASC 820 defines fair value as the exchange price that would be received for an asset or paid to transfer a liability (an exit price) in the principal or most advantageous market for the asset or liability in an orderly transaction between market participants on the measurement date.
ASC 820 specifies a hierarchy of valuation techniques based on whether the inputs to those valuation techniques are observable or unobservable. Observable inputs reflect market data obtained from independent sources, while unobservable inputs reflect our market assumptions. In accordance with ASC 820, these two types of inputs have created the following fair value hierarchy:
|
Level 1Quoted unadjusted prices for identical instruments in active markets. |
|
Level 2Quoted prices for similar instruments in active markets; quoted prices for identical or similar instruments in markets that are not active; and model-derived valuations in which all significant inputs and significant value drivers are observable in active markets. |
|
Level 3Model-derived valuations in which one or more significant inputs or significant value drivers are unobservable. |
F-25
KRATON PERFORMANCE POLYMERS, INC.
Notes to Consolidated Financial Statements(Continued)
The following table presents the carrying values and approximate fair values of our long-term debt at December 31, 2011 and December 31, 2010:
December 31, 2011 | December 31, 2010 | |||||||||||||||
Carrying
Value |
Fair
Value |
Carrying
Value |
Fair
Value |
|||||||||||||
(in thousands) | ||||||||||||||||
Term Loans |
$ | 142,500 | $ | 142,500 | $ | 219,425 | $ | 219,425 | ||||||||
6.75% unsecured notes |
$ | 250,000 | $ | 234,063 | $ | 0 | $ | 0 | ||||||||
12.00% discount notes |
$ | 0 | $ | 0 | $ | 250 | $ | 324 | ||||||||
8.125% notes |
$ | 0 | $ | 0 | $ | 163,000 | $ | 164,630 | ||||||||
8.125% notes held as treasury bonds |
$ | 0 | $ | 0 | $ | 7,000 | $ | 7,070 |
The Term Loans are variable interest rate instruments, and as such, the fair value approximates their carrying value.
The financial assets and liabilities measured at fair value on a recurring basis are included below:
Fair Value Measurements at Reporting Date Using | ||||||||||||||||||||
Balance Sheet Location | December 31, 2011 |
Quoted Prices
in Active Markets for Identical Assets (Level 1) |
Significant
Other Observable Inputs (Level 2) |
Significant
Unobservable Inputs (Level 3) |
||||||||||||||||
(in thousands) | ||||||||||||||||||||
Derivative liability2011 interest rate swap |
Other payables and accruals | $ | 434 | $ | 0 | $ | 434 | $ | 0 | |||||||||||
Derivative liability2011 interest rate swap |
Other long-term liabilities | 375 | 0 | 375 | 0 | |||||||||||||||
|
|
|
|
|
|
|
|
|||||||||||||
Total |
$ | 809 | $ | 0 | $ | 809 | $ | 0 | ||||||||||||
|
|
|
|
|
|
|
|
Fair Value Measurements at Reporting Date Using | ||||||||||||||||||||
Balance Sheet Location | December 31, 2010 |
Quoted Prices
in Active Markets for Identical Assets (Level 1) |
Significant
Other Observable Inputs (Level 2) |
Significant
Unobservable Inputs (Level 3) |
||||||||||||||||
(in thousands) | ||||||||||||||||||||
Derivative liabilities2009 interest rate swap |
Other payables and accruals | $ | 362 | $ | 0 | $ | 362 | $ | 0 | |||||||||||
Derivative liabilities2010 interest rate swap |
Other payables and accruals | 1,073 | 0 | 1,073 | 0 | |||||||||||||||
|
|
|
|
|
|
|
|
|||||||||||||
Total |
$ | 1,435 | $ | 0 | $ | 1,435 | $ | 0 | ||||||||||||
|
|
|
|
|
|
|
|
The use of derivatives creates exposure to credit risk relating to potential losses that could be recognized in the event that the counterparties to these instruments fail to perform their obligations under the contracts. We minimize this risk by limiting our counterparties to major financial institutions with acceptable credit ratings and monitoring positions with individual counterparties. In the event of a default by one of our counterparties, we may not receive payments provided for under the terms of our derivatives.
Credit Risk. Our customers are diversified by industry and geography with more than 800 customers in over 60 countries and as a result, we do not have material concentrations of credit risk. We analyze the counterparties financial condition prior to extending credit and we establish credit limits and monitor the appropriateness of those limits on an ongoing basis. We also obtain cash, letters of credit or other acceptable forms of security from customers to provide credit support, where appropriate, based on our financial analysis of the customer and the contractual terms and conditions applicable to each transaction.
F-26
KRATON PERFORMANCE POLYMERS, INC.
Notes to Consolidated Financial Statements(Continued)
Income taxes are recorded utilizing an asset and liability approach. This method gives consideration to the future tax consequences associated with the differences between the financial accounting and tax basis of the assets and liabilities as well as the ultimate realization of any deferred tax asset resulting from such differences.
Our income tax expense was $0.6 million and $15.1 million for the years ended December 31, 2011 and 2010, respectively. Our effective tax rates for the years ended December 31, 2011 and 2010 were 0.6% and 13.5%, respectively. Our effective tax rates were lower than the U.S. statutory tax rate of 35.0% primarily due to the mix of pre-tax income earned in foreign jurisdictions and the partial release of our valuation allowance during these periods. Excluding the release of our valuation allowance, our effective tax rates would have been 19.5% and 33.9% for the years ended December 31, 2011 and 2010, respectively.
The expense (benefit) for income taxes is comprised of the following:
Years ended December 31, | ||||||||||||
2011 | 2010 | 2009 | ||||||||||
(in thousands) | ||||||||||||
Current tax provision: |
||||||||||||
U.S. |
$ | 228 | $ | 690 | $ | 422 | ||||||
Foreign |
10,817 | 8,054 | 8,239 | |||||||||
|
|
|
|
|
|
|||||||
Total current tax provision |
11,045 | 8,744 | 8,661 | |||||||||
|
|
|
|
|
|
|||||||
Deferred tax provision: |
||||||||||||
U.S. |
(9,211 | ) | 0 | (285 | ) | |||||||
Foreign |
(1,250 | ) | 6,389 | (9,743 | ) | |||||||
|
|
|
|
|
|
|||||||
Total deferred tax provision |
(10,461 | ) | 6,389 | (10,028 | ) | |||||||
|
|
|
|
|
|
|||||||
Total income tax expense (benefit) |
$ | 584 | $ | 15,133 | $ | (1,367 | ) | |||||
|
|
|
|
|
|
Income (loss) before income taxes is comprised of the following:
Years ended December 31, | ||||||||||||
2011 | 2010 | 2009 | ||||||||||
(in thousands) | ||||||||||||
Income (loss) before income taxes: |
||||||||||||
U.S. |
$ | 5,860 | $ | 55,350 | $ | 9,656 | ||||||
Foreign |
85,649 | 56,508 | (11,313 | ) | ||||||||
|
|
|
|
|
|
|||||||
Total income (loss) before income taxes |
$ | 91,509 | $ | 111,858 | $ | (1,657 | ) | |||||
|
|
|
|
|
|
F-27
KRATON PERFORMANCE POLYMERS, INC.
Notes to Consolidated Financial Statements(Continued)
The income tax expense (benefit) differs from the amount computed by applying the U.S. statutory income tax rate to income (loss) before income taxes for the reasons set forth below:
Years ended December 31, | ||||||||||||
2011 | 2010 | 2009 | ||||||||||
(in thousands) | ||||||||||||
Income taxes at the statutory rate |
$ | 32,028 | $ | 39,153 | $ | (580 | ) | |||||
Foreign tax rate differential |
(13,683 | ) | (4,261 | ) | (97 | ) | ||||||
State taxes, net of federal benefit |
84 | 52 | (225 | ) | ||||||||
Permanent differences |
(1,552 | ) | 648 | (832 | ) | |||||||
Differences in foreign earnings remitted |
0 | 0 | 4,165 | |||||||||
Tax benefit related to foreign losses |
0 | 0 | (2,597 | ) | ||||||||
Tax credits |
(140 | ) | (610 | ) | (122 | ) | ||||||
Uncertain tax positions |
(1,083 | ) | 2,413 | 55 | ||||||||
Valuation allowance |
(17,303 | ) | (22,834 | ) | (945 | ) | ||||||
Other |
2,233 | 572 | (189 | ) | ||||||||
|
|
|
|
|
|
|||||||
Income tax expense (benefit) |
$ | 584 | $ | 15,133 | $ | (1,367 | ) | |||||
|
|
|
|
|
|
Years ended December 31, | ||||||||||||
2011 | 2010 | 2009 | ||||||||||
Income taxes at the statutory rate |
35.0 | % | 35.0 | % | 35.0 | % | ||||||
Foreign tax rate differential |
(15.0 | ) | (3.8 | ) | 5.9 | |||||||
State taxes, net of federal benefit |
0.1 | 0.0 | 13.6 | |||||||||
Permanent differences |
(1.7 | ) | 0.6 | 50.2 | ||||||||
Differences in foreign earnings remitted |
0.0 | 0.0 | (251.4 | ) | ||||||||
Tax benefit related to foreign losses |
0.0 | 0.0 | 156.7 | |||||||||
Tax credits |
(0.2 | ) | (0.6 | ) | 7.4 | |||||||
Uncertain tax positions |
(1.2 | ) | 2.2 | (3.3 | ) | |||||||
Valuation allowance |
(18.9 | ) | (20.4 | ) | 57.0 | |||||||
Other |
2.5 | 0.5 | 11.4 | |||||||||
|
|
|
|
|
|
|||||||
Effective tax rate |
0.6 | % | 13.5 | % | 82.5 | % | ||||||
|
|
|
|
|
|
F-28
KRATON PERFORMANCE POLYMERS, INC.
Notes to Consolidated Financial Statements(Continued)
Deferred income taxes reflect the net tax effects of temporary differences between the carrying amount of assets and liabilities for financial reporting purposes and the amounts used for income tax purposes, as well as net operating loss and tax credit carryforwards. The tax effects of temporary differences that gave rise to significant components of deferred tax assets and liabilities are as follows:
December 31, | ||||||||
2011 | 2010 | |||||||
(in thousands) | ||||||||
Deferred tax assets: |
||||||||
Net operating loss carryforwards |
$ | 93,254 | $ | 104,254 | ||||
Inventory |
12,477 | 11,208 | ||||||
Pension accrual |
20,969 | 17,659 | ||||||
Other accruals and reserves |
8,202 | 6,130 | ||||||
|
|
|
|
|||||
134,902 | 139,251 | |||||||
Valuation allowance for deferred tax assets |
(54,227 | ) | (66,444 | ) | ||||
|
|
|
|
|||||
Total deferred tax assets |
$ | 80,675 | $ | 72,807 | ||||
|
|
|
|
|||||
Deferred tax liabilities: |
||||||||
Property, plant and equipment |
$ | (79,968 | ) | $ | (81,756 | ) | ||
Identifiable intangibles |
(4,781 | ) | (3,502 | ) | ||||
Exchange rate differences |
0 | (2,233 | ) | |||||
|
|
|
|
|||||
Total deferred tax liabilities |
(84,749 | ) | (87,491 | ) | ||||
|
|
|
|
|||||
Net deferred tax liabilities |
$ | (4,074 | ) | $ | (14,684 | ) | ||
|
|
|
|
December 31 | ||||||||
2011 | 2010 | |||||||
(in thousands) | ||||||||
Net deferred tax liabilities consist of: |
||||||||
Current deferred tax assets |
$ | 34,624 | $ | 20,354 | ||||
Non-current deferred tax assets |
115,611 | 122,910 | ||||||
Current deferred tax liabilities |
(32,484 | ) | (20,949 | ) | ||||
Non-current deferred tax liabilities |
(121,825 | ) | (136,999 | ) | ||||
|
|
|
|
|||||
Net deferred tax liabilities |
$ | (4,074 | ) | $ | (14,684 | ) | ||
|
|
|
|
As of December 31, 2011, we had $254.3 million of net operating loss carryforwards, of which $65.7 million relates to foreign jurisdictions and $188.6 million relates to the United States, which will expire in 2024, 2025, 2026 and 2027, if not utilized. We expect to generate sufficient taxable income in future years that will allow utilization of the portion of the net operating loss carryforwards for which no valuation allowance has been provided.
As of December 31, 2011 and 2010, a valuation allowance of $54.2 million and $66.4 million, respectively, has been provided for net operating loss carryforwards and other deferred tax assets in certain jurisdictions. We record a valuation allowance when it is more likely than not that some portion or all of the deferred tax assets will not be realized. For the year ended December 31, 2011, we have recorded changes in the valuation allowance for deferred tax assets as a result of our assessed ability to realize the tax benefit of our net operating loss carryforwards in the United States and France. We reduced our valuation allowance by $12.2 million in 2011 of which $17.3 million represents the benefit of utilizing net operating losses in 2011 and the assessment of the
F-29
KRATON PERFORMANCE POLYMERS, INC.
Notes to Consolidated Financial Statements(Continued)
ability to utilize net operating losses in future periods partially offset by a $5.1 million increase in our valuation allowance to account for changes in other comprehensive income. We consider the reversal of deferred tax liabilities within the net operating loss carryforward period, projected future taxable income and tax planning strategies in making this assessment.
For the period ending December 31, 2011, the unremitted earnings of our foreign subsidiaries are permanently reinvested in the corresponding country of origin. Accordingly, we have not provided deferred taxes for the differences between the book basis and underlying tax basis in those subsidiaries or on the foreign currency translation adjustment amounts related to such operations.
We file income tax returns in the U.S. federal jurisdiction and in various state and foreign jurisdictions. For our U.S. federal income tax returns, the statute of limitations has expired through the tax year ended December 31, 2003. As a result of net operating loss carryforwards from 2004, the statute remains open for all years subsequent to 2003. In addition, open tax years for state and foreign jurisdictions remain subject to examination.
We are currently under review by the Internal Revenue Service for our 2009 U.S. federal income tax return. The outcome of this review cannot be predicted with accuracy at this time. However, we do not expect the final resolution of this matter to have a material impact on our financial position or results of operations.
We recognize the tax impact of certain tax positions only when it is more likely than not that such positions are sustainable. The taxes are recorded in accordance with ASC 740-10, Accounting for Uncertainty in Income Taxes , which prescribes the minimum recognition threshold.
As of January 1, 2011, we had total unrecognized tax benefits of approximately $3.7 million. During the year ended December 31, 2011, we had a decrease in uncertain tax positions of $3.0 million due to the settlement of our Netherlands tax audit and an increase of $2.1 million primarily related to uncertain tax positions in Europe. We recorded interest and penalties related to unrecognized tax benefits within the provision for income taxes. As of December 31, 2011, we had $2.8 million of unrecognized tax benefits related to uncertain foreign tax positions, all of which, if recognized, would impact the effective tax rate. We believe that no current tax positions that have resulted in unrecognized tax benefits will significantly increase or decrease within one year.
The following presents a rollforward of our unrecognized tax benefits and associated interest and penalties.
Unrecognized
Tax Benefits |
Interest and
Penalties |
Total | ||||||||||
(in thousands) | ||||||||||||
Balance at December 31, 2009 |
$ | 1,155 | $ | 121 | $ | 1,276 | ||||||
Decrease in prior year tax positions |
(1,155 | ) | (121 | ) | (1,276 | ) | ||||||
Increase in prior year tax positions |
3,689 | 0 | 3,689 | |||||||||
|
|
|
|
|
|
|||||||
Balance at December 31, 2010 |
$ | 3,689 | $ | 0 | $ | 3,689 | ||||||
Decrease in prior year tax positions |
(3,040 | ) | 0 | (3,040 | ) | |||||||
Increase in prior year tax positions |
370 | 18 | 388 | |||||||||
Increase in current year tax positions |
1,773 | 0 | 1,773 | |||||||||
|
|
|
|
|
|
|||||||
Balance at December 31, 2011 |
$ | 2,792 | $ | 18 | $ | 2,810 | ||||||
|
|
|
|
|
|
F-30
KRATON PERFORMANCE POLYMERS, INC.
Notes to Consolidated Financial Statements(Continued)
11. Commitments and Contingencies
(a) Lease Commitments
We have entered into various long-term non-cancelable operating leases. Future minimum lease commitments at December 31, 2011, are as follows: 2012$11.2 million; 2013$6.2 million; 2014$5.1 million, 2015$4.9 million, 2016$4.2 million and 2017 and thereafter$18.4 million. For the years ended December 31, 2011, 2010, and 2009, we recorded $9.7 million, $6.6 million, and $4.1 million in rent expense, respectively.
(b) Environmental and Safety Matters
Our finished products are not generally classified as hazardous under U.S. environmental laws. However, our operations involve the handling, transportation, treatment, and disposal of potentially hazardous materials that are extensively regulated by environmental, health and safety laws, regulations and permit requirements. Environmental permits required for our operations are subject to periodic renewal and can be revoked or modified for cause or when new or revised environmental requirements are implemented. Changing and increasingly strict environmental requirements can affect the manufacturing, handling, processing, distribution and use of our chemical products and the raw materials used to produce such products and, if so affected, our business and operations may be materially and adversely affected. In addition, changes in environmental requirements can cause us to incur substantial costs in upgrading or redesigning our facilities and processes, including waste treatment, disposal, and other waste handling practices and equipment.
We conduct environmental management programs designed to maintain compliance with applicable environmental requirements at all of our facilities. We routinely conduct inspection and surveillance programs designed to detect and respond to leaks or spills of regulated hazardous substances and to correct identified regulatory deficiencies. However, a business risk inherent with chemical operations is the potential for personal injury and property damage claims from employees, contractors and their employees, and nearby landowners and occupants. While we believe our business operations and facilities generally are operated in compliance, in all material respects, with all applicable environmental and health and safety requirements, we cannot be sure that past practices or future operations will not result in material claims or regulatory action, require material environmental expenditures, or result in exposure or injury claims by employees, contractors and their employees, and the public. Some risk of environmental costs and liabilities are inherent in our operations and products, as it is with other companies engaged in similar businesses.
Our Paulinia, Brazil and Belpre, Ohio facilities are subject to a number of actual and/or potential environmental liabilities primarily relating to contamination caused by former operations at those facilities. Some environmental laws could impose on us the entire costs of cleanup regardless of fault, legality of the original disposal, or ownership of the disposal site. In some cases, the governmental entity with jurisdiction could seek an assessment for damage to the natural resources caused by contamination from those sites. Shell Chemicals has agreed, subject to certain limitations, in time and amounts, to indemnify us against most environmental liabilities related to the acquired facilities that arise from conditions existing prior to the closing.
We had no material operating expenditures for environmental fines, penalties, government imposed remedial or corrective actions in each of the years ended December 31, 2011, 2010, and 2009.
F-31
KRATON PERFORMANCE POLYMERS, INC.
Notes to Consolidated Financial Statements(Continued)
(c) Asset Retirement Obligations
In 2011, the U.S. Environmental Protection Agency (EPA) issued new maximum achievable control technology (MACT) standards for controlling hazardous air emissions from industrial boilers. The Boiler MACT standards are required under Sections 112 of the Clean Air Act. The Boiler MACT rule applies to the coal-burning boilers at our Belpre, Ohio, facility. The final rule was published in the Federal Register on March 21, 2011 and was to have become effective 60 days later on May 20, 2011, if it was not otherwise changed or delayed. On May 16, 2011, the EPA announced a stay and reconsideration of the Boiler MACT rule and established a new comment period, which was open until July 15, 2011, in order to allow the EPA to continue to seek additional public comment before proposing a revised Boiler MACT rule. In December 2011, the EPA proposed a reconsidered Boiler MACT rule in lieu of the March 2011 version that was subject to a 60-day comment period. Litigation against the EPA by environmental interest groups resulted in the EPAs delay notice being vacated by the Federal court in January 2012.
For the year ended December 31, 2011, we incurred approximately $0.9 million for capital expenditures necessary to comply with the Boiler MACT rule. We also accelerated the depreciation of the coal-burning boilers (net book value of $12.8 million as of January 31, 2011) by changing the remaining useful lives from 128 months to 36 months such that these assets will be fully depreciated by January 2014. For the year ended December 31, 2011, we recorded depreciation expense associated with our existing coal-burning boilers of $4.0 million, of which $2.8 million related to accelerated depreciation. In addition, we also recorded $1.5 million of depreciation expense associated with the ARO. We recorded an ARO of $5.0 million in the year ended December 31, 2011 related to replacing the existing coal-burning boilers at Belpre with new boilers fired primarily with natural gas and distillate fuel oil.
Our ARO as of December 31, 2011 includes AROs for our Berre, France, Wesseling, Germany, and Houston, Texas (Shell Westhollow Technology Center) facilities. Approximately $5.2 million is related to Belpre, $1.9 million to Wesseling, $1.3 million to Berre and $0.6 million to Westhollow.
The changes in the aggregate carrying amount of our ARO liability are as follows:
|
||||||||
2011 | 2010 | |||||||
(in thousands) | ||||||||
Asset Retirement Obligations: |
||||||||
Beginning balance |
$ | 3,378 | $ | 4,171 | ||||
Additional accruals |
5,553 | 3,024 | ||||||
Accretion expense |
441 | 57 | ||||||
Obligations settled |
0 | (2,583 | ) | |||||
Revisions in estimated cash flows |
(394 | ) | (1,291 | ) | ||||
|
|
|
|
|||||
Ending balance |
$ | 8,978 | $ | 3,378 | ||||
|
|
|
|
(d) Legal Proceedings
Kraton and LyondellBasell have negotiated and concluded the terms of an agreed arbitration proceeding (to take place in London, England) to determine the ongoing effect of a multi-year term sheet that had been reached between the parties and put into effect in January 2009, covering certain terms and conditions applicable to operations and butadiene sales by LyondellBasell (for and to Kraton) at Berre, France and Wesseling, Germany. The parties had been dealing with one another in accordance with the term sheet from January 2009 until
F-32
KRATON PERFORMANCE POLYMERS, INC.
Notes to Consolidated Financial Statements(Continued)
LyondellBasell notified Kraton on September 9, 2010 that LyondellBasell would no longer be governed by the term sheet. Since receiving the September 9, 2010 notice, Kraton has been paying an increased net amount to LyondellBasell on a monthly basis (under protest) to reflect the pre-term sheet arrangements between the parties.
The outcome of the arbitration cannot be predicted with accuracy at this time. However, we do not believe it is probable that LyondellBasell will prevail in the arbitration, and we do not expect the final resolution of this matter to have a material impact on our ongoing business or operations. For the year ended December 31, 2011, we recognized $5.7 million, on a pre-tax basis, to cost of goods sold for the net excess payments to LyondellBasell.
In 2011, we were notified by the tax authorities in France that we owed an additional 6.9 million related to the 2009 tax year. The tax authorities claim that we did not timely file forms that serve to cap taxes for 2009. We believe that all such forms were timely filed and we are otherwise in compliance with all filing requirements, and we are owed a refund of 0.3 million. While the outcome of this proceeding cannot be predicted with certainty, we do not expect this matter to have a material adverse effect upon our financial position, results of operations or cash flows.
We and certain of our subsidiaries, from time to time, are parties to various other legal proceedings, claims and disputes that have arisen in the ordinary course of business. These claims may involve significant amounts, some of which would not be covered by insurance. While the outcome of these proceedings cannot be predicted with certainty, our management does not expect any of these other existing matters, individually or in the aggregate, to have a material adverse effect upon our financial position, results of operations or cash flows. Furthermore, Shell Chemicals has agreed, subject to certain limitations, to indemnify us for certain claims brought with respect to matters occurring before February 28, 2001. As of the date of this Form 10-K, we have not been named as parties in any of these claims. Our right to indemnification from Shell Chemicals is subject to certain time limitations. A substantial settlement payment or judgment in excess of our accruals could have a material adverse effect on our financial position, results of operations or cash flows.
(a) U.S. Retirement Benefit Plan. We have a U.S. noncontributory defined benefit pension plan (Pension Plan) which covers all salaried and hourly wage employees in the United States, who were employed by us on or before December 31, 2005. Employees who began their employment with us after December 31, 2005 are not covered by our Pension Plan. The benefits under the Pension Plan are based primarily on years of service and employees pay near retirement. For our employees who were employed as of March 1, 2001 and who: (1) were previously employed by Shell Chemicals; and (2) elected to transfer their pension assets to us, we consider the total combined Shell Chemicals and Kraton service when calculating the employees pension benefit. For those employees who: (1) elected to retire from Shell Chemicals; or (2) elected not to transfer their pension benefit, only Kraton service (since March 1, 2001) is considered when calculating benefits.
The 2011 measurement date of the Pension Plans assets and obligations was December 31, 2011. Based on the funded status of our defined benefit pension plan as of December 31, 2011, we reported a decrease in our accumulated other comprehensive income (loss) of approximately $15.7 million and a related increase in accrued pension obligations.
F-33
KRATON PERFORMANCE POLYMERS, INC.
Notes to Consolidated Financial Statements(Continued)
Information concerning the pension obligation, plan assets, amounts recognized in our financial statements and underlying actuarial and other assumptions are as follows:
December 31, | ||||||||
2011 | 2010 | |||||||
(in thousands) | ||||||||
Change in benefit obligation: |
||||||||
Benefit obligation at beginning of year |
$ | 91,322 | $ | 76,889 | ||||
Service cost |
2,605 | 2,285 | ||||||
Interest cost |
5,135 | 4,863 | ||||||
Benefits paid |
(2,814 | ) | (2,489 | ) | ||||
Actuarial (gain) loss |
15,700 | 9,774 | ||||||
|
|
|
|
|||||
Benefit obligation at end of year |
$ | 111,948 | $ | 91,322 | ||||
|
|
|
|
|||||
Change in plan assets: |
||||||||
Fair value at beginning of year |
$ | 58,223 | $ | 50,321 | ||||
Actual return on plan assets |
4,368 | 7,079 | ||||||
Employer contributions |
7,400 | 3,312 | ||||||
Benefits paid |
(2,814 | ) | (2,489 | ) | ||||
|
|
|
|
|||||
Fair value at end of year |
$ | 67,177 | $ | 58,223 | ||||
|
|
|
|
|||||
Funded status at end of year |
$ | (44,771 | ) | $ | (33,099 | ) | ||
|
|
|
|
|||||
Amounts recognized on balance sheet: |
||||||||
Noncurrent liabilities |
$ | (44,771 | ) | $ | (33,099 | ) | ||
|
|
|
|
|||||
Amounts recognized in accumulated other comprehensive income (loss): |
||||||||
Prior service cost |
$ | 0 | $ | 0 | ||||
Net actuarial loss |
36,170 | 20,515 | ||||||
|
|
|
|
|||||
$ | 36,170 | $ | 20,515 | |||||
|
|
|
|
The accumulated benefit obligation for the Pension Plan was $101.9 million and $83.0 million at December 31, 2011, and 2010, respectively.
We expect to contribute $9.8 million to our Pension Plan in 2012.
Estimated Future Benefit Payments.
The following benefit payments, which reflect expected future service, as appropriate, are expected to be paid:
(in thousands) | ||||
2012 |
2,876 | |||
2013 |
3,118 | |||
2014 |
3,444 | |||
2015 |
3,795 | |||
2016 |
4,239 | |||
Years 2017-2021 |
28,432 | |||
|
|
|||
$ | 45,904 | |||
|
|
F-34
KRATON PERFORMANCE POLYMERS, INC.
Notes to Consolidated Financial Statements(Continued)
Net periodic pension costs consist of the following components:
Years ended December 31, | ||||||||||||
2011 | 2010 | 2009 | ||||||||||
(in thousands) | ||||||||||||
Service cost benefits earned during the period |
$ | 2,605 | $ | 2,285 | $ | 2,813 | ||||||
Interest on prior years projected benefit obligation |
5,135 | 4,863 | 4,690 | |||||||||
Expected return on plan assets |
(5,239 | ) | (4,845 | ) | (4,680 | ) | ||||||
Amortization of net actuarial (gain)/loss |
916 | 0 | 514 | |||||||||
|
|
|
|
|
|
|||||||
Net periodic pension costs |
$ | 3,417 | $ | 2,303 | $ | 3,337 | ||||||
|
|
|
|
|
|
Discount rates are determined annually and are based on rates of return of high-quality long-term fixed income securities currently available and expected to be available during the maturity of the pension benefits.
December 31, | ||||||||
2011 | 2010 | |||||||
Weighted average assumptions used to determine benefit obligations: |
||||||||
Measure date |
12/31/2011 | 12/31/2010 | ||||||
Discount rate |
4.83 | % | 5.68 | % | ||||
Rates of increase in salary compensation level |
3.00 | % | 3.00 | % | ||||
Weighted average assumptions used to determine net periodic benefit cost : |
||||||||
Discount rate |
5.68 | % | 6.38 | % | ||||
Rates of increase in salary compensation level |
3.00 | % | 3.00 | % | ||||
Expected long-term rate of return on plan assets |
8.50 | % | 8.50 | % |
Our management relied in part on actuarial studies in establishing the expected long-term rate of return on assets assumption. The study includes a review of anticipated future long-term performance of individual asset classes and consideration of the appropriate asset allocation strategy given the anticipated requirements of the Pension Plan to determine the average rate of earnings expected on the funds invested to provide for the Pension Plan benefits. While the study gives appropriate consideration to recent fund performance and historical returns, the assumption is primarily a long-term, prospective rate. Based on our most recent study, the expected long-term return assumption for our Pension Plan effective for 2012 will remain at 8.5%.
Pension Plan Assets. We maintain target allocation percentages among various asset classes based on an investment policy established for the pension plan. The target allocation is designed to achieve long term objectives of return, while mitigating against downside risk and considering expected cash flows. The plans strategic target allocation as of December 31, 2011 was 50% equity, 30% debt and 20% consisting of real estate funds, hedge funds and commodity funds, the latter was assumed to behave similar to debt securities and therefore we included this 20% asset allocation as bonds in the model. Our investment policy is reviewed from time to time to ensure consistency with our long term objective.
Our Pension Plan asset allocations at December 31, 2011, and 2010, by asset category are as follows:
Percentage of Plan
Assets at December 31, |
||||||||
2011 | 2010 | |||||||
Equity securities |
44.6 | % | 38.0 | % | ||||
Debt securities |
44.9 | % | 52.8 | % | ||||
Real estate |
3.0 | % | 3.0 | % | ||||
Other |
7.5 | % | 6.2 | % | ||||
|
|
|
|
|||||
Total |
100.0 | % | 100.0 | % | ||||
|
|
|
|
No pension assets were invested in debt or equity securities of Kraton at December 31, 2011, and 2010.
F-35
KRATON PERFORMANCE POLYMERS, INC.
Notes to Consolidated Financial Statements(Continued)
The fair value of our Pension Plan assets at December 31, 2011, by asset category are as follows:
Pension Plan Assets
Fair Value Measurements at December 31, 2011 |
||||||||||||||||
Total |
Quoted Prices
In Active Markets Identical Assets (Level 1) |
Significant
Observable Inputs (Level 2) |
Significant
Unobservable Inputs (Level 3) |
|||||||||||||
(in thousands) | ||||||||||||||||
Equity Mutual Funds: |
||||||||||||||||
Dodge & Cox Stock Fund(a) |
2,702 | 2,702 | 0 | 0 | ||||||||||||
Harbor Cap Appreciation Fund(b) |
2,683 | 2,683 | 0 | 0 | ||||||||||||
Harding Loevner Emerging Markets Fund(c) |
2,016 | 2,016 | 0 | 0 | ||||||||||||
Matthews Asian Growth & Income Fund(d) |
673 | 673 | 0 | 0 | ||||||||||||
Aberdeen Emerging Markets Institutional Fund(s) |
1,346 | 1,346 | 0 | 0 | ||||||||||||
Gateway Fund Class Y(t) |
2,341 | 2,341 | 0 | 0 | ||||||||||||
|
|
|
|
|
|
|
|
|||||||||
Total |
11,761 | 11,761 | 0 | 0 | ||||||||||||
Debt Mutual Funds: |
||||||||||||||||
Eaton Vance Global Macro FundI(e) |
4,016 | 4,016 | 0 | 0 | ||||||||||||
PIMCO Emerging Local Bond Fund(f) |
2,010 | 2,010 | 0 | 0 | ||||||||||||
PIMCO Extended Duration Fund(g) |
5,387 | 5,387 | 0 | 0 | ||||||||||||
Vanguard Inflation Protected Bond Fund(i) |
2,666 | 2,666 | 0 | 0 | ||||||||||||
|
|
|
|
|
|
|
|
|||||||||
Total |
14,079 | 14,079 | 0 | 0 | ||||||||||||
Equity Commingled Pools: |
||||||||||||||||
FMTC US Equity Index Pool(j) |
6,716 | 0 | 6,716 | 0 | ||||||||||||
Pyramis International Growth Commingled Pool(k) |
6,785 | 0 | 6,785 | 0 | ||||||||||||
Pyramis Large Cap Core Commingled Pool(l) |
2,016 | 0 | 2,016 | 0 | ||||||||||||
Pyramis Small Company Commingled Pool(m) |
2,694 | 0 | 2,694 | 0 | ||||||||||||
|
|
|
|
|
|
|
|
|||||||||
Total |
18,211 | 0 | 18,211 | 0 | ||||||||||||
Debt Commingled Pools: |
||||||||||||||||
Pyramis Emerging Market Debt Commingled Pool(n) |
1,335 | 0 | 1,335 | 0 | ||||||||||||
Pyramis Long Corp. A or Better Commingled Pool(o) |
4,693 | 0 | 4,693 | 0 | ||||||||||||
Pyramis Long Duration(p) |
10,049 | 0 | 10,049 | 0 | ||||||||||||
|
|
|
|
|
|
|
|
|||||||||
Total |
16,077 | 0 | 16,077 | 0 | ||||||||||||
Real Estate: |
||||||||||||||||
Virtus Real Estate SECI Fund(q) |
2,014 | 2,014 | 0 | 0 | ||||||||||||
|
|
|
|
|
|
|
|
|||||||||
Total |
2,014 | 2,014 | 0 | 0 | ||||||||||||
Other: |
||||||||||||||||
Money Market Mutual Fund |
334 | 334 | 0 | 0 | ||||||||||||
Credit Suisse Commodity Return Strategy Fund(r) |
1,336 | 1,336 | 0 | 0 | ||||||||||||
RS Global Natural Resources Fund(u) |
679 | 679 | 0 | 0 | ||||||||||||
Steelpath MLP Select 40 I FD(v) |
2,686 | 2,686 | 0 | 0 | ||||||||||||
|
|
|
|
|
|
|
|
|||||||||
Total |
5,035 | 5,035 | 0 | 0 | ||||||||||||
|
|
|
|
|
|
|
|
|||||||||
Total |
$ | 67,177 | $ | 32,889 | $ | 34,288 | $ | 0 | ||||||||
|
|
|
|
|
|
|
|
F-36
KRATON PERFORMANCE POLYMERS, INC.
Notes to Consolidated Financial Statements(Continued)
The fair value of our pension plan assets at December 31, 2010, by asset category are as follows:
Pension Plan Assets
Fair Value Measurements at December 31, 2010 |
||||||||||||||||
Total |
Quoted Prices
In Active Markets Identical Assets (Level 1) |
Significant
Observable Inputs (Level 2) |
Significant
Unobservable Inputs (Level 3) |
|||||||||||||
(in thousands) | ||||||||||||||||
Equity Mutual Funds: |
||||||||||||||||
Dodge & Cox Stock Fund(a) |
2,327 | 2,327 | 0 | 0 | ||||||||||||
Harbor Cap Appreciation Fund(b) |
2,318 | 2,318 | 0 | 0 | ||||||||||||
Harding Loevner Emerging Markets Fund(c) |
1,753 | 1,753 | 0 | 0 | ||||||||||||
Matthews Asian Growth & Income Fund(d) |
584 | 584 | 0 | 0 | ||||||||||||
|
|
|
|
|
|
|
|
|||||||||
Total |
6,982 | 6,982 | 0 | 0 | ||||||||||||
Debt Mutual Funds: |
||||||||||||||||
Eaton Vance Global Macro FundI(e) |
4,650 | 4,650 | 0 | 0 | ||||||||||||
PIMCO Emerging Local Bond Fund(f) |
1,750 | 1,750 | 0 | 0 | ||||||||||||
PIMCO Extended Duration Fund(g) |
4,748 | 4,748 | 0 | 0 | ||||||||||||
PIMCO Short Term Institutional Fund(h) |
2,906 | 2,906 | 0 | 0 | ||||||||||||
Vanguard Inflation Protected Bond Fund(i) |
2,629 | 2,629 | 0 | 0 | ||||||||||||
|
|
|
|
|
|
|
|
|||||||||
Total |
16,683 | 16,683 | 0 | 0 | ||||||||||||
Equity Commingled Pools: |
||||||||||||||||
FMTC US Equity Index Pool(j) |
5,811 | 0 | 5,811 | 0 | ||||||||||||
Pyramis International Growth Commingled Pool(k) |
5,242 | 0 | 5,242 | 0 | ||||||||||||
Pyramis Large Cap Core Commingled Pool(l) |
1,744 | 0 | 1,744 | 0 | ||||||||||||
Pyramis Small Company Commingled Pool(m) |
2,316 | 0 | 2,316 | 0 | ||||||||||||
|
|
|
|
|
|
|
|
|||||||||
Total |
15,113 | 0 | 15,113 | 0 | ||||||||||||
Debt Commingled Pools: |
||||||||||||||||
Pyramis Emerging Market Debt Commingled Pool(n) |
1,164 | 0 | 1,164 | 0 | ||||||||||||
Pyramis Long Corp. A or Better Commingled Pool(o) |
4,110 | 0 | 4,110 | 0 | ||||||||||||
Pyramis Long Duration(p) |
8,808 | 0 | 8,808 | 0 | ||||||||||||
|
|
|
|
|
|
|
|
|||||||||
Total |
14,082 | 0 | 14,082 | 0 | ||||||||||||
Real Estate: |
||||||||||||||||
Virtus Real Estate SECI Fund(q) |
1,739 | 1,739 | 0 | 0 | ||||||||||||
|
|
|
|
|
|
|
|
|||||||||
Total |
1,739 | 1,739 | 0 | 0 | ||||||||||||
Other: |
||||||||||||||||
Money Market Mutual Fund |
80 | 80 | 0 | 0 | ||||||||||||
Credit Suisse Commodity Return Strategy Fund(r) |
3,544 | 3,544 | 0 | 0 | ||||||||||||
|
|
|
|
|
|
|
|
|||||||||
Total |
3,624 | 3,624 | 0 | 0 | ||||||||||||
|
|
|
|
|
|
|
|
|||||||||
Total |
$ | 58,223 | $ | 29,028 | $ | 29,195 | $ | 0 | ||||||||
|
|
|
|
|
|
|
|
F-37
KRATON PERFORMANCE POLYMERS, INC.
Notes to Consolidated Financial Statements(Continued)
(a) | Portfolio with the primary objective to invest in common stocks that appear to be temporarily undervalued by the stock market but have a favorable outlook for long-term growth. |
(b) | Portfolio with the primary objective to seek long-term growth of capital by investing in mid to large cap growth stocks. |
(c) | Portfolio with the primary objective to seek long-term capital appreciation through investment in equity securities of companies based in emerging markets. |
(d) | Portfolio with the primary objective to seek long-term capital appreciation and some current income through investment in equity securities of companies located in Asia. |
(e) | Portfolio with the primary objective to seek total return by investing in securities, derivatives, and other instruments to establish long and short investment exposure around the world. |
(f) | Portfolio with the primary objective to seek maximum total return, consistent with preservation of capital and prudent investment management by investing in fixed income securities denominated in currencies of non-U.S. countries. |
(g) | Portfolio with the primary objective to seek maximum total return, consistent with prudent investment management by investing in long-term maturity fixed income securities. |
(h) | Portfolio with the primary objective to seek maximum current income, consistent with preservation of capital and daily liquidity by investing in short-term investment grade bonds (average duration less than or equal to one year). |
(i) | Portfolio with the primary objective to protect investors from the eroding effect of inflation by investing in bonds that are backed by the federal government and whose principal is adjusted quarterly based on inflation. |
(j) | Portfolio with the primary objective to provide investment results that correspond to the total return performance of common stocks publicly traded in the United States. |
(k) | Portfolio with the primary objective to seek long-term growth of capital primarily through investments in foreign equity securities. |
(l) | Portfolio with the primary objective to achieve excess return relative to the S&P 500 Index. |
(m) | Portfolio with the primary objective to achieve long-term growth of capital, principally by investing in the equity securities of smaller, growing companies. |
(n) | Portfolio with the primary objective to achieve superior total returns primarily through investments in debt securities of emerging countries. |
(o) |
Portfolio with the primary objective to provide investment returns in excess of the Barclays Capital ® Long Corporate A or Better Index through investments in fixed income securities and commingled vehicles. |
(p) |
Portfolio with the primary objective to generate returns that exceed the Barclays Capital ® US Long Government/Credit Bond Index through investments in investment-grade fixed-income securities and commingled vehicles. |
(q) | Portfolio with the primary objective to provide exposure to the equity REITs market, which has historically had a lower correlation to traditional asset classes. |
(r) | Portfolio with the primary objective to achieve positive total return relative to the performance of the Dow JonesUBS Commodity Index total return. |
(s) | Portfolio with the primary objective to seek long-term capital appreciation by investing primarily in equity securities of emerging market country issuers. |
(t) | Portfolio with the primary objective to capture the majority of the returns associated with equity market investments and normally invests in a broadly diversified portfolio of common stocks, while also selling index call options. |
(u) | Portfolio with the primary objective to seek long-term capital appreciation by principally engaged in natural resources industries. |
(v) | Portfolio with the primary objective to diversify exposure to the energy infrastructure MLPs. |
F-38
KRATON PERFORMANCE POLYMERS, INC.
Notes to Consolidated Financial Statements(Continued)
(b) Other Retirement Benefit Plans. Certain employees are eligible to participate in a non-qualified defined benefit restoration plan and/or a non-qualified defined contribution restoration plan (BRP) which are intended to restore certain benefits under the Pension Plan in the United States and the Kraton Savings Plan in the United States, which would otherwise be lost due to certain limitations imposed by law on tax-qualified plans. We made $0.0 million, $0.0 million and $0.9 million in contributions to the BRP for the years ended December 31, 2011, 2010, and 2009, respectively. As of December 31, 2011 and 2010, amounts recognized as a component of other long-term liabilities for the benefit restoration plans were $1.5 million and $1.1 million, respectively.
(c) Postretirement Benefits Other Than Pensions. Health and welfare benefits are provided to benefit eligible employees in the United States who retire from Kraton and were employed by us prior to January 1, 2006. Retirees under the age of 65 are eligible for the same medical, dental, and vision plans as active employees, but with an annual cap on premiums that varies based on years of service and ranges from $7,000 to $10,000 per employee. Our subsidy schedule for medical plans is based on accredited service at retirement. Retirees are responsible for the full cost of premiums for postretirement dental and vision coverage. In general, the plans stipulate that health and welfare benefits are paid as covered expenses as incurred. We accrue the cost of these benefits during the period in which the employee renders the necessary service.
Employees who were retirement eligible as of February 28, 2001, have the option to participate in either Shell Chemicals or Kraton postretirement health and welfare plans.
ASC 715, Compensation-Retirement Benefits, requires that we measure the plans assets and obligations that determine our funded status at the end of each fiscal year and the 2011 measurement date of the plans assets and obligations was December 31, 2011. We are also required to recognize as a component of accumulated other comprehensive income (loss) the changes in funded status that occurred during the year that are not recognized as part of new periodic benefit cost.
F-39
KRATON PERFORMANCE POLYMERS, INC.
Notes to Consolidated Financial Statements(Continued)
Based on the funded status of our postretirement benefit plan as of December 31, 2011, we reported a decrease in our accumulated other comprehensive income (loss) of approximately $2.6 million and a related increase in accrued pension obligations.
Information concerning the plan obligation, the funded status and amounts recognized in our financial statements and underlying actuarial and other assumptions are as follows:
December 31, | ||||||||
2011 | 2010 | |||||||
(in thousands) | ||||||||
Change in benefit obligation: |
||||||||
Benefit obligation at beginning of period |
$ | 22,992 | $ | 18,474 | ||||
Service cost |
414 | 364 | ||||||
Interest cost |
1,246 | 1,213 | ||||||
Benefits and expenses paid (premiums) |
(980 | ) | (801 | ) | ||||
Part D subsidy received |
0 | 7 | ||||||
Actuarial loss |
3,012 | 3,735 | ||||||
|
|
|
|
|||||
Benefit obligation at end of period |
$ | 26,684 | $ | 22,992 | ||||
|
|
|
|
|||||
Reconciliation of plan assets(1): |
||||||||
Employer contributions |
$ | 980 | $ | 794 | ||||
Part D subsidy received |
0 | 7 | ||||||
Benefits paid |
(980 | ) | (801 | ) | ||||
|
|
|
|
|||||
$ | 0 | $ | 0 | |||||
|
|
|
|
|||||
Funded status at end of year |
$ | (26,684 | ) | $ | (22,992 | ) | ||
|
|
|
|
(1) | Shell Chemicals has committed to a future cash payment related to retiree medical expenses based on a specified dollar amount per employee, if certain contractual commitments are met. We have recorded an asset of approximately $8.4 million and $7.5 million as our estimate of the present value of this commitment as of December 31, 2011 and 2010, respectively. |
December 31, | ||||||||
2011 | 2010 | |||||||
(in thousands) | ||||||||
Amounts recognized in the balance sheet: |
||||||||
Noncurrent liabilities |
26,684 | 22,992 | ||||||
|
|
|
|
|||||
Amounts recognized in accumulated other comprehensive income (loss): |
||||||||
Prior service cost |
$ | 0 | $ | 0 | ||||
Net actuarial loss |
10,023 | 7,423 | ||||||
|
|
|
|
|||||
$ | 10,023 | $ | 7,423 | |||||
|
|
|
|
F-40
KRATON PERFORMANCE POLYMERS, INC.
Notes to Consolidated Financial Statements(Continued)
Net periodic benefit costs consist of the following components:
Years ended December 31, | ||||||||||||
2011 | 2010 | 2009 | ||||||||||
(in thousands) | ||||||||||||
Service cost |
$ | 414 | $ | 364 | $ | 392 | ||||||
Interest cost |
1,246 | 1,213 | 1,058 | |||||||||
Amortization of net actuarial loss |
412 | 253 | 231 | |||||||||
|
|
|
|
|
|
|||||||
Net periodic benefit costs |
$ | 2,072 | $ | 1,830 | $ | 1,681 | ||||||
|
|
|
|
|
|
December 31, | ||||||||
2011 | 2010 | |||||||
Weighted average assumptions used to determine benefit obligations: |
||||||||
Measurement date |
12/31/2011 | 12/31/2010 | ||||||
Discount rate |
4.65 | % | 5.46 | % | ||||
Rates of increase in salary compensation level |
N/A | N/A | ||||||
Weighted average assumptions used to determine net periodic benefit cost: |
||||||||
Discount rate |
5.46 | % | 6.17 | % | ||||
Rates of increase in salary compensation level |
N/A | N/A | ||||||
Expected long-term rate of return on plan assets |
N/A | N/A |
December 31, | ||||||||
2011 | 2010 | |||||||
Assumed health care cost trend rates: |
||||||||
Health care cost trend rate assumed for next year |
7.50 | % | 8.00 | % | ||||
Rate to which the cost trend rate is assumed to decline (the ultimate trend rate) |
5.00 | % | 5.00 | % | ||||
Year that the rate reaches the ultimate trend rate |
2016 | 2016 |
Discount rates are determined annually and are based on rates of return of high-quality long-term fixed income securities currently available and expected to be available during the maturity of the postretirement benefit plan.
Assumed health care cost trend rates have a significant effect on the amounts reported for the health care plans. A 1% change in assumed health care cost trend rates would have the following effect (in thousands):
1% Increase | 1% Decrease | |||||||
Effect on total of service and interest cost components |
$ | 65 | $ | (58 | ) | |||
Effect on postretirement benefit obligation |
1,007 | (800 | ) |
(d) Kraton Savings Plan. The Kraton Savings Plan, as adopted on March 1, 2001, covers substantially all U.S. employees, including executive officers. Through automatic payroll deduction, participants have the option to defer up to 60% of eligible earnings in any combination of pretax and/or post-tax contributions, subject to annual dollar limitations set forth in the Internal Revenue Code. Under this plan, we have two types of employer contributions:
(1) For our standard contributions, we make matching contributions of 50% of the first 6% contributed by the employee after completing one year of service, and we make matching contributions of 100% of the first 6% contributed by the employee after completing five years of service.
F-41
KRATON PERFORMANCE POLYMERS, INC.
Notes to Consolidated Financial Statements(Continued)
(2) For our enhanced contributions, we make employer contributions of 3% for employees who have less than five years of service and a 4% contribution for employees who have five or more years of service.
For our employees who were employed as of February 28, 2001, and who were previously employed by Shell Chemicals, we recognize their Shell Chemicals years of service for purposes of determining employer contributions under our Plan. Our contributions to the plan for the years ended December 31, 2011, 2010, and 2009, were $3.2 million, $2.6 million, and $2.7 million, respectively.
13. Industry Segment and Foreign Operations
We operate in one segment for the manufacture and marketing of engineered polymers. In accordance with the provisions of ASC 280, Segment Reporting, our chief operating decision-maker has been identified as the President and Chief Executive Officer, who reviews operating results to make decisions about allocating resources and assessing performance for the entire company. Since we operate in one segment and in one group of similar products, all financial segment and product line information required by ASC 280 can be found in the consolidated financial statements.
We manufacture our products along the following primary product lines based upon polymer chemistry and process technologies:
|
unhydrogenated SBCs (USBCs); |
|
hydrogenated SBCs (HSBCs); |
|
isoprene rubber (IR) and isoprene rubber latex (IRL); and |
|
compounds. |
Sales revenue for our four primary product lines are as follows(1):
Years ended December 31, | ||||||||||||
2011 | 2010 | 2009 | ||||||||||
(in thousands) | ||||||||||||
USBCs |
$ | 852,070 | $ | 725,716 | $ | 520,740 | ||||||
HSBCs |
454,835 | 382,868 | 290,739 | |||||||||
IR and IRL |
99,412 | 92,082 | 84,082 | |||||||||
Compounds |
26,578 | 27,759 | 24,801 | |||||||||
|
|
|
|
|
|
|||||||
$ | 1,432,895 | $ | 1,228,425 | $ | 920,362 | |||||||
|
|
|
|
|
|
(1) | Our product line sales revenue excludes $4.6 million of other sales in 2011 and $47.6 million of by-product sales reported as other in 2009. |
During the years ended December 31, 2011, 2010, and 2009, no single customer accounted for 10.0% or more of our total operating revenues.
For geographic reporting, operating revenues are attributed to the geographic location in which the customers facilities are located. Long-lived assets consist primarily of property, plant, and equipment, which are attributed to the geographic location in which they are located, and are presented at historical cost.
F-42
KRATON PERFORMANCE POLYMERS, INC.
Notes to Consolidated Financial Statements(Continued)
Operating revenues and long-lived assets by geographic region are as follows:
Years ended December 31, | ||||||||||||
2011 | 2010 | 2009 | ||||||||||
(in thousands) | ||||||||||||
Operating revenues: |
||||||||||||
United States |
$ | 490,373 | $ | 421,856 | $ | 304,265 | ||||||
Germany |
212,079 | 162,260 | 121,959 | |||||||||
Japan |
91,788 | 89,987 | 73,055 | |||||||||
China |
61,039 | 53,359 | 37,123 | |||||||||
Brazil |
50,777 | 47,387 | 40,438 | |||||||||
Italy |
49,484 | 46,386 | 35,934 | |||||||||
France |
46,233 | 36,122 | 27,342 | |||||||||
Belgium |
43,339 | 24,081 | 16,273 | |||||||||
United Kingdom |
40,644 | 29,214 | 27,425 | |||||||||
The Netherlands |
36,991 | 33,093 | 66,027 | |||||||||
Thailand |
32,209 | 34,647 | 28,779 | |||||||||
Turkey |
25,004 | 23,767 | 12,990 | |||||||||
Canada |
22,703 | 20,855 | 16,168 | |||||||||
Austria |
21,498 | 14,583 | 8,170 | |||||||||
Poland |
19,084 | 10,836 | 15,537 | |||||||||
Taiwan |
17,378 | 20,446 | 15,711 | |||||||||
Malaysia |
16,592 | 9,829 | 6,769 | |||||||||
Sweden |
15,830 | 15,096 | 11,292 | |||||||||
South Korea |
13,742 | 13,598 | 9,928 | |||||||||
Argentina |
13,502 | 11,334 | 10,854 | |||||||||
Australia |
13,146 | 13,973 | 9,124 | |||||||||
Mexico |
11,437 | 11,431 | 11,029 | |||||||||
All other countries |
92,607 | 84,285 | 61,812 | |||||||||
|
|
|
|
|
|
|||||||
$ | 1,437,479 | $ | 1,228,425 | $ | 968,004 | |||||||
|
|
|
|
|
|
|||||||
December 31, | ||||||||||||
2011 | 2010 | 2009 | ||||||||||
(in thousands) | ||||||||||||
Long-lived assets, at cost: |
||||||||||||
United States |
$ | 387,022 | $ | 334,081 | $ | 317,719 | ||||||
Germany |
47,125 | 47,059 | 42,724 | |||||||||
Japan |
1,893 | 1,582 | 482 | |||||||||
France |
115,169 | 136,449 | 125,839 | |||||||||
The Netherlands |
13,355 | 12,539 | 36,971 | |||||||||
Brazil |
81,021 | 78,260 | 64,385 | |||||||||
China |
4,394 | 3,190 | 2,334 | |||||||||
All other countries |
4,436 | 4,593 | 964 | |||||||||
|
|
|
|
|
|
|||||||
$ | 654,415 | $ | 617,753 | $ | 591,418 | |||||||
|
|
|
|
|
|
F-43
KRATON PERFORMANCE POLYMERS, INC.
Notes to Consolidated Financial Statements(Continued)
14. Related Party Transactions
We own a 50% equity investment in a SBC manufacturing joint venture with JSR Corporation (JSR) under the name of Kraton JSR Elastomers K.K. (KJE) located in Kashima, Japan. We and JSR separately, but with equal rights, participate as distributors in the sales of the thermoplastic rubber produced by KJE.
The aggregate amounts of related-party transactions were as follows:
December 31, | ||||||||||||
2011 | 2010 | 2009 | ||||||||||
Purchases from related party |
$ | 34,610 | $ | 35,384 | $ | 27,763 |
Our due to related party is solely related to our commercial arrangement with KJE, which requires payment by each party within 150 days of invoice.
15. Supplemental Guarantor Information
Kraton Polymers LLC and Kraton Polymers Capital Corporation, a financing subsidiary, collectively, the Issuers, are co-issuers of the 6.75% senior notes due March 1, 2019. Kraton Performance Polymers, Inc. and Elastomers Holdings LLC, a U.S. holding company and wholly-owned subsidiary of Kraton Polymers LLC, collectively, the Guarantors, fully and unconditionally guarantee on a joint and several basis, the Issuers obligations under the 6.75% senior notes. Our remaining subsidiaries are not guarantors of the 6.75% senior notes. We do not believe that separate financial statements and other disclosures concerning the Guarantor Subsidiaries would provide any additional information that would be material to investors in making an investment decision.
F-44
KRATON PERFORMANCE POLYMERS, INC.
CONSOLIDATING BALANCE SHEET
December 31, 2011
(In thousands, except par value)
(1) | Kraton Polymers LLC and Kraton Polymers Capital Corporation, a financing subsidiary, collectively, the Issuers, are co-issuers of the 6.75% senior notes due March 1, 2019. Kraton Polymers Capital Corporation has minimal assets and income. We do not believe that separate financial information concerning the Issuers would provide additional information that would be material to investors in making an investment decision. |
F-45
KRATON PERFORMANCE POLYMERS, INC.
CONSOLIDATING BALANCE SHEET
December 31, 2010
(In thousands, except par value)
(1) | Kraton Polymers LLC and Kraton Polymers Capital Corporation, a financing subsidiary, collectively, the Issuers, are co-issuers of the 6.75% senior notes due March 1, 2019. Kraton Polymers Capital Corporation has minimal assets and income. We do not believe that separate financial information concerning the Issuers would provide additional information that would be material to investors in making an investment decision. |
F-46
KRATON PERFORMANCE POLYMERS, INC.
CONSOLIDATING STATEMENT OF OPERATIONS
Year Ended December 31, 2011
(In thousands)
Kraton |
Kraton
Polymers LLC(1) |
Guarantor
Subsidiaries |
Non-Guarantor
Subsidiaries |
Eliminations | Consolidated | |||||||||||||||||||
Sales revenue |
$ | 0 | $ | 0 | $ | 718,700 | $ | 862,885 | $ | (144,106 | ) | $ | 1,437,479 | |||||||||||
Cost of goods sold |
0 | 1,585 | 554,881 | 708,933 | (144,106 | ) | 1,121,293 | |||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||
Gross profit (loss) |
0 | (1,585 | ) | 163,819 | 153,952 | 0 | 316,186 | |||||||||||||||||
Operating expenses |
||||||||||||||||||||||||
Research and development |
0 | 0 | 17,537 | 10,459 | 0 | 27,996 | ||||||||||||||||||
Selling, general and administrative |
0 | (178 | ) | 69,954 | 31,830 | 0 | 101,606 | |||||||||||||||||
Depreciation and amortization |
0 | 16,383 | 32,973 | 13,379 | 0 | 62,735 | ||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||
Total operating expenses |
0 | 16,205 | 120,464 | 55,668 | 0 | 192,337 | ||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||
Loss on extinguishment of debt |
0 | 2,985 | 0 | 0 | 0 | 2,985 | ||||||||||||||||||
Earnings in consolidated subsidiaries |
90,925 | 148,674 | 0 | 0 | (239,599 | ) | 0 | |||||||||||||||||
Earnings of unconsolidated joint venture |
0 | 0 | 0 | 529 | 0 | 529 | ||||||||||||||||||
Interest expense (income), net |
0 | 38,096 | (14,987 | ) | 6,775 | 0 | 29,884 | |||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||
Income before income taxes |
90,925 | 89,803 | 58,342 | 92,038 | (239,599 | ) | 91,509 | |||||||||||||||||
Income tax expense (benefit) |
0 | (1,122 | ) | (9,954 | ) | 11,660 | 0 | 584 | ||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||
Net income |
$ | 90,925 | $ | 90,925 | $ | 68,296 | $ | 80,378 | $ | (239,599 | ) | $ | 90,925 | |||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
(1) | Kraton Polymers LLC and Kraton Polymers Capital Corporation, a financing subsidiary, collectively, the Issuers, are co-issuers of the 6.75% senior notes due March 1, 2019. Kraton Polymers Capital Corporation has minimal assets and income. We do not believe that separate financial information concerning the Issuers would provide additional information that would be material to investors in making an investment decision. |
F-47
KRATON PERFORMANCE POLYMERS, INC.
CONSOLIDATING STATEMENT OF OPERATIONS
Year Ended December 31, 2010
(In thousands)
Kraton |
Kraton
Polymers LLC(1) |
Guarantor
Subsidiaries |
Non-Guarantor
Subsidiaries |
Eliminations | Consolidated | |||||||||||||||||||
Sales revenue |
$ | 0 | $ | 0 | $ | 632,234 | $ | 721,004 | $ | (124,813 | ) | $ | 1,228,425 | |||||||||||
Cost of goods sold |
0 | 297 | 455,287 | 597,161 | (124,813 | ) | 927,932 | |||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||
Gross profit (loss) |
0 | (297 | ) | 176,947 | 123,843 | 0 | 300,493 | |||||||||||||||||
Operating expenses |
||||||||||||||||||||||||
Research and development |
0 | 0 | 14,616 | 9,012 | 0 | 23,628 | ||||||||||||||||||
Selling, general and administrative |
0 | (2,414 | ) | 66,134 | 28,585 | 0 | 92,305 | |||||||||||||||||
Depreciation and amortization |
0 | 14,901 | 24,983 | 9,336 | 0 | 49,220 | ||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||
Total operating expenses |
0 | 12,487 | 105,733 | 46,933 | 0 | 165,153 | ||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||
Earnings in consolidated subsidiaries |
96,759 | 88,799 | 0 | 0 | (185,558 | ) | 0 | |||||||||||||||||
Earnings of unconsolidated joint venture |
0 | 0 | 0 | 487 | 0 | 487 | ||||||||||||||||||
Interest expense (income), net |
0 | 32,948 | (12,169 | ) | 3,190 | 0 | 23,969 | |||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||
Income before income taxes |
96,759 | 43,067 | 83,383 | 74,207 | (185,558 | ) | 111,858 | |||||||||||||||||
Income tax expense (benefit) |
34 | (53,692 | ) | 7,141 | 61,650 | 0 | 15,133 | |||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||
Net income |
$ | 96,725 | $ | 96,759 | $ | 76,242 | $ | 12,557 | $ | (185,558 | ) | $ | 96,725 | |||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
(1) | Kraton Polymers LLC and Kraton Polymers Capital Corporation, a financing subsidiary, collectively, the Issuers, are co-issuers of the 6.75% senior notes due March 1, 2019. Kraton Polymers Capital Corporation has minimal assets and income. We do not believe that separate financial information concerning the Issuers would provide additional information that would be material to investors in making an investment decision. |
F-48
KRATON PERFORMANCE POLYMERS, INC.
CONSOLIDATING STATEMENT OF OPERATIONS
Year Ended December 31, 2009
(In thousands)
Kraton |
Kraton
Polymers LLC(1) |
Guarantor
Subsidiaries |
Non-Guarantor
Subsidiaries |
Eliminations | Consolidated | |||||||||||||||||||
Operating revenues : |
||||||||||||||||||||||||
Sales |
$ | 0 | $ | 0 | $ | 480,438 | $ | 591,309 | $ | (151,385 | ) | $ | 920,362 | |||||||||||
Other |
0 | 0 | 74 | 47,568 | 0 | 47,642 | ||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||
Total operating revenues |
0 | 0 | 480,512 | 638,877 | (151,385 | ) | 968,004 | |||||||||||||||||
Cost of goods sold |
0 | (15,654 | ) | 376,543 | 582,968 | (151,385 | ) | 792,472 | ||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||
Gross profit |
0 | 15,654 | 103,969 | 55,909 | 0 | 175,532 | ||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||
Operating expenses |
||||||||||||||||||||||||
Research and development |
0 | 0 | 13,150 | 8,062 | 0 | 21,212 | ||||||||||||||||||
Selling, general and administrative |
0 | (1,430 | ) | 45,497 | 35,437 | 0 | 79,504 | |||||||||||||||||
Depreciation and amortization |
0 | 22,039 | 21,598 | 23,114 | 0 | 66,751 | ||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||
Total operating expenses |
0 | 20,609 | 80,245 | 66,613 | 0 | 167,467 | ||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||
Gain on extinguishment of debt |
0 | 23,831 | 0 | 0 | 0 | 23,831 | ||||||||||||||||||
Earnings in consolidated subsidiaries |
(288 | ) | 29,893 | 0 | 0 | (29,605 | ) | 0 | ||||||||||||||||
Earnings of unconsolidated joint venture |
0 | 0 | 0 | 403 | 0 | 403 | ||||||||||||||||||
Interest expense (income), net |
5 | 40,818 | (11,156 | ) | 4,289 | 0 | 33,956 | |||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||
Income (loss) before income taxes |
(293 | ) | 7,951 | 34,880 | (14,590 | ) | (29,605 | ) | (1,657 | ) | ||||||||||||||
Income tax expense (benefit) |
(3 | ) | 8,239 | (876 | ) | (8,727 | ) | 0 | (1,367 | ) | ||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||
Net income (loss) |
$ | (290 | ) | $ | (288 | ) | $ | 35,756 | $ | (5,863 | ) | $ | (29,605 | ) | $ | (290 | ) | |||||||
|
|
|
|
|
|
|
|
|
|
|
|
(1) | Kraton Polymers LLC and Kraton Polymers Capital Corporation, a financing subsidiary, collectively, the Issuers, are co-issuers of the 6.75% senior notes due March 1, 2019. Kraton Polymers Capital Corporation has minimal assets and income. We do not believe that separate financial information concerning the Issuers would provide additional information that would be material to investors in making an investment decision. |
F-49
KRATON PERFORMANCE POLYMERS, INC.
CONSOLIDATING STATEMENT OF CASH FLOWS
Year Ended December 31, 2011
(In thousands)
Kraton |
Kraton
Polymers LLC(1) |
Guarantor
Subsidiaries |
Non-
Guarantor Subsidiaries |
Eliminations | Consolidated | |||||||||||||||||||
Cash flows provided by (used in) operating activities |
$ | 0 | $ | (26,158 | ) | $ | 16,973 | $ | 73,960 | $ | 0 | $ | 64,775 | |||||||||||
Cash flows provided by (used in) investing activities: |
||||||||||||||||||||||||
Proceeds from intercompany loans |
0 | 26,278 | 0 | 0 | (26,278 | ) | 0 | |||||||||||||||||
Purchase of property, plant and equipment, net of proceeds from sales |
0 | 0 | (44,591 | ) | (15,720 | ) | 0 | (60,311 | ) | |||||||||||||||
Purchase of software |
0 | 0 | (4,072 | ) | (57 | ) | 0 | (4,129 | ) | |||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||
Net cash provided by (used in) investing activities |
0 | 26,278 | (48,663 | ) | (15,777 | ) | (26,278 | ) | (64,440 | ) | ||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||
Cash flows provided by (used in) financing activities: |
||||||||||||||||||||||||
Proceeds from debt |
0 | 400,000 | 0 | 0 | 0 | 400,000 | ||||||||||||||||||
Repayments of debt |
0 | (393,160 | ) | 0 | 0 | 0 | (393,160 | ) | ||||||||||||||||
Cash contribution from member |
0 | 8,271 | 0 | 0 | (8,271 | ) | 0 | |||||||||||||||||
Cash distribution to member |
(8,271 | ) | 0 | 0 | 0 | 8,271 | 0 | |||||||||||||||||
Proceeds from the exercise of stock options |
8,271 | 0 | 0 | 0 | 0 | 8,271 | ||||||||||||||||||
Proceeds from insurance note payable |
0 | 4,734 | 0 | 0 | 0 | 4,734 | ||||||||||||||||||
Repayments of insurance note payable |
0 | (4,734 | ) | 0 | 0 | 0 | (4,734 | ) | ||||||||||||||||
Debt issuance costs |
0 | (15,231 | ) | 0 | 0 | 0 | (15,231 | ) | ||||||||||||||||
Proceeds from (payments on) intercompany loans |
0 | 0 | 6,300 | (32,578 | ) | 26,278 | 0 | |||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||
Net cash provided by (used in) financing activities |
0 | (120 | ) | 6,300 | (32,578 | ) | 26,278 | (120 | ) | |||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||
Effect of exchange rate differences on cash |
0 | 0 | 0 | (4,386 | ) | 0 | (4,386 | ) | ||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||
Net increase (decrease) in cash and cash equivalents |
0 | 0 | (25,390 | ) | 21,219 | 0 | (4,171 | ) | ||||||||||||||||
Cash and cash equivalents, beginning of period |
0 | 0 | 31,420 | 61,330 | 0 | 92,750 | ||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||
Cash and cash equivalents, end of period |
$ | 0 | $ | 0 | $ | 6,030 | $ | 82,549 | $ | 0 | $ | 88,579 | ||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
(1) | Kraton Polymers LLC and Kraton Polymers Capital Corporation, a financing subsidiary, collectively, the Issuers, are co-issuers of the 6.75% senior notes due March 1, 2019. Kraton Polymers Capital Corporation has minimal assets and income. We do not believe that separate financial information concerning the Issuers would provide additional information that would be material to investors in making an investment decision. |
F-50
KRATON PERFORMANCE POLYMERS, INC.
CONSOLIDATING STATEMENT OF CASH FLOWS
Year Ended December 31, 2010
(In thousands)
Kraton |
Kraton
Polymers LLC(1) |
Guarantor
Subsidiaries |
Non-
Guarantor Subsidiaries |
Eliminations | Consolidated | |||||||||||||||||||
Cash flows provided by (used in) operating activities |
$ | 0 | $ | (20,392 | ) | $ | 57,625 | $ | 18,127 | $ | 0 | $ | 55,360 | |||||||||||
Cash flows provided by (used in) investing activities: |
||||||||||||||||||||||||
Proceeds from intercompany loans |
0 | 3,928 | 0 | 0 | (3,928 | ) | 0 | |||||||||||||||||
Purchase of property, plant and equipment, net of proceeds from sales |
0 | 0 | (38,938 | ) | (14,467 | ) | 0 | (53,405 | ) | |||||||||||||||
Purchase of software |
0 | 0 | (2,242 | ) | 0 | 0 | (2,242 | ) | ||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||
Net cash provided by (used in) investing activities |
0 | 3,928 | (41,180 | ) | (14,467 | ) | (3,928 | ) | (55,647 | ) | ||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||
Cash flows provided by (used in) financing activities: |
||||||||||||||||||||||||
Proceeds from debt |
0 | 69,000 | 0 | 0 | 0 | 69,000 | ||||||||||||||||||
Repayments of debt |
0 | (71,304 | ) | 0 | 0 | 0 | (71,304 | ) | ||||||||||||||||
Cash contribution from member |
0 | 18,637 | 0 | 0 | (18,637 | ) | 0 | |||||||||||||||||
Cash distribution to member |
(18,637 | ) | 0 | 0 | 0 | 18,637 | 0 | |||||||||||||||||
Proceeds from issuance of common stock |
11,197 | 0 | 0 | 0 | 0 | 11,197 | ||||||||||||||||||
Costs associated with the issuance of common stock |
(534 | ) | 0 | 0 | 0 | 0 | (534 | ) | ||||||||||||||||
Proceeds from the exercise of stock options |
7,974 | 0 | 0 | 0 | 0 | 7,974 | ||||||||||||||||||
Proceeds from insurance note payable |
0 | 3,518 | 0 | 0 | 0 | 3,518 | ||||||||||||||||||
Repayments of insurance note payable |
0 | (3,387 | ) | 0 | 0 | 0 | (3,387 | ) | ||||||||||||||||
Proceeds from (payments on) intercompany loans |
0 | 0 | (21,592 | ) | 17,664 | 3,928 | 0 | |||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||
Net cash provided by (used in) financing activities |
0 | 16,464 | (21,592 | ) | 17,664 | 3,928 | 16,464 | |||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||
Effect of exchange rate differences on cash |
0 | 0 | 0 | 7,282 | 0 | 7,282 | ||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||
Net increase (decrease) in cash and cash equivalents |
0 | 0 | (5,147 | ) | 28,606 | 0 | 23,459 | |||||||||||||||||
Cash and cash equivalents, beginning of period |
0 | 0 | 36,567 | 32,724 | 0 | 69,291 | ||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||
Cash and cash equivalents, end of period |
$ | 0 | $ | 0 | $ | 31,420 | $ | 61,330 | $ | 0 | $ | 92,750 | ||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
(1) | Kraton Polymers LLC and Kraton Polymers Capital Corporation, a financing subsidiary, collectively, the Issuers, are co-issuers of the 6.75% senior notes due March 1, 2019. Kraton Polymers Capital Corporation has minimal assets and income. We do not believe that separate financial information concerning the Issuers would provide additional information that would be material to investors in making an investment decision. |
F-51
KRATON PERFORMANCE POLYMERS, INC.
CONSOLIDATING STATEMENT OF CASH FLOWS
Year Ended December 31, 2009
(In thousands)
Kraton |
Kraton
Polymers LLC(1) |
Guarantor
Subsidiaries |
Non-
Guarantor Subsidiaries |
Eliminations | Consolidated | |||||||||||||||||||
Cash flows provided by (used in) operating activities |
$ | 0 | $ | (39,221 | ) | $ | 53,247 | $ | 58,779 | $ | 0 | $ | 72,805 | |||||||||||
Cash flows provided by (used in) investing activities: |
||||||||||||||||||||||||
Proceeds from intercompany loans |
0 | 79,843 | 0 | 0 | (79,843 | ) | 0 | |||||||||||||||||
Purchase of property, plant and equipment, net of proceeds from sales |
0 | 0 | (28,226 | ) | (6,005 | ) | 0 | (34,231 | ) | |||||||||||||||
Purchase of software |
0 | 0 | (15,322 | ) | 0 | 0 | (15,322 | ) | ||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||
Net cash provided by (used in) investing activities |
0 | 79,843 | (43,548 | ) | (6,005 | ) | (79,843 | ) | (49,553 | ) | ||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||
Cash flows used in financing activities: |
||||||||||||||||||||||||
Proceeds from debt |
0 | 144,000 | 0 | 0 | 0 | 144,000 | ||||||||||||||||||
Repayments of debt |
0 | (308,131 | ) | 0 | 0 | 0 | (308,131 | ) | ||||||||||||||||
Cash contribution from member |
0 | 126,725 | 0 | 0 | (126,725 | ) | 0 | |||||||||||||||||
Cash distribution to member |
(126,725 | ) | 0 | 0 | 0 | 126,725 | 0 | |||||||||||||||||
Proceeds from issuance of common stock |
126,725 | 0 | 0 | 0 | 0 | 126,725 | ||||||||||||||||||
Proceeds from insurance note payable |
0 | 3,706 | 0 | 0 | 0 | 3,706 | ||||||||||||||||||
Repayments of insurance note payable |
0 | (3,706 | ) | 0 | 0 | 0 | (3,706 | ) | ||||||||||||||||
Debt issuance costs |
0 | (3,216 | ) | 0 | 0 | 0 | (3,216 | ) | ||||||||||||||||
Payments on intercompany loans |
0 | 0 | (38,592 | ) | (41,251 | ) | 79,843 | 0 | ||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||
Net cash used in financing activities |
0 | (40,622 | ) | (38,592 | ) | (41,251 | ) | 79,843 | (40,622 | ) | ||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||
Effect of exchange rate differences on cash |
0 | 0 | 0 | (14,735 | ) | 0 | (14,735 | ) | ||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||
Net decrease in cash and cash equivalents |
0 | 0 | (28,893 | ) | (3,212 | ) | 0 | (32,105 | ) | |||||||||||||||
Cash and cash equivalents, beginning of period |
0 | 0 | 65,460 | 35,936 | 0 | 101,396 | ||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||
Cash and cash equivalents, end of period |
$ | 0 | $ | 0 | $ | 36,567 | $ | 32,724 | $ | 0 | $ | 69,291 | ||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
(1) | Kraton Polymers LLC and Kraton Polymers Capital Corporation, a financing subsidiary, collectively, the Issuers, are co-issuers of the 6.75% senior notes due March 1, 2019. Kraton Polymers Capital Corporation has minimal assets and income. We do not believe that separate financial information concerning the Issuers would provide additional information that would be material to investors in making an investment decision. |
F-52
KRATON PERFORMANCE POLYMERS, INC.
Notes to Consolidated Financial Statements(Continued)
16. Selected Quarterly Financial Data (Unaudited)
The following table sets forth a summary of Kraton Performance Polymers, Inc.s quarterly financial information for each of the four quarters ended December 31, 2011 and December 31, 2010:
First
Quarter(1) |
Second
Quarter(2) |
Third
Quarter(3) |
Fourth
Quarter(4) |
Total | ||||||||||||||||
(in thousands, except per share data) | ||||||||||||||||||||
2011 |
||||||||||||||||||||
Operating revenues |
$ | 344,828 | $ | 386,428 | $ | 401,993 | $ | 304,230 | $ | 1,437,479 | ||||||||||
Gross profit |
86,851 | 108,395 | 101,454 | 19,486 | 316,186 | |||||||||||||||
Operating income (loss) |
38,452 | 57,913 | 52,224 | (24,740 | ) | 123,849 | ||||||||||||||
Net income (loss) |
21,877 | 46,977 | 43,093 | (21,022 | ) | 90,925 | ||||||||||||||
Earnings (loss) per common share |
||||||||||||||||||||
Basic |
0.69 | 1.47 | 1.34 | (0.66 | ) | 2.85 | ||||||||||||||
Diluted |
0.68 | 1.44 | 1.33 | (0.66 | ) | 2.81 | ||||||||||||||
Weighted average common shares outstanding |
||||||||||||||||||||
Basic |
31,609 | 31,757 | 31,880 | 31,892 | 31,786 | |||||||||||||||
Diluted |
32,197 | 32,339 | 32,215 | 31,892 | 32,209 | |||||||||||||||
2010 |
||||||||||||||||||||
Operating revenues |
$ | 272,732 | $ | 332,086 | $ | 335,442 | $ | 288,165 | $ | 1,228,425 | ||||||||||
Gross profit |
69,127 | 89,113 | 82,881 | 59,372 | 300,493 | |||||||||||||||
Operating income |
30,035 | 49,800 | 38,910 | 16,595 | 135,340 | |||||||||||||||
Net income |
19,795 | 38,595 | 28,036 | 10,299 | 96,725 | |||||||||||||||
Earnings per common share |
||||||||||||||||||||
Basic |
0.64 | 1.25 | 0.90 | 0.33 | 3.13 | |||||||||||||||
Diluted |
0.64 | 1.24 | 0.88 | 0.32 | 3.07 | |||||||||||||||
Weighted average common shares outstanding |
||||||||||||||||||||
Basic |
30,539 | 30,668 | 30,916 | 31,147 | 30,825 | |||||||||||||||
Diluted |
30,728 | 31,106 | 31,590 | 31,910 | 31,379 |
(1) | During the first quarter of 2011, we recognized costs of $0.5 million associated with our secondary public offering and $0.9 million associated with our European office consolidation, which are recorded in selling, general and administrative expenses. In connection with the refinancing of our indebtedness in the first quarter of 2011, we recorded approximately $4.2 million of accelerated amortization of deferred debt issuance costs and a $1.0 million payment to exit an interest rate swap agreement to interest expense and a $3.0 million loss, which we recorded to loss on extinguishment of debt. During the first quarter of 2010, we recorded a $1.3 million reduction of depreciation associated with exiting the Pernis, the Netherlands facilities two months earlier than anticipated, which is included in depreciation and amortization expenses. In addition, we recognized costs of $0.2 million associated with our European office consolidation, which is included in selling, general and administrative expenses. |
(2) | During the second quarter of 2011, we recognized costs of $0.1 million associated with our secondary public offering, which is included in selling, general and administrative expenses. During the second quarter of 2010, we recognized costs of $0.6 million associated with our European office consolidation, which is included in selling, general and administrative expenses. |
(3) | During the third quarter of 2011, we recognized costs of $0.2 million associated with our European office consolidation, which are included in selling, general and administrative expenses. During the third quarter of 2010, we recognized costs of $1.1 million associated with our European office consolidation as well as $0.8 million in costs associated with our secondary public offering, which are included in selling, general and administrative expenses. |
F-53
KRATON PERFORMANCE POLYMERS, INC.
Notes to Consolidated Financial Statements(Continued)
(4) | During the fourth quarter of 2011, we had no unusual or infrequently occurring items. During the fourth quarter of 2010, we recognized costs of $2.7 million associated with our European office consolidation and $1.0 million of costs associated with evaluating an acquisition, which are included in selling, general and administrative. |
Basic and diluted earnings per share are computed independently for each of the quarters presented. Therefore, the sum of quarterly basic and diluted per share information may not equal annual basic and diluted earnings per share.
We have evaluated significant events and transactions that occurred after the balance sheet date and determined that there were no events or transactions other than those disclosed above that would require recognition or disclosure in our consolidated financial statements for the period ended December 31, 2011.
F-54
Report of Independent Registered Public Accounting Firm
The Board of Directors and Stockholders
Kraton Performance Polymers, Inc.:
Under date of February 29, 2012, we reported on the consolidated balance sheets of Kraton Performance Polymers, Inc. and subsidiaries as of December 31, 2011 and 2010, and the related consolidated statements of operations, changes in stockholders and members equity and other comprehensive income, and cash flows for each of the years in the three-year period ended December 31, 2011, which are included in Kraton Performance Polymers, Inc.s annual report on Form 10-K. In connection with our audits of the aforementioned consolidated financial statements, we also audited the related consolidated financial statement schedule in Kraton Performance Polymers, Inc.s annual report on Form 10-K. This financial statement schedule is the responsibility of Kraton Performance Polymers, Inc.s management. Our responsibility is to express an opinion on this financial statement schedule based on our audits.
In our opinion, the financial statement schedule, when considered in relation to the basic consolidated financial statements taken as a whole, presents fairly, in all material respects, the information set forth therein.
/s/ KPMG LLP
Houston, Texas
February 29, 2012
F-55
KRATON PERFORMANCE POLYMERS, INC.
SCHEDULE IIVALUATION AND QUALIFYING ACCOUNTS AND RESERVES
For the Years Ended December 31, 2011, 2010, and 2009
(In thousands)
Balance
at Beginning of Period |
Net
Expenses |
Write-offs |
Balance
at End of Period |
|||||||||||||
Allowance for doubtful accounts: |
||||||||||||||||
Year ended December 31, 2011 |
$ | 947 | $ | (26 | ) | $ | (372 | ) | $ | 549 | ||||||
Year ended December 31, 2010 |
$ | 1,335 | $ | (336 | ) | $ | (52 | ) | $ | 947 | ||||||
Year ended December 31, 2009 |
$ | 2,512 | $ | (857 | ) | $ | (320 | ) | $ | 1,335 | ||||||
Balance
at Beginning of Period |
Net
Expenses |
Foreign
Currency |
Balance
at End of Period |
|||||||||||||
Inventory reserves: |
||||||||||||||||
Year ended December 31, 2011 |
$ | 8,269 | $ | 3,485 | $ | 89 | $ | 11,843 | ||||||||
Year ended December 31, 2010 |
$ | 6,135 | $ | 2,292 | $ | (158 | ) | $ | 8,269 | |||||||
Year ended December 31, 2009 |
$ | 5,063 | $ | 1,526 | $ | (454 | ) | $ | 6,135 |
F-56
EXHIBIT INDEX
Item 15. Exhibits
The following is a list of all exhibits filed as a part of this annual report on Form 10-K, including those incorporated by reference.
Exhibit No |
Description of Exhibits |
|
3.1 | Certificate of Incorporation of Kraton Performance Polymers, Inc. (incorporated by reference to Exhibit 3.1 to Kraton Performance Polymers, Inc.s Form S-1/A filed with the SEC on September 20, 2010) | |
3.2 | Bylaws of Kraton Performance Polymers, Inc. (Incorporated by reference to Exhibit 3.2 to Kraton Performance Polymers, Inc.s Form S-1/A filed with the SEC on September 20, 2010) | |
4.1 | Specimen Stock Certificate of Kraton Performance Polymers, Inc.s Common Stock, par value $0.01 per share (incorporated by reference to Exhibit 4.1 to the Kraton Performance Polymers, Inc.s Form S-1 filed with the SEC on December 10, 2009) | |
4.2 | Indenture, dated as of February 11, 2011, among Kraton Polymers LLC, Kraton Polymers Capital Corporation, the Guarantors named therein and Wells Fargo Bank, National Association, as trustee, relating to the 6.75% Senior Notes due 2019 (incorporated by reference to Exhibit 4.1 to Kraton Performance Polymers, Inc.s Current Report on Form 8-K filed with the SEC on February 15, 2011). | |
4.3 | First Supplemental Indenture, dated as of February 10, 2011 among Kraton Polymers LLC, Kraton Polymers Capital Corporation, the Guarantors named therein and Wells Fargo Bank, National Association, as trustee, relating to the 8.125% Senior Subordinated Notes due 2014 (incorporated by reference to Exhibit 4.3 to Kraton Performance Polymers, Inc.s Current Report on Form 8-K filed with the SEC on February 15, 2011). | |
4.4 | Registration Rights Agreement dated as of February 11, 2011 by and among Kraton Polymers LLC, Kraton Polymers Capital Corporation, Kraton Performance Polymers, Inc., Elastomers Holdings LLC and Kraton Polymers U.S. LLC, and Merrill Lynch, Pierce, Fenner & Smith Incorporated, Credit Suisse Securities (USA) LLC, Goldman, Sachs & Co., Morgan Stanley & Co. Incorporated and Macquarie Capital (USA) Inc. (incorporated by reference to Exhibit 4.2 to Kraton Performance Polymers, Inc.s Current Report on Form 8-K filed with the SEC on February 15, 2011). | |
10.1 | Credit Agreement dated as of February 11, 2011 among Kraton Performance Polymers, Inc., as a Guarantor, Kraton Polymers LLC, as Borrower, the other Guarantors named therein, the Lenders named therein and Bank of America, N.A., as Administrative Agent (incorporated by reference to Exhibit 10.1 to Kraton Performance Polymers, Inc.s Current Report on Form 8-K filed with the SEC on February 15, 2011). | |
10.2 | Pledge Agreement dated as of February 11, 2011 among Kraton Polymers LLC, as Borrower, Kraton Performance Polymers, Inc. and other parties, as Pledgors, and Bank of America, N.A., as Collateral Agent for the holders of the Secured Obligations (incorporated by reference to Exhibit 10.2 to Kraton Performance Polymers, Inc.s Current Report on Form 8-K filed with the SEC on February 15, 2011). | |
10.3 | Security Agreement dated as of February 11, 2011 among Kraton Polymers LLC, as Borrower, Kraton Performance Polymers, Inc. and other parties, as Grantors, and Bank of America N.A. as Collateral Agent for the holders of the Secured Obligations (incorporated by reference to Exhibit 10.3 to Kraton Performance Polymers, Inc.s Current Report on Form 8-K filed with the SEC on February 15, 2011). |
E-1
Exhibit No |
Description of Exhibits |
|
10.4 | Contribution Agreement dated February 28, 2001, between Shell Oil Company and Shell Elastomers (portions of this exhibit have been omitted pursuant to a request for confidential treatment) (incorporated by reference to Exhibit 10.44 to Amendment No. 1 to Kraton Performance Polymers, Inc.s Annual Report on Form 10-K/A filed with the SEC on October 28, 2011) | |
10.5 | Contribution Agreement dated February 28, 2001, between Shell Internationale Research Maatschappij B.V. and Kraton Polymers Research B.V. (portions of this exhibit have been omitted pursuant to a request for confidential treatment) (incorporated by reference to Exhibit 10.45 to Amendment No. 2 to Kraton Performance Polymers, Inc.s Annual Report on Form 10-K/A filed with the SEC on February 3, 2012) | |
10.6 | Amended and Restated Belpre Facility Sharing and Operating Agreement dated July 1, 1999, among Infineum USA LP, Shell Oil Kraton and Shell Elastomers LLC (portions of this exhibit have been omitted pursuant to a request for confidential treatment) (incorporated by reference to Exhibit 10.31 to Amendment No. 1 to Kraton Performance Polymers, Inc.s Annual Report on Form 10-K/A filed with the SEC on October 28, 2011) | |
10.7 | Amendment No. 1 dated January 23, 2007 to Amended and Restated Belpre Facility Sharing and Operating Agreement (incorporated by reference to Exhibit 10.69 to the Kraton Performance Polymers, Inc.s Form S-1 filed with the SEC on November 20, 2009) | |
10.8 | Amendment No. 2 dated January 1, 2009 to Amended and Restated Belpre Facility Sharing and Operating Agreement (incorporated by reference to Exhibit 10.70 to the Kraton Performance Polymers, Inc.s Form S-1 filed with the SEC on November 20, 2009) | |
10.9 | Manufacturing Facility Lease dated August 24, 2000, between Shell Chemie and Kravis (Berre-Kraton D) (incorporated by reference to Exhibit 10.47 to Kraton Polymers LLCs Registration Statement on Form S-4 filed with the SEC on April 1, 2005) | |
10.10 | Manufacturing Facility Lease dated August 24, 2000, between Shell Chimie and Kraton Polymers France SAS (Berre-Kraton G) (incorporated by reference to Exhibit 10.48 to Kraton Polymers LLCs Registration Statement on Form S-4 filed with the SEC on April 1, 2005) | |
10.11 | First Amended and Restated Site Services, Utilities, Materials and Facilities Agreement dated February 28, 2001, between Shell Chimie S.A. and Kraton Polymers France S.A.S. (Berre) (portions of this exhibit have been omitted pursuant to a request for confidential treatment) (incorporated by reference to Exhibit 10.30 to Amendment No. 1 to Kraton Performance Polymers, Inc.s Annual Report on Form 10-K/A filed with the SEC on October 28, 2011) | |
10.12 | First Amended and Restated Operations and Maintenance Services Agreement dated February 28, 2001, between Kraton Polymers France S.A.S. and Shell Chimie S.A. (Berre) (portions of this exhibit have been omitted pursuant to a request for confidential treatment) (incorporated by reference to Exhibit 10.36 to Amendment No. 2 to Kraton Polymers LLCs Registration Statement on Form S-4 filed with the SEC on July 15, 2005) | |
10.13 | Business Lease dated March 31, 2000, between Elenac GmbH and Kraton Polymers GmbH (Wesseling) (portions of this exhibit have been omitted pursuant to a request for confidential treatment) (incorporated by reference to Exhibit 10.49 to Kraton Polymers LLCs Registration Statement on Form S-4 filed with the SEC on April 1, 2005) | |
10.14 | Amendment to the Business Lease dated March 31, 2000, between Bassell Polyolefine GmbH (previously Elenac GmbH) and Kraton Polymers GmbH (incorporated by reference to Exhibit 10.49(a) to Kraton Polymers LLCs Registration Statement on Form S-4 filed with the SEC on April 1, 2005) |
E-2
Exhibit No |
Description of Exhibits |
|
10.15 | Production Agreement (Elastomers) dated March 31, 2000, between Elenac GmbH and Kraton Polymers GmbH (Wesseling) (portions of this exhibit have been omitted pursuant to a request for confidential treatment) (incorporated by reference to Exhibit 10.37 to Amendment No. 2 to Kraton Polymers LLCs Registration Statement on Form S-4 filed with the SEC on July 15, 2005) | |
10.16 | 1,3-Butadiene Agreement dated December 1, 1999, between Deutsche Shell Chemie GmbH and MWW Achtundzwanzigste Vermoegensverwaltungs GmbH (portions of this exhibit have been omitted pursuant to a request for confidential treatment) (incorporated by reference to Exhibit 10.37 to Amendment No. 1 to Kraton Performance Polymers, Inc.s Annual Report on Form 10-K/A filed with the SEC on October 28, 2011) | |
10.17+ | Savings Deferred Compensation and Restoration Plan dated December 31, 2008, restated (incorporated by reference to Exhibit 10.28 to the Kraton Performance Polymers, Inc.s Form S-1 filed with the SEC on November 20, 2009) | |
10.18+ | Pension Benefit Restoration Plan dated December 31, 2008, restated (incorporated by reference to Exhibit 10.29 to the Kraton Performance Polymers, Inc.s Form S-1 filed with the SEC on December 2, 2009) | |
10.19+ | Kraton Polymers LLC Executive Deferred Compensation Plan dated December 31, 2008 (incorporated by reference to Exhibit 10.30 to the Kraton Performance Polymers, Inc.s Form S-1 filed with the SEC on December 2, 2009) | |
10.20+ | Polymer Holdings LLC Executive Deferred Compensation Plan dated November 30, 2009 (incorporated by reference to Exhibit 10.52 to the Kraton Performance Polymers, Inc.s Form S-1 filed with the SEC on December 2, 2009) | |
10.23+ | TJ Chemical Holdings LLC 2004 Option Plan (as amended and restated November 30, 2009) (incorporated by reference to Exhibit 10.53 to the Kraton Performance Polymers, Inc.s Form S-1 filed with the SEC on December 2, 2009) | |
10.24+* | Kraton Performance Polymers, Inc. 2009 Equity Incentive Plan (as amended and restated February 16, 2012) | |
10.25+* | Form of Kraton Performance Polymers, Inc. Restricted Stock Grant Agreement under the 2009 Equity Incentive Plan | |
10.26+* | Form of Kraton Performance Polymers, Inc. Option Grant Agreement under the 2009 Equity Incentive Plan | |
10.27+* | Polymer Holdings LLC Cash Incentive Plan dated effective December 16, 2009 | |
10.28+* | First Amendment to Polymer Holdings LLC Cash Incentive Plan dated February 26, 2012 | |
10.29+ | Summary of Terms of 2011 Polymer Holdings LLC Cash Incentive Plan (incorporated by reference to Kraton Performance Polymers, Inc.s Current Report on Form 8-K filed with the SEC on February 1, 2011) | |
10.30+* | Kraton Performance Polymers, Inc. Executive Severance Program effective as of November 1, 2011 | |
10.31+* | Form of Employee Confidentiality and Non-Competition Agreement entered into by executives participating in the Executive Severance Program | |
10.32+ | Notional Unit Award Grant Agreement dated July 15, 2005, between Kevin M. Fogarty and Kraton Polymers LLC (incorporated by reference to Exhibit 10.56 to Amendment No. 3 to Kraton Polymers LLCs Registration Statement on Form S-4 filed with the SEC on August 30, 2005) | |
10.33+ | Amendment No. 1 dated December 18, 2008 to the Notional Unit Award Grant Agreement, between Kevin M. Fogarty and Kraton Polymers LLC (incorporated by reference to Exhibit 10.23 to the Kraton Performance Polymers, Inc.s Form S-1 filed with the SEC on November 20, 2009) |
E-3
Exhibit No |
Description of Exhibits |
|
10.34+ | Amendment No. 2 dated December 8, 2009 to the Notional Unit Award Grant Agreement, between Kevin M. Fogarty and Kraton Polymers LLC (incorporated by reference to Exhibit 10.47 to the Kraton Performance Polymers, Inc.s Form S-1 filed with the SEC on December 10, 2009) | |
10.35+ | Amendment No.1 dated December 8, 2009 to the Restricted Unit Award Grant Agreement dated as of June 19, 2008, between Kraton Polymers LLC and Kevin M. Fogarty (incorporated by reference to Exhibit 10.54 to the Kraton Performance Polymers, Inc.s Form S-1 filed with the SEC on December 10, 2009) | |
10.36+ | Amendment to Outstanding Option Grant Agreements (incorporated by reference to Exhibit 10.92 to the Kraton Performance Polymers, Inc.s Form S-1 filed with the SEC on December 2, 2009) | |
10.37+ | First Amendment to Employment Agreement (Kevin M. Fogarty) (incorporated by reference to Exhibit 99.1 to Kraton Performance Polymers, Inc.s Current Report on Form 8-K filed with the SEC on February 1, 2011) | |
10.38+* | Termination of Employment Agreement and Release Agreement (Fogarty) dated effective as of October 31, 2011 | |
10.39+* | Termination of Employment Agreement and Release Agreement (Tremblay) dated effective as of October 31, 2011 | |
10.40+* | Termination of Employment Agreement and Release Agreement (Duffy) dated effective as of October 31, 2011 | |
10.41+* | Termination of Employment Agreement and Release Agreement (Freund) dated effective as of October 31, 2011 | |
10.42+ | Employment Agreement (Lee) dated effective as of January 1, 2011 (incorporated by reference to Exhibit 10.54 to Kraton Performance Polymers, Inc.s Annual Report on Form 10-K filed with the SEC on March 7, 2011) | |
10.43+* | Termination of Employment Agreement and Release Agreement (Lee) dated effective as of October 31, 2011 | |
10.44+* | Termination of Employment Agreement and Release Agreement (Ott) dated effective as of October 31, 2011 | |
10.45+ | Separation Agreement dated effective as of May 31, 2011 by and between Larry R. Frazier and Kraton Polymers LLC and Kraton Performance Polymers, Inc. (incorporated by reference to Exhibit 10.3 to Kraton Performance Polymers, Inc.s Quarterly Report on Form 10-Q filed with the SEC on August 4, 2011) | |
10.46+* | Form of Indemnification Agreement (incorporated by reference to Exhibit 10.1 to Kraton Performance Polymers, Inc.s Current Report on Form 8-K filed with the SEC on December 16, 2011) | |
12.1* | Statement of Computation of Ratio of Earnings to Fixed Charges | |
21.1* | List of Significant Subsidiaries | |
23.1* | Consent of Independent Registered Public Accounting Firm | |
24.1* | Powers of Attorney | |
31.1* | Certification by CEO pursuant to Rule 13a-14(a) or 15d-14(a) of the Securities Exchange Act of 1934, as adopted pursuant to Section 302 of the Sarbanes-Oxley Act of 2002 | |
31.2* | Certification by CFO pursuant to Rule 13a-14(a) or 15d-14(a) of the Securities Exchange Act of 1934, as adopted pursuant to Section 302 of the Sarbanes-Oxley Act of 2002 |
E-4
Exhibit No |
Description of Exhibits |
|
32.1* | Certification by CEO and CFO pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002 |
+ | Denotes management contract or compensatory plan or arrangement. |
* | Filed herewith. |
E-5
Exhibit 10.24
KRATON PERFORMANCE POLYMERS, INC.
2009 EQUITY INCENTIVE PLAN
(As Amended and Restated Effective February 16, 2012)
1. Purpose of the Plan
This Kraton Performance Polymers, Inc. 2009 Equity Incentive Plan (formerly known as the Polymer Holdings LLC 2009 Equity Incentive Plan) is intended to promote the interests of the Company and its stockholders by providing the (i) employees and independent contractors of the Company and (ii) non-employee directors of Kraton Performance, who are largely responsible for the management, growth, and protection of the business of the Company, with incentives and rewards to encourage them to continue in the service of the Company. The Plan is designed to meet this intent by providing such employees, independent contractors, and eligible non-employee directors with a proprietary interest in pursuing the long-term growth, profitability, and financial success of the Company.
2. Definitions
As used in the Plan or in any instrument governing the terms of any Award, the following definitions apply to the terms indicated below:
(a) Awards mean all equity awards granted pursuant to the terms of the Plan including, but not limited to, Incentive Stock Options, Non-Qualified Stock Options, Stock Appreciation Rights, restricted stock awards and restricted stock unit awards granted pursuant to the terms of the Plan.
(b) Award Agreement means the written agreement between the Company and a Grantee that evidences and sets out the terms and conditions of an Award.
(c) Board of Directors means the Board of Directors of Kraton Performance.
(d) Change in Control , as used in any instrument governing the terms of any Award, means the occurrence of any of the following:
(i) Change in the Ownership of a Corporation . Any one person, or more than one person acting as a group (as defined in Treasury Regulation Section 1.409A-3(i)(5)(v)(B)), acquires ownership of stock of the corporation that, together with stock held by such person or group, constitutes more than 50 percent of the total fair market value or total voting power of the stock of such corporation.
(ii) Change in the Effective Control of a Corporation . The date any one person, or more than one person acting as a group (as determined under Treasury Regulation Section 1.409A-3(i)(5)(v)(B)), acquires (or has acquired during the 12-month period ending on the date of the most recent acquisition by such person or persons) ownership of stock of the corporation possessing 30 percent or more of the total voting power of the stock of such corporation; or the date a majority of members of the board of directors is replaced during any 12-month period by directors whose appointment or election is not endorsed by a majority of the members of the board of directors before the date of the appointment or election.
(iii) Change in the Ownership of a Substantial Portion of a Corporation . A change in the ownership of a substantial portion of a corporations assets occurs on the date that any one person, or more than one person acting as a group (as determined in Treasury Regulation Section 1.409A-3(i)(5)(v)(B)), acquires (or has acquired during the 12-month period ending on the date of the most recent acquisition by such person or persons) assets from the corporation that have a total gross fair market value equal to or more than 40 percent of the total gross fair market value of all of the assets of the corporation immediately before such acquisition or acquisitions. For this purpose, gross fair market value means the value of the assets of such corporation, or the value of the assets being disposed of, determined without regard to any liabilities associated with such assets.
Notwithstanding the foregoing, a Change in Control shall not be deemed to occur as a result of any event or transaction to the extent that treating such event or transaction as a Change in Control would cause any tax to become due under Section 409A of the Code.
(e) Code means the Internal Revenue Code of 1986, as amended from time to time, and all regulations, interpretations, and administrative guidance issued thereunder.
(f) Committee means the Compensation Committee of the Board of Directors or such other committee as the Board of Directors shall appoint from time to time to administer the Plan and to otherwise exercise and perform the authority and functions assigned to the Committee under the terms of the Plan.
(g) Common Stock means the common stock of Kraton Performance, $0.01 par value per share, or any other security into which the common stock shall be changed pursuant to the adjustment provisions of Section 10 of the Plan.
(h) Company means Kraton Performance Polymers, Inc. and all of its Subsidiaries and affiliates, collectively.
(i) Covered Employee means a Participant who at the time of reference is a covered employee as defined in Section 162(m) of the Code.
(j) Director means a member of the Board of Directors who is not at the time of reference an employee of the Company.
(k) Effective Date means November 30, 2009, the date the Plan was originally approved by the Companys stockholders.
(l) Exchange Act means the Securities Exchange Act of 1934, as amended.
(m) Fair Market Value means, with respect to a share of Common Stock, as of the applicable date of determination (i) the average of the high and low sales prices on the immediately preceding business day of a share of Common Stock as reported on the principal securities exchange on which shares of Common Stock are then listed or admitted to trading or (ii) if not so reported, the average of the closing bid and ask prices on the immediately preceding business day as reported on the National Association of Securities Dealers Automated Quotation System or (iii) if not so reported, as furnished by any member of the National Association of Securities Dealers, Inc. selected by the Committee. In the event that the price of a share of Common Stock shall not be so reported or the Committee otherwise determines a different valuation is appropriate, the Fair Market Value of a share of Common Stock shall be determined by the Committee in its sole discretion in any manner consistent with Section 409A of the Code.
(n) Incentive Stock Option means an Option qualified under Section 422 of the Code.
(o) Kraton Performance means Kraton Performance Polymers, Inc., a Delaware corporation (formerly known as Polymers Holdings LLC), and any successor thereto.
(p) Non-Qualified Stock Option means an Option that is not an incentive stock option within the meaning of Section 422 of the Code.
(q) Option means a stock option to purchase shares of Common Stock granted to a Participant pursuant to Section 6.
(r) Other Stock-Based Award means an award granted to a Participant pursuant to Section 7.
(s) Participant means a Director, employee, or independent contractor of the Company who is eligible to participate in the Plan and to whom one or more Awards have been granted and, following the death of any such Person, his successors, heirs, executors, and administrators, as the case may be.
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(t) Performance-Based Compensation means compensation that satisfies the requirements of Section 162(m) of the Code for deductibility of remuneration paid to Covered Employees.
(u) Performance Measures means such measures as are described in Section 8 on which performance goals are based in order to qualify certain awards granted hereunder as Performance-Based Compensation.
(v) Performance Period means the period of time during which the performance goals must be met in order to determine the degree of payout and/or vesting with respect to an Award, other than an Option or Stock Appreciation Right, that is intended to qualify as Performance-Based Compensation. Performance Periods may be overlapping.
(w) Performance Target means performance goals and objectives with respect to a Performance Period.
(x) Person means a person as such term is used in Sections 13(d) and 14(d) of the Exchange Act, including any group within the meaning of Section 13(d)(3) of the Exchange Act.
(y) Plan means this Kraton Performance Polymers, Inc. 2009 Equity Incentive Plan, as it may be amended from time to time.
(z) Securities Act means the Securities Act of 1933, as amended.
(aa) Stock Appreciation Rights means a right to receive, upon exercise thereof, the excess of (i) the Fair Market Value of one share of Common Stock on the date of exercise over (ii) the exercise price of the Stock Appreciation Right.
(bb) Subsidiary means any subsidiary within the meaning of Rule 405 under the Securities Act.
3. Stock Subject to the Plan, Share Counting Rules, and Individual Award Limits
(a) Stock Subject to the Plan . The maximum number of shares of Common Stock that may be delivered pursuant to Awards granted under the Plan shall be 4,350,000. Furthermore, the maximum number of shares of Common Stock that may be covered by Awards granted under the Plan in any calendar year shall not exceed (i) 750,000 shares of Common Stock, plus (ii) any shares of Common Stock subject to Awards that expire, are forfeited, or are cancelled during the immediately preceding calendar year, plus (iii) any shares of Common Stock tendered by a Participant or withheld by the Company or one of its Subsidiaries to satisfy the tax withholding obligations related to any Award during the immediately preceding calendar year, plus (iv) any shares of Common Stock tendered by a Participant or withheld by the Company to satisfy all or any portion of the exercise price related to an Award during the immediately preceding calendar year. The maximum number of shares of Common Stock that may be covered by Incentive Stock Options in all calendar years shall not exceed 1,000,000 shares of Common Stock. The shares referred to in the preceding sentences of this paragraph shall in each case be subject to adjustment as provided in Section 10 and the following provisions of this Section 3. Shares of Common Stock issued under the Plan may be either authorized and unissued shares or treasury shares, or both, in the sole discretion of the Committee. For Performance-Based Compensation, Shares payable upon achievement of target payouts shall be the number used for purposes of determining what portion of Performance-Based Compensation is counted against the total shares available for grant under the Plan.
(b) Share Counting Rules . Shares of Common Stock covered by Awards granted pursuant to the Plan in connection with the assumption, replacement, conversion, or adjustment of outstanding equity-based awards in the context of a corporate acquisition or merger (within the meaning of Section 303A.08 of the New York Stock Exchange Listed Company Manual) as provided in Section 10 of the Plan shall not count as used under the Plan for purposes of Section 3.
(c) Individual Award Limits . Subject to adjustment as provided in Section 10, no Participant may receive Awards under this Plan in any calendar year that relate to more than 300,000 shares of Common Stock.
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4. Administration of the Plan
(a) The Committee
The Plan shall be administered by the Committee, which shall consist solely of two or more persons, each of whom qualifies as a non-employee director (within the meaning of Rule 16b-3 promulgated under Section 16 of the Exchange Act), as an outside director within the meaning of Treasury Regulation Section 1.162-27(e)(3), and as independent within the meaning of any applicable stock exchange or similar regulatory authority; provided that, with respect to any independent composition requirement under any rule of any applicable stock exchange or similar regulatory authority, the independent composition requirement shall be phased in pursuant to any applicable transition period; provided further that, with respect to any Award granted to, or any determination made with respect to, any Person subject to Section 16 of the Exchange Act prior to the date the independent composition requirement has been satisfied, such grant shall be approved by the full Board of Directors, and with respect to any Award granted to, or any determination made with respect to, any Covered Employee, prior to the date the independent composition requirement has been satisfied, such grant shall be approved by a subcommittee of the Committee that is composed solely of two or more outside directors within the meaning of Treasury Regulation Section 1.162-27(e)(3).
(b) Grant of Awards
The Committee shall, consistent with the terms of the Plan, from time to time designate those employees and independent contractors of the Company who shall be granted Awards under the Plan and the amount, type, and other terms and conditions of such Awards. The Board of Directors may, consistent with the terms of the Plan, from time to time grant Awards to Directors. The Committee may prescribe agreements evidencing or setting the terms of any Awards, and amendments thereto, which documents and amendments need not be identical for each Participant.
The Committee may also enter into agreements with third parties pursuant to which such third parties may issue Awards to the Participants in lieu of the Companys issuance thereof or assume the obligations of the Company under any Awards previously issued by the Company, in any case on such terms and conditions as may be determined by the Committee in its sole discretion.
Awards granted under the Plan may, in the Committees discretion, be granted either alone or in addition to, in tandem with, or in substitution or exchange for, any other Award, any award granted under another plan of the Company or any business entity to be acquired by the Company, or any other right of a Participant to receive payment from the Company. Awards granted in addition to or in tandem with other Awards or awards may be granted either as of the same time as, or a different time from, the grant of such other Awards or awards.
(c) Delegation of Authority
All of the powers and responsibilities of the Committee under the Plan may be delegated by the Committee, in writing, to any subcommittee thereof, in which case the acts of such subcommittee shall be deemed to be acts of the Committee hereunder. The Committee may also from time to time authorize a subcommittee consisting of one or more members of the Board of Directors (including members who are employees of the Company) to grant Awards under the Plan to persons who are not Directors or executive officers of the Company (within the meaning of Rule 16a-1 under the Exchange Act), subject to such restrictions and limitations as the Committee may specify.
In addition, the Committee may delegate the administration of the Plan to one or more officers or employees of the Company, and such administrator(s) may have the authority to execute and distribute Award Agreements or other documents evidencing or relating to Awards granted by the Committee under this Plan, to maintain records relating to Awards, to process or oversee the issuance of Common Stock under Awards, to interpret and administer the terms of Awards, and to take such other actions as may be necessary or appropriate for the administration of the Plan and of Awards under the Plan; provided that in no case shall any such administrator be authorized (i) to grant Awards under the Plan, (ii) to take any action that would cause Awards intended to qualify as Performance-Based Compensation to fail to so qualify, (iii) to take any action inconsistent with Section 409A of the Code or (iv) to take any action inconsistent with Section 157 and other applicable provisions of the Delaware General Corporation Law. Any action by any such administrator within the scope of its delegation shall be deemed for all purposes to have been taken by the Committee and, except as otherwise specifically provided, references in this Plan to the
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Committee shall include any such administrator. The Committee and, to the extent it so provides, any subcommittee, shall have sole authority to determine whether to review any actions and/or interpretations of any such administrator, and if the Committee shall decide to conduct such a review, any such actions and/or interpretations of any such administrator shall be subject to approval, disapproval, or modification by the Committee.
(d) Committee Discretion
The Committee shall have full discretionary authority to administer the Plan, including discretionary authority to interpret and construe any and all provisions of the Plan and the terms of any Award (and any Award Agreement) granted thereunder and to adopt and amend from time to time such rules and regulations for the administration of the Plan as the Committee may deem necessary or appropriate. Without limiting the generality of the foregoing, the Committee shall determine whether an authorized leave of absence, or absence in military or government service, shall constitute termination of employment; provided that, no payment shall be made with respect to any Award that is subject to Section 409A of the Code as a result of any such authorized leave of absence or absence in military or government service unless such authorized leave or absence constitutes a separation from service for purposes of Section 409A of the Code. The employment of a Participant with the Company shall be deemed to have terminated for all purposes of the Plan if such person is employed by or provides services to a Person that is a Subsidiary of the Company and such Person ceases to be a Subsidiary of the Company, unless the Committee determines otherwise. Decisions of the Committee shall be final, binding, and conclusive on all parties.
On or after the date of grant of an Award under the Plan, the Committee may (i) in the event of a Participants death, disability or retirement (in the case of disability and retirement, unless otherwise specified in the relevant grant agreement, as determined in accordance with the applicable policies and procedures of the Company as in effect from time to time) or in the event of a Change in Control, accelerate the date on which any such Award becomes vested or exercisable, as the case may be, (ii) accelerate the date on which any such Award becomes transferable, (iii) extend the term of any such Award, including, without limitation, extending the period following a termination of a Participants employment during which any such Award may remain outstanding, (iv) waive any conditions to the vesting, exercisability, or transferability, as the case may be, of any such Award or (v) provide for the payment of dividends or dividend equivalents with respect to any such Award; provided that the Committee shall not have any such authority and shall not take any such action to the extent that the grant of such authority or the taking of such action would cause any tax to become due under Section 409A of the Code.
The Committee may grant dividend equivalents to any Participant based on the dividends declared on shares of Common Stock that are subject to any Award during the period between the date the Award is granted and the date the Award is exercised, vests, pays out, or expires. Such dividend equivalents may be awarded or paid in the form of cash, shares of Common Stock, restricted stock, or restricted stock units, or a combination, and shall be determined by such formula and at such time and subject to such accrual, forfeiture, or payout restrictions or limitations as determined by the Committee in its sole discretion. Dividend equivalents granted with respect to Options or Stock Appreciation Rights that are intended to be Performance-Based Compensation shall be payable, with respect to pre-exercise periods, regardless of whether such Option or Stock Appreciation Right is subsequently exercised.
(e) Payments by the Company
The Company shall pay any amount payable with respect to an Award in accordance with the terms of such Award; provided that the Committee may, in its discretion, defer the payment of amounts payable with respect to an Award subject to and in accordance with the terms of a deferred compensation plan established and maintained by the Company, to the extent such deferred compensation plan permits deferral of Awards granted hereunder. Payments to be made by the Company upon the exercise of an Option or other Award or settlement of an Award may be made in such forms as the Committee shall determine, including, without limitation, cash, Common Stock, other Awards or other property, and may be made in a single payment or transfer, in installments, or on a deferred basis. The settlement of any Award may be accelerated, and cash paid in lieu of Common Stock in connection with such settlement, in the Committees discretion or upon occurrence of one or more specified events; provided that, with respect to any Award subject to Section 409A of the Code, such acceleration or payment shall comply with Section 409A of the Code.
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The Company may, to the extent permitted by applicable law and permissible under Section 409A of the Code, deduct from and set off against any amounts the Company may owe to the Participant from time to time (including amounts payable in connection with any Award, owed as wages, fringe benefits, or other compensation owed to the Participant), such amounts as may be owed by the Participant to the Company, although the Participant shall remain liable for any part of the Participants payment obligation not satisfied through such deduction and setoff. By accepting any Award granted hereunder, the Participant agrees to any deduction or setoff under this Section 4.
The Company may, to the extent deemed necessary or advisable by the Committee, postpone the issuance or delivery of Common Stock or payment of other benefits under any Award until completion of such registration or qualification of such Common Stock or other required action under any federal or state law, rule or regulation, listing or other required action with respect to any stock exchange or automated quotation system upon which the Common Stock or other securities of the Company are listed or quoted, or compliance with any other obligation of the Company, as the Committee may consider appropriate, and may require any Participant to make such representations, furnish such information and comply with or be subject to such other conditions as it may consider appropriate in connection with the issuance or delivery of Common Stock or payment of other benefits in compliance with applicable laws, rules, and regulations, listing requirements, or other obligations; provided that the Committee shall take no action to the extent that the taking of such action would cause any tax to become due under Section 409A of the Code. The foregoing notwithstanding, in connection with a Change of Control, the Company shall take or cause to be taken no action, and shall undertake or permit to arise no legal or contractual obligation, that results or would result in any postponement of the issuance or delivery of Common Stock or payment of benefits under any Award or the imposition of any other conditions on such issuance, delivery, or payment, to the extent that such postponement or other condition would represent a greater burden on a Participant than existed on the 90th day preceding the Change of Control.
The inability of the Company (after reasonable efforts) 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/or sale of any Awards or shares of Common Stock hereunder, shall relieve the Company of any liability in respect of the failure to issue and/or sell such Awards or shares of Common Stock as to which such requisite authority shall not have been obtained.
In addition, the Committee may permit (including, without limitation, for purposes of deductibility under Section 162(m) of the Code) a Participant to defer such Participants receipt of the payment of cash or the delivery of shares of Common Stock that would otherwise be due to such Participant in connection with any Award.
If any such deferral is required or permitted, the Committee shall, in its sole discretion, establish rules and procedures, in accordance with Section 409A of the Code (to the extent applicable), for such payment or Common Stock delivery deferrals and any notional earnings to be credited on such deferred amounts; provided that in the case of any Award intended to qualify as Performance-Based Compensation, such earnings shall be in compliance with Code Section 162(m) of the Code.
(f) Limitation on Liability
The Committee may employ attorneys, consultants, accountants, agents, and other persons, and the Committee, the Company, and its officers, directors, and employees shall be entitled, in good faith, to rely or act upon any advice, opinions, or valuations of any such persons. In addition, the Committee and each member thereof, and any person acting pursuant to authority delegated by the Committee, shall be entitled, in good faith, to rely or act upon any report or other information furnished by any officer, director, or employee of the Company, the Companys independent auditors, consultants, or any other agents assisting in the administration of the Plan.
No member of the Committee, nor any person acting pursuant to authority delegated by the Committee, nor any officer, director, or employee of the Company acting at the direction or on behalf of the Committee, shall be liable for any action, omission, or determination relating to the Plan, and Kraton Performance shall, to the fullest extent permitted by law, indemnify and hold harmless each member of the Committee, each person acting pursuant to authority delegated by the Committee, and each other officer, director, or employee of the Company to whom any duty or power relating to the administration or interpretation of the Plan has been delegated, against any cost or expense (including counsel fees) or liability (including any sum paid in settlement of a claim with the approval of the Committee) arising out of any action, omission or determination relating to the Plan, unless, in either case, such action, omission, or determination was taken or made by such member, director, employee, or other person acting pursuant to authority delegated by the Committee in bad faith and without reasonable belief that it was in the best interests of the Company.
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5. Eligibility
The persons who shall be eligible to receive Awards pursuant to the Plan shall be (a) those employees and independent contractors of the Company whom the Committee shall select from time to time and (b) Directors whom the Board of Directors shall select from time to time. Eligible persons shall include any person who has been offered employment by the Company; provided that such prospective employee may not receive any payment or exercise any right relating to an Award until such person has commenced employment with the Company. An employee on leave of absence may be considered as still in the employ of the Company for purposes of eligibility for participation in the Plan, if so determined by the Committee. In lieu of making Awards directly to Participants, the Committee may make Awards under the Plan through or to a trust or other funding vehicle which in turn makes Awards to Participants or which issues interests in Awards held by it to Participants, in any case on such terms and conditions as may be determined by the Committee in its sole discretion. Each Award granted under the Plan shall be evidenced by an instrument in writing in form and substance approved by the Committee.
6. Options
The Committee may from time to time grant Options, subject to the following terms and conditions:
(a) Exercise Price
The exercise price per share of Common Stock covered by any Option shall be not less than 100% of the Fair Market Value of a share of Common Stock on the date on which such Option is granted. The Award Agreement of each Option shall fix the exercise price and shall clearly identify such Option as either an incentive stock option within the meaning of Section 422 of the Code or as a Non-Qualified Stock Option.
(b) Term and Exercise of Options
(1) Each Option shall become vested and exercisable on such date or dates, during such period, and for such number of shares of Common Stock as shall be determined by the Committee on or after the date such Option is granted; provided, however , that no Option shall be exercisable after the expiration of ten years from the date such Option is granted; and; provided further that each Option shall be subject to earlier termination, expiration, or cancellation as provided in the Plan or in the relevant Award Agreement.
(2) Each Option may be exercised in whole or in part. The partial exercise of an Option shall not cause the expiration, termination, or cancellation of the remaining portion thereof.
(3) An Option shall be exercised by such methods and procedures as the Committee determines from time to time; provided, however , that Participants shall have the right to exercise vested Options through net settlement in shares of Common Stock; provided, further that net cash settlement shall not be permitted.
(4) Options may not be sold, pledged, assigned, hypothecated, transferred, or disposed of in any manner other than by will or by the laws of descent or distribution and may be exercised, during the lifetime of a Participant, only by the Participant; provided, however , that the Committee may permit Non-Qualified Stock Options to be sold, pledged, assigned, hypothecated, transferred, or disposed of, on a general or specific basis, subject to such conditions and limitations as the Committee may determine. In addition, the Committee may impose such restrictions on any shares acquired pursuant to the exercise of an Option as it may deem advisable, including, without limitation, minimum holding period requirements, restrictions under applicable federal securities laws, under the requirements of any stock exchange or market upon which such shares are then listed and/or traded, or under any blue sky or state securities laws applicable to such shares.
(5) The terms of outstanding awards may not be amended to reduce the exercise price of outstanding Options or Stock Appreciation Rights nor may outstanding Options or Stock Appreciation Rights be cancelled in exchange for cash, other awards or Options or Stock Appreciation Rights with an exercise price that is less than the exercise price of the original Options or Stock Appreciation Rights.
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(6) Regardless of the terms of any Award Agreement, the Committee shall have the right to substitute Stock Appreciation Rights for outstanding Options granted to any Participant; provided the substituted Stock Appreciation Rights call for settlement by the issuance of shares of Common Stock, and the terms of the substituted Stock Appreciation Rights and economic benefit of such substituted Stock Appreciation Rights are at least equivalent to the terms and economic benefit of the Options being replaced.
(c) Special Rules for Incentive Stock Options
(1) The aggregate Fair Market Value of shares of Common Stock with respect to which Incentive Stock Options are exercisable for the first time by a Participant during any calendar year under the Plan and any other stock option plan of Kraton Performance or any of its subsidiaries (within the meaning of Section 424 of the Code) shall not exceed $100,000. Such Fair Market Value shall be determined as of the date on which each such Incentive Stock Option is granted. In the event that the aggregate Fair Market Value of shares of Common Stock with respect to such Incentive Stock Options exceeds $100,000, then Incentive Stock Options granted hereunder to such Participant shall, to the extent and in the order required by regulations promulgated under the Code (or any other authority having the force of regulations), automatically be deemed to be Non-Qualified Stock Options, but all other terms and provisions of such Incentive Stock Options shall remain unchanged. In the absence of such regulations (and authority), or in the event such regulations (or authority) require or permit a designation of the Options which shall cease to constitute Incentive Stock Options, Incentive Stock Options granted hereunder shall, to the extent of such excess and in the order in which they were granted, automatically be deemed to be Non-Qualified Stock Options, but all other terms and provisions of such Incentive Stock Options shall remain unchanged.
(2) No Incentive Stock Option may be granted to an individual if, at the time of the proposed grant, such individual owns stock possessing more than ten percent of the total combined voting power of all classes of stock of Kraton Performance or any of its subsidiaries (within the meaning of Section 424 of the Code), unless (i) the exercise price of such Incentive Stock Option is at least one hundred and ten percent of the Fair Market Value of a share of Common Stock at the time such Incentive Stock Option is granted and (ii) such Incentive Stock Option is not exercisable after the expiration of five years from the date such Incentive Stock Option is granted.
Options are not intended to provide for the deferral of compensation under Section 409A of the Code, and thus, are intended to be exempt from Treasury Regulations issued under Section 409A of the Code.
7. Other Stock-Based Awards
The Committee may grant equity-based or equity-related awards not otherwise described herein, including but not limited to restricted stock awards and restricted stock unit awards, in such amounts and subject to such terms and conditions as the Committee shall determine. Without limiting the generality of the preceding sentence, each such Other Stock-Based Award may (i) involve the transfer of actual shares of Common Stock to Participants, either at the time of grant or thereafter, or payment in cash or otherwise of amounts based on the value of shares of Common Stock, (ii) be subject to performance-based and/or service-based conditions, (iii) be in the form of Stock Appreciation Rights, phantom stock, restricted stock, restricted stock units, performance shares, deferred share units, or share-denominated performance units, (iv) be designed to comply with applicable laws of jurisdictions other than the United States, and (v) be designed to qualify as Performance-Based Compensation; provided, however, that each Other Stock-Based Award shall be denominated in, or shall have a value determined by reference to, a number of shares of Common Stock that is specified at the time of the grant of such award. With respect to awards of restricted stock subject only to service-based conditions, such awards shall vest over a period of no fewer than three years. Notwithstanding the foregoing, to the extent any such Other Stock-Based Award is subject to Section 409A of the Code, the Award Agreement of such Other Stock-Based Award shall contain terms and conditions (including, without limitation and to the extent applicable, deferral and payment provisions) that comply with Section 409A of the Code.
Subject to accelerated vesting in the event of a Participants termination of employment due to death, disability or retirement or due to the occurrence of a Change in Control as provided in Section 4(d), the vesting of an Other Stock-Based Award based on (i) continued employment with the Company shall have a minimum vesting period of three years from the date of grant with no more than one-third of such Award vesting in any twelve month period and (ii) the attainment of one or more Performance Measures shall have a minimum vesting period of one year from the date of grant. The foregoing notwithstanding, the Committee may, in its discretion, grant Other Stock-Based
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Awards not subject to the restriction in the above clause (i) with respect to Other Stock-Based Awards, excluding restricted stock, and the above clause (ii) with respect to Other Stock-Based Awards, including restricted stock, or waive such restrictions at any time during the vesting period; provided, however, that the number of shares of Common Stock underlying such Awards does not exceed in the aggregate 10% of the Common Stock authorized to be issued under the Plan.
8. Performance-Based Compensation
(a) Calculation, Written Determinations, and Right of Recapture
The amount payable with respect to an Award that is intended to qualify as Performance-Based Compensation shall be determined in any manner permitted by Section 162(m) of the Code.
Determinations by the Committee as to the establishment of Performance Measures, the level of actual achievement of performance goals, and the amount payable with respect to an Award intended to qualify as Performance-Based Compensation under Section 162(m) of the Code shall be recorded in writing. Specifically, the Committee shall certify in writing, in a manner conforming to applicable regulations under Section 162(m) of the Code, prior to settlement of each such Award granted to a Covered Employee, that the performance goals and other material terms upon which settlement of the Award was conditioned have been satisfied.
If at any time after the date on which a Participant has been granted or becomes vested in an Award pursuant to the achievement of a performance goal under Section 8, the Committee determines that the earlier determination as to the achievement of the performance goal was based on incorrect data and that in fact the performance goal had not been achieved or had been achieved to a lesser extent than originally determined and a portion of an Award would not have been granted, vested, or paid given the correct data, then (i) such portion of the Award that was granted shall be forfeited and any related shares of Common Stock (or, if such shares were disposed of, the cash equivalent) shall be returned to the Company as provided by the Committee, (ii) such portion of the Award that became vested shall be deemed to be not vested and any related shares of Common Stock (or, if such shares were disposed of, the cash equivalent) shall be returned to the Company as provided by the Committee, and (iii) such portion of the Award paid to the Participant shall be paid by the Participant to the Company upon notice from the Company as provided by the Committee.
(b) Discretionary Reduction
The Committee may, in its discretion, reduce or eliminate the amount payable to any Participant with respect to an Award that is intended to qualify as Performance-Based Compensation, based on such factors as the Committee may deem relevant, but the Committee may not increase any such amount above the amount established in accordance with the relevant Performance Schedule. For purposes of clarity, the Committee may exercise the discretion provided for by the foregoing sentence in a non-uniform manner among Participants.
(c) Performance Measures
The performance goals upon which the payment or vesting of any Award (other than Options and Stock Appreciation Rights) to a Covered Employee that is intended to qualify as Performance-Based Compensation depends shall (a) be objective business criteria and shall otherwise meet the requirements of Section 162(m) of the Code, including the requirement that the level or levels of performance targeted by the Committee result in the achievement of performance goals being substantially uncertain at the time of establishment of such goals, and (b) relate to one or more of the following Performance Measures: EBITDA; profit; safety performance; innovation as a percent of total revenue; cost out and pricing initiatives before or after tax net income; earnings per share; book value per share; stock price; return on stockholders equity; expense management; improvements in capital structure; profitability of an identifiable business unit or product (including return on investment on new business acquisitions or growth and expansion activities for the year); business growth (percent increase in revenue from year to year); before or after tax profit margins; budget comparisons; total return to stockholders; market share (percent shares the Company has captured in the market); increase in production volume (percent of increase from year to year); increase in productivity yield per acreage; percent of decrease in production costs; customer satisfaction based on a third party survey; decrease costs of delivery of service (e.g. freight costs, costs of loans, reduction of inventory); decrease turnaround time for servicing requests or processing information (e.g. number of days closing,
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numbers of days accounts payables turnaround time); identification of ways to cut down costs on a long term basis; implementation of new systems, processes, procedures to accomplish better efficiency, reduce current costs, or provide better management information reports; implementation of improvements in area of accountability and responsibility that has great impact on the management of the business; the relative performance of the Company against a peer group of companies on any of the measures above. Performance goals may relate to individual performance, Company performance or business unit performance. Performance goals may differ for Awards granted to any one Participant or to different Participants.
The Committee shall determine the length of the Performance Period with respect to each Award that is intended to be Performance-Based Compensation; provided that in no event shall such Performance Period be shorter than one fiscal year of the Company. Performance Periods may be overlapping. The Committee shall establish the Performance Targets and Performance Schedules for such Performance Period prior to the earlier to occur of 90 days after the commencement of such Performance Period or the lapse of 25% of the Performance Period, and in any event while the outcome of such performance measures is substantially uncertain.
The measurement of any Performance Measure(s) may include or exclude the impact of charges for asset write-downs, any impact of using the LIFO or FIFO method of inventory accounting, litigation or claim judgments or settlements, restructurings, discontinued operations, mergers, acquisitions, divestitures, foreign exchange gains and losses, extraordinary items, and other unusual or non-recurring items, and the cumulative effects of changes in tax laws, accounting principles or regulations, or other laws or provisions affecting reporting results, each as defined by generally accepted accounting principles and as identified in the Companys audited financial statements, including the notes thereto; provided, however , that such inclusions or exclusions that affect Awards to Covered Employees shall satisfy the requirements of Section 162(m) of the Code for deductibility. Any Performance Measure(s) may be used to measure the performance of the Company or a Subsidiary as a whole or any business unit of the Company or a Subsidiary or any combination thereof, as the Committee may deem appropriate, or any of the above Performance Measures as compared to the performance of a group of comparator companies, or a published or special index that the Committee, in its sole discretion, deems appropriate.
Nothing in this Section 8 is intended to limit the Committees discretion to adopt conditions with respect to any Award that is not intended to qualify as Performance-Based Compensation that relate to performance other than the Performance Measures. In addition, the Committee may, subject to the terms of the Plan, amend previously granted Awards in a way that disqualifies them as Performance-Based Compensation.
In the event that the requirements of Section 162(m) of the Code and the regulations thereunder change to permit Committee discretion to alter the Performance Measures without obtaining stockholder approval of such changes, the Committee shall have sole discretion to make such changes without obtaining stockholder approval.
9. Effect of Separation from Service
Each Award Agreement shall set forth the effect of the Participants separation from service on any outstanding Awards. Such provisions shall be determined in the sole discretion of the Committee, need not be uniform among all Awards issued, and may reflect distinctions based on the reasons for the separation from service.
10. Adjustment Upon Certain Changes
(a) Shares Available for Grants
In the event of any change in the number of shares of Common Stock outstanding by reason of any stock dividend or split, recapitalization, merger, consolidation, combination or exchange of shares, or similar corporate change, the maximum aggregate number of shares of Common Stock with respect to which the Committee may grant Awards in any year, and the maximum aggregate number of shares of Common Stock with respect to which the Committee may grant Awards to any individual Participant in any year, shall be appropriately adjusted by the Committee. In the event of any change in the number of shares of Common Stock outstanding by reason of any other similar event or transaction, including any extraordinary cash dividend, the Committee shall, to the extent deemed appropriate by the Committee, make such adjustments in the number and class of shares of Common Stock with respect to which Awards may be granted.
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(b) Increase or Decrease in Issued Shares Without Consideration
Subject to any required action by the stockholders of Kraton Performance, in the event of any increase or decrease in the number of issued shares of Common Stock resulting from a subdivision or consolidation of shares of Common Stock or the payment of a stock dividend (but only on the shares of Common Stock), or any other increase or decrease in the number of such shares effected without receipt or payment of consideration by the Company, the Committee shall appropriately adjust the number of shares of Common Stock subject to each outstanding Award and the exercise price per share of Common Stock of each such Award.
(c) Certain Mergers
Subject to any required action by the stockholders of Kraton Performance, in the event that Kraton Performance shall be the surviving corporation in any merger, consolidation, or similar transaction as a result of which the holders of shares of Common Stock receive consideration consisting exclusively of securities of such surviving corporation, the Committee shall, to the extent deemed appropriate by the Committee, adjust each Award outstanding on the date of such merger or consolidation so that it pertains and applies to the securities which a holder of the number of shares of Common Stock subject to such Award would have received in such merger or consolidation.
(d) Certain Other Transactions
In the event of (i) a dissolution or liquidation of Kraton Performance, (ii) a sale of all or substantially all of the Companys assets (on a consolidated basis), (iii) a merger, consolidation, or similar transaction involving Kraton Performance in which Kraton Performance is not the surviving corporation, or (iv) a merger, consolidation or similar transaction involving Kraton Performance in which Kraton Performance is the surviving corporation but the holders of shares of Common Stock receive securities of another corporation and/or other property, including cash, the Committee shall, in its sole discretion but subject to Section 409A of the Code to the extent applicable, have the power to:
(i) cancel, effective immediately prior to the occurrence of such event, each Award (whether or not then exercisable), and, in full consideration of such cancellation, pay to the Participant to whom such Award was granted an amount in cash, for each share of Common Stock subject to such Award, equal to the value, as determined by the Committee in its reasonable discretion, of such Award; provided that with respect to any outstanding Option such value shall be equal to the excess of (A) the value, as determined by the Committee in its reasonable discretion, of the property (including cash) received by the holder of a share of Common Stock as a result of such event over (B) the exercise price of such Option; or
(ii) provide for the exchange of each Award (whether or not then exercisable or vested) for an Award with respect to, as appropriate, some or all of the property which a holder of the number of shares of Common Stock subject to such Award would have received in such transaction and, incident thereto, make an equitable adjustment as determined by the Committee in its reasonable discretion in accordance with U.S. Department of Treasury Regulation Section 1.409A-1(b)(5)(v)(D) in the exercise price of the Award, and/or the number of shares or amount of property subject to the Award or, if appropriate, provide for a cash payment to the Participant to whom such Award was granted in partial consideration for the exchange of the Award; or
(iii) a combination of (i) and (ii) above.
(e) Other Changes
In the event of any change in the capitalization of Kraton Performance or corporate change other than those specifically referred to in paragraphs (b), (c), or (d), the Committee shall make such adjustments in the number and class of shares subject to Awards outstanding on the date on which such change occurs and in such other terms of such Awards as the Committee may consider appropriate.
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(f) No Other Rights
Except as expressly provided in the Plan, no Participant shall have any rights by reason of any subdivision or consolidation of shares of stock of any class, the payment of any dividend, any increase or decrease in the number of shares of stock of any class, or any dissolution, liquidation, merger, or consolidation of Kraton Performance or any other corporation. Except as expressly provided in the Plan, no issuance by Kraton Performance of shares of stock of any class, or securities convertible into shares of stock of any class, shall affect, and no adjustment by reason thereof shall be made with respect to, the number of shares or amount of other property subject to, or the terms related to, any Award.
(g) Savings Clause
No provision of this Section 10 shall be given effect to the extent that such provision would cause any tax to become due under Section 409A of the Code.
11. Rights Under the Plan
No person shall have any rights as a stockholder with respect to any shares of Common Stock covered by or relating to any Award granted pursuant to the Plan until the date of the issuance of a stock certificate with respect to such shares. Except as otherwise expressly provided in Section 10 hereof, no adjustment of any Award shall be made for dividends or other rights for which the record date occurs prior to the date such stock certificate is issued. Nothing in this Section 11 is intended, or should be construed, to limit authority of the Committee to cause the Company to make payments based on the dividends that would be payable with respect to any share of Common Stock if it were issued or outstanding, or from granting rights related to such dividends.
Nothing in the Plan shall be construed to: (a) limit, impair, or otherwise affect the Companys right or power to make adjustments, reclassifications, reorganizations, or changes of its capital or business structure, or to merge or consolidate, or dissolve, liquidate, sell, or transfer all or any part of its business or assets; or, (b) limit the right or power of the Company to take any action which such entity deems to be necessary or appropriate. Neither the adoption of the Plan nor the grant of any Award shall be construed as creating any limitations on the power of the Board of Directors or Committee to adopt such other compensation arrangements as it may deem desirable for any Participant.
The Company shall not have any obligation to establish any separate fund or trust or other segregation of assets to provide for payments under the Plan. To the extent any person acquires any rights to receive payments hereunder from the Company, such rights shall be no greater than those of an unsecured creditor. Nothing contained in the Plan, and no action taken pursuant to its provisions, shall create or be construed to create a trust of any kind, or a fiduciary relationship between the Company and any Participant, beneficiary, legal representative, or any other person. The Plan is not subject to the Employee Retirement Income Security Act of 1974, as amended.
12. No Special Employment Rights; No Right to Award
(a) Nothing contained in the Plan or any Award shall confer upon any Participant any right with respect to the continuation of his employment by or service to the Company or interfere in any way with the right of the Company at any time to terminate such employment or service or to increase or decrease the compensation of the Participant from the rate in existence at the time of the grant of an Award. Neither an Award nor any rights arising under the Plan shall constitute an employment contract with the Company and, accordingly, the Plan and any Award hereunder may be terminated at any time in the sole and exclusive discretion of the Committee without giving rise to any liability on the part of the Company.
(b) No person shall have any claim or right to receive an Award hereunder. The Committees granting of an Award to a Participant at any time shall neither require the Committee to grant an Award to such Participant or any other Participant or other person at anytime nor preclude the Committee from making subsequent grants to such Participant or any other Participant or other person.
13. Securities Matters
(a) Kraton Performance is under no obligation to effect the registration pursuant to the Securities Act of any shares of Common Stock to be issued hereunder or to effect similar compliance under any state laws.
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Notwithstanding anything herein to the contrary, Kraton Performance shall not be obligated to cause to be issued or delivered any certificates evidencing shares of Common Stock pursuant to the Plan unless and until Kraton Performance is advised by its counsel that the issuance and delivery of such certificates is in compliance with all applicable laws, regulations of governmental authority and the requirements of any securities exchange on which shares of Common Stock are traded. The Committee may require, as a condition to the issuance and delivery of certificates evidencing shares of Common Stock pursuant to the terms hereof, that the recipient of such shares make such covenants, agreements, and representations, and that such certificates bear such legends, as the Committee deems necessary or desirable.
(b) The exercise of any Option granted hereunder shall only be effective at such time as counsel to Kraton Performance shall have determined that the issuance and delivery of shares of Common Stock pursuant to such exercise is in compliance with all applicable laws, regulations of governmental authority, and the requirements of any securities exchange on which shares of Common Stock are traded. Kraton Performance may, in its sole discretion, defer the effectiveness of an exercise of an Option hereunder or the issuance or transfer of shares of Common Stock pursuant to any Award pending or to ensure compliance under federal or state securities laws. Kraton Performance shall inform the Participant in writing of its decision to defer the effectiveness of the exercise of an Option or the issuance or transfer of shares of Common Stock pursuant to any Award. During the period that the effectiveness of the exercise of an Option has been deferred, the Participant may, by written notice, withdraw such exercise and obtain the refund of any amount paid with respect thereto.
14. Tax Provisions & Withholding
(a) Cash Remittance
Whenever shares of Common Stock are to be issued upon the exercise of an Option or the grant or vesting of an Award, and whenever any amount shall become payable in respect of any Award, Kraton Performance shall have the right to require the Participant to remit to Kraton Performance in cash an amount sufficient to satisfy federal, state, and local withholding tax requirements, if any, attributable to such exercise, grant, vesting, or payment prior to the delivery of any certificate or certificates for such shares or the effectiveness of the lapse of such restrictions or making of such payment. In addition, upon the exercise or settlement of any Award in cash, or any payment with respect to any Award, Kraton Performance shall have the right to withhold from any payment required to be made pursuant thereto an amount sufficient to satisfy the federal, state, and local withholding tax requirements, if any, attributable to such exercise, settlement, or payment. The Company can delay the delivery to a Participant of any Common Stock or cash payable to such Participant to determine the amount of withholding to be collected and to collect and process such withholding.
(b) Stock Remittance
At the election of the Participant, subject to the approval of the Committee, when shares of Common Stock are to be issued upon the exercise, grant, or vesting of an Award, the Participant may tender to Kraton Performance a number of shares of Common Stock that have been owned by the Participant for at least six months (or such other period as the Committee may determine) having a Fair Market Value at the tender date determined by the Committee to be sufficient to satisfy the federal, state, and local withholding tax requirements, if any, attributable to such exercise, grant, or vesting but not greater than such withholding obligations. Such election shall be irrevocable, made in writing, and signed by the Participant, shall be subject to any restrictions or limitations that the Committee, in its sole discretion, deems appropriate, and shall satisfy the Participants obligations under Section 14 hereof, if any. The Company can delay the delivery to a Participant of any Common Stock or cash payable to such Participant to determine the amount of withholding to be collected and to collect and process such withholding.
(c) Stock Withholding
At the election of the Participant, subject to the approval of the Committee, when shares of Common Stock are to be issued upon the exercise, grant, or vesting of an Award, Kraton Performance shall withhold a number of such shares having a Fair Market Value at the exercise date determined by the Committee to be sufficient to satisfy the federal, state, and local withholding tax requirements, if any, attributable to such exercise, grant, or vesting but not greater than such withholding obligations. Such election shall be irrevocable, made in writing, and signed by the Participant, shall be subject to any restrictions or limitations that the Committee, in its sole discretion, deems appropriate, and shall satisfy the Participants obligations under Section 14 hereof, if any. The Company can delay the delivery to a Participant of any Common Stock or cash payable to such Participant to determine the amount of withholding to be collected and to collect and process such withholding.
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(d) Consent to and Notification of Code Section 83(b) Election
No election under Section 83(b) of the Code (to include in gross income in the year of transfer the amounts specified in Code Section 83(b)) or under a similar provision of the laws of a jurisdiction outside the United States may be made unless expressly permitted by the terms of the Award document or by action of the Committee in writing prior to the making of such election. In any case in which a Participant is permitted to make such an election in connection with an Award, the Participant shall notify the Company of such election within ten days of filing notice of the election with the Internal Revenue Service or other governmental authority, in addition to any filing and notification required pursuant to regulations issued under Code Section 83(b) or other applicable provision.
(e) Notification Upon Disqualifying Disposition Under Code Section 421(b)
If any Participant shall make any disposition of shares of Common Stock delivered pursuant to the exercise of an Incentive Stock Option under the circumstances described in Code Section 421(b) (i.e., a disqualifying disposition), such Participant shall notify the Company of such disposition within ten days thereof.
15. Amendment or Termination of the Plan
The Board of Directors may at any time suspend or discontinue the Plan or revise or amend it in any respect whatsoever; provided, however , that to the extent that any applicable law, regulation, or rule of a stock exchange requires stockholder approval in order for any such revision or amendment to be effective, such revision or amendment shall not be effective without such approval. The preceding sentence shall not restrict the Committees ability to exercise its discretionary authority hereunder pursuant to Section 4 hereof, which discretion may be exercised without amendment to the Plan; provided that no provision of this Section 15 shall be given effect to the extent that such provision would cause any tax to become due under Section 409A of the Code.
Except as expressly provided in the Plan, no action hereunder may, without the consent of a Participant, reduce the Participants rights under any previously granted and outstanding Award. Notwithstanding the foregoing, the Committee may terminate any Award previously granted and any agreement relating thereto in whole or in part provided that upon any such termination the Company, in full consideration of the termination of (i) any Option outstanding under the Plan (whether or not vested or exercisable) or portion thereof, pays to such Participant an amount in cash for each share of Common Stock subject to such Option or portion thereof being terminated equal to the excess, if any, of (a) the value at which a share of Common Stock received pursuant to the exercise of such Option would have been valued by the Company at that time for purposes of determining applicable withholding taxes or other similar statutory amounts, over (b) the exercise price, or, if the Committee permits and the Participant elects, accelerates the exercisability of such Participants Option or portion thereof (if necessary) and allows such Participant 30 days to exercise such Option or portion thereof before the termination of such Option or portion thereof, or (ii) any Award other than an Option outstanding under the Plan or portion thereof, pays to such Participant an amount in shares of Common Stock or cash or a combination thereof (as determined by the Committee in its sole discretion) equal to the value of such Award or portion thereof being terminated as of the date of termination (assuming the acceleration of the exercisability of such Award or portion thereof, the lapsing of any restrictions on such Award or portion thereof or the expiration of any deferral or vesting period of such Award or portion thereof) as determined by the Committee in its sole discretion; provided that, to the extent any such Award is subject to Section 409A of the Code, any such payment (including, without limitation, the timing and form thereof) shall comply with Section 409A of the Code.
Notwithstanding any other provision of the Plan to the contrary, the Committee may authorize the repurchase of any Award by the Company or a third party at any time for such price and on such terms and conditions as the Committee may determine in its sole discretion. Nothing in the Plan shall limit the right of the Company to pay compensation of any kind outside the terms of the Plan.
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16. No Obligation to Exercise
The grant to a Participant of an Award shall impose no obligation upon such Participant to exercise such Award.
17. Transfer Restrictions
Upon the death of a Participant, outstanding Awards granted to such Participant may be exercised only by the executors or administrators of the Participants estate or by any person or persons who shall have acquired such right to exercise by will or by the laws of descent and distribution. No transfer by will or the laws of descent and distribution of any Award, or the right to exercise any Award, shall be effective to bind Kraton Performance unless the Committee shall have been furnished with (a) written notice thereof and with a copy of the will and/or such evidence as the Committee may deem necessary to establish the validity of the transfer and (b) an agreement by the transferee to comply with all the terms and conditions of the Award that are or would have been applicable to the Participant and to be bound by the acknowledgements made by the Participant in connection with the grant of the Award.
Except as provided in the preceding paragraph (regarding transfers upon the death of a Participant) and Section 6 (regarding the transfer of certain Non-Qualified Stock Options), no Award or other right or interest of a Participant under the Plan shall be pledged, hypothecated, or otherwise encumbered or subject to any lien, obligation, or liability of such Participant to any party (other than the Company), or assigned or transferred by such Participant, and such Awards or rights that may be exercisable shall be exercised during the lifetime of the Participant only by the Participant or his or her guardian or legal representative, except that Awards and other rights (other than Incentive Stock Options and Stock Appreciation Rights in tandem therewith) may be transferred to one or more transferees during the lifetime of the Participant, and may be exercised by such transferees in accordance with the terms of such Award, but only if and to the extent such transfers are permitted by the Committee, subject to any terms and conditions which the Committee may impose thereon (which may include limitations the Committee may deem appropriate in order that offers and sales under the Plan will meet applicable requirements of registration forms under the Securities Act of 1933 specified by the Securities and Exchange Commission). A beneficiary, transferee, or other person claiming any rights under the Plan from or through any Participant shall be subject to all terms and conditions of the Plan and any Award document applicable to such Participant, except as otherwise determined by the Committee, and to any additional terms and conditions deemed necessary or appropriate by the Committee.
18. Expenses and Receipts
The expenses of the Plan shall be paid by Kraton Performance. Any proceeds received by Kraton Performance in connection with any Award will be used for general corporate purposes.
19. No Fractional Shares
No fractional shares of Common Stock shall be issued or delivered pursuant to the Plan or any Award. The Committee shall determine whether cash, Awards, or other property shall be issued or paid in lieu of fractional shares of Common Stock or whether such fractional shares of Common Stock or any rights thereto shall be forfeited or otherwise eliminated.
20. Retirement and Welfare Plans
Neither Awards made under the Plan nor shares of Common Stock or cash paid pursuant to such Awards will be included as compensation for purposes of computing the benefits payable to any Participant under the Companys retirement plans (both qualified and non-qualified) or welfare benefit plans unless such other plan expressly provides that such compensation shall be taken into account in computing a participants benefit or except as the Committee may otherwise determine in its discretion.
21. Compliance with Code Section 162(m)
It is the intent of the Company that Options and Stock Appreciation Rights granted to Covered Employees and other Awards designated as Awards to Covered Employees subject to Section 8 shall constitute qualified performance-based compensation within the meaning of Section 162(m) of the Code, unless otherwise determined
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by the Committee at the time of allocation of an Award. Accordingly, the terms of Section 8, including the definitions of Covered Employee and other terms used therein, shall be interpreted in a manner consistent with Section 162(m) of the Code. The foregoing notwithstanding, because the Committee cannot determine with certainty whether a given Participant will be a Covered Employee with respect to a fiscal year that has not yet been completed, the term Covered Employee as used herein shall mean only a person designated by the Committee as likely to be a Covered Employee with respect to a specified fiscal year. If any provision of the Plan or any Award document relating to an Award that is designated as intended to comply with Section 162(m) of the Code does not comply or is inconsistent with the requirements of Section 162(m) of the Code, such provision shall be construed or deemed amended to the extent necessary to conform to such requirements, and no provision shall be deemed to confer upon the Committee or any other person discretion to increase the amount of compensation otherwise payable in connection with any such Award upon attainment of the applicable performance goals.
22. Certain Limitations on Awards to Ensure Compliance with Code Section 409A
The Company intends that the Plan and each Award granted hereunder that is subject to Section 409A of the Code shall comply with or be exempt from Section 409A of the Code and that the Plan shall be interpreted, operated and administered accordingly. In the event any term and/or condition of an Award granted hereunder would cause the application of an accelerated or additional tax under Section 409A of the Code, such term and/or condition shall be restructured, to the extent possible, in a manner, determined by the Committee, that does not cause such an accelerated or additional tax. Any reservation of rights by the Company hereunder affecting the timing of payment of any Award subject to Section 409A of the Code (including, without limitation, the rights of the Committee pursuant to Section 10(d)) will only be as broad as is permitted by Section 409A of the Code. Notwithstanding anything herein to the contrary, in no event shall the Company be liable for the payment of or gross-up in connection with any taxes and or penalties owed by the Participant pursuant to Section 409A of the Code.
If an Award is intended to comply with Section 409A of the Code, all payments to be made upon a termination of employment under such Award may only be made upon a Separation from Service (as defined in Section 409A of the Code and the accompanying Treasury Regulations and guidance issued by the Internal Revenue Service). For purposes of Section 409A of the Code, each payment under an Award is treated as a separate and independent payment. In no event may the Participant, directly or indirectly, designate the calendar year of payment.
If the Participant is deemed to be a Specified Employee (as term is defined in Section 409A of the Code and the accompanying Treasury Regulations and guidance issued by the Internal Revenue Service) as of the date of his Separation from Service, as determined by Kraton Performance, the payment of any amount under an Award on account of Separation from Service that is deferred compensation subject to Section 409A of the Code and not otherwise exempt from Section 409A, shall not be paid before the earliest of (i) the first business day that is at least six months after the date of the Participants Separation from Service, (ii) the date of the Participants death, or (iii) the date that otherwise complies with the requirements of Section 409A of the Code. This provision shall be applied by accumulating all payments that otherwise would have been paid within six months of the Participants Separation from Service and paying such accumulated amounts, without interest, at the earliest date as described in the preceding sentence and any remaining payments due under such Award shall be paid or provided in accordance with the normal payment dates specified therein.
23. Uncertificated Shares
To the extent that the Plan provides for issuance of certificates to reflect the transfer of shares of Common Stock, the transfer of such shares may be effected on a noncertificated basis, to the extent not prohibited by applicable law or the rules of any stock exchange.
24. Participants Based Outside of the United States
Notwithstanding any provision of the Plan to the contrary, in order to comply with the laws in other countries in which the Company operates or has employees, Directors or independent contractors, the Committee, in its sole discretion, shall have the power and authority to:
(a) Determine which affiliates and Subsidiaries shall be covered by the Plan;
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(b) Determine which employees, Directors, and/or independent contractors outside the United States are eligible to participate in the Plan;
(c) Modify the terms and conditions of any Award granted to employees, Directors, and/or independent contractors outside the United States to comply with applicable foreign laws;
(d) Establish subplans and modify exercise procedures and other terms and procedures, to the extent such actions may be necessary or advisable. Any subplans and modifications to Plan terms and procedures established under this Section 24 by the Committee shall be attached to the Plan document as appendices; and
(e) Take any action, before or after an Award is made, that it deems advisable to obtain approval or comply with any necessary local government regulatory exemptions or approvals.
Notwithstanding the above, the Committee may not take any actions hereunder, and no Awards shall be granted, that would violate applicable law.
25. Legend
The certificates or book entry for shares of Common Stock may include any legend or coding, as applicable, which the Committee deems appropriate to reflect any restrictions on transfer of such shares.
26. Severability; Entire Agreement
If any of the provisions of the Plan or any Award Agreement is finally held to be invalid, illegal, or unenforceable (whether in whole or in part), such provision shall be deemed modified to the extent, but only to the extent, of such invalidity, illegality, or unenforceability, and the remaining provisions shall not be affected thereby; provided that, if any of such provisions is finally held to be invalid, illegal, or unenforceable because it exceeds the maximum scope determined to be acceptable to permit such provision to be enforceable, such provision shall be deemed to be modified to the minimum extent necessary to modify such scope in order to make such provision enforceable hereunder. The Plan and any Award Agreement or other agreements or documents designated by the Committee as setting forth the terms of an Award contain the entire agreement of the parties with respect to the subject matter thereof and supersede all prior agreements, promises, covenants, arrangements, communications, representations, and warranties between them, whether written or oral, with respect to the subject matter thereof.
27. Descriptive Headings
The headings in the Plan are for convenience of reference only and shall not limit or otherwise affect the meaning of the terms contained herein.
28. Governing Law
The Plan and the rights of all persons under the Plan shall be construed and administered in accordance with the laws of the State of Texas without regard to its conflict of law principles.
29. Effective Date, Term of Plan and Approval By Stockholders
The Plan was originally adopted and effective as of the Effective Date and shall terminate automatically on the ten year anniversary of the Effective Date and may be terminated on any earlier date as provided in Section 15. The Plan, as amended and restated effective as of May 25, 2011, as adopted by the Board of Directors, was approved by the stockholders of Kraton Performance at the Annual Meeting of the Stockholders of Kraton Performance Polymers, Inc. held on May 25, 2011. The Plan was subsequently amended and restated effective as of February 16, 2012, as adopted by the Board of Directors.
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Exhibit 10.25
RESTRICTED STOCK GRANT AGREEMENT
THIS AGREEMENT (the Agreement ) is made as of this day of , 201 between Kraton Performance Polymers, Inc. (the Company ) and (the Participant ).
WHEREAS, the Company has adopted and maintains the Kraton Performance Polymers, Inc. 2009 Equity Incentive Plan (the Plan ) to promote the interests of the Company and its shareholders by providing the Companys key employees and others with an appropriate incentive to encourage them to continue in the employ of the Company and to improve the growth and profitability of the Company; and
WHEREAS, the Plan provides for the Grant to Participants in the Plan of restricted shares of Common Stock of the Company;
NOW, THEREFORE, in consideration of the promises and the mutual covenants hereinafter set forth, the parties hereto hereby agree as follows:
1. Investment . The Participant represents that the shares of Restricted Stock (as defined herein) are being acquired for investment and not with a view toward the distribution thereof.
2. Grant of Restricted Stock . Pursuant to, and subject to, the terms and conditions set forth herein and in the Plan, the Company hereby grants to the Participant an award of shares of Common Stock of the Company (collectively, the Restricted Stock ). The purchase price for the Restricted Stock has been paid by the Participants past services to the Company.
3. Grant Date . The grant date of the Restricted Stock hereby granted is , 201 .
4. Incorporation of Plan . All terms, conditions and restrictions of the Plan are incorporated herein and made part hereof as if stated herein. If there is any conflict between the terms and conditions of the Plan and this Agreement, the terms and conditions of this Agreement, as interpreted by the Committee, shall govern. All capitalized terms used herein shall have the meanings given to such terms in the Plan.
5. Vesting Date . The Restricted Stock shall become vested as follows: 100% of the Restricted Stock shall vest on the third anniversary of the Grant Date; provided that the Participant remains continuously employed by the Company through such date. Notwithstanding the foregoing, if within the one-year period following a Change in Control the Participants employment is terminated by the Company or its affiliate without Cause, all Restricted Stock held by such Participant shall immediately vest, and all restrictions thereon shall immediately lapse, as of the effective date of such termination of the Participants employment subject to the Participants execution of an effective general release and waiver of all claims against the Company, its affiliates and their respective officers and directors related to the Participants employment, in a form acceptable to the Company at the Participants termination of employment.
Cause means (i) a material breach by the Participant of any of the Participants obligations under any written agreement with the Company or any of its affiliates, (ii) a material violation by the Participant of any of the Companys policies, procedures, rules and regulations applicable to employees generally or to employees at your grade level, in each case, as they may be amended from time to time in the Companys sole discretion; (iii) the failure by the Participant to reasonably and substantially perform his or her duties to the Company or its affiliates (other than as a result of physical or mental illness or injury); (iv) the Participants willful misconduct or gross negligence that has caused or is reasonably expected to result in material injury to the business, reputation or prospects of the Company or any of its affiliates; (v) the Participants fraud or misappropriation of funds; or (vi) the commission by the Participant of a felony or other serious crime involving moral turpitude; provided that if the Participant is a party to an employment agreement with the Company or its affiliate (an Employment Agreement ) at the time of his or her termination of employment and such Employment Agreement contains a different definition of cause (or any derivation thereof), the definition in such Employment Agreement will control for purposes of this Agreement.
If a Participant is terminated without Cause and, within the twelve (12) month period subsequent to such termination of employment, the Company determines in good faith that the Participants employment could have been terminated for Cause, subject to anything to the contrary that may be contained in the Participants Employment Agreement at the time of his or her termination of employment, the Participants employment will, at the election of the Company, be deemed to have been terminated for Cause, effective as of the date the events giving rise to Cause occurred.
6. Forfeiture . Subject to the provisions of the Plan and Section 5 of this Agreement, with respect to the shares of Restricted Stock that have not become vested on the date the Participants employment is terminated, the award of Restricted Stock shall expire and such unvested shares of Restricted Stock shall immediately be forfeited on such date.
7. Delays or Omissions . No delay or omission to exercise any right, power, or remedy accruing to any party hereto upon any breach or default of any party under this Agreement, shall impair any such right, power or remedy of such party nor shall it be construed to be a waiver of any such breach or default, or an acquiescence therein, or of or in any similar breach or default thereafter occurring, nor shall any waiver of any single breach or default be deemed a waiver of any other breach or default theretofore or thereafter occurring. Any waiver, permit, consent or approval of any kind or character on the part of any party of any breach or default under this Agreement, or any waiver on the part of any party or any provisions or conditions of this Agreement, shall be in writing and shall be effective only to the extent specifically set forth in such writing.
8. Integration . This Agreement and the Plan contain the entire understanding of the parties with respect to its subject matter. There are no restrictions, agreements, promises, representations, warranties, covenants or undertakings with respect to the subject matter hereof other than those expressly set forth herein and the Plan. This Agreement and the Plan supersede all prior agreements and understandings between the parties with respect to the subject matter of this Agreement.
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9. Counterparts . This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which shall constitute one and the same instrument.
10. Governing Law . This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of Texas, without regard to the provisions governing conflict of laws.
11. Participant Acknowledgment . The Participant hereby acknowledges receipt of a copy of the Plan. The Participant hereby acknowledges that all decisions, determinations and interpretations of the Committee in respect of the Plan, this Agreement and the Restricted Stock shall be final and conclusive.
[ signature page follows ]
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IN WITNESS WHEREOF, the Company has caused this Agreement to be duly executed by its duly authorized officer and said Participant has hereunto signed this Agreement on the Participants own behalf, thereby representing that the Participant has carefully read and understands this Agreement and the Plan as of the day and year first written above.
Kraton Performance Polymers, Inc.
By: Richard A. Ott
Title: Vice President, Human Resources | ||
[Name] |
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Exhibit 10.26
STOCK OPTION GRANT AGREEMENT
THIS AGREEMENT (the Agreement ) is made as of this day of , 201 between Kraton Performance Polymers, Inc. (the Company ) and (the Participant ).
WHEREAS, the Company has adopted and maintains the Kraton Performance Polymers, Inc. 2009 Equity Incentive Plan (the Plan ) to promote the interests of the Company and its shareholders by providing the Companys key employees and others with an appropriate incentive to encourage them to continue in the employ of the Company and to improve the growth and profitability of the Company; and
WHEREAS, the Plan provides for the Grant to Participants in the Plan of Non-Qualified Stock Options to purchase shares of Common Stock of the Company;
NOW, THEREFORE, in consideration of the promises and the mutual covenants hereinafter set forth, the parties hereto hereby agree as follows:
1. Grant of Options . Pursuant to, and subject to, the terms and conditions set forth herein and in the Plan, the Company hereby Grants to the Participant a NON-QUALIFIED STOCK OPTION (the Option ) with respect to shares of Common Stock of the Company.
2. Grant Date . The Grant Date of the Option hereby granted is , 201 .
3. Incorporation of Plan . All terms, conditions and restrictions of the Plan are incorporated herein and made part hereof as if stated herein. If there is any conflict between the terms and conditions of the Plan and this Agreement, the terms and conditions of this Agreement, as interpreted by the Committee, shall govern. All capitalized terms used herein shall have the meanings given to such terms in the Plan.
4. Exercise Price . The exercise price of each share underlying the Option hereby granted is $ .
5. Vesting Date . The Option shall become exercisable as follows: one-third (1/3) of the underlying Common Stock shall become exercisable on each of the first three anniversaries of the Grant Date (each anniversary, a vesting date). Notwithstanding the foregoing, if within the one-year period following a Change in Control the Participants employment is terminated by the Company or its affiliate without Cause, all outstanding Options held by such Participant shall become immediately exercisable as of the effective date of such termination of the Participants employment subject to the Participants execution of an effective general release and waiver of all claims against the Company, its affiliates and their respective officers and directors related to the Participants employment, in a form acceptable to the Company at the Participants termination of employment.
6. Expiration Date . Subject to the provisions of the Plan, with respect to the Option or any portion thereof which has not become exercisable, the Option shall expire on the date the Participants employment is terminated for any reason, and with respect to any Option or any portion thereof which has become exercisable, the Option shall expire on the earlier of
(i) 90 days after the Participants termination of employment other than for Cause, Retirement, death, or Disability; (ii) one year after termination of the Participants employment by reason of death, Retirement or Disability; (iii) the commencement of business on the date the Participants employment is, or is deemed to have been, terminated for Cause; or (iv) the tenth anniversary of the Grant Date.
For purposes of this Agreement Disability has the meaning ascribed to it in the Companys long-term disability plan and Retirement has the meaning set forth in the Companys defined benefit pension plan regardless of whether or not the Participant participates in such plan.
Cause means (i) a material breach by the Participant of any of the Participants obligations under any written agreement with the Company or any of its affiliates, (ii) a material violation by the Participant of any of the Companys policies, procedures, rules and regulations applicable to employees generally or to employees at your grade level, in each case, as they may be amended from time to time in the Companys sole discretion; (iii) the failure by the Participant to reasonably and substantially perform his or her duties to the Company or its affiliates (other than as a result of physical or mental illness or injury); (iv) the Participants willful misconduct or gross negligence that has caused or is reasonably expected to result in material injury to the business, reputation or prospects of the Company or any of its affiliates; (v) the Participants fraud or misappropriation of funds; or (vi) the commission by the Participant of a felony or other serious crime involving moral turpitude; provided that if the Participant is a party to an employment agreement with the Company or its affiliate (an Employment Agreement ) at the time of his or her termination of employment and such Employment Agreement contains a different definition of cause (or any derivation thereof), the definition in such Employment Agreement will control for purposes of this Agreement.
If a Participant is terminated without Cause and, within the twelve (12) month period subsequent to such termination of employment, the Company determines in good faith that the Participants employment could have been terminated for Cause, subject to anything to the contrary that may be contained in the Participants Employment Agreement at the time of his or her termination of employment, the Participants employment will, at the election of the Company, be deemed to have been terminated for Cause, effective as of the date the events giving rise to Cause occurred.
7. Delays or Omissions . No delay or omission to exercise any right, power, or remedy accruing to any party hereto upon any breach or default of any party under this Agreement, shall impair any such right, power or remedy of such party nor shall it be construed to be a waiver of any such breach or default, or an acquiescence therein, or of or in any similar breach or default thereafter occurring, nor shall any waiver of any single breach or default be deemed a waiver of any other breach or default theretofore or thereafter occurring. Any waiver, permit, consent or approval of any kind or character on the part of any party of any breach or default under this Agreement, or any waiver on the part of any party or any provisions or conditions of this Agreement, shall be in writing and shall be effective only to the extent specifically set forth in such writing.
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8. Limitation on Transfer . During the lifetime of the Participant, the Option shall be exercisable only by the Participant. The Option shall not be assignable or transferable otherwise than by will or by the laws of descent and distribution. Notwithstanding the foregoing, the Participant may request authorization from the Committee to assign the Participants rights with respect to the Option granted herein to a trust or custodianship, the beneficiaries of which may include only the Participant, the Participants spouse or the Participants lineal descendants (by blood or adoption), and, if the Committee Grants such authorization, the Participant may assign the Participants rights accordingly. In the event of any such assignment, such trust or custodianship shall be subject to all the restrictions, obligations, and responsibilities as apply to the Participant under the Plan and this Stock Option Grant Agreement and shall be entitled to all the rights of the Participant under the Plan. All shares of Common Stock obtained pursuant to the Option granted herein shall not be transferred except as provided in the Plan.
9. Integration . This Agreement and the Plan contain the entire understanding of the parties with respect to its subject matter. There are no restrictions, agreements, promises, representations, warranties, covenants or undertakings with respect to the subject matter hereof other than those expressly set forth herein and the Plan. This Agreement and the Plan supersede all prior agreements and understandings between the parties with respect to the subject matter of this Agreement.
10. Counterparts . This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which shall constitute one and the same instrument.
11. Governing Law . This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of Texas, without regard to the provisions governing conflict of laws.
12. Participant Acknowledgment . The Participant hereby acknowledges receipt of a copy of the Plan. The Participant hereby acknowledges that all decisions, determinations and interpretations of the Committee in respect of the Plan, this Agreement and the Option shall be final and conclusive.
[ signature page follows ]
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IN WITNESS WHEREOF, the Company has caused this Agreement to be duly executed by its duly authorized officer and said Participant has hereunto signed this Agreement on the Participants own behalf, thereby representing that the Participant has carefully read and understands this Agreement and the Plan as of the day and year first written above.
Kraton Performance Polymers, Inc. | ||
By: | ||
Name: Richard A. Ott | ||
Title: Vice President, Human Resources |
[Name] |
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Exhibit 10.27
POLYMER HOLDINGS LLC CASH INCENTIVE PLAN
(APPROVED DECEMBER 9, 2009, EFFECTIVE AS OF THE EFFECTIVE DATE)
Section 1. Purpose.
The purpose of the Polymers Holdings LLC Cash Incentive Plan (the Plan ) is to promote the interests of Polymer Holdings LLC ( Polymer Holdings ) and its Subsidiaries (together with Polymer Holdings, the Company ) by providing eligible key employees of the Company with incentives to assist the Company in meeting and exceeding its business goals. For purposes of this Plan, Subsidiary shall mean any s ubsidiary within the meaning of Rule 405 under the Security Act of 1933, as amended.
Section 2. Administration.
(a) The Plan shall be administered by the Compensation Committee (the Committee ) of the Board of Directors of Polymer Holdings (the Board ), which Committee shall be comprised of not fewer than two members of the Board who shall be outside directors within the meaning of Section 162(m) of the Internal Revenue Code of 1986 and the regulations thereunder (the Code ).
(b) The Committee may, subject to the provisions of the Plan, establish, adopt or revise rules and regulations relating to the Plan or take such actions as it deems necessary or advisable for the proper administration of the Plan. The Committee shall have the authority to interpret the Plan in its discretion. Each interpretation made or action taken by the Committee pursuant to the Plan shall be final and conclusive for all purposes and binding upon all Participants (as defined in Section 3) or former Participants and their successors in interest.
(c) Neither the Committee nor any member of the Committee shall be liable for any act, omission, interpretation, construction or determination made in good faith in connection with the Plan, and the members of the Committee shall be entitled to indemnification and reimbursement by Polymer Holdings in respect of any claim, loss, damage or expense (including, without limitation, reasonable attorneys fees) arising or resulting therefrom to the fullest extent permitted by law.
Section 3. Eligibility.
Awards may be granted to key employees of the Company who are selected for participation in the Plan by the Committee. A qualifying employee selected by the Committee to participate in the Plan shall be a Participant in the Plan. Participants may or may not be Covered Employees as defined under Section 162(m) of the Code.
Section 4. Award Criteria.
The Committee may grant performance-based awards ( Awards ) to Participants with respect to any performance period (each, a Performance Period ), subject to the terms and conditions of the Plan. All Awards shall be settled in cash. Performance Periods may be equal to or longer than, but not less than, one fiscal year of the Company and the Performance Periods applicable to Outstanding Awards may be overlapping; provided however that with respect to a Participant who becomes employed by the Company following the first day of a Performance Period, the Committee may establish a Performance Period that begins on the date of such Participants commencement of employment with the Company and ends on the same date as that of the Performance Period applicable to all other Participants at such time. Within 90 days after the beginning of a Performance Period (or, with respect to a Performance Period that is less than one fiscal year of the Company, by no later than the date upon which 25% of such Performance Period (as scheduled in good faith at the time the Performance Targets, as defined below, are established) has elapsed) the Committee shall establish (a) individual and/or Company performance goals and objectives ( Performance Targets ) for each Award relating to such Performance Period, (b) target awards ( Target Awards ) for each Participant, and (c) performance schedules ( Performance Schedules ) which set forth the objective methods for determining the applicable performance percentage for each Performance Target ( Performance Percentage ) to be applied to each Target Award to which a Performance Target relates in arriving at the actual Award payout amount.
Section 5. Performance Targets.
The Committee shall establish Performance Targets for each Performance Period. Such Performance Targets shall be based on one or more of the following business criteria: EBITDA; profit; safety performance; innovation as a percent of total revenue; cost out and pricing initiatives before or after tax net income; earnings per share; book value per share; stock price; return on stockholders equity; expense management; improvements in capital structure; profitability of an identifiable business unit or product (including return on investment on new business acquisitions or growth and expansion activities for the year); business growth (percent increase in revenue from year to year); before or after tax profit margins; budget comparisons; total return to stockholders; market share (percent shares the Company has captured in the market); increase in production volume (percent of increase from year to year); increase in productivity yield per acreage; percent of decrease in production costs; customer satisfaction based on a third party survey; decrease costs of delivery of service (e.g. freight costs, costs of loans, reduction of inventory); decrease turnaround time for servicing requests or processing information (e.g. number of days closing, numbers of days accounts payables turnaround time); identification of ways to cut down costs on a long term basis; implementation of new systems, processes, procedures to accomplish better efficiency, reduce current costs, or provide better management information reports; implementation of improvements in area of accountability and responsibility that has great impact on the management of the business; the relative performance of the Company against a peer group of companies on any of the measures above. Performance goals may relate to individual performance, Company performance or business unit performance.
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The measurement of any Performance Target(s) may exclude the impact of charges for asset write-downs, any impact of using the LIFO or FIFO method of inventory accounting, litigation or claim judgments or settlements, restructurings, discontinued operations, mergers, acquisitions, divestitures, foreign exchange gains and losses, extraordinary items, and other unusual or non-recurring items, and the cumulative effects of changes in tax laws, accounting principles or regulations, or other laws or provisions affecting reporting results, each as defined by generally accepted accounting principles and as identified in the Companys audited financial statements, including the notes thereto. Such inclusions or exclusions shall be prescribed in a form that meets the requirements of Section 162(m) of the Code for deductibility. Any Performance Target may be used to measure the performance of Polymer Holdings or a Subsidiary of Polymer Holdings as a whole or any business unit of Polymer Holdings or any Subsidiary or any combination thereof, as the Committee may deem appropriate, or any of the above Performance Targets as compared to the performance of a group of comparator companies, or a published or special index that the Committee, in its discretion, deems appropriate.
Section 6. Awards.
(a) Calculation. In the manner required by Section 162(m) of the Code, the Committee shall, promptly after the date on which the necessary financial and other information for a particular Performance Period becomes available, certify the extent to which Performance Targets have been achieved. Using the Performance Schedule, the Committee shall determine the Performance Percentage applicable to each Performance Target and multiply the portion of the Target Award to which the Performance Target relates by such Performance Percentage in order to arrive at the actual Award payout for such portion.
(b) Discretionary Adjustments. The Committee may, in its discretion, reduce or eliminate the amount of any Award payable to any Participant based on such factors as the Committee may deem relevant. The Committee may not increase the amount of any Award payable to any Covered Employee above the amount established in accordance with the relevant Performance Targets. However, the Committee may increase the amount of any Award to any Participant who is not a Covered Employee. For purposes of clarity, the Committee may exercise the discretion provided for by the foregoing in a non-uniform manner among Participants.
(c) Limitation. The amount paid under the Plan to any Participant with respect to any Award that relates to a Performance Period of one year shall not exceed $3,000,000. The amount paid under the Plan to any Participant with respect to any Award that relates to a Performance Period of more than one year shall not exceed $9,000,000. No Participant shall be eligible to earn Awards for more than three Performance Periods that end within any single fiscal year of the Company.
(d) Effect of Termination of Employment. In no event shall an individual receive payment for all or any portion of an Award if his or her employment is terminated prior to the date such Awards are paid.
(e) Certification and Payment. Awards shall be paid as soon as administratively practical following written certification by the Committee of the extent to which the applicable Performance Targets have been achieved and the determination of the actual Awards in
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accordance with Section 5 and this Section 6, and in no event more than two and one half months following the end of the Performance Period to which such certification relates. For purposes of written certification by the Committee, approved minutes of the Committee meeting in which the certification is made are treated as written. All payments under the Plan shall be made by Kraton Polymers LLC or by any of its direct or indirect subsidiaries as it may designate, unless otherwise determined in the sole discretion of the Committee. Notwithstanding anything herein to the contrary, Polymer Holdings shall not make, nor have any obligation to make, any cash payments under this plan if such payment or obligation would be a violation of any other contractual obligation to which Polymer Holdings is a party, including, but not limited to, the Credit and Guaranty Agreement between Kraton Polymers LLC, Polymer Holdings, certain Subsidiaries of Kraton Polymers LLC, various lenders, Goldman Sachs Credit Partners L.P., UBS AG (Stamford Branch), Morgan Stanley Senior Funding Inc., Credit Suisse (Cayman Islands Branch), and General Electric Capital Corp, dated as of October 20, 2009, as amended. In the event a cash payment comes due under this Plan and Polymer Holdings cannot make such payment without violating such a contractual agreement, the payment shall instead be made by Kraton Polymers LLC, or such other subsidiary of Polymer Holdings as determined by the Compensation Committee of Polymer Holdings, that can make such a payment without any similar contractual violation and Polymer Holdings shall have no obligation with respect to such payment.
Section 7. General Provisions.
(a) No Rights to Awards or Continued Employment. No employee of the Company shall have any claim or right to receive Awards under the Plan. Neither the Plan nor any action taken under the Plan shall be construed as giving any employee any right to be retained by the Company.
(b) No Limits on Other Awards and Plans. Nothing contained in this Plan shall prohibit the Company from establishing other special awards or incentive compensation plans providing for the payment of incentive compensation to employees of the Company, including any Participants.
(c) Withholding Taxes. The Company may deduct from all payments and distributions under the Plan any required federal, state or local government tax withholdings.
(d) Unfunded Status of Plan. The Company shall not have any obligation to establish any separate fund or trust or other segregation of assets to provide for payments under the Plan. To the extent any person acquires any rights to receive payments hereunder from the Company, such rights shall be no greater than those of an unsecured creditor.
(e) Effective Date; Amendment. The Plan is effective as of the effective date of the initial public offering of Polymer Holdings. The Committee may at any time and from time to time alter, amend, suspend or terminate the Plan in whole or in part; provided that, no such alteration or amendment shall be effective until approval by the Companys shareholders has been obtained, if such approval is required by applicable law or required by applicable stock exchange listing requirements. Unless terminated sooner, the Plan shall automatically terminate immediately before the first meeting of the Companys shareholders at which directors are to be elected that occurs in the calendar year 2013. Any termination, whether in whole or in part, shall not affect any then outstanding Awards.
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(f) Governing Law. The Plan and the rights of all persons under the Plan shall be construed and administered in accordance with the laws of the State of New York without regard to its conflict of law principles.
(g) Interpretation. The Plan is designed and intended to comply with Section 162(m) of the Code and all provisions hereof shall be construed in a manner so to comply.
(h) 409A. The Awards granted hereunder are not intended to be subject to Section 409A of the Code pursuant to the short term deferral exception provided in the regulations thereunder.
(i) Return of or Reduction in the Award. In the event that following the end of the Performance Period, it is determined by the Committee and ratified by the Board that an Award was, in whole or in part, based on incorrect data (including financial results which pursuant to applicable laws, rules, regulations or applicable accounting principles are required to be restated), the Participant shall return to the Company the overpayment amount, where the overpayment amount shall be equal to the Award distributed to the Participant, reduced by the Award the Participant would have received had the correct data been used in the calculation of the Award. The determinations made by the Committee and ratified by the Board pursuant to this Section shall be conclusive and binding on the Participant unless reached in an arbitrary and capricious manner.
(j) Participants Based Outside of the United States. Notwithstanding any provision of the Plan to the contrary, in order to comply with the laws in other countries in which the Company operates or has employees, the Committee, in its sole discretion, shall have the power and authority to: (i) determine which affiliates and Subsidiaries shall be covered by the Plan; (ii) determine which employees outside the United States are eligible to participate in the Plan; (iii) modify the terms and conditions of any Award granted to employees outside the United States to comply with applicable foreign laws; (iv) establish subplans and modify exercise procedures and other terms and procedures, to the extent such actions may be necessary or advisable. Any subplans and modifications to Plan terms and procedures established under this Section (7)(j) by the Committee shall be attached to the Plan document as appendices; and (v) take any action, before or after an Award is made, that it deems advisable to obtain approval or comply with any necessary local government regulatory exemptions or approvals. Notwithstanding the above, the Committee may not take any actions hereunder, and no Awards shall be granted, that would violate applicable law, including Section 409A of the Code.
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Exhibit 10.28
FIRST AMENDMENT
TO
POLYMER HOLDINGS LLC
CASH INCENTIVE PLAN
WHEREAS, Kraton Performance Polymers, Inc. (the Company), has established and maintains the Polymer Holdings LLC Cash Incentive Plan (the Plan); and
WHEREAS, pursuant to Section 7(e) of the Plan, the Compensation Committee of the Board of Directors of the Company (the Committee) has the right to amend the Plan at any time; and
WHEREAS, the Committee desires to amend the second sentence of Section 5 of the Plan to add working capital to the list of Performance Targets.
NOW, THEREFORE, the Committee hereby amends the Plan, effective as of January 1, 2012, as follows:
1. The second sentence of Section 5 of the Plan is hereby amended in its entirety to read as follows:
Such Performance Targets shall be based on one or more of the following business criteria: cash flow; working capital; EBITDA; profit; safety performance; innovation as a percent of total revenue; cost out and pricing initiatives before or after tax net income; earnings per share; book value per share; stock price; return on stockholders equity; expense management; improvements in capital structure; profitability of an identifiable business unit or product (including return on investment on new business acquisitions or growth and expansion activities for the year); business growth (percent increase in revenue from year to year); before or after tax profit margins; budget comparisons; total return to stockholders; market share (percent shares the Company has captured in the market); increase in production volume (percent of increase from year to year); increase in productivity yield per acreage; percent of decrease in production costs; customer satisfaction based on a third party survey; decrease costs of delivery of service (e.g. freight costs, costs of loans, reduction of inventory); decrease turnaround time for servicing requests or processing information (e.g. number of days closing, numbers of days accounts payables turnaround time); identification of ways to cut down costs on a long term basis; implementation of new systems, processes, procedures to accomplish better efficiency, reduce current costs, or provide better management information reports; implementation of improvements in area of accountability and responsibility that has great impact on the management of the business; the relative performance of the Company against a peer group of companies on any of the measures above.
2. The Plan shall remain in full force and effect and, as amended by this Amendment, is hereby ratified and affirmed in all respects.
IN WITNESS WHEREOF, Kraton Performance Polymers, Inc. has caused this Amendment to be executed by its duly authorized officer as of this 16 th day of February, 2012, but effective as set forth above.
KRATON PERFORMANCE POLYMERS, INC. | ||
By: | /s/ Richard A. Ott | |
Name: | Richard A. Ott | |
Title: | Vice President HR |
Exhibit 10.30
KRATON PERFORMANCE POLYMERS, INC.
EXECUTIVE SEVERANCE PROGRAM
Kraton Performance Polymers, Inc., a Delaware corporation (the Company ), has adopted the Kraton Performance Polymers, Inc. Executive Severance Program, effective as of November 1, 2011 (the Program ), for the benefit of certain employees of the Company and its subsidiaries, on the terms and conditions hereinafter stated. The Program is intended to help retain qualified employees and provide financial security to certain employees of the Company whose employment with the Company and its Affiliates may be terminated under circumstances entitling them to severance benefits as provided herein.
The Program, as a severance pay arrangement within the meaning of Section 3(2)(B)(i) of ERISA, is intended to be excepted from the definitions of employee pension benefit plan and pension plan set forth under Section 3(2) of ERISA, and is intended to meet the descriptive requirements of a plan constituting a severance pay plan within the meaning of regulations published by the Secretary of Labor at Title 29, Code of Federal Regulations § 2510.3-2(b).
ARTICLE I
DEFINITIONS AND INTERPRETATIONS
Section 1.01. Definitions . Capitalized terms used in the Program shall have the following respective meanings, except as otherwise provided or as the context shall otherwise require:
Accrued Obligations shall have the meaning set forth in Section 3.01(a).
Affiliate shall mean any company or other entity controlled by, controlling or under common control with the Company.
Annual Bonus shall mean a discretionary annual bonus paid to a Participant under the Companys annual incentive bonus plan or program based upon a percentage of the Participants Base Salary and the achievement of performance objectives established by the Board each year.
Average Bonus shall mean an amount equal to the average of the annual bonuses paid, if any, to a Participant under the Companys annual incentive bonus plan or program for the prior three calendar years (disregarding any proration for partial years) immediately preceding the Termination Year; provided, however, that if, owing solely to a tenure of less than three years with the Company, the Participant has not been paid bonuses for the prior three years, Average Bonus shall mean (i) if the Participant has received a bonus for the prior two years, the average of the two bonuses actually paid (disregarding any proration for partial years) and the Notional Bonus Payment for the third year; (ii) if the Participant has received a bonus for the prior one year, the average of the bonus actually paid (disregarding any proration for partial years) and the Notional Bonus Payments for each of the prior two years; or (iii) if the Participant has not been paid a bonus for any of the prior three years, the average of the Notional Bonus Payments for each of the prior three years.
Base Salary shall mean the base salary (inclusive of any amounts deferred on a pre-tax basis pursuant to Code Sections 125, 132 or 401(k)) paid to a Participant immediately prior to his or her Termination Date on an annual basis, exclusive of any Annual Bonus or other bonus payments or additional payments under any Benefit Plan.
Benefit Plan shall mean any employee benefit plan (including any employee benefit plan within the meaning of Section 3(3) of ERISA), program, arrangement or practice maintained, sponsored or provided by the Company, including those relating to compensation, bonuses, profit-sharing, stock option, or other stock related rights or other forms of incentive or deferred compensation, paid time off benefits, insurance coverage (including any self-insured arrangements), health or medical benefits, disability benefits, workers compensation, supplemental unemployment benefits, severance benefits and post-employment or retirement benefits (including compensation, pension, health, medical or life insurance or other benefits).
Board shall mean the Board of Directors of the Company.
Cause shall have the meaning set forth in any written individual employment or similar agreement between the Company and a Participant, or in the event that a Participant is not a party to such an agreement, Cause shall mean:
(A) the Participants continued failure to substantially perform the duties of his or her position with the Company (other than as a result of total or partial incapacity due to physical or mental illness) for a period of 30 days following written notice by the Company to the Participant of such failure; provided, however , that it is understood that this clause (A) shall not permit the Company to terminate the Participants employment for Cause because of dissatisfaction with the quality of services provided by or disagreement with the actions taken by the Participant in the good faith performance of the Participants duties to the Company;
(B) failure of the Participant to maintain his or her principal residence in the same metropolitan area as the Companys principal headquarters, which is currently located in Houston, Texas, or elsewhere as mutually agreed to by the Participant and the Company;
(C) theft or embezzlement of Company property;
(D) the Participants conviction of or plea of guilty or no contest to (i) a felony or (ii) a crime involving moral turpitude;
(E) the Participants willful malfeasance or willful misconduct in connection with the Participants duties of his or her position with the Company or any act or omission which is materially injurious to the financial condition or business reputation of the Company or any of its subsidiaries or Affiliates; or
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(F) the Participants breach of the provisions of any confidentiality, non-compete or non-solicitation agreement between the Participant and the Company.
For purposes of the Program, Cause shall be determined by the affirmative vote of at least 50% of the members of the Board (excluding the Participant, if a Board member, and excluding any member of the Board materially involved in events leading to the Boards consideration of terminating the Participant for Cause).
CEO shall mean the Companys chief executive officer.
Change in Control shall mean the occurrence of any of the following events:
(A) any sale, lease, exchange or other transfer (in one transaction or a series of related transactions) of all of the assets of the Company to any Person or group of related persons (a Group ) for purposes of Section 13(d) of the Securities Exchange Act of 1934 (the Exchange Act );
(B) the complete liquidation or dissolution of the Company;
(C) any Person or Group shall become the beneficial owner (within the meaning of Section 13(d) of the Exchange Act), directly or indirectly, of equity interests of the Company representing more than 40% of the aggregate outstanding voting equity interests of the Company and such Person or Group actually has the power to vote such equity interests in any such election;
(D) the replacement of a majority of the board of directors of the Company over a two-year period from the directors who constituted such board at the beginning of such period, and such replacement shall not have been approved by a vote of at least a majority of the board then still in office who either were members of such board at the beginning of such period or whose election as a member of such board was previously so approved; or
(E) a merger or consolidation of the Company with another entity in which holders of the equity interests of the Company immediately prior to the consummation of the transaction hold, directly or indirectly, immediately following the consummation of the transaction, less than 50% of the common equity interest in the surviving corporation in such transaction.
Change in Control Multiplier Factor shall mean (i) the number three (3), if the Participant is the CEO as of the Termination Date, and (ii) the number two (2), if the Participant is not the CEO as of the Termination Date.
Change in Control Severance Continuation Period shall mean (i) the 36-month period following a Participants Termination Date if the Participant is the CEO as of the Termination Date; and (ii) the 24-month period following a Participants Termination Date if the Participant is not the CEO as of the Termination Date.
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COBRA shall mean the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended.
Code shall mean the Internal Revenue Code of 1986, as amended, and the rules and regulations promulgated thereunder.
Code Section 409A shall mean Section 409A of the Code and the Treasury regulations and other interpretive rulings and guidance issued thereunder.
Common Stock shall mean the $.01 par value common stock of the Company, and such other securities of the Company as may be substituted for Common Stock.
Company Factor shall mean, for a given year, the company multiplier factor under the Companys annual incentive bonus plan as finally determined by the Compensation Committee for such year.
Compensation Committee shall mean the Compensation Committee of the Board.
Disability shall have the same meaning assigned to such term in the Companys long term disability plan, as in effect from time to time, or if no such plan is in effect, Disability means permanent and total disability as defined in Section 22(e)(3) of the Code.
Effective Date shall mean November 1, 2011.
Employee Benefits shall mean benefits the Participant may be entitled to due to his or her coverage or participation in the Benefit Plans.
ERISA shall mean the Employee Retirement Income Security Act of 1974, as amended, and the rules and regulations promulgated thereunder.
Good Reason shall mean, when used with reference to any Participant, any of the following actions or failures to act, but in each case only if it occurs while such Participant is employed by the Company and then only if it is not consented to by such Participant in writing:
(A) the failure of the Company to pay or cause to be paid the Participants Base Salary or Annual Bonus (if any) when due;
(B) a material reduction in the Participants Base Salary, the target bonus opportunity with respect to his or her Annual Bonus, or Employee Benefits, other than an across-the-board reduction in Base Salary or bonus opportunity for all of the members of the Companys management team and other than a decrease in Employee Benefits that applies to all employees otherwise eligible to participate in the affected plan(s);
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(C) a relocation of the Participants primary work location more than 50 miles from the work location on the date immediately prior to the effective date of such change; or
(D) a material reduction in the Participants duties and responsibilities of his or her position with the Company.
The foregoing notwithstanding, for purposes of this definition, none of the actions described in clauses (A) through (D) above shall constitute Good Reason with respect to any Participant if it was an isolated and inadvertent action not taken in bad faith by the Company and if it is remedied by the Company within 30 days after receipt of written notice thereof given by such Participant (or, if the matter is not capable of remedy within 30 days, then within a reasonable period of time following such 30-day period, provided that the Company has commenced such remedy within said 30-day period).
If the Participant believes that an event constituting Good Reason has occurred, the Participant must notify the Company in writing of that belief within 30 days of the occurrence of the Good Reason event, which notice will set forth the basis for that belief. The Company will have 30 days after receipt of such notice (or, if the matter is not capable of remedy within 30 days, then within a reasonable period of time following such 30-day period, provided that the Company has commenced such remedy within said 30-day period) (the Determination Period ) in which to rectify such event, determine that an event constituting Good Reason does not exist, or determine that an event constituting Good Reason exists. If the Company does not take any of such actions within the Determination Period, the Participant may terminate his or her employment with the Company for Good Reason within the 30 day period following the end of the Determination Period by giving written notice to the Company in accordance with the provisions of Section 2.02, which termination will be effective on the Termination Date. If the Company determines that Good Reason does not exist, then (A) the Participant will not be entitled to rely on or assert such event as constituting Good Reason, and (B) the Participant may file a claim pursuant to Section 4.01 within 30 days after the Participants receipt of written notice of the Companys determination.
Multiplier Factor shall mean (i) the number one and five tenths (1.5), if the Participant is the CEO as of the Termination Date, and (ii) the number one (1), if the Participant is not the CEO as of the Termination Date.
Notional Bonus Payment shall mean, for any given year, an amount equal to the product of the Company Factor for such year multiplied by the Participants target bonus as of the calculation date under the Companys annual incentive bonus plan.
Participant shall mean an employee of the Company or an Affiliate who is a Participant in accordance with Section 2.01(a).
Program shall mean this Kraton Performance Polymers, Inc. Executive Severance Program, as amended, supplemented or modified from time to time in accordance with its terms.
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Pro-rated Portion shall mean, with respect to any equity-based grant or award, a fraction (i) whose numerator is the number of full months elapsed from the date of grant of such award through the effective date of termination of a Participants employment in the circumstances described in Section 3.01 below, and (ii) whose denominator is the total number of months over which the grant or award would have vested or had its restrictions lapse under the applicable award agreement.
Removal Notice shall have the meaning set forth in Section 2.01(a).
SEC shall mean the United States Securities and Exchange Commission.
Severance Continuation Period shall mean (i) the 18-month period following the Participants Termination Date, if he or she is the CEO as of such Termination Date, and (ii) the 12-month period following the Participants Termination Date, if he or she is not the CEO as of such Termination Date.
Successor shall mean a successor to all or substantially all of the business, operations or assets of the Company.
Termination Date shall mean the date on which a Participant has a separation from service from the Company and its Affiliates within the meaning of Code Section 409A.
Termination Notice shall mean, as appropriate, written notice from (a) a Participant to the Company purporting to terminate such Participants employment for Good Reason in accordance with Section 2.02 or (b) the Company to any Participant purporting to terminate such Participants employment for Cause or Disability in accordance with Section 2.03.
Termination Year shall mean the calendar year during which the Participants Termination Date occurs.
Section 1.02. Interpretation . In the Program (a) the words herein, hereof and hereunder refer to the Program as a whole and not to any particular Article, Section or other subdivision, (b) reference to any Article or Section, means such Article or Section hereof and (c) the words including (and with correlative meaning include) means including, without limiting the generality of any description preceding such term. The Article and Section headings herein are for convenience only and shall not affect the construction hereof.
ARTICLE II
ELIGIBILITY AND BENEFITS
Section 2.01. Eligible Employees .
(a) An employee of the Company or its Affiliates who is not party to an individual employment agreement providing for severance benefits shall be a Participant in the Program during each calendar year (or partial calendar year) for which he or she is designated as a Participant by the Compensation Committee, unless the Participant is given written notice of the Compensation Committees determination that such Participant shall cease to be a Participant
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(such written notice a Removal Notice ). An individual who is designated a Participant pursuant to the foregoing sentence shall cease to be a Participant upon receipt of a Removal Notice from the Compensation Committee. All Participants shall be listed on Exhibit A attached hereto, and such exhibit shall constitute a part of this Program.
(b) This Program is only for the benefit of the Participants, and no other employees, personnel, consultants or independent contractors shall be eligible to participate in the Program or to receive any rights or benefits hereunder.
Section 2.02. Termination Notices from Participants for Good Reason . For purposes of the Program, in order for any Participant to terminate his or her employment for Good Reason, such Participant must give a Termination Notice to the Company in accordance with the requirements specified under the definition of Good Reason in Section 1.01, which notice shall be signed by such Participant, shall be dated the date it is given to the Company, shall specify the Termination Date and shall state that the termination is for Good Reason and shall set forth in reasonable detail the facts and circumstances claimed to provide a basis for such Good Reason. Any Termination Notice given by a Participant that does not comply in all material respects with the foregoing requirements as well as the Good Reason definition provisions set forth in Section 1.01 shall be invalid and ineffective for purposes of the Program. If the Company receives from any Participant a Termination Notice that it believes is invalid and ineffective as aforesaid, it shall promptly notify such Participant of such belief and the reasons therefor. Any termination of employment by the Participant that either does not constitute Good Reason or fails to meet the Termination Notice requirements set forth above shall be deemed a termination by the Participant without Good Reason.
Section 2.03. Termination Notices from Company for Cause or Disability . For purposes of the Program, in order for the Company to terminate any Participants employment for Cause, the Company must give a Termination Notice to such Participant, which notice shall be dated the date it is given to such Participant, shall specify the Termination Date and shall state that the termination is for Cause and shall set forth in reasonable detail the particulars thereof. For purposes of the Program, in order for the Company to terminate any Participants employment for Disability, the Company must give a Termination Notice to such Participant, which notice shall be dated the date it is given to such Participant, shall specify the Termination Date and shall state that the termination is for Disability and shall set forth in reasonable detail the particulars thereof. Any Termination Notice given by the Company that does not comply, in all material respects, with the foregoing requirements shall be invalid and ineffective for purposes of the Program. Any Termination Notice purported to be given by the Company to any Participant after the death or retirement of such Participant shall be invalid and ineffective.
ARTICLE III
SEVERANCE AND RELATED TERMINATION BENEFITS
Section 3.01. Termination of Employment .
(a) Voluntary Termination by Participant . In the event that a Participants employment is terminated by the Participant other than for Good Reason, then the Participant shall be paid, within 30 days following the Participants Termination Date, the following (with the benefits set forth in (1) through (3) collectively referred to as the Accrued Obligations ):
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(1) | the Base Salary through the Termination Date, to the extent not already paid; |
(2) | any Annual Bonus earned but unpaid as of the Termination Date for any previously completed fiscal year; and |
(3) | reimbursement for any unreimbursed business expenses properly incurred by the Participant, in accordance with the Companys applicable policy, prior to the Termination Date. |
Following the Participants termination of employment by the Participant other than for Good Reason, except as set forth in this Section 3.01(a), the Participant shall have no further rights to any compensation or any other benefits in the nature of severance or termination pay or in connection with the termination of his or her employment.
(b) For Cause . In the event that a Participants employment is terminated by the Company for Cause, then the Participant shall be paid, within 30 days following the Participants Termination Date, the following:
(1) | the Base Salary through the Termination Date, to the extent not already paid; and |
(2) | reimbursement for any unreimbursed business expenses properly incurred by the Participant, in accordance with the Companys applicable policy, prior to the Termination Date. |
Following the Participants termination of employment by the Company for Cause, except as set forth in this Section 3.01(b), the Participant shall have no further rights to any compensation or any other benefits in the nature of severance or termination pay or in connection with the termination of his or her employment.
(c) Disability or Death . In the event that a Participants employment is terminated (i) by the Company by reason of the Participants Disability or (ii) as a result of the Participants death, then in either case, the following benefits shall be paid to the Participant or the Participants estate, as applicable:
(1) | the Accrued Obligations (at the time set forth in Section 3.01(a)); and |
(2) | within 60 days following the Participants Termination Date, a lump-sum cash payment equal to the product of (i) his or her Average Bonus and (ii) a fraction, the numerator of which is the number of days during which the Participant was employed by the Company in the Termination Year and the denominator of which is 365. |
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Following the Participants termination of employment due to death or Disability, except as set forth in this Section 3.01(c), the Participant shall have no further rights to any compensation or any other benefits in the nature of severance or termination pay or in connection with the termination of his or her employment.
(d) Without Cause or for Good Reason . In the event that a Participants employment is terminated (i) by the Company without Cause (other than due to Disability or death) or (ii) by the Participant for Good Reason, then, subject to the provisions of Section 3.02, in either case, the following benefits shall be paid to the Participant:
(1) | the Accrued Obligations (at the time set forth in Section 3.01(a)); |
(2) | a continuation of the Participants annual Base Salary for the Severance Continuation Period, which shall be paid at the same time and in the same manner as if the Participant had remained employed by the Company during such period; provided, however , that the payments normally payable during the 60-day period following the Participants Termination Date shall be accrued and paid in a lump sum within five days following the end of such 60-day period; |
(3) | within 60 days following the Participants Termination Date, a lump sum cash payment equal to the product of (i) the Multiplier Factor and (ii) his or her Average Bonus; and |
(4) | during the Severance Continuation Period, the Participant and his or her eligible dependents as of the Termination Date shall continue to be covered by all medical, vision and dental Benefit Plans (excluding disability insurance) maintained by the Company under which the Participant was covered immediately prior to the Termination Date (collectively, the Continued Health Benefits ) at the same active employee premium cost as a similarly situated active employee; provided, however , in any case such benefits shall cease if the Participant becomes entitled to medical benefits from a new employer as provided in Section 3.03(a). The Company may provide such medical and dental benefits by paying the Companys COBRA continuation coverage through such Severance Continuation Period. |
Following the Participants termination of employment by the Company without Cause or by the Participant for Good Reason, except as set forth in this Section 3.01(d), the Participant shall have no further rights to any compensation or any other benefits in the nature of severance or termination pay or in connection with the termination of his or her employment.
(e) Without Cause or For Good Reason Following a Change in Control . In the event that a Participants employment is terminated within one year following a Change in Control either (i) by the Participant for Good Reason or (ii) by the Company without Cause (other than due to Disability or death), then, subject to provisions of Section 3.02, in either case, the following benefits shall be paid to the Participant:
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(1) | the Accrued Obligations (at the time set forth in Section 3.01(a)); |
(2) | a continuation of the Participants annual Base Salary during the Change in Control Severance Continuation Period which shall be paid at the same time and in the same manner as if the Participant had remained employed by the Company during such period; provided, however , that the payments normally payable during the 60-day period following the Participants Termination Date shall be accrued and paid in a lump sum within five days following the end of such 60-day period; |
(3) | within 60 days following the Participants Termination Date, a lump sum cash payment equal to the product of (i) the Change in Control Multiplier Factor and (ii) his or her Average Bonus; and |
(4) | during the Change in Control Severance Continuation Period, the Participant and his or her eligible dependents as of the Termination Date shall continue to be covered by the Continued Health Benefits under which the Participant was covered immediately prior to the Termination Date at the same active employee premium cost as a similarly situated active employee; provided, however , in any case such benefits shall cease if the Participant becomes entitled to medical benefits from a new employer as provided in Section 3.03(a). The Company may provide such medical and dental benefits by paying the Companys COBRA continuation coverage through such Severance Continuation Period. |
Following the Participants termination of employment within one year following a Change in Control either (i) by the Participant for Good Reason or (ii) by the Company without Cause, except as set forth in this Section 3.01(e), the Participant shall have no further rights to any compensation or any other benefits in the nature of severance or termination pay or in connection with the termination of his or her employment.
(f) Vested Employee Benefits . Following a Participants termination of employment under Section 3.01(a), (b), (c), (d) or (e), he or she shall be entitled to such vested Employee Benefits, if any, as to which the Participant may be entitled under the Benefit Plans the Participant is entitled to pursuant to the terms of the applicable plans then in effect.
(g) Treatment of Continued Health Benefits . The premium cost to the Company of providing any Continued Health Benefits which are medical, dental or vision benefits on a self-insured basis, will be timely reported to the Participant as taxable income. Any continued medical, dental or vision benefits provided to a Participant and his or her dependents pursuant to Section 3.01(d) or Section 3.01(e) are provided concurrent with any rights the Participant and such dependents may have to continue such coverages under COBRA. The provisions of this Section 3.01 will not prohibit the Company from changing the terms of such Continued Health Benefits provided that any such changes apply to all similarly situated employees of the Company and its Affiliates (e.g., the Company may switch insurance carriers or preferred provider organizations).
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(h) COBRA . At the expiration of the period applicable to Continued Health Benefits as provided in Section 3.01(d) and Section 3.01(e), the Participant and his or her dependents shall be entitled to continued coverage under COBRA for a period, if any, equal to the difference between the maximum coverage period applicable to such Participant or an eligible dependent under COBRA and the period under which Continued Health Benefits were provided pursuant to Section 3.01(d) or Section 3.01(e).
Section 3.02. Condition to Receipt of Severance Benefits . As a condition to receipt of any payment or benefits under Section 3.01(d) or Section 3.01(e), such Participant must enter into a Non-Solicitation, Non-Compete, Non-Disclosure, Non-Disparagement and Release Agreement ( Release Agreement ) with the Company and its Affiliates in the form then currently used by the Company. The Company will provide a Participant with a Release Agreement on or before the Participants Termination Date. The Participant must execute and return the Release Agreement to the Company no later than the 52nd day following his or her Termination Date, followed by a seven (7)-day revocation period following the date the Release Agreement is executed ( Revocation Period ). A Participants failure to timely execute and return the Release Agreement in accordance with the previous sentence, or the Participants revocation of the Release Agreement during the Revocation Period, will result in a forfeiture of all benefits payable to the Participant under the terms of the Program other than the Accrued Obligations and any vested Employee Benefits described under Section 3.01(f).
Section 3.03. Limitation of Benefits .
(a) Anything in the Program to the contrary notwithstanding, the Companys obligation to provide the Continued Health Benefits shall cease if and when the Participant becomes employed by a third party that provides such Participant with substantially comparable health and welfare benefits, subject to the Participants right to elect to continue coverage under COBRA.
(b) Any amounts payable under the Program shall be in lieu of and not in addition to any other severance or termination payment under any other plan or agreement with the Company. As a condition to receipt of any payment under the Program, the Participant shall waive any entitlement to any other severance or termination payment by the Company, including any severance or termination payment set forth in an individual employment agreement with the Company. Notwithstanding the foregoing, nothing in this Section 3.03(b) shall abridge the Participants rights with respect to vested benefits under any Benefit Plan.
Section 3.04. Certain Excise Taxes . Notwithstanding anything to the contrary in this Agreement, if the Participant is a disqualified individual (as defined in Code Section 280G(c)), and the payments and benefits provided for in this Program, together with any other payments and benefits which the Participant has the right to receive from the Company or any of its Affiliates, would constitute a parachute payment (as defined in Code Section 280G(b)(2)), then the payments and benefits provided for in this Program shall be either (a) reduced (but not below zero) so that the present value of such total amounts and benefits received by the Participant from the Company and its Affiliates will be one dollar ($1.00) less than three (3) times Executives base amount (as defined in Code Section 280G(b)(3)) and so that no portion of such amounts and benefits received by the Participant shall be subject to the excise tax
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imposed by Code Section 4999 or (b) paid in full, whichever produces the better net after tax position to the Participant (taking into account any applicable excise tax under Code Section 4999 and any other applicable taxes). The reduction of payments and benefits hereunder, if applicable, shall be made by reducing, first, payments or benefits to be paid in cash hereunder in the order in which such payment or benefit would be paid or provided (beginning with such payment or benefit that would be made last in time and continuing, to the extent necessary, through to such payment or benefit that would be made first in time) and, then, reducing any benefit to be provided in kind hereunder in a similar order. The determination as to whether any such reduction in the amount of the payments and benefits provided hereunder is necessary shall be made by the Company in good faith. If a reduced payment or benefit is made or provided and through error or otherwise that payment or benefit, when aggregated with other payments and benefits from the Company (or its Affiliates) used in determining if a parachute payment exists, exceeds one dollar ($1.00) less than three (3) times the Participants base amount, then the Participant shall immediately repay such excess to the Company upon notification that an overpayment has been made. Nothing in this Section 3.04 shall require the Company (or any Affiliate) to be responsible for, or have any liability or obligation with respect to, the Participants excise tax liabilities under Code Section 4999.
Section 3.05. Program Unfunded; Participants Rights Unsecured . The Company shall not be required to establish any special or separate fund or make any other segregation of funds or assets to assure the payment of any benefit hereunder. The right of any Participant to receive the benefits provided for herein shall be an unsecured obligation against the general assets of the Company.
ARTICLE IV
CLAIMS PROCEDURE
Section 4.01. Claims Procedure
(a) It shall not be necessary for a Participant or beneficiary who has become entitled to receive a benefit hereunder to file a claim for such benefit with any person as a condition precedent to receiving a distribution of such benefit. However, any Participant or beneficiary who believes that he or she has become entitled to a benefit hereunder and who has not received, or commenced receiving, a distribution of such benefit, or who believes that he or she is entitled to a benefit hereunder in excess of the benefit which he or she has received, or commenced receiving, may file a written claim for such benefit with the Compensation Committee at any time on or prior to the end of the fiscal year next following the fiscal year in which he or she allegedly became entitled to receive a distribution of such benefit. Such written claim shall set forth the Participants or beneficiarys name and address and a statement of the facts and a reference to the pertinent provisions of the Program upon which such claim is based. The Compensation Committee shall, within 90 days after such written claim is filed, provide the claimant with written notice of its decision with respect to such claim. If such claim is denied in whole or in part, the Compensation Committee shall, in such written notice to the claimant, set forth in a manner calculated to be understood by the claimant the specific reason or reasons for denial; specific references to pertinent provisions of the Program upon which the denial is based; a description of any additional material or information necessary for the claimant to perfect his or her claim and an explanation of why such material or information is necessary; and an explanation of the provisions for review of claims set forth in Section 4.01(b) below.
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(b) A Participant or beneficiary who has filed a written claim for benefits with the Compensation Committee which has been denied may appeal such denial to the Compensation Committee and receive a full and fair review of his or her claim by filing with the Compensation Committee a written application for review at any time within 60 days after receipt from the Compensation Committee of the written notice of denial of his or her claim provided for in Section 4.01(a) above. A Participant or beneficiary who submits a timely written application for review shall be entitled to review any and all documents pertinent to his or her claim and may submit issues and comments to the Compensation Committee in writing. Not later than 60 days after receipt of a written application for review, the Compensation Committee shall give the claimant written notice of its decision on review, which written notice shall set forth in a manner calculated to be understood by the claimant specific reasons for its decision and specific references to the pertinent provisions of the Program upon which the decision is based.
(c) Any act permitted or required to be taken by a Participant or beneficiary under this Section 4.01 may be taken for and on behalf of such Participant or beneficiary by such Participants or beneficiarys duly authorized representative. Any claim, notice, application or other writing permitted or required to be filed with or given to a party by this Article shall be deemed to have been filed or given when deposited in the U.S. mail, postage prepaid, and properly addressed to the party to whom it is to be given or with whom it is to be filed. Any such claim, notice, application, or other writing deemed filed or given pursuant to the preceding sentence shall in the absence of clear and convincing evidence to the contrary, be deemed to have been received on the fifth (5th) business day following the date upon which it was filed or given. Any such notice, application, or other writing directed to a Participant or beneficiary shall be deemed properly addressed if directed to the address set forth in the written claim filed by such Participant or beneficiary.
ARTICLE V
Miscellaneous Provisions
Section 5.01. Cumulative Benefits . Except as provided in Section 3.03(b), the rights and benefits provided to any Participant under the Program are in addition to and shall not be a replacement of, all of the other rights and benefits provided to such Participant under any Benefit Plan or any agreement between such Participant and the Company.
Section 5.02. Code Section 409A .
(a) It is intended that the payments and benefits provided under the Program shall be exempt from or comply with the application of the requirements of Code Section 409A. This Program shall be construed, administered and governed in a manner that affects such intent. Specifically, any taxable benefits or payments provided under the Program are intended to be separate payments that qualify for the short-term deferral exception to Code Section 409A to the maximum extent possible, and to the extent they do not so qualify, are intended to qualify for the separation pay exceptions to Code Section 409A, to the maximum extent possible. To the
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extent that none of these exceptions (or any other available exception) applies, then notwithstanding anything contained herein to the contrary, and to the extent required to comply with Code Section 409A, if a Participant is a specified employee, as determined by the Company, as of his or her Termination Date, then all amounts due under the Program that constitute a deferral of compensation within the meaning of Code Section 409A, that are provided as a result of a separation from service within the meaning of Code Section 409A, and that would otherwise be paid or provided during the first six months following the Termination Date, shall be accumulated through and paid or provided on the first business day that is more than six months after the date of the Termination Date (or, if the Participant dies during such six -month period, within 90 days after the Participants death).
(b) With regard to any provision herein that provides for reimbursement of costs and expenses or in-kind benefits, except as permitted by Code Section 409A: (i) the right to reimbursement or in-kind benefits shall not be subject to liquidation or exchange for another benefit; (ii) the amount of expenses eligible for reimbursement, or in-kind benefits, provided during any calendar year shall not affect the expenses eligible for reimbursement, or in-kind benefits to be provided, in any other calendar year; and (iii) such payments shall be made on or before the last day of the Participants calendar year following the calendar year in which the expense occurred, or such earlier date as required hereunder.
(c) The payments and benefits provided under the Program may not be deferred, accelerated, extended, paid out or modified in a manner that would result in the imposition of an additional tax under Code Section 409A upon the Participants. Although the Company will use its best efforts to avoid the imposition of taxation, interest and penalties under Section 409A of the Code, the tax treatment of the benefits provided under the Program is not warranted or guaranteed. Neither the Company, its Affiliates nor their respective directors, officers, employees or advisers shall be held liable for any taxes, interest, penalties or other monetary amounts owed by a Participant (or any other individual claiming a benefit through the Participant) as a result of the Program.
Section 5.03. No Mitigation . No Participant shall be required to mitigate the amount of any payment provided for in the Program by seeking or accepting other employment following a termination of his or her employment with the Company or otherwise. Except as otherwise provided in Section 3.03, the amount of any payment provided for in the Program shall not be reduced by any compensation or benefit earned by a Participant as the result of employment by another employer or by retirement benefits. The Companys obligations to make payments to any Participant required under the Program shall not be affected by any set off, counterclaim, recoupment, defense or other claim, right or action that the Company may have against such Participant.
Section 5.04. Amendment or Termination . The Board may amend (in whole or in part) or terminate the Program at any time; provided, however , that the Program cannot be amended or terminated during the one year period following a Change in Control. Notwithstanding the foregoing, no termination shall reduce or terminate any Participants right to receive, or continue to receive, any payments and benefits that became payable in respect of a termination of employment that occurred prior to the date of such termination of the Program. Notwithstanding the foregoing, nothing herein shall abridge the Compensation Committees authority to designate new Participants to participate in the Program in accordance with Section 2.01(a) hereof.
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Section 5.05. Enforceability . The failure of the Participants or the Company to insist upon strict adherence to any term of the Program on any occasion shall not be considered a waiver of such partys rights or deprive such party of the right thereafter to insist upon strict adherence to that term or any other term of the Program.
Section 5.06. Administration .
(a) The Compensation Committee shall have full and final authority, subject to the express provisions of the Program, with respect to designation of the Participants and administration of the Program, including but not limited to, the authority to construe and interpret any provisions of the Program and to take all other actions deemed necessary or advisable for the proper administration of the Program, and such decisions shall be binding on all parties.
(b) The Company shall indemnify and hold harmless each member of the Compensation Committee and any other employee of the Company that acts at the direction of the Compensation Committee against any and all expenses and liabilities arising out of his or her administrative functions or fiduciary responsibilities, including any expenses and liabilities that are caused by or result from an act or omission constituting the negligence of such member in the performance of such functions or responsibilities, but excluding expenses and liabilities that are caused by or result from such members or employees own gross negligence or willful cause. Expenses against which such member or employee shall be indemnified hereunder shall include, without limitation, the amounts of any settlement or judgment, costs, counsel fees, and related charges reasonably incurred in connection with a claim asserted or a proceeding brought or settlement thereof.
Section 5.07. Consolidations, Mergers, Etc . In the event of a merger, consolidation or other transaction, nothing herein shall relieve the Company from any of the obligations set forth in the Program; provided, however , that nothing in this Section 5.07 shall prevent an acquirer of or Successor to the Company from assuming the obligations, or any portion thereof, of the Company hereunder pursuant to the terms of the Program provided that such acquirer or Successor provides adequate assurances of its ability to meet this obligation. In the event that an acquirer of or Successor to the Company agrees to perform the Companys obligations, or any portion thereof, hereunder, the Company shall require any person, firm or entity which becomes its Successor to expressly assume and agree to perform such obligations in writing, in the same manner and to the same extent that the Company would be required to perform hereunder if no such succession had taken place.
Section 5.08. Successors and Assigns . This Program shall be binding upon and inure to the benefit of the Company and its Successors and assigns. This Program and all rights of each Participant shall inure to the benefit of and be enforceable by such Participant and his or her personal or legal representatives, executors, administrators, heirs and permitted assigns. If any Participant should die while any amounts are due and payable to such Participant hereunder, all such amounts, unless otherwise provided herein, shall be paid in accordance with the terms of the Program to such Participants devisees, legatees or other designees or, if there be no such devisees, legatees or other designees, to the legal representative of such Participants estate. No payments, benefits or rights arising under the Program may be assigned or pledged by any Participant, except under the laws of descent and distribution.
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Section 5.09. Notices . All notices and other communications provided for in the Program shall be in writing and shall be sent, delivered or mailed, addressed as follows: (a) if to the Company, at the Companys principal office address or such other address as the Company may have designated by written notice for purposes hereof, directed to the attention of the General Counsel, and (b) if to any Participant, at his or her residence address on the records of the Company or to such other address as he or she may have designated to the Company in writing for purposes hereof. Each such notice or other communication shall be deemed to have been duly given or mailed by United States certified or registered mail, return receipt requested, postage prepaid, except that any change of notice address shall be effective only upon receipt.
Section 5.10. Tax Withholding . The Company shall have the right to deduct from any payment hereunder all taxes (federal, state or other) which it is required to withhold therefrom.
Section 5.11. No Employment Rights Conferred . This Program shall not be deemed to create a contract of employment between any Participant and the Company and/or its Affiliates. Nothing contained in the Program shall (a) confer upon any Participant any right with respect to continuation of employment with the Company or (b) subject to the rights and benefits of any Participant hereunder, interfere in any way with the right of the Company to terminate such Participants employment at any time.
Section 5.12. Entire Program . This Program contains the entire understanding of the Participants and the Company with respect to severance arrangements maintained on behalf of the Participants by the Company. There are no restrictions, agreements, promises, warranties, covenants or undertakings between the Participants and the Company with respect to the subject matter herein other than those expressly set forth herein.
Section 5.13. Prior Agreements . This Program supersedes all prior agreements, programs and understandings (including all written and verbal agreements and understandings) between each Participant and the Company regarding the terms and conditions of each Participants employment and severance arrangements.
Section 5.14. Severability . If any provision of the Program is, becomes or is deemed to be invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions of the Program shall not be affected thereby.
Section 5.15. Governing Law . This Program shall be governed by and construed in accordance with the laws of the State of Delaware, without giving effect to its conflict of laws rules, and applicable federal law.
KRATON PERFORMANCE POLYMERS, INC. | ||
By: | /s/ Richard A. Ott | |
Name: |
Richard A. Ott | |
Title: |
Vice President HR |
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EXHIBIT A
KRATON PERFORMANCE POLYMERS, INC.
EXECUTIVE SEVERANCE PROGRAM
INITIAL PARTICIPANTS*
Thomas A. Abrey
Damian T. Burke
Jason P. Clark
Stephen W. Duffy
Kevin M. Fogarty
Lothar P.F. Freund
Holger R. Jung
G. Scott Lee
Richard A. Ott
Stephen E. Tremblay
* | Subject to execution of and Employee Confidentiality and Non-Competition Agreement and, if applicable, a Termination of Employment and Release Agreement in a form acceptable to the Company |
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Exhibit 10.31
EMPLOYEE CONFIDENTIALITY AND
NON-COMPETITION AGREEMENT
THIS EMPLOYEE CONFIDENTIALITY AND NON-COMPETITION AGREEMENT (this Agreement ) is made and entered into this 31 st day of October, 2011 (the Effective Date ), by and between Kraton Performance Polymers, Inc. ( Parent ), a Delaware corporation, Kraton Polymers LLC ( Kraton or the Company ), a Delaware limited liability company and wholly-owned subsidiary of Parent and ( Employee ).
[ Existing Employees: Employee has been employed by the Company since [ ]. Concurrently with the execution and delivery of this Agreement, Company agrees to continue to employ Employee, and Employee agrees to continue employment with the Company, on the following terms and conditions: ]
[ New Employees: The Company agrees to employ Employee, and Employee accepts employment with the Company, on the following terms and conditions: ]
[for new employees: agrees [for current employees: agrees to continue to employ Employee, and Employee agrees to continue employment with the Company, ] on the following terms and conditions:
ARTICLE I
DEFINITIONS
In addition to the terms defined in the body of this Agreement, for purposes of this Agreement, the following capitalized words shall have the meanings indicated below.
1.1 Competitive Business means the development, manufacture, license, sale or provision of products or services that the Company currently, or at any time during the Employees employment with the Company, sells, manufactures, licenses or provides, or has specific plans to do so, including without limitation styrenic block copolymers made by anionic polymerization.
1.2 Confidential Information includes, but is not limited to trade secrets and other confidential and proprietary information received or developed by the Company (including such information received or developed by Employee during his employment with Company) relating to the Companys customers and/or in connection with the business of the Company and its affiliates, including without limitation, customer lists, development programs, costs, marketing, trading, investment, sales, activities, promotion, credit and financial data, manufacturing processes, financing methods, plans, contract terms and conditions and related information, information describing the needs of the Companys and its affiliates customers, formulas, devices or compilations of information which are used in the business of the Company and its affiliates and which give the Company and its affiliates an opportunity to obtain an advantage over others who do not know or use such information, financial information, marketing plans,
designs, specifications for hardware and systems, software programs, engineering and other technical data, ideas and special expertise relating to the business of the Company and its affiliates, their customers and suppliers and other information and materials which have been or may be identified by the Company and its affiliates, their customers or suppliers as confidential or which Employee has reason to believe is being maintained in confidence, as well as information concerning the business of the Company generally. Confidential Information does not include any item of such information which, prior to Employees receipt thereof: (i) was generally known to the public (other than as a result of a breach of this covenant by Employee), or (ii) was acquired by Employee from a third party, provided such third party, in providing the information to Employee, did not impose an obligation of confidentiality and has not breached any other agreement or acted in derogation of any duty owed to the Company, its customers or suppliers.
ARTICLE II
PROTECTION OF INFORMATION
2.1 Acknowledgement of Confidential Information of the Company . In order to develop Employees skills and enable Employee to perform his duties, Employee acknowledges that the Company hereby agrees to, after execution of this Agreement and throughout Employees employment, to provide Employee with Confidential Information as defined below. By signing this Agreement, Employee acknowledges delivery and receipt of Confidential Information. Employee acknowledges that thereafter Employee will be making use of, acquiring, accessing and/or adding to such Confidential Information. Employee recognizes that access to and knowledge of Confidential Information is essential to the performance of his duties with the Company. Employee acknowledges and agrees that the Companys Confidential Information is a valuable, special, and unique asset of the Company and such Confidential Information is extremely important in the highly competitive industries in which the Company conducts business. Employee acknowledges that the disclosure of any Confidential information will cause imminent harm and substantial, irreparable injury, including loss of profit and other damages such as loss of goodwill and a decrease in market share which are difficult to calculate. Employee acknowledges that the Company retains a proprietary interest in its Confidential Information that persists beyond the termination of Employees employment.
2.2 Obligation to Maintain the Secrecy of Confidential Information .
(a) As a material inducement to the Company to provide Confidential Information to Employee and otherwise enter into the employment relationship, Employee agrees:
(i) To keep the Confidential Information secret and confidential at all times and not at anytime, during his employment by the Company or following such employment, to disclose or allow the disclosure of any Confidential Information to any person, firm or corporation except to the extent necessary to permit Employee to act within the ordinary course of Employees assigned duties for the benefit of the Company; and
(ii) Not to use, misuse or misappropriate any Confidential Information for his own benefit or the benefit of any person, firm or corporation other than the Company.
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Without limiting the foregoing, Employee understands and agrees that he will not communicate or divulge, disclose or furnish, except to the Company, the names and addresses of any customers or prospective customers, or any information concerning any of the Companys customers or prospective customers. Employee further acknowledges that the Confidential Information is the sole property of the Company and its affiliates or their customers or suppliers.
(b) At the termination of Employees employment with the Company for any reason, (i) all Confidential Information as may be in Employees possession, or over which Employee may have control, and all other documents, data, records, materials, notes, reports and other property of the Company and/or any of its affiliates provided to Employee during the course of Employees employment, regardless of whether prepared by Employee, shall be returned by Employee to the Company immediately, with no request being required (and Employee shall not retain, recreate or deliver to anyone else such information); and (ii) all computer and computer-related equipment and software, and all property, files, records, documents, drawings, specifications, lists, equipment, and similar items relating to the business of the Company or its affiliates, whether prepared by Employee or otherwise, coming into Employees possession and/or control shall remain the exclusive property of the Company and its affiliates, and shall be delivered by Employee to the Company immediately, with no request being required (and Employee shall not retain, recreate or deliver to anyone else such information). The restrictions of this Section 2.2 are in addition to and not in lieu of protections afforded to the trade secrets and confidential information of the Company and its affiliates under applicable state and/or federal laws.
ARTICLE III
INVENTIONS
3.1 Inventions by Employee .
(a) Prior Inventions . Employee has attached hereto, as Exhibit A, a list describing all material creations, inventions, and developments which were created or contributed to by Employee either solely or jointly with others prior to Employees employment with the Company which relate to the Companys proposed or current business, services, products or research and development (collectively referred to as Prior Inventions). If no such list is attached, Employee either will advise the Company that Prior Inventions exist but cannot be disclosed because of prior existing confidentiality obligations or, absent such advice, will be understood to represent that there are no such Prior Inventions. If in the course of Employees employment with the Company, Employee uses or relies upon a Prior Invention, or any works of authorship (including software, related items, data bases, documentation, site content, text or graphics), developments, improvements or trade secrets which were created or contributed to by Employee either solely or jointly with others prior to Employees employment with the Company (Prior Intellectual Property) in Employees creation or contribution to any work of authorship, invention, product, service, process, machine or other property of the Company, Employee will inform the Company promptly and, upon request, use Employees best efforts to procure any consents of third parties necessary for the Companys use of such Prior Intellectual Property. To the fullest extent permissible by law, and to the extent not in contravention of any prior legal obligation of Employee to others all of which are disclosed to KRATON on Exhibit B, attached hereto, Employee hereby grants the Company a non-exclusive royalty-free,
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irrevocable, perpetual, worldwide license under all of Employees Prior Inventions to make, have made, copy, modify, distribute, use and sell works of authorship, products, services, processes and machines and to otherwise operate the Companys current and future business.
(b) During Employees employment by the Company, Employee may, alone or with others, during or outside regular business hours and with or without the use of the Companys equipment, supplies, facilities or any of the Confidential Information, develop ideas, works of authorship, inventions, improvements upon products, or discoveries which (i) relate at the time of their conception or reduction to practice to the Companys business, or actual or anticipated research or development by the Company, or (ii) which result from work performed by Employee for the Company. (All of the foregoing are collectively referred to as the Inventions .) Employee agrees that all Inventions are the sole and exclusive property of the Company and that the Company shall have the sole right to use the Inventions. Employee further hereby unconditionally assigns and agrees to assign to the Company all rights, title and interests of Employee in and to all Inventions. Employee hereby grants to the Company the sole right to apply for, obtain and register patents, utility models, design rights, copyrights and/or trade secret protection or any other available legal protection (collectively called Legal Protection ) for the Inventions and the Companys ownership thereof in the United States and throughout the world and to use transfer or grant licenses to others under all such Legal Protection. Employee further agrees to provide all possible assistance to the Company and to execute all documents, agreements, notices, assignments and other written materials and perform all acts required by the Company from time to time to enable the Company to fully enforce its legal rights to the Inventions in the United States and throughout the world, including, without limitation, all documents and actions, including, without limitation, information and testimony which the Company deems necessary for (1) the unconditional assignment of all of Employees interests in the Inventions to the Company and the vesting of title to the Inventions solely in the Company, and (2) the preparation, application, prosecution, issuance, procurement, perfection, maintenance and preservation of Legal Protection for the Inventions.
(c) Employee will promptly and fully inform and disclose to his supervisor, in writing, in detail, all inventions developed by Employee and Employee agrees to treat all Inventions as Confidential Information of the Company and to maintain the secrecy of those Inventions pursuant to the requirements of Article II. Employee further agrees to maintain complete records of all his creative or inventive activities and to deliver such records to the Company at the termination of employment or as requested by the Company.
ARTICLE IV
COVENANTS AGAINST COMPETITION
4.1 Non-Competition and Non-Solicitation . (a) Employee acknowledges that in connection with his employment, he has and will continue to have access to specialized knowledge of the market analyses, marketing practices, technology, clients and prospective clients of the Company, and other Confidential Information, goodwill and trade secrets that were among the assets of the Company prior to the Effective Date. Employee acknowledges his expertise and specialized knowledge of research and development, and other Confidential Information of the Company. Employee will continue to obtain and develop specialized knowledge of Confidential Information of the Company and its affiliates and the business of the
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Company through his continued involvement in the business of the Company, including his employment under this Agreement, and that such Confidential Information will enable Employee to irreparably injure the Company if Employee should engage in unfair competition. The Companys promise to provide Employee with this Confidential Information is an essential part of the Companys agreement to employ Employee pursuant to this Agreement.
(b) Ancillary to and in consideration of the Companys promises and undertakings in this Agreement, including the promise to provide specialized training and knowledge, the promise to provide Employee access to and control of Confidential Information that the Company and its affiliates will continue to develop and/or receive and that Employee will have access to during his employment with the Company, and to ensure the protection of the Companys and its affiliates Confidential Information during Employees employment and thereafter, Employee agrees and covenants that during the period of his employment and until the date that is twelve (12) months after the termination of Employees employment for any reason whatsoever, whether voluntary or involuntary (the Restrictive Period) he will not, without the prior written approval of the Company:
(i) acquire a financial interest in, engage in, act for, be employed by, provide services to, or contract with, directly or indirectly (whether individually or as a partner, officer, manager, employee, agent, representative, director, owner, trustee, or other investor of or in, whether as an independent contractor, consultant or advisor, or as a sales representative or distributor of any kind) with respect to a Competitive Business;
(ii) solicit or encourage, directly or indirectly and in any capacity, any employee of the Company to leave the employment of the Company;
(iii) employ or solicit for employment, directly or indirectly and in any capacity, any person who was an employee of the Company during the 6-month period preceding the date of Employees termination from the Company, unless such employee was no longer employed by the Company or its affiliates and is not subject to a non-competition or similar agreement in favor of the Company or its affiliates at the time of the solicitation and/or employment; and
(iv) solicit or encourage, directly or indirectly and in any capacity, any individual consultant then under contract with the Company to cease work with the Company;
(v) contact, directly or indirectly and in any capacity, any customer, supplier, contractor or subcontractor or prospective customer, supplier, contractor or subcontractor of the Company or its affiliates (1) with whom Employee has had contact on behalf of the Company or its affiliates during the 12-month period preceding the date of Employees termination, or (2) about whom Employee has obtained Confidential Information in connection with such Employees employment during such 12-month period, or (3) with whom employees reporting to Employee have had personal contact or dealings on behalf of the Company during the 12-month period preceding the date of Employees termination, so as to cause or attempt to cause such customer, supplier, contractor or subcontractor or prospective customer, supplier, contractor or subcontractor not to do business with or to reduce business with the Company or its affiliates or divert any business from the Company or its affiliates with respect to a Competitive Business.
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Nothing contained in this Section 4.1 shall prohibit Employee from (x) acquiring, solely as an investment and through market purchases, securities of any entity which is registered under Section 12(b) or 12(g) of the Securities and Exchange Act of 1934 and which are publicly traded, so long as Employee is not part of any control group of such entity and such securities, including converted securities, do not constitute more than 1% of the outstanding voting power of that entity; or (y) rendering services to any company that derives less than 10% of its revenues from a Competitive Business (a Permitted Company), if such services or employment relate solely to a business of the Permitted Company that is not in competition with a Competitive Business.
Notwithstanding the foregoing, the restrictions set forth in Section 4.1(b)(i) shall not apply if the benefit amounts payable to Employee as a Participant in the Kraton Performance Polymers, Inc. Executive Severance Program in the event of Employees termination of employment from the Company are materially reduced after the Effective Date.
4.2 Reasonableness; Enforcement .
(a) Employee and the Company agree and acknowledge that the limitations as to time and scope of activity to be restrained as set forth in Section 4.1 hereof are reasonable in light of the nature and geographic scope of the operations of the Company, Employees level of control over and/or contact with the Companys business in all jurisdictions in which it is conducted, and the nature and amount of compensation, trade secrets and Confidential Information that Employee is receiving in connection with the performance of Employees duties hereunder. Employee agrees and acknowledges that the restrictions set forth in Section 4.1 do not impose any greater restraint than is necessary to protect the legitimate business interests of the Company, including its interest in developing and protecting its business goodwill and to ensure the protection of its and its affiliates technology and other Confidential Information. Employee acknowledges that the duration of the covenants contained in this Article IV are the result of arms-length bargaining and that the consideration provided and promises made by the Company herein constitute an otherwise enforceable agreement to which the terms of this Article IV are ancillary.
(b) Employee acknowledges and recognizes the highly competitive nature of the businesses of the Company and agrees that competition by Employee in the manner and circumstances set forth in Section 4.1 in violation if this Article IV would cause irreparable injury to Employer and its affiliates; and, therefore, the temporal and geographic scope of this Article IV is reasonable and necessary to prevent such injury.
(c) It is specifically agreed that the period specified in Section 4.1 shall be computed by excluding from that computation any time during which Employee is in violation of any provision of Section 4.1.
4.3 Modification of Restrictions . It is the desire and intent of the parties that the provisions of this Article IV be enforced to the fullest extent permitted under applicable law, whether now or hereafter in effect. Therefore, if any of the aforesaid restrictions are found by a
6
court of competent jurisdiction to be unreasonable, overly broad as to time, or otherwise unenforceable, the parties intend for the restrictions herein set forth to be modified by the court making such determination so as to be reasonable and enforceable and, as so modified, to be fully enforced. By agreeing to this contractual modification prospectively at this time, the Company and Employee intend to make this provision enforceable under the law or laws of all applicable jurisdictions so that the entire agreement not to compete and this Agreement as prospectively modified shall remain in full force and effect and shall not be rendered void or illegal. Such modification shall not affect the payments made to Employee under this Agreement.
4.4 Notification of Restrictions to Third Parties . (a) If during the Restrictive Period set forth in Section 4.1 above, Employee enters into an employment consulting or independent contractor relationship with any third party, Employee agrees to provide the Company with written notice of Employees job responsibilities within five (5) business days of Employees acceptance of employment (or other relationship) (Employment Notice). The Employment Notice shall include (i) a description of the duties and responsibilities of the proposed position, (ii) the identity of the employer(s) and whether the employer(s) is involved in a Completive Business, and (iii) the territory in which Employee will be working. If Employee fails to timely provide the required Employment Notice, the parties agree and acknowledge that the Company is entitled to presume that Employees employment or other arrangement with a third party violates the terms of this Agreement and the Company will be authorized to seek immediate injunctive relief as set forth herein.
(b) Employee agrees that the Company may notify any person or entity employment or contracting with Employee or evidencing an intention of employing or contracting with Employee of the existence and provisions of this Agreement.
ARTICLE V
MISCELLANEOUS
5.1 Absence of Restrictions .
(a) Employee represents that:
(i) he does not have in his possession any written materials embodying information known or claimed to be the proprietary or confidential information of any other person, firm or corporation, including, without limitation, any prior employer;
(ii) he does not have in his possession any written material of any kind which has been removed from the premises of a former employer without the written consent of that employer;
(iii) to his knowledge, his employment with the Company will not require him to use or disclose any proprietary or confidential information of any person, firm or corporation, and that he will not use or disclose any proprietary or confidential information of any other person, firm or corporation; and
7
(iv) he will not disclose, in connection with his employment by the Company, information obtained from any other person, firm or corporation, including, without limitation any former employer, which Employee knows or has reason to know is confidential or proprietary.
(b) Employee represents and warrants that Employee knows of no reason that Employee cannot legally enter into this Agreement and perform the services contemplated by this Agreement. Specifically, Employee represents and warrants that Employee is not a party to any agreement with a former employer containing any post-employment restrictions, noncompetition provisions or any other restrictive covenants with respect to (i) the rendition of any personal services that Employee is expected to perform or conduct, (ii) the disclosure or use of any information which, directly or indirectly, relates to the business of the Company or the services to be rendered by Employee, or (iii) any other obligation which would impact or restrict Employees employment by the Company or the performance of Employees duties.
5.2 At-Will Employment . Employee acknowledges that the Employee may terminate Employees employment with the Company or be terminated by the Company with or without cause and with or without notice at the option of the Employee or the Company. Employee understands that no supervisor, manager or representative other than the Companys Chief Executive Officer has any authority to enter into any agreements with Employee for employment for any specified time period or to make any oral or written promises or agreements contrary to this Section 5.2. Further, any agreement purporting to limit the at-will nature of an employees employment with the Company entered into by the Chief Executive Officer shall not be enforceable unless it is in writing. [ CURRENT EMPLOYEES: For the avoidance of doubt, as of the Effective Date, any prior written or unwritten employment agreement between the Company and the Employee shall be deemed terminated and superseded by this Agreement, and shall thereafter be of no further force or effect.]
5.3 Notices . For purposes of this Agreement, notices and all other communications provided for herein shall be in writing and shall be deemed to have been duly given (a) when received if delivered personally or by courier, (b) on the date receipt is acknowledged if delivered by certified mail, postage prepaid, return receipt requested or (c) one day after transmission if sent by facsimile transmission with confirmation of transmission, as follows:
If to Employee, addressed to the most recent address of Employee set forth in the personnel records of the Company.
If to the Company, addressed to: |
Polymers Holdings LLC 15710 John F. Kennedy Blvd. Suite 300 Houston, TX 77032 Attention: Legal Department |
or to such other address as either party may furnish to the other in writing in accordance herewith, except that notices or changes of address shall be effective only upon receipt.
8
5.4 Remedies . Employee and the Company acknowledge that money damages would not be sufficient remedy for any breach of Articles II, III or IV by Employee, and the Company or its affiliates shall be entitled to enforce the provisions of Article II, III or IV by specific performance and by temporary restraining order, preliminary injunction or other equitable relief as remedies for such breach or any threatened breach. Such remedies shall not be deemed the exclusive remedies for a breach of Articles II, III or IV, but shall be in addition to all remedies available at law or in equity, including the recovery of damages from Employee and Employees agents.
5.5 Applicable Law; Submission to Jurisdiction .
(a) This Agreement is entered into under, and shall be governed for all purposes by, the laws of the State of Texas, without regard to conflicts of laws principles thereof.
(b) Each party hereto expressly and irrevocably agrees: (a) that it waives any objection, and specifically consents, to venue in the Federal or State courts located in Houston, Texas, so that any action at law or in equity may be brought and maintained in any such court; and (b) that service of process in any such action may be effected against such party in any manner permitted by applicable Federal Rules of Civil Procedure or Rules of the Courts of the State of Texas. In addition, each party hereto expressly and irrevocably waives, in respect of any action brought in any Federal or State court located in Houston, Texas, or any resulting judgment, any objection, and hereby specifically consents, to the personal and subject matter jurisdiction of any such court, and agrees not to seek to change the situs of such action or to assert that any other court in any other jurisdiction is a more suitable forum for the hearing and adjudication of any claim or dispute raised in such action.
5.6 No Waiver . No failure by either party hereto at any time to give notice of any breach by the other party of, or to require compliance with, any condition or provision of this Agreement shall be deemed a waiver of similar or dissimilar provisions or conditions at the same or at any prior or subsequent time.
5.7 Severability . If a court of competent jurisdiction determines that any provision of this Agreement is invalid or unenforceable, then the invalidity or unenforceability of that provision shall not affect the validity or enforceability of any other provision of this Agreement, and all other provisions shall remain in full force and effect.
5.8 Counterparts . This Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original, but all of which together will constitute one and the same Agreement.
5.9 Headings . The Section headings have been inserted for purposes of convenience and shall not be used for interpretive purposes.
5.10 Successors . This Agreement shall be binding upon and inure to the benefit of the Company, the Parent and their respective successors and assigns. The Company may also assign its rights and obligations under this Agreement to any entity which, directly or indirectly, controls, is controlled by, or is under common control with, the Company and/or the Parent. The Employee may not assign the Employees rights or obligations under this Agreement to any individual or entity without the written consent of the Company.
9
5.11 Survival. The provisions of this Agreement shall survive any termination of Employees employment relationship with the Company.
5.12 Entire Agreement . This Agreement constitutes the entire agreement of Employee and the Company or any Affiliate of the Company with regard to the subject matter hereof, and contains all the covenants, promises, representations, warranties and agreements between the parties with respect to employment of Employee by the Company. Without limiting the scope of the preceding sentence, all understandings and agreements preceding the date of execution of this Agreement and relating to the subject matter hereof are hereby null and void and of no further force and effect.
5.13 Modification; Waiver . Except as otherwise provided in Section 4.3, any modification to or waiver of this Agreement shall be effective only if it is in writing and signed by the parties to this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the date first above written.
KRATON POLYMERS LLC | ||
By: | ||
Name: | ||
Title: |
POLYMER HOLDINGS LLC | ||
By: | ||
Name: | ||
Title: | ||
[EMPLOYEE] | ||
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Exhibit 10.38
TERMINATION OF EMPLOYMENT AGREEMENT
AND RELEASE AGREEMENT
(FOGARTY)
This Termination of Employment and Release Agreement (this Agreement ) is effective as of October 31, 2011 (the Effective Date ) by and among Kraton Performance Polymers, Inc. (f/k/a Polymer Holdings LLC), a Delaware corporation ( Kraton ), Kraton Polymers LLC, a Delaware limited liability company (the Company ) and Kevin M. Fogarty ( Executive ).
RECITALS
WHEREAS , Kraton, the Company and Executive have previously entered into that certain Employment Agreement dated December 8, 2009, as subsequently amended by an agreement effective as of January 1, 2011 (the Employment Agreement ); and
WHEREAS , at its meeting on September 15, 2011, the Board of Directors of Kraton (the Board ) approved and adopted, subject to finalization and implementation by the Compensation Committee, the Kraton Performance Polymers, Inc. Executive Severance Program (the Program ), which provides certain severance benefits for eligible participants; and
WHEREAS , Executive may only become a participant in the Program if he is not party to an individual employment agreement providing for severance benefits; and
WHEREAS , in consideration of, and subject to, becoming a participant in the Program, Kraton, the Company and Executive desire to terminate the Employment Agreement and waive and forgo all rights and benefits thereunder in accordance with the terms and conditions of this Agreement;
AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants and obligations set forth herein and other good and valuable consideration, the receipt and adequacy of which is hereby acknowledged, the parties, intending to be legally bound, agree as follows:
1. Subject to the Compensation Committee of the Board designating Executive as a Participant (as defined in the Program) in the Program before October 31, 2011, effective as of the Effective Date (i) the Employment Agreement is hereby terminated and of no further force and effect with no further liability or obligation of any party thereto thereunder, (ii) Executive hereby waives and releases all claims, rights, actions, causes of action, suits, obligations, debts, demands, agreements, promises, liquidated damages, liabilities or damages, whether foreseen or unforeseen, matured or unmatured, known or unknown, accrued or unaccrued, contingent or otherwise, against Kraton or the Company or any affiliate or subsidiary of Kraton or the Company arising under or otherwise attributable to the Employment Agreement, including, but not limited to, all rights Executive has under Section 7(e) of the Employment Agreement, and (iii) Kraton, the Company and Executive shall be longer bound by the terms of the Employment Agreement.
2. Executive acknowledges and agrees that (i) designation as a Participant in the Program is adequate consideration for entering into this Agreement, (ii) the termination of the Employment Agreement does not constitute and is not a breach of the Employment Agreement, and (iii) from and after the Effective Date, Executive is an at will employee.
3. Executive covenants and warrants that he has not assigned, transferred, or subrogated any portion of any claim that he could assert against Kraton, the Company or any affiliate or subsidiary of Kraton or the Company and he has full authority to enter into this Agreement.
4. Kraton, the Company and Executive acknowledge and agree that if Executive is not designated a Participant in the Program prior to October 31, 2011 by the Compensation Committee of the Board, then this Agreement shall be null, void and of no effect ab initio and the Employment Agreement shall continue in effect in accordance with its terms.
5. This Agreement shall be interpreted exclusively in accordance with the laws of the State of Texas.
[ Execution Page Follows ]
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IN WITNESS WHEREOF , Kraton, the Company and Executive have executed this Termination and Release Agreement effective as of the Effective Date.
Kraton Performance Polymers, Inc. |
/s/ Richard A. Ott |
Richard A. Ott, |
Vice President Human Resources & Communications |
Kraton Polymers LLC |
/s/ Richard A. Ott |
Richard A. Ott, |
Vice President Human Resources & Communications |
Kevin M. Fogarty |
/s/ Kevin M. Fogarty |
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Exhibit 10.39
TERMINATION OF EMPLOYMENT AGREEMENT
AND RELEASE AGREEMENT
(TREMBLAY)
This Termination of Employment and Release Agreement (this Agreement ) is effective as of October 31, 2011 (the Effective Date ) by and among Kraton Performance Polymers, Inc. (f/k/a Polymer Holdings LLC), a Delaware corporation ( Kraton ), Kraton Polymers LLC, a Delaware limited liability company (the Company ) and Stephen E. Tremblay ( Executive ).
RECITALS
WHEREAS , Kraton, the Company and Executive have previously entered into that certain Employment Agreement dated December 8, 2009, as subsequently amended by an agreement dated October 12, 2010 (the Employment Agreement ); and
WHEREAS , at its meeting on September 15, 2011, the Board of Directors of Kraton (the Board ) approved and adopted, subject to finalization and implementation by the Compensation Committee, the Kraton Performance Polymers, Inc. Executive Severance Program (the Program ), which provides certain severance benefits for eligible participants; and
WHEREAS , Executive may only become a participant in the Program if he is not party to an individual employment agreement providing for severance benefits; and
WHEREAS , in consideration of, and subject to, becoming a participant in the Program, Kraton, the Company and Executive desire to terminate the Employment Agreement and waive and forgo all rights and benefits thereunder in accordance with the terms and conditions of this Agreement;
AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants and obligations set forth herein and other good and valuable consideration, the receipt and adequacy of which is hereby acknowledged, the parties, intending to be legally bound, agree as follows:
1. Subject to the Compensation Committee of the Board designating Executive as a Participant (as defined in the Program) in the Program before October 31, 2011, effective as of the Effective Date (i) the Employment Agreement is hereby terminated and of no further force and effect with no further liability or obligation of any party thereto thereunder, (ii) Executive hereby waives and releases all claims, rights, actions, causes of action, suits, obligations, debts, demands, agreements, promises, liquidated damages, liabilities or damages, whether foreseen or unforeseen, matured or unmatured, known or unknown, accrued or unaccrued, contingent or otherwise, against Kraton or the Company or any affiliate or subsidiary of Kraton or the Company arising under or otherwise attributable to the Employment Agreement, including, but not limited to, all rights Executive has under Section 7(e) of the Employment Agreement, and (iii) Kraton, the Company and Executive shall be longer bound by the terms of the Employment Agreement.
2. Executive acknowledges and agrees that (i) designation as a Participant in the Program is adequate consideration for entering into this Agreement, (ii) the termination of the Employment Agreement does not constitute and is not a breach of the Employment Agreement, and (iii) from and after the Effective Date, Executive is an at will employee.
3. Executive covenants and warrants that he has not assigned, transferred, or subrogated any portion of any claim that he could assert against Kraton, the Company or any affiliate or subsidiary of Kraton or the Company and he has full authority to enter into this Agreement.
4. Kraton, the Company and Executive acknowledge and agree that if Executive is not designated a Participant in the Program prior to October 31, 2011 by the Compensation Committee of the Board, then this Agreement shall be null, void and of no effect ab initio and the Employment Agreement shall continue in effect in accordance with its terms.
5. This Agreement shall be interpreted exclusively in accordance with the laws of the State of Texas.
[ Execution Page Follows ]
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IN WITNESS WHEREOF , Kraton, the Company and Executive have executed this Termination and Release Agreement effective as of the Effective Date.
Kraton Performance Polymers, Inc. |
/s/ Richard A. Ott |
Richard A. Ott, |
Vice President Human Resources & Communications |
Kraton Polymers LLC |
/s/ Richard A. Ott |
Richard A. Ott, |
Vice President Human Resources & Communications |
Stephen E. Tremblay |
/s/ Stephen E. Tremblay |
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Exhibit 10.40
TERMINATION OF EMPLOYMENT AGREEMENT
AND RELEASE AGREEMENT
(DUFFY)
This Termination of Employment and Release Agreement (this Agreement ) is effective as of October 31, 2011 (the Effective Date ) by and among Kraton Performance Polymers, Inc. (f/k/a Polymer Holdings LLC), a Delaware corporation ( Kraton ), Kraton Polymers LLC, a Delaware limited liability company (the Company ) and Stephen W. Duffy ( Executive ).
RECITALS
WHEREAS , Kraton, the Company and Executive have previously entered into that certain Employment Agreement dated December 8, 2009 (the Employment Agreement ); and
WHEREAS , at its meeting on September 15, 2011, the Board of Directors of Kraton (the Board ) approved and adopted, subject to finalization and implementation by the Compensation Committee, the Kraton Performance Polymers, Inc. Executive Severance Program (the Program ), which provides certain severance benefits for eligible participants; and
WHEREAS , Executive may only become a participant in the Program if he is not party to an individual employment agreement providing for severance benefits; and
WHEREAS , in consideration of, and subject to, becoming a participant in the Program, Kraton, the Company and Executive desire to terminate the Employment Agreement and waive and forgo all rights and benefits thereunder in accordance with the terms and conditions of this Agreement;
AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants and obligations set forth herein and other good and valuable consideration, the receipt and adequacy of which is hereby acknowledged, the parties, intending to be legally bound, agree as follows:
1. Subject to the Compensation Committee of the Board designating Executive as a Participant (as defined in the Program) in the Program before October 31, 2011, effective as of the Effective Date (i) the Employment Agreement is hereby terminated and of no further force and effect with no further liability or obligation of any party thereto thereunder, (ii) Executive hereby waives and releases all claims, rights, actions, causes of action, suits, obligations, debts, demands, agreements, promises, liquidated damages, liabilities or damages, whether foreseen or unforeseen, matured or unmatured, known or unknown, accrued or unaccrued, contingent or otherwise, against Kraton or the Company or any affiliate or subsidiary of Kraton or the Company arising under or otherwise attributable to the Employment Agreement, including, but not limited to, all rights Executive has under Section 7(e) of the Employment Agreement, and (iii) Kraton, the Company and Executive shall be longer bound by the terms of the Employment Agreement.
2. Executive acknowledges and agrees that (i) designation as a Participant in the Program is adequate consideration for entering into this Agreement, (ii) the termination of the Employment Agreement does not constitute and is not a breach of the Employment Agreement, and (iii) from and after the Effective Date, Executive is an at will employee.
3. Executive covenants and warrants that he has not assigned, transferred, or subrogated any portion of any claim that he could assert against Kraton, the Company or any affiliate or subsidiary of Kraton or the Company and he has full authority to enter into this Agreement.
4. Kraton, the Company and Executive acknowledge and agree that if Executive is not designated a Participant in the Program prior to October 31, 2011 by the Compensation Committee of the Board, then this Agreement shall be null, void and of no effect ab initio and the Employment Agreement shall continue in effect in accordance with its terms.
5. This Agreement shall be interpreted exclusively in accordance with the laws of the State of Texas.
[ Execution Page Follows ]
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IN WITNESS WHEREOF , Kraton, the Company and Executive have executed this Termination and Release Agreement effective as of the Effective Date.
Kraton Performance Polymers, Inc. |
/s/ Richard A. Ott |
Richard A. Ott, |
Vice President Human Resources & Communications |
Kraton Polymers LLC |
/s/ Richard A. Ott |
Richard A. Ott, |
Vice President Human Resources & Communications |
Stephen W. Duffy |
/s/ Stephen W. Duffy |
-3-
Exhibit 10.41
TERMINATION OF EMPLOYMENT AGREEMENT
AND RELEASE AGREEMENT
(FREUND)
This Termination of Employment and Release Agreement (this Agreement ) is effective as of October 31, 2011 (the Effective Date ) by and among Kraton Performance Polymers, Inc. (f/k/a Polymer Holdings LLC), a Delaware corporation ( Kraton ), Kraton Polymers LLC, a Delaware limited liability company (the Company ) and Lothar P. F. Freund ( Executive ).
RECITALS
WHEREAS , Kraton, the Company and Executive have previously entered into that certain Employment Agreement dated December 8, 2009, as subsequently amended by an agreement dated October 12, 2010 (the Employment Agreement ); and
WHEREAS , at its meeting on September 15, 2011, the Board of Directors of Kraton (the Board ) approved and adopted, subject to finalization and implementation by the Compensation Committee, the Kraton Performance Polymers, Inc. Executive Severance Program (the Program ), which provides certain severance benefits for eligible participants; and
WHEREAS , Executive may only become a participant in the Program if he is not party to an individual employment agreement providing for severance benefits; and
WHEREAS , in consideration of, and subject to, becoming a participant in the Program, Kraton, the Company and Executive desire to terminate the Employment Agreement and waive and forgo all rights and benefits thereunder in accordance with the terms and conditions of this Agreement;
AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants and obligations set forth herein and other good and valuable consideration, the receipt and adequacy of which is hereby acknowledged, the parties, intending to be legally bound, agree as follows:
1. Subject to the Compensation Committee of the Board designating Executive as a Participant (as defined in the Program) in the Program before October 31, 2011, effective as of the Effective Date (i) the Employment Agreement is hereby terminated and of no further force and effect with no further liability or obligation of any party thereto thereunder, (ii) Executive hereby waives and releases all claims, rights, actions, causes of action, suits, obligations, debts, demands, agreements, promises, liquidated damages, liabilities or damages, whether foreseen or unforeseen, matured or unmatured, known or unknown, accrued or unaccrued, contingent or otherwise, against Kraton or the Company or any affiliate or subsidiary of Kraton or the Company arising under or otherwise attributable to the Employment Agreement, including, but not limited to, all rights Executive has under Section 7(e) of the Employment Agreement, and (iii) Kraton, the Company and Executive shall be longer bound by the terms of the Employment Agreement.
2. Executive acknowledges and agrees that (i) designation as a Participant in the Program is adequate consideration for entering into this Agreement, (ii) the termination of the Employment Agreement does not constitute and is not a breach of the Employment Agreement, and (iii) from and after the Effective Date, Executive is an at will employee.
3. Executive covenants and warrants that he has not assigned, transferred, or subrogated any portion of any claim that he could assert against Kraton, the Company or any affiliate or subsidiary of Kraton or the Company and he has full authority to enter into this Agreement.
4. Kraton, the Company and Executive acknowledge and agree that if Executive is not designated a Participant in the Program prior to October 31, 2011 by the Compensation Committee of the Board, then this Agreement shall be null, void and of no effect ab initio and the Employment Agreement shall continue in effect in accordance with its terms.
5. This Agreement shall be interpreted exclusively in accordance with the laws of the State of Texas.
[ Execution Page Follows ]
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IN WITNESS WHEREOF , Kraton, the Company and Executive have executed this Termination and Release Agreement effective as of the Effective Date.
Kraton Performance Polymers, Inc. |
/s/ Richard A. Ott |
Richard A. Ott, |
Vice President Human Resources & Communications |
Kraton Polymers LLC |
/s/ Richard A. Ott |
Richard A. Ott, |
Vice President Human Resources & Communications |
Lothar P. F. Freund |
/s/ Lothar P. F. Freund |
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Exhibit 10.43
TERMINATION OF EMPLOYMENT AGREEMENT
AND RELEASE AGREEMENT
(LEE)
This Termination of Employment and Release Agreement (this Agreement ) is effective as of October 31, 2011 (the Effective Date ) by and among Kraton Performance Polymers, Inc., a Delaware corporation ( Kraton ), Kraton Polymers LLC, a Delaware limited liability company (the Company ) and G. Scott Lee ( Executive ).
RECITALS
WHEREAS , Kraton, the Company and Executive have previously entered into that certain Employment Agreement dated effective as of January 1, 2011 (the Employment Agreement ); and
WHEREAS , at its meeting on September 15, 2011, the Board of Directors of Kraton (the Board ) approved and adopted, subject to finalization and implementation by the Compensation Committee, the Kraton Performance Polymers, Inc. Executive Severance Program (the Program ), which provides certain severance benefits for eligible participants; and
WHEREAS , Executive may only become a participant in the Program if he is not party to an individual employment agreement providing for severance benefits; and
WHEREAS , in consideration of, and subject to, becoming a participant in the Program, Kraton, the Company and Executive desire to terminate the Employment Agreement and waive and forgo all rights and benefits thereunder in accordance with the terms and conditions of this Agreement;
AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants and obligations set forth herein and other good and valuable consideration, the receipt and adequacy of which is hereby acknowledged, the parties, intending to be legally bound, agree as follows:
1. Subject to the Compensation Committee of the Board designating Executive as a Participant (as defined in the Program) in the Program before October 31, 2011, effective as of the Effective Date (i) the Employment Agreement is hereby terminated and of no further force and effect with no further liability or obligation of any party thereto thereunder, (ii) Executive hereby waives and releases all claims, rights, actions, causes of action, suits, obligations, debts, demands, agreements, promises, liquidated damages, liabilities or damages, whether foreseen or unforeseen, matured or unmatured, known or unknown, accrued or unaccrued, contingent or otherwise, against Kraton or the Company or any affiliate or subsidiary of Kraton or the Company arising under or otherwise attributable to the Employment Agreement, including, but not limited to, all rights Executive has under Section 7(e) of the Employment Agreement, and (iii) Kraton, the Company and Executive shall be longer bound by the terms of the Employment Agreement.
2. Executive acknowledges and agrees that (i) designation as a Participant in the Program is adequate consideration for entering into this Agreement, (ii) the termination of the Employment Agreement does not constitute and is not a breach of the Employment Agreement, and (iii) from and after the Effective Date, Executive is an at will employee.
3. Executive covenants and warrants that he has not assigned, transferred, or subrogated any portion of any claim that he could assert against Kraton, the Company or any affiliate or subsidiary of Kraton or the Company and he has full authority to enter into this Agreement.
4. Kraton, the Company and Executive acknowledge and agree that if Executive is not designated a Participant in the Program prior to October 31, 2011 by the Compensation Committee of the Board, then this Agreement shall be null, void and of no effect ab initio and the Employment Agreement shall continue in effect in accordance with its terms.
5. This Agreement shall be interpreted exclusively in accordance with the laws of the State of Texas.
[ Execution Page Follows ]
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IN WITNESS WHEREOF , Kraton, the Company and Executive have executed this Termination and Release Agreement effective as of the Effective Date.
Kraton Performance Polymers, Inc. |
/s/ Richard A. Ott |
Richard A. Ott, |
Vice President Human Resources & Communications |
Kraton Polymers LLC |
/s/ Richard A. Ott |
Richard A. Ott, |
Vice President Human Resources & Communications |
G. Scott Lee |
/s/ G. Scott Lee |
-3-
Exhibit 10.44
TERMINATION OF EMPLOYMENT AGREEMENT
AND RELEASE AGREEMENT
(OTT)
This Termination of Employment and Release Agreement (this Agreement ) is effective as of October 31, 2011 (the Effective Date ) by and among Kraton Performance Polymers, Inc. (f/k/a Polymer Holdings LLC), a Delaware corporation ( Kraton ), Kraton Polymers LLC, a Delaware limited liability company (the Company ) and Richard A. Ott ( Executive ).
RECITALS
WHEREAS , Kraton, the Company and Executive have previously entered into that certain Employment Agreement dated December 8, 2009 (the Employment Agreement ), as subsequently amended by agreement dated October 12, 2010; and
WHEREAS , at its meeting on September 15, 2011, the Board of Directors of Kraton (the Board ) approved and adopted, subject to finalization and implementation by the Compensation Committee, the Kraton Performance Polymers, Inc. Executive Severance Program (the Program ), which provides certain severance benefits for eligible participants; and
WHEREAS , Executive may only become a participant in the Program if he is not party to an individual employment agreement providing for severance benefits; and
WHEREAS , in consideration of, and subject to, becoming a participant in the Program, Kraton, the Company and Executive desire to terminate the Employment Agreement and waive and forgo all rights and benefits thereunder in accordance with the terms and conditions of this Agreement;
AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants and obligations set forth herein and other good and valuable consideration, the receipt and adequacy of which is hereby acknowledged, the parties, intending to be legally bound, agree as follows:
1. Subject to the Compensation Committee of the Board designating Executive as a Participant (as defined in the Program) in the Program before October 31, 2011, effective as of the Effective Date (i) the Employment Agreement is hereby terminated and of no further force and effect with no further liability or obligation of any party thereto thereunder, (ii) Executive hereby waives and releases all claims, rights, actions, causes of action, suits, obligations, debts, demands, agreements, promises, liquidated damages, liabilities or damages, whether foreseen or unforeseen, matured or unmatured, known or unknown, accrued or unaccrued, contingent or otherwise, against Kraton or the Company or any affiliate or subsidiary of Kraton or the Company arising under or otherwise attributable to the Employment Agreement, including, but not limited to, all rights Executive has under Section 7(d) of the Employment Agreement, and (iii) Kraton, the Company and Executive shall be longer bound by the terms of the Employment Agreement.
2. Executive acknowledges and agrees that (i) designation as a Participant in the Program is adequate consideration for entering into this Agreement, (ii) the termination of the Employment Agreement does not constitute and is not a breach of the Employment Agreement, and (iii) from and after the Effective Date, Executive is an at will employee.
3. Executive covenants and warrants that he has not assigned, transferred, or subrogated any portion of any claim that he could assert against Kraton, the Company or any affiliate or subsidiary of Kraton or the Company and he has full authority to enter into this Agreement.
4. Kraton, the Company and Executive acknowledge and agree that if Executive is not designated a Participant in the Program prior to October 31, 2011 by the Compensation Committee of the Board, then this Agreement shall be null, void and of no effect ab initio and the Employment Agreement shall continue in effect in accordance with its terms.
5. This Agreement shall be interpreted exclusively in accordance with the laws of the State of Texas.
[ Execution Page Follows ]
-2-
IN WITNESS WHEREOF , Kraton, the Company and Executive have executed this Termination and Release Agreement effective as of the Effective Date.
Kraton Performance Polymers, Inc. |
/s/ Stephen W. Duffy |
Stephen W. Duffy, Vice President, General Counsel & Secretary |
Kraton Polymers LLC |
/s/ Stephen W. Duffy |
Stephen W. Duffy, Vice President, General Counsel & Secretary |
Richard A. Ott |
/s/ Richard A. Ott |
-3-
Exhibit 10.46
INDEMNITY AGREEMENT
THIS INDEMNITY AGREEMENT (this Agreement ) is made as of , 2011, by and between Kraton Performance Polymers, Inc., a Delaware corporation (the Company ), and ( Indemnitee ).
RECITALS
WHEREAS , it is essential that the Company retain and attract as directors, officers and key employees the most capable persons available;
WHEREAS, increased corporate litigation has subjected directors and officers to litigation risks and expenses, and the limitations on directors and officers liability insurance have made it increasingly difficult for the Company to attract and retain such persons;
WHEREAS, Indemnitee is (or is being elected as) a director, officer and/or key employee of the Company and in that capacity is (or will be) performing a valuable service for the Company;
WHEREAS, Indemnitee does not regard the current protection in place as adequate under the present circumstances, and may not be willing to serve as an key employee, officer or director (as applicable) without additional protection, and the Company desires Indemnitee to serve in such capacity; and
WHEREAS, the Companys Certificate of Incorporation (the Charter ) and Bylaws (the Bylaws ) contain provisions that require the Company to indemnify its directors and officers from and against liabilities and expenses they incur in their capacities as such, and the Bylaws and Section 145 of the General Corporation Law of the State of Delaware ( DGCL ) provide that they are not exclusive of any other rights to indemnification and advancement of expenses.
NOW, THEREFORE, in consideration of the premises and the covenants contained herein, the Company and Indemnitee do hereby covenant and agree as follows:
AGREEMENT
1. Indemnification.
(a) Third Party Actions . The Company (for itself and its direct and indirect subsidiaries, including, without limitation, Kraton Polymers LLC) shall indemnify, hold harmless and exonerate Indemnitee in accordance with the provisions of this Section 1(a) if Indemnitee was or is a party or is threatened to be made a party to, or is otherwise involved in (including as a witness) any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (a Proceeding ) (other than Proceeding by or in the right of the Company), by reason of the fact that Indemnitee is or was or has agreed to become a director, officer, employee or agent of the Company, or is or was serving or has agreed to serve at the request of the Company as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, or by reason of any action
alleged to have been taken or omitted in such capacity, against expenses (including attorneys fees), judgments, fines, liabilities and amounts paid in settlement (if such settlement is approved in advance by the Company, which approval shall not be unreasonably withheld) actually and reasonably incurred by Indemnitee or on his or her behalf in connection with such Proceeding or any appeal therefrom if Indemnitee acted in good faith and in a manner which Indemnitee reasonably believed to be in or not opposed to the best interests of the Company, and, with respect to any criminal Proceeding, had no reasonable cause to believe Indemnitees conduct was unlawful. The termination of any Proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its equivalent, shall not, in itself, create a presumption that Indemnitee did not act in good faith and in a manner which Indemnitee reasonably believed to be in or not opposed to the best interests of the Company and, with respect to any criminal Proceeding, had reasonable cause to believe that Indemnitees conduct was unlawful. For all purposes of this Agreement, the term the Company shall, as the context reasonably requires, include Kraton Performance Polymers, Inc. and all of its direct and indirect subsidiaries, including, without limitation, Kraton Polymers LLC, and the indemnities and protections set forth in this Agreement shall also apply to any applicable action(s) hereunder that the Indemnitee has undertaken or may undertake on behalf of any such direct or indirect subsidiary of the Company.
(b) Actions by or in the Right of the Company . The Company shall indemnify, hold harmless and exonerate Indemnitee in accordance with the provisions of this Section 1(b) if Indemnitee was or is a party or is threatened to be made a party to, or is otherwise involved in (including as a witness) any Proceeding by or in the right of the Company to procure a judgment in its favor, by reason of the fact that Indemnitee is or was or has agreed to become a director, officer, employee or agent of the Company, or is or was serving or has agreed to serve at the request of the Company as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, or by reason of any action alleged to have been taken or omitted in such capacity, against expenses (including attorneys fees), judgments, fines, liabilities and amounts paid in settlement (if such settlement is approved in advance by the Company, which approval shall not be unreasonably withheld) actually and reasonably incurred by Indemnitee or on his or her behalf in connection with such Proceeding or any appeal therefrom if Indemnitee acted in good faith and in a manner which Indemnitee reasonably believed to be in or not opposed to the best interests of the Company; except that, (1) such indemnification shall be limited to expenses (including attorneys fees) actually and reasonably incurred by Indemnitee in the defense or settlement of such Proceeding and any appeal therefrom, and (2) no indemnification shall be made in respect of any claim, issue or matter as to which such Indemnitee shall have been adjudged to be liable to the Company unless and only to the extent that the Delaware Court of Chancery or the court in which such Proceeding was brought shall determine on application that, despite the adjudication of liability but in view of all the circumstances of the case, such Indemnitee is fairly and reasonably entitled to indemnity for such expenses which the Delaware Court of Chancery or such other court shall deem proper.
(c) Mandatory Payment of Expenses . To the extent that Indemnitee has been successful on the merits or otherwise in defense of any Proceeding referred to in Subsections (a) and (b) of this Section 1 or in defense of any claim, issue or matter therein (including any Proceeding by the Company to recover advanced expenses), Indemnitee shall be indemnified against expenses (including attorneys fees) actually and reasonably incurred by such Indemnitee in connection therewith to the fullest extent permitted by Delaware law.
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(d) Determination of Conduct . Any indemnification of Indemnitee under Subsections (a) and (b) of this Section 1 (unless ordered by a court) shall be made by the Company upon a determination that the indemnification of Indemnitee is proper in the circumstances because Indemnitee has met the applicable standard of conduct set forth in Subsections (a) and (b) of this Section 1. Such determination shall be made (1) by a majority vote of the directors of the Company who are not parties to such Proceeding ( Disinterested Directors ), even though less than a quorum, or (2) by a committee of such Disinterested Directors designated by majority vote of such Disinterested Directors, or (3) if there is no such Disinterested Directors, or if such Disinterested Directors so direct, by Independent Counsel in a written opinion, or (4) by the stockholders. Notwithstanding the foregoing, Indemnitee shall be entitled to contest any determination as to Indemnitees standard of conduct set forth in Subsections (a) and (b) of this Section 1 by petitioning the Delaware Court of Chancery.
For purposes of this Agreement, Independent Counsel shall mean a law firm or a member of a law firm with significant experience in matters of corporation law and neither presently is, nor in the past five (5) years has been, retained to represent: (i) the Company or Indemnitee in any matter material to either such party (other than with respect to matters concerning Indemnitee under this Agreement, or of other indemnitees under similar indemnification agreements); or (ii) any other party to the Proceeding giving rise to a claim for indemnification hereunder. Notwithstanding the foregoing, the term Independent Counsel shall not include any person who, under the applicable standards of professional conduct then prevailing, would have a conflict of interest in representing either the Company or Indemnitee in an action to determine Indemnitees rights under this Agreement.
(e) Selection of Independent Counsel . If the determination that the indemnification of Indemnitee is proper is to be made by Independent Counsel pursuant to Subsection (d) of this Section 1, Independent Counsel shall be selected jointly by Indemnitee and the Company. In the event Indemnitee and the Company cannot agree on the selection of Independent Counsel, either party may petition the Delaware Court of Chancery to resolve the issue or to make its own provisions for the selection of Independent Counsel. The Company shall pay any and all reasonable fees and expenses of Independent Counsel incurred in connection with acting pursuant to Section 1(d) hereof, and the Company shall pay all reasonable fees and expenses incident to the procedures of this Subsection (e), regardless of the manner in which Independent Counsel was selected or appointed.
2. Expenses; Indemnification Procedure.
(a) Advancement of Expenses . Expenses (including attorneys fees) incurred by Indemnitee in defending any Proceeding, if Indemnitee reasonably believes that he is entitled to indemnification pursuant to Subsection (a) or (b) of Section 1 hereof, shall be paid by the Company in advance of the final disposition of such Proceeding; provided that such advancement of expenses (including attorneys fees) incurred by Indemnitee shall only be made upon receipt of an undertaking by or on behalf of Indemnitee to repay such amount if it shall ultimately be determined by a final non-appealable judicial decision that such person is not entitled to be indemnified by the Company as provided in this Agreement (the Undertaking ). Such advancement of expenses (including attorneys fees) shall be unsecured and interest free.
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(b) Notice and Cooperation by Indemnitee . Indemnitee shall give the Company a notice in writing as soon as practicable of any Proceeding involving Indemnitee as a party or a participant (as a witness or otherwise) for which indemnification will or could be sought under this Agreement. Any request for indemnification or advancement of expenses (including attorneys fees) by Indemnitee shall be made in writing to the Company. Such written request(s) may be delivered from time to time and at such time(s) as Indemnitee deems appropriate in his or her sole discretion. In addition, Indemnitee shall cooperate with, and provide such information to, the Company as it may reasonably require and as shall be within Indemnitees power. Upon making a request for indemnification, Indemnitee shall be presumed to be entitled to indemnification hereunder and the Company shall have the burden of proving that Indemnitee is not entitled to be indemnified. The failure of Indemnitee to so notify the Company shall not relieve the Company of any obligation which it may have to Indemnitee under this Agreement, or otherwise.
(c) Procedure . Any indemnification and advancement of expenses determined proper in accordance with Sections 1 or 2 hereof shall be made promptly, and in any event no later than thirty (30) days, upon the receipt of written request of Indemnitee. If a determination by the Company that Indemnitee is entitled to indemnification pursuant to Section 1(d) is required, and the Company fails to respond within thirty (30) days to a written request for indemnity, the Company shall be deemed to have approved such request. If the Company denies a written request for indemnity or advancement of expenses, in whole or in part, or if payment in full pursuant to such written request is not made within thirty (30) days, Indemnitee may, but need not, at any time thereafter bring an action against the Company to recover the unpaid amount of the claim and, subject to Section 12 hereof, Indemnitee shall also be entitled to be paid for the expenses (including attorneys fees) in connection with such action. It shall be a defense to any such proceeding (other than an action brought to enforce a claim for advancement of expenses under Subsection (a) of this Section 2, where the Undertaking has been received by the Company) that Indemnitee has not met the applicable standard of conduct set forth in Sections 1(a) and 1(b), but the burden of proving such defense shall be on the Company. Neither the failure of the Company, including the Companys Board of Directors (the Board ), Disinterested Directors, Independent Counsel and stockholders, to have made a determination pursuant to Section 1(d) prior to the commencement of such action, nor the fact that there has been an actual determination by the Company, including the Board, Disinterested Directors, Independent Counsel and stockholders, pursuant to Section 1(d) that Indemnitee has not met the applicable standard of conduct set forth in Sections 1(a) and 1(b), shall be a defense to the action or create a presumption that Indemnitee has not met the applicable standard of conduct set forth in Sections 1(a) and 1(b). For purposes of any determination of whether Indemnitee has met the applicable standard of conduct set forth in Sections 1(a) and 1(b), Indemnitee shall be deemed to have acted in good faith if Indemnitees action is based on the records or books of account of the Company, including financial statements, or on information supplied to Indemnitee by the Company or the directors and officers of the Company in the course of their duties, or on the advice of legal counsel for the Company, the Board, any committee of the Board or any director, or on information or records given or reports made to the Company, the Board, any committee of the Board or any director by an independent certified public accountant, an appraiser or other
4
expert selected with reasonable care by the Company, the Board, any committee of the Board or any director, provided that the foregoing shall not be deemed to be exclusive or to limit in any way the other circumstances in which Indemnitee may be deemed or found to have met the applicable standard of conduct set forth in Sections 1(a) and 1(b).
(d) Assumption of Defense . In the event the Company shall be obligated under Section 2(a) hereof to pay the expenses of any Proceeding involving Indemnitee, the Company, if appropriate, shall be entitled to assume the defense of such Proceeding, with counsel approved by Indemnitee (such approval not to be unreasonably withheld), upon the delivery to Indemnitee of written notice of its election to do so. After delivery of such notice, approval of such counsel by Indemnitee and the retention of such counsel by the Company, the Company will not be liable to Indemnitee under this Agreement for any fees of counsel subsequently incurred by Indemnitee with respect to the same Proceeding; provided that (i) Indemnitee shall have the right to employ his or her counsel in any such Proceeding at Indemnitees expense; and (ii) if (A) the employment of counsel by Indemnitee has been previously authorized by the Company, (B) Indemnitee shall have reasonably concluded that there may be a conflict of interest between the Company and Indemnitee in the conduct of any such defense, or (C) the Company shall not, in fact, have employed counsel to assume the defense of such Proceeding, then the fees and expenses of Indemnitees counsel shall be at the expense of the Company. Under no circumstance shall the Company settle any Proceeding (in whole or in part) if such settlement would impose any expense, judgment, fine, penalty or limitation on Indemnitee without Indemnitees prior written consent.
3. Additional Indemnification Rights; Nonexclusivity.
(a) Additional Indemnification Rights . Notwithstanding any other provision of this Agreement, the Company hereby agrees to indemnify Indemnitee against any expenses (including attorneys fees), judgments, fines, liabilities and amounts paid in settlement (if such settlement is approved in advance by the Company, which approval shall not be unreasonably withheld) actually and reasonably incurred by Indemnitee or on his or her behalf in relation to or in connection with Indemnitee acting as a director, officer, employee or agent of the Company, or as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise at the request of the Company, or by reason of any action alleged to have been taken or omitted in such capacity, to the fullest extent permitted by DGCL and other applicable laws, notwithstanding the fact that such indemnification is not specifically authorized by the other provisions of this Agreement, the Charter or the Bylaws. In the event of any change in DGCL or any applicable law which narrows the right of a Delaware corporation to indemnify Indemnitee, such changes, to the extent not otherwise required by such law to be applied to this Agreement, shall have no effect on this Agreement or the parties rights and obligations hereunder.
(b) Nonexclusivity . The indemnification provided by this Agreement shall not be deemed exclusive of any rights to which Indemnitee may otherwise be entitled under the Charter, the Bylaws, any agreement, any vote of stockholders or Disinterested Directors, DGCL or other applicable laws.
5
4. Partial Indemnification; Contribution in the Event of Joint Liability.
(a) Partial Indemnification. If Indemnitee is entitled under any provision of this Agreement to indemnification by the Company for some or a portion of the expenses (including attorneys fees), judgments, fines or amounts paid in settlement (if such settlement is approved in advance by the Company, which approval shall not be unreasonably withheld) actually and reasonably incurred by Indemnitee in connection with any Proceeding, but not for the total amount thereof, the Company shall nevertheless indemnify Indemnitee for the portion of such expenses, judgments, fines or amounts paid in settlement to which Indemnitee is entitled.
(b) Contribution in the Event of Joint Liability. Whether or not Indemnitee is entitled under any provision of this Agreement to indemnification by the Company, in respect of any Proceeding in which the Company is jointly liable with Indemnitee (or would be if joined in such Proceeding), the Company shall pay, in the first instance, the entire amount of any judgment or settlement of such Proceeding without requiring Indemnitee to contribute to such payment and the Company hereby waives and relinquishes any right of contribution it may have against Indemnitee. Further, the Company shall indemnify, hold harmless and exonerate Indemnitee from any claims of contribution brought by officers, directors or employees of the Company other than Indemnitee who is jointly liable with Indemnitee. If, for any reason, Indemnitee shall elect or be required to pay all or any portion of any judgment or settlement in such Proceeding in which the Company is jointly liable with Indemnitee (or would be if joined in such Proceeding), the Company shall indemnify, hold harmless and exonerate Indemnitee for such amount Indemnitee paid. The Company shall not enter into any settlement of any Proceeding in which the Company is jointly liable with Indemnitee (or would be if joined in such Proceeding) unless such settlement provides for a full and final release of all claims asserted against Indemnitee.
5. Exclusions. Notwithstanding any provision in this Agreement, the Company shall not be obligated to indemnify, hold harmless, exonerate or advance expenses (including attorneys fees) to Indemnitee pursuant to the terms of this Agreement:
(a) in connection with any claim made against Indemnitee for which payment has actually been received by or on behalf of Indemnitee under any insurance policy or other indemnity provision, except with respect to any excess beyond the amount actually received under any insurance policy, contract, agreement, other indemnity provision or otherwise;
(b) in connection with any claim made against Indemnitee for an accounting of profits made from the purchase and sale (or sale and purchase) by Indemnitee of securities of the Company within the meaning of Section 16(b) of the Securities Exchange Act of 1934, as amended, or similar provisions of state statutory law or common law; or
(c) in connection with any Proceeding (or part thereof) initiated by Indemnitee, unless the Proceeding (or part thereof) has been authorized in advance by the Board (other than Proceedings initiated by Indemnitee to enforce a right to indemnification or advancement of expenses).
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6. Officer and Director Liability Insurance. The Company shall purchase and maintain a policy or policies of insurance with reputable insurance companies on behalf of any person who is or was or has agreed to become a director, officer, employee or agent of the Company, or is or was serving or has agreed to serve at the request of the Company as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against any liability asserted against such person and incurred by such person or on such persons behalf in any such capacity, or arising out of such persons status as such ( D&O Insurance ), whether or not the Company would have the power to indemnify him or her against such liability under this Agreement. If, at the time the Company receives notice from any source of a Proceeding as to which Indemnitee is a party or a participant (as a witness or otherwise), the Company has D&O Insurance in effect, the Company shall give prompt notice of such Proceeding to the insurers in accordance with the procedures set forth in the respective policies. The Company shall thereafter take all necessary or desirable action to cause such insurers to pay, on behalf of Indemnitee, all amounts payable as a result of such Proceeding in accordance with the terms of such policies.
7. Severability. Nothing in this Agreement is intended to require or shall be construed as requiring the Company to take or not take any act in violation of any applicable law. The Company shall not be in breach of this Agreement if, pursuant to court order, it is prohibited from performing its obligations hereunder. The provisions of this Agreement shall be severable as provided in this Section 7. If this Agreement or any portion hereof shall be invalidated on any ground by any court of competent jurisdiction, then the Company shall nevertheless indemnify Indemnitee to the fullest extent permitted by any applicable portion of this Agreement that shall not have been invalidated and to the fullest extent permitted by DGCL and other applicable laws, and the balance of this Agreement not so invalidated shall be enforceable in accordance with its terms.
8. Construction of Certain Phrases. For purposes of this Agreement, references to the Company shall include any constituent corporation (including any constituent of a constituent) absorbed by purchase, consolidation, merger or otherwise which, if its separate existence had continued, would have had power and authority to indemnify its directors, officers, employees or agents, so that if Indemnitee is or was a director, officer, employee or agent of such constituent corporation, or a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise at the request of such constituent corporation, Indemnitee shall stand in the same position under the provisions of this Agreement with respect to the resulting or surviving corporation as Indemnitee would have with respect to such constituent corporation if its separate existence had continued.
9. Duration of Agreement. This Agreement shall be deemed to be effective as of the commencement date of Indemnitees service as a director, officer, employee or agent of the Company, or as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise at the request of the Company, and shall continue thereafter so long as Indemnitee may be subject to any possible Proceeding (including any rights of appeal thereto and any Proceeding commenced by Indemnitee pursuant to Section 1(d) of this Agreement) by reason of his or her service as a director, officer, employee or agent of the Company, or as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise at the request of the Company, whether or not Indemnitee is acting in any such capacity at the time any liability or expense is incurred for which indemnification can be provided under this Agreement.
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10. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall constitute an original but all of which together shall constitute one and the same Agreement.
11. Successors and Assigns. This Agreement shall be binding upon the Company and its successors and assigns, and shall inure to the benefit of Indemnitee and Indemnitees estate, heirs, legal representatives and assigns.
12. Attorneys Fees. In the event that any action, suit or proceeding is instituted by Indemnitee under this Agreement to enforce or interpret any of the terms hereof, Indemnitee shall be entitled to be paid all court costs and expenses (including attorneys fees), incurred by Indemnitee with respect to such action, unless as a part of such action, suit or proceeding the court of competent jurisdiction determines that each material assertion made by Indemnitee as a basis for such action, suit or proceeding was not made in good faith or was frivolous. In the event of an action instituted by or in the name of the Company under this Agreement or to enforce or interpret any of the terms of this Agreement, Indemnitee shall be entitled to be paid all court costs and expenses (including attorneys fees) incurred by Indemnitee in defense of such action (including with respect to Indemnitees counterclaims and cross-claims made in such action), unless as a part of such action the court of competent jurisdiction determines that each material defense asserted by Indemnitee was not made in good faith or was frivolous.
13. Notice. All notices, requests, demands and other communications under this Agreement shall be in writing and shall be deemed duly given (i) if delivered by hand and receipted for by the party addressee, on the date of such receipt, or (ii) if mailed by domestic certified or registered mail with postage prepaid, on the third (3rd) business day after the date on which it is so mailed:
(a) If to Indemnitee, at the address indicated on the signature page of this Agreement, or such other address as Indemnitee shall provide in writing to the Company.
(b) If to the Company to:
Kraton Performance Polymers, Inc.
Legal Department
15710 John F. Kennedy Blvd.
Suite 300
Houston, TX 77032
14. Consent to Jurisdiction; Remedies of Indemnitee. The Company and Indemnitee each hereby irrevocably consent to the jurisdiction of the courts of the State of Delaware for all purposes in connection with any action, suit or proceeding which arises out of or relates to this Agreement and agree that any action, suit or proceeding instituted under this Agreement shall be brought only in the state courts of the State of Delaware. Any action, suit or proceeding brought by Indemnitee against the Company as set forth in Section 2(c) to determine whether Indemnitee is entitled to indemnification under this Agreement shall be conducted in all respects as a de novo t rial on the merits, and the Company shall be precluded from asserting that the procedures and presumptions of this Agreement are not valid, binding or enforceable and shall stipulate that the Company is bound by all of the provisions of this Agreement.
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15. Choice of Law. This Agreement shall be governed by and its provisions construed in accordance with the laws of the State of Delaware.
16. Modification. This Agreement terminates and supersedes that certain Indemnity Agreement by and among Company and the Indemnitee dated as of June 4, 2010, which previous agreement shall no longer be of any force and effect. This Agreement constitutes the entire agreement between the parties hereto with respect to the subject matter hereof; provided, however , that notwithstanding any other provision of this Agreement, including, without limitation, Section 5(a), nothing herein shall be deemed to amend, modify or supersede the provisions of (i) that certain Letter Agreement dated as of September 21, 2009 by and among J. P. Morgan Partners (BHCA), L.P. and the Company (fka Polymer Holdings LLC) together with certain of its affiliated entities as to Advancement and Indemnification Rights (the BHCA Letter Agreement) and (ii) that certain Letter Agreement dated as of September 21, 2009 by and among TPG Capital, L.P. and the Company (fka Polymer Holdings LLC) together with certain of its affiliated entities as to Advancement and Indemnification Rights (the TPG Letter Agreement, and together with the BHCA Letter Agreement, the Letter Agreements), which Letter Agreements shall remain in full force and effect. All prior negotiations, agreements and understandings between the parties with respect hereto are superseded hereby. This Agreement may not be modified or amended except by an instrument in writing signed by or on behalf of the parties hereto.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above written.
KRATON PERFORMANCE POLYMERS, INC. | ||||
By: | ||||
Name: | ||||
Title: |
Agreed and accepted as of the date hereof:
INDEMNITEE | ||
By: | ||
(address)
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Exhibit 12.1
KRATON PERFORMANCE POLYMERS, INC.
Ratio of Earnings to Fixed Charges
(In thousands)
December 31,
2011 |
December 31,
2010 |
December 31,
2009 |
December 31,
2008 |
December 31,
2007 |
||||||||||||||||
Fixed Charges: |
||||||||||||||||||||
+ Interest expensed |
23,422 | 22,509 | 29,866 | 35,212 | 42,632 | |||||||||||||||
+ Interest capitalized |
2,259 | 520 | 0 | 0 | 0 | |||||||||||||||
+ Amortization of debt issuance costs |
6,722 | 2,071 | 4,090 | 2,139 | 2,715 | |||||||||||||||
+ Accretion of debt discount |
0 | 0 | 0 | 0 | 0 | |||||||||||||||
+ Estimate of interest within rental expense |
2,846 | 2,205 | 1,734 | 2,800 | 2,449 | |||||||||||||||
+ Preference security dividend requirements |
0 | 0 | 0 | 0 | 0 | |||||||||||||||
|
|
|
|
|
|
|
|
|
|
|||||||||||
Total fixed charges |
35,249 | 27,305 | 35,690 | 40,151 | 47,796 | |||||||||||||||
Earnings: |
||||||||||||||||||||
+ Pre-tax income (loss) |
91,509 | 111,858 | (1,657 | ) | 36,850 | (37,629 | ) | |||||||||||||
- Income from equity investees |
(529 | ) | (487 | ) | (403 | ) | (437 | ) | (626 | ) | ||||||||||
+ fixed charges |
35,249 | 27,305 | 35,690 | 40,151 | 47,796 | |||||||||||||||
+ Amortization of capitalized interest |
226 | 0 | 0 | 0 | 0 | |||||||||||||||
+ Distributed income of equity investees |
515 | 403 | 433 | 1,041 | 106 | |||||||||||||||
+ Pre-tax losses of equity investees for which charges arising from guarantees are included in fixed charges |
0 | 0 | 0 | 0 | 0 | |||||||||||||||
- Interest capitalized |
(2,259 | ) | (520 | ) | 0 | 0 | 0 | |||||||||||||
- Preference security dividend requirements |
0 | 0 | 0 | 0 | 0 | |||||||||||||||
- The minority interest in pre-tax income of subsidiaries that have not incurred fixed charges |
0 | 0 | 0 | 0 | 0 | |||||||||||||||
|
|
|
|
|
|
|
|
|
|
|||||||||||
Total Earnings |
124,711 | 138,559 | 34,063 | 77,605 | 9,647 | |||||||||||||||
Deficiency (Surplus) |
(89,462 | ) | (111,254 | ) | 1,627 | (37,454 | ) | 38,149 | ||||||||||||
|
|
|
|
|
|
|
|
|
|
|||||||||||
Ratio |
3.54 | 5.07 | 0.95 | 1.93 | 0.20 | |||||||||||||||
Ratio of Earnings to Fixed Charges |
3.54:1.0 | 5.07:1.0 | 0.95:1.0 | 1.93:1.0 | 0.20:1.0 |
Our earnings were insufficient to cover our fixed charges by approximately $1.6 million and $38.1 million for the years ended December 31, 2009 and 2007, respectively.
Exhibit 21.1
Kraton Performance Polymers, Inc.
List of Significant Subsidiaries as of December 31, 2011 (1)
Jurisdiction of Organization |
||
KRATON Polymers LLC |
Delaware | |
KRATON Polymers U.S. LLC |
Delaware | |
KRATON Polymers Holdings B.V. |
The Netherlands | |
KRATON Polymers GmbH |
Germany | |
KRATON Polymers Nederland B.V. |
The Netherlands | |
K.P. Global Holdings C.V. |
Netherlands Antilles |
(1) | Listing includes only doing business names and does not include trade names. |
Exhibit 23.1
Consent of Independent Registered Public Accounting Firm
The Board of Directors
Kraton Performance Polymers, Inc.:
We consent to the incorporation by reference in the registration statement on Form S-8 (No. 333-163893) and Form S-3 (No. 333-172639) of Kraton Performance Polymers, Inc. of our reports dated February 29, 2012, with respect to the consolidated balance sheets of Kraton Performance Polymers, Inc. and subsidiaries as of December 31, 2011 and 2010, and the related consolidated statements of operations, changes in stockholders and members equity and other comprehensive income, and cash flows for each of the years in the three-year period ended December 31, 2011, and the related financial statement schedule, and the effectiveness of internal control over financial reporting as of December 31, 2011, which reports appear in the December 31, 2011 annual report on Form 10-K of Kraton Performance Polymers, Inc.
/ S / KPMG LLP
Houston, Texas
February 29, 2012
Exhibit 24.1
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that such person whose signature first appears below hereby constitutes and appoints Kevin M. Fogarty and Stephen E. Tremblay, and each of them severally, as his or her true and lawful agent, with power to act separately and with full and unqualified authority to delegate any or all of the powers granted herein to any person or persons selected by said agent(s), to execute in his or her name, place, and stead in capacity as a director or officer of Kraton Performance Polymers, Inc. all reports required under Section 13 or Section 15(d) of the Securities Exchange Act of 1934, as amended, including, without limitation, the Annual Report on Form 10-K for the fiscal year ended December 31, 2011, with exhibits thereto and all instruments necessary or incidental in connection therewith, and to file the same with the Securities and Exchange Commission, hereby ratifying and confirming all that each of said agents, or any person or persons to whom said agent(s) have delegated the foregoing powers, may do and perform each and every act and thing requisite and necessary to be done in connection with the execution and filing of the referenced reports and any amendments thereto.
February 29, 2012 | / S / R ICHARD C. B ROWN | |||||
Richard C. Brown |
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that such person whose signature first appears below hereby constitutes and appoints Kevin M. Fogarty and Stephen E. Tremblay, and each of them severally, as his or her true and lawful agent, with power to act separately and with full and unqualified authority to delegate any or all of the powers granted herein to any person or persons selected by said agent(s), to execute in his or her name, place, and stead in capacity as a director or officer of Kraton Performance Polymers, Inc. all reports required under Section 13 or Section 15(d) of the Securities Exchange Act of 1934, as amended, including, without limitation, the Annual Report on Form 10-K for the fiscal year ended December 31, 2011, with exhibits thereto and all instruments necessary or incidental in connection therewith, and to file the same with the Securities and Exchange Commission, hereby ratifying and confirming all that each of said agents, or any person or persons to whom said agent(s) have delegated the foregoing powers, may do and perform each and every act and thing requisite and necessary to be done in connection with the execution and filing of the referenced reports and any amendments thereto.
February 29, 2012 | /s/ Anna C. Catalano | |||||
Anna C. Catalano |
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that such person whose signature first appears below hereby constitutes and appoints Kevin M. Fogarty and Stephen E. Tremblay, and each of them severally, as his or her true and lawful agent, with power to act separately and with full and unqualified authority to delegate any or all of the powers granted herein to any person or persons selected by said agent(s), to execute in his or her name, place, and stead in capacity as a director or officer of Kraton Performance Polymers, Inc. all reports required under Section 13 or Section 15(d) of the Securities Exchange Act of 1934, as amended, including, without limitation, the Annual Report on Form 10-K for the fiscal year ended December 31, 2011, with exhibits thereto and all instruments necessary or incidental in connection therewith, and to file the same with the Securities and Exchange Commission, hereby ratifying and confirming all that each of said agents, or any person or persons to whom said agent(s) have delegated the foregoing powers, may do and perform each and every act and thing requisite and necessary to be done in connection with the execution and filing of the referenced reports and any amendments thereto.
February 29, 2012 | / S / S TEVEN J. D EMETRIOU | |||||
Steven J. Demetriou |
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that such person whose signature first appears below hereby constitutes and appoints Kevin M. Fogarty and Stephen E. Tremblay, and each of them severally, as his or her true and lawful agent, with power to act separately and with full and unqualified authority to delegate any or all of the powers granted herein to any person or persons selected by said agent(s), to execute in his or her name, place, and stead in capacity as a director or officer of Kraton Performance Polymers, Inc. all reports required under Section 13 or Section 15(d) of the Securities Exchange Act of 1934, as amended, including, without limitation, the Annual Report on Form 10-K for the fiscal year ended December 31, 2011, with exhibits thereto and all instruments necessary or incidental in connection therewith, and to file the same with the Securities and Exchange Commission, hereby ratifying and confirming all that each of said agents, or any person or persons to whom said agent(s) have delegated the foregoing powers, may do and perform each and every act and thing requisite and necessary to be done in connection with the execution and filing of the referenced reports and any amendments thereto.
February 29, 2012 | / S / J OHN J. G ALLAGHER , III | |||||
John J. Gallagher |
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that such person whose signature first appears below hereby constitutes and appoints Kevin M. Fogarty and Stephen E. Tremblay, and each of them severally, as his or her true and lawful agent, with power to act separately and with full and unqualified authority to delegate any or all of the powers granted herein to any person or persons selected by said agent(s), to execute in his or her name, place, and stead in capacity as a director or officer of Kraton Performance Polymers, Inc. all reports required under Section 13 or Section 15(d) of the Securities Exchange Act of 1934, as amended, including, without limitation, the Annual Report on Form 10-K for the fiscal year ended December 31, 2011, with exhibits thereto and all instruments necessary or incidental in connection therewith, and to file the same with the Securities and Exchange Commission, hereby ratifying and confirming all that each of said agents, or any person or persons to whom said agent(s) have delegated the foregoing powers, may do and perform each and every act and thing requisite and necessary to be done in connection with the execution and filing of the referenced reports and any amendments thereto.
February 29, 2012 | / S / B ARRY J. G OLDSTEIN | |||||
Barry J. Goldstein |
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that such person whose signature first appears below hereby constitutes and appoints Kevin M. Fogarty and Stephen E. Tremblay, and each of them severally, as his or her true and lawful agent, with power to act separately and with full and unqualified authority to delegate any or all of the powers granted herein to any person or persons selected by said agent(s), to execute in his or her name, place, and stead in capacity as a director or officer of Kraton Performance Polymers, Inc. all reports required under Section 13 or Section 15(d) of the Securities Exchange Act of 1934, as amended, including, without limitation, the Annual Report on Form 10-K for the fiscal year ended December 31, 2011, with exhibits thereto and all instruments necessary or incidental in connection therewith, and to file the same with the Securities and Exchange Commission, hereby ratifying and confirming all that each of said agents, or any person or persons to whom said agent(s) have delegated the foregoing powers, may do and perform each and every act and thing requisite and necessary to be done in connection with the execution and filing of the referenced reports and any amendments thereto.
February 29, 2012 | / S / F RANCIS S. K ALMAN | |||||
Francis S. Kalman |
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that such person whose signature first appears below hereby constitutes and appoints Kevin M. Fogarty and Stephen E. Tremblay, and each of them severally, as his or her true and lawful agent, with power to act separately and with full and unqualified authority to delegate any or all of the powers granted herein to any person or persons selected by said agent(s), to execute in his or her name, place, and stead in capacity as a director or officer of Kraton Performance Polymers, Inc. all reports required under Section 13 or Section 15(d) of the Securities Exchange Act of 1934, as amended, including, without limitation, the Annual Report on Form 10-K for the fiscal year ended December 31, 2011, with exhibits thereto and all instruments necessary or incidental in connection therewith, and to file the same with the Securities and Exchange Commission, hereby ratifying and confirming all that each of said agents, or any person or persons to whom said agent(s) have delegated the foregoing powers, may do and perform each and every act and thing requisite and necessary to be done in connection with the execution and filing of the referenced reports and any amendments thereto.
February 29, 2012 | / S / D AN F. S MITH | |||||
Dan F. Smith |
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that such person whose signature first appears below hereby constitutes and appoints Kevin M. Fogarty and Stephen E. Tremblay, and each of them severally, as his or her true and lawful agent, with power to act separately and with full and unqualified authority to delegate any or all of the powers granted herein to any person or persons selected by said agent(s), to execute in his or her name, place, and stead in capacity as a director or officer of Kraton Performance Polymers, Inc. all reports required under Section 13 or Section 15(d) of the Securities Exchange Act of 1934, as amended, including, without limitation, the Annual Report on Form 10-K for the fiscal year ended December 31, 2011, with exhibits thereto and all instruments necessary or incidental in connection therewith, and to file the same with the Securities and Exchange Commission, hereby ratifying and confirming all that each of said agents, or any person or persons to whom said agent(s) have delegated the foregoing powers, may do and perform each and every act and thing requisite and necessary to be done in connection with the execution and filing of the referenced reports and any amendments thereto.
February 29, 2012 | / S / K AREN A. T WITCHELL | |||||
Karen A. Twitchell |
Exhibit 31.1
CERTIFICATION OF CHIEF EXECUTIVE OFFICER
UNDER SECTION 302 OF SARBANES-OXLEY ACT OF 2002
I, Kevin M. Fogarty, certify that:
1. | I have reviewed this annual report on Form 10-K of Kraton Performance Polymers, Inc.; |
2. | Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report; |
3. | Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report; |
4. | The registrants other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15 (e) and 15d-15 (e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have: |
(a) | Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared; |
(b) | Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles; |
(c) | Evaluated the effectiveness of the registrants disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and |
(d) | Disclosed in this report any change in the registrants internal control over financial reporting that occurred during the registrants most recent fiscal quarter (the registrants fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrants internal control over financial reporting; and |
5. | The registrants other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrants auditors and the audit committee of the registrants board of directors (or persons performing the equivalent function): |
(a) | All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrants ability to record, process, summarize and report financial information; and |
(b) | Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrants internal control over financial reporting. |
Date: February 29, 2012
By: |
/ S / K EVIN M. F OGARTY |
|
Kevin M. Fogarty | ||
Chief Executive Officer |
Exhibit 31.2
CERTIFICATION OF CHIEF FINANCIAL OFFICER
UNDER SECTION 302 OF SARBANES-OXLEY ACT OF 2002
I, Stephen E. Tremblay, certify that:
1. | I have reviewed this annual report on Form 10-K of Kraton Performance Polymers, Inc.; |
2. | Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report; |
3. | Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report; |
4. | The registrants other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15 (e) and 15d-15 (e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have: |
(a) | Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared; |
(b) | Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles; |
(c) | Evaluated the effectiveness of the registrants disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and |
(d) | Disclosed in this report any change in the registrants internal control over financial reporting that occurred during the registrants most recent fiscal quarter (the registrants fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrants internal control over financial reporting; and |
5. | The registrants other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrants auditors and the audit committee of the registrants board of directors (or persons performing the equivalent function): |
(a) | All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrants ability to record, process, summarize and report financial information; and |
(b) | Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrants internal control over financial reporting. |
Date: February 29, 2012
By: |
/ S / S TEPHEN E. T REMBLAY |
|
Stephen E. Tremblay | ||
Chief Financial Officer |
Exhibit 32.1
Certification of Chief Executive Officer and Chief Financial Officer
Pursuant to Section 906 of the Sarbanes-Oxley Act of 2002 (Subsections (a) and (b) of Section 1350, Chapter 63 of Title 18, United States Code)
Pursuant to section 906 of the Sarbanes-Oxley Act of 2002 (subsections (a) and (b) of section 1350, chapter 63 of title 18, United States Code), each of the undersigned officers of Kraton Performance Polymers, Inc. a Delaware corporation (the Registrant), does hereby certify, to such officers knowledge, that:
The Annual Report on Form 10-K for the fiscal year ended December 31, 2011 (Form 10-K) of the Registrant fully complies with the requirements of section 13(a) or 15(d) of the Securities Exchange Act of 1934 and information contained in the Form 10-K fairly presents, in all material respects, the financial condition and results of operations of the Registrant.
Dated: February 29, 2012
By: |
/ S / K EVIN M. F OGARTY |
|
Kevin M. Fogarty | ||
Chief Executive Officer | ||
By: |
/ S / S TEPHEN E. T REMBLAY |
|
Stephen E. Tremblay | ||
Chief Financial Officer |