UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

 

FORM 8-K

 

 

CURRENT REPORT

Pursuant to Section 13 or 15(d)

of the Securities Exchange Act of 1934

Date of Report (Date of earliest event reported): February 16, 2017

 

 

LYONDELLBASELL INDUSTRIES N.V.

(Exact Name of Registrant as Specified in Charter)

 

 

 

The Netherlands   001-34726   98-0646235
(State or Other Jurisdiction
of Incorporation)
  (Commission
File Number)
  (IRS Employer
Identification No.)

1221 McKinney St.

Suite 300

Houston, Texas

USA 77010

 

4 th Floor, One Vine Street

London

W1J0AH

The United Kingdom

 

Delftseplein 27E

3013 AA Rotterdam

The Netherlands

  (Addresses of principal executive offices)  
(713) 309-7200   +44 (0)207 220 2600   +31 (0)10 275 5500

(Registrant’s telephone numbers, including area codes)

(Former Name or Former Address, if Changed Since Last Report)

 

 

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:

 

Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

 

Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

 

Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

 

Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

 

 

 


Item 5.02 Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.

Compensatory Arrangements

On February 16, 2017, the Supervisory Board (the “Board”) of LyondellBasell Industries N.V. (the “Company”), acting upon the recommendation of the Compensation Committee, approved changes to the compensation programs for the executive officers named in the Company’s proxy statement (the “NEOs”) and certain other executive officers.

Changes to Short-Term Incentive Awards for 2017

The Company’s Short-Term Incentive (“STI”) awards provide executive officers the opportunity to earn an annual cash bonus based on Company and individual performance. The changes to the STI awards for 2017 simplify the determination of how much of the target award the executive officers may earn.

As described in the Compensation Discussion and Analysis section of the Company’s 2016 proxy statement, executives’ STI awards were previously determined based on Company performance and the performance of award units that represent the business unit(s) or function(s) for which the executive officers are responsible. Executive officers could earn from 0 to 200% of their target awards based on the Company’s and award unit(s)’ performance. The awards also had an individual performance component in the form of a personal modifier. The modifier ranges from 0 to 1.5 and is multiplied against the earned percentage, resulting in a total payout ranging from 0 to 300% of target.

Beginning with the 2017 STI awards, the earned percentage of the target award for the NEOs and other executive officers will be determined solely on Company performance and the individual modifier. Award unit performance will no longer be used in the determination of the executive officers’ awards.

Under the new awards, Company performance will be based on the same measures as in prior years. However, the weighting of those measures will now be as follows: Business results (weighted 60%); Costs (weighted 20%); and HSE performance (weighted 20%). As in prior years, payouts for each of these measures can range from 0 to 200% and will be based on the Compensation Committee’s determination of the Company performance under each measure. The individual performance component is unchanged.

Changes to Long-Term Incentive Awards

The components of the Company’s Long-Term Incentive (“LTI”) awards for 2017 are unchanged from prior years and continue to consist of restricted stock units (“RSUs”) representing 25% of the total grant value; performance share units (“PSUs”) representing 50% of the total grant value; and non-qualified stock-options representing 25% of the total grant value.


Beginning in 2017, the performance measure for the PSUs, which are earned over a three-year performance period, will be total shareholder return (“TSR”) relative to the S&P 500 Chemicals Index. The PSU payouts will increase or decrease from the target award based on the Company’s relative TSR performance in the index group over the three-year period. Depending on the Company’s relative performance, the payout can range from 0 to 200% of the target.

Amendment of Long-Term Incentive Plan (“LTIP”) and Form of LTI Award Agreements

Effective as of February 16, 2017, the 2010 Long-Term Incentive Plan was amended and restated and renamed the “2017 Long-Term Incentive Plan.” The LTIP allows for grants of share and cash-based awards to employees and directors of the Company. Share-based awards that may be granted under the LTIP include stock options, stock appreciation rights, restricted stock, restricted stock units, performance share units and shares of stock. The LTIP provides that all grants under the LTIP will be on the terms and conditions as determined by the Compensation Committee and included in award agreements approved by the Compensation Committee.

The amendments to the LTIP include the deletion of outdated and obsolete provisions relating to grants made in connection with the Company’s emergence from bankruptcy proceedings in April 2010 and clarification that tax withholdings by the Company upon exercise or vesting of awards are no longer restricted to “minimum statutory” withholding amounts. No changes to the persons eligible to receive awards, the types of awards, the number of awards, the method for determining the exercise prices for options, the expiration date of the LTIP or any other changes that could be deemed to be material revisions were made. As such, shareholder approval was not required.

Certain ministerial changes to the form of award agreements for the LTI awards also were approved. The changes include amending the award agreements to provide that the Company will automatically withhold shares in settlement of withholding tax requirements upon vesting unless it not able to do so, in which case no shares will be delivered unless such tax obligations have been paid by the participant.

Supervisory Director Terms

Information about Supervisory Directors’ terms is included below under Item 8.01 and incorporated by reference into this Item 5.02.


Item 8.01 Other Events

On February 16, 2017, the Board approved, upon the recommendation of the Nominating & Governance Committee, certain revisions to the Company’s Corporate Governance Guidelines and the Rules of the Supervisory Board. The changes to these documents are a result of the Supervisory Board’s decision that, beginning with the 2017 annual meeting of shareholders, all members of the Supervisory Board will be elected annually. Members of the Supervisory Board have previously been elected in classes, with each class of directors elected for a term of three years.

The amendments to the Corporate Governance Guidelines and the Rules of the Supervisory Board specify that beginning with the annual meeting in 2017, all directors will be elected for a term of one year.

Additionally, the Rules of the Supervisory Board were amended to state that the size of the Supervisory Board will be no less than three and no more than twelve members. The Rules had previously provided for a maximum size of eleven directors.

In connection with the decision to declassify the Supervisory Board beginning with the 2017 annual meeting of shareholders, certain members of our Supervisory Board have agreed to relinquish the remaining length of their three-year terms at the annual meeting scheduled for May 2017.

Robin Buchanan, Steve Cooper, Bob Gwin and Bella Goren are all currently Class II directors and were elected by shareholders at the annual meeting in 2015 for a term of three years, expiring at the 2018 annual meeting. Jacques Aigrain, Bruce Smith, Nance Dicciani and Lincoln Benet are all Class III directors that were elected by shareholders in 2016 to serve until 2019. Because of the Supervisory Board’s decision to elect all directors for a term of one year, these Class II and Class III directors agreed that they will forego the remaining time left in their terms as of the 2017 annual meeting when they will be nominated for election for a term of one year.

The Company’s Corporate Governance Guidelines and the Rules of the Supervisory Board can be found on the Company’s website at www.lyb.com .

 

Item 9.01 Financial Statements and Exhibits

(d) Exhibits

 

Exhibit
Number
   Description
10.1    LyondellBasell Industries 2017 Long Term Incentive Plan
10.2    Form of Restricted Stock Unit Agreement
10.3    Form of Performance Share Unit Agreement
10.4    Form of Non-Qualified Stock Option Agreement
10.5    Corporate Governance Guidelines
10.6    Rules of the Supervisory Board


SIGNATURES

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has caused this report to be signed on its behalf by the undersigned, hereunto duly authorized.

 

    LYONDELLBASELL INDUSTRIES N.V.
Date: February 23, 2017     By:  

/s/ Jeffrey Kaplan

      Jeffrey A. Kaplan
      Executive Vice President


Exhibit Index

 

Exhibit
Number
   Description
10.1    LyondellBasell Industries 2017 Long Term Incentive Plan
10.2    Form of Restricted Stock Unit Agreement
10.3    Form of Performance Share Unit Agreement
10.4    Form of Non-Qualified Stock Option Agreement
10.5    Corporate Governance Guidelines
10.6    Rules of the Supervisory Board

Exhibit 10.1

LYONDELLBASELL INDUSTRIES

2017 LONG-TERM INCENTIVE PLAN

 

1. Plan. LyondellBasell Industries N.V. (the “Company”) previously established the LyondellBasell Industries 2010 Long-Term Incentive Plan. The Company hereby amends and restates the Plan effective as of February 16, 2017, as set forth herein, and renames the Plan as the LyondellBasell Industries 2017 Long-Term Incentive Plan (the “Plan”).

 

2. Objectives . The purpose of the Plan is to further the interests of the Company and its shareholders by providing incentives in the form of Awards to employees and directors who can contribute materially to the success and profitability of the Company. Such Awards will recognize and reward outstanding performances and individual contributions and give Participants in the Plan an interest in the Company parallel to that of the shareholders, thus enhancing the proprietary and personal interest of such Participants in the Company’s continued success and progress. This Plan will also enable the Company to attract and retain such employees and directors.

 

3. Definitions . As used herein, the terms set forth below shall have the following respective meanings:

“Affiliate” means any person or entity that directly or indirectly controls, is controlled by or is under common control with the Company.

“Award” means an Employee Award or a Director Award.

“Award Agreement” means one or more Employee Award Agreements or Director Award Agreements.

“Board” means the Supervisory Board of the Company.

“Cash Award” means an award denominated in cash.

“Cause” means, in the case of a particular Award, unless the applicable Award Agreement states otherwise, (i) the Company or an Affiliate having “cause” to terminate a Participant’s employment or service, as defined in any employment or consulting agreement between the Participant and the Company or Affiliate in effect at the time of such termination or (ii) in the absence of any such agreement or definition therein, (A) the Participant’s conviction for, plea of guilty or nolo contendere to a felony or its equivalent in accordance with local laws, (B) the Participant’s commission of a material act or omission involving dishonesty or fraud in the course of a Participant’s duties to the Company or an Affiliate, (C) the Participant’s conduct that brings or is reasonably likely to bring the Company or an Affiliate into public disgrace or disrepute and that affects the Company’s or any Affiliate’s business in any material way, (D) the Participant’s continuing and willful failure to perform duties as reasonably directed by the Company or Affiliate (which if curable, is not cured within 10 days after written notice thereof is provided to the Participant) or (E) the Participant’s gross negligence or willful misconduct with respect to the Company or its Affiliates (which, if curable, is not cured within 10 days after written notice thereof is provided to the Participant). Any determination of whether Cause exists shall be made by the Committee in its sole discretion, and following a Change of Control such determination shall not be subject to delegation pursuant to Paragraph 7.


“Change of Control” is defined in Attachment A.

“Code” means the Internal Revenue Code of 1986, as amended from time to time. Reference to the Code shall be deemed to include any regulations or other interpretive guidance.

“Committee” means the Compensation Committee or any committee designated pursuant to Paragraph 7.

“Common Stock” means the Class A ordinary shares of LyondellBasell Industries N.V., par value €0.04 per share.

“Company” means LyondellBasell Industries N.V., and any successor entity.

“Compensation Committee” means the Compensation Committee of the Board or any successor committee of the Board that is designated by the Board to administer certain portions of the Plan.

“Director” means an individual serving as a member of the Board.

“Director Award” means the grant of any Option, SAR, or Stock Award, whether granted singly or in combination, to a Participant who is a Nonemployee Director pursuant to such applicable terms, conditions, and limitations (including treatment as a Performance Award) as may be established in order to fulfill the objectives of the Plan.

“Director Award Agreement” means one or more agreements between the Company and a Nonemployee Director setting forth the terms, conditions, and limitations applicable to a Director Award.

“Dividend Equivalents” means an amount equal to all dividends and other distributions (or the economic equivalent thereof) that are payable to shareholders of record on a like number of shares of Common Stock. Dividend Equivalents shall not be provided with respect to any Award granted hereunder, except to the extent specifically provided under an Award Agreement and subject to the terms thereof.

“Employee” means any regular employee of a Participating Employer, including any such individual who is assigned to work for a joint venture with an Affiliate.

“Employee Award” means the grant of any Option, SAR, Stock Award, or Cash Award, whether granted singly or in combination, to an Employee pursuant to such applicable terms, conditions, and limitations (including treatment as a Performance Award) as may be established in order to fulfill the objectives of the Plan.

 

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“Employee Award Agreement” means one or more agreements between the Company and an Employee setting forth the terms, conditions, and limitations applicable to an Employee Award.

“Fair Market Value” of a share of Common Stock means, as of a particular date, (i) if shares of Common Stock are listed on a national securities exchange, the final closing sales price per share of the Common Stock on the consolidated transaction reporting system for the principal national securities exchange on which shares of Common Stock are listed on that date, or, if there shall have been no such sale so reported on that date, on the last preceding date on which such a sale was so reported, (ii) if shares of Common Stock are not so listed, the mean between the closing bid and asked price on that date, or, if there are no quotations available for such date, on the last preceding date on which such quotations shall be available, as reported by the OTC Bulletin Board, or, if not reported by the OTC Bulletin Board, by Pink OTC Markets Inc., or (iii) if none of the above are applicable, the fair market value of a share of Common Stock as determined in good faith by the Committee in a manner that complies with the requirements of Section 409A of the Code, if applicable.

“Grant Date” means the date an Award is granted to a Participant pursuant to the Plan. The Grant Date for a substituted award is the grant date of the original award.

“Grant Price” means the price at which a Participant may exercise his or her right to receive cash or Common Stock, as applicable, under the terms of an Award.

“Nonemployee Director” means an individual serving as a member of the Board who is not an Employee.

“Non-Qualified Performance Award” means a Performance Award that is not intended to qualify as qualified performance based compensation under Section 162(m) of the Code, as described in Paragraph 8(e)(i) of this Plan.

“Option” means a right to purchase a specified number of shares of Common Stock at a specified Grant Price.

“Participant” means an Employee or a Director to whom an Award has been granted under this Plan.

“Participating Employer” means the Company, together with any Affiliate of the Company whose Employees are included in the Plan upon authorization of the Committee.

“Performance Award” means an award pursuant to this Plan, including any Option, SAR, Stock Award, or Cash Award, that is subject to the attainment of one or more Performance Goals.

“Performance Goal” means one or more standards established by the Committee to determine in whole or in part whether a Performance Award shall be earned.

 

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“Qualified Performance Award” means a Performance Award made to a Participant who is an Employee that is intended to qualify as qualified performance based compensation under Section 162(m) of the Code, as described in Paragraph 8(e)(ii) of this Plan.

“Restricted Stock” means any shares of Common Stock that are restricted or subject to forfeiture provisions.

“Restricted Stock Unit” means a Stock Unit that is restricted or subject to forfeiture provisions.

“Restriction Period” means a period of time beginning as of the Grant Date of an Award of Restricted Stock or Restricted Stock Units and ending as of the date upon which the Common Stock subject to or evidenced by such Award is no longer restricted or subject to forfeiture provisions.

“Stock Appreciation Right” or “SAR” means a right to receive a payment, in cash or Common Stock, equal to the excess of the Fair Market Value or other specified valuation of a specified number of shares of Common Stock on the date the right is exercised over a specified Grant Price, in each case, as determined by the Committee.

“Stock Award” means an Award in the form of shares of Common Stock or Stock Units, including an award of Restricted Stock or Restricted Stock Units.

“Stock-Based Award Limitations” has the meaning set forth in Paragraph 5.

“Stock Unit” means a unit evidencing the right to receive in specified circumstances one share of Common Stock or equivalent value (as determined by the Committee).

 

4. Eligibility .

 

  a. Employees . All Employees are eligible for the grant of Employee Awards under this Plan in the discretion of the Committee. The Committee in its sole discretion shall designate Employees to be Participants by granting Awards under this Plan. The Committee may grant an Employee Award to an individual whom it expects to become an Employee within the following six months, with the Employee Award subject to the individual’s actually becoming an Employee within that time, and subject to other terms and conditions the Committee establishes.

 

  b. Directors . Nonemployee Directors are eligible for the grant of Director Awards under this Plan. The Board in its sole discretion shall designate Nonemployee Directors to be Participants by granting Awards under this Plan.

 

  c. General . The granting of an Award under the terms of this Plan does not confer upon any Participant any right to any future Award. There is no obligation for uniformity among Participants.

 

5.

Common Stock Available for Awards . Subject to the provisions of Paragraph 18 hereof, no Award shall be granted if it shall result in the aggregate number of shares of Common

 

4


  Stock issued under the Plan plus the number of shares of Common Stock covered by or subject to Awards then outstanding under this Plan (after giving effect to the grant of the Award in question) to exceed 22,000,000.

The number of shares of Common Stock that are the subject of Awards under this Plan that are forfeited or terminated, expire unexercised, are settled in cash in lieu of Common Stock or in a manner such that all or some of the shares covered by an Award are not issued to a Participant or are exchanged for Awards that do not involve Common Stock, shall again immediately become available for Awards hereunder. Shares of Common Stock that are used or withheld to satisfy the Grant Price or tax obligations shall, notwithstanding anything herein to the contrary, not be available again for Awards hereunder. Shares of Common Stock delivered under the Plan as an Award or in settlement of an Award issued or made (a) upon the assumption, substitution, conversion, or replacement of outstanding awards under a plan or arrangement of an entity acquired in a merger or other acquisition or (b) as a post-transaction grant under such a plan or arrangement of an acquired entity shall not reduce or be counted against the maximum number of shares of Common Stock available for delivery under the Plan, to the extent that the exemption for transactions in connection with mergers and acquisitions from the shareholder approval requirements of the New York Stock Exchange for equity compensation plans applies. The Committee may from time to time adopt and observe such rules and procedures concerning the counting of shares against the Plan maximum or any sublimit as it may deem appropriate, including rules more restrictive than those set forth above to the extent necessary to satisfy the requirements of any national stock exchange on which the Common Stock is listed or any applicable regulatory requirement. The Board and the appropriate officers of the Company are authorized to take from time to time whatever actions are necessary, and to file any required documents with governmental authorities, stock exchanges, and transaction reporting systems to ensure that shares of Common Stock are available for issuance pursuant to Awards. Shares of Common Stock delivered by the Company in settlement of Awards may be authorized and unissued shares, shares held in the treasury of the Company, shares purchased on the open market or private purchase, or a combination of the foregoing.

Notwithstanding anything to the contrary contained in this Plan, the following limitations shall apply to any Awards made hereunder:

a.    No Employee may be granted during any calendar year Awards consisting of Options or SARs that are exercisable for more than 5,000,000 shares of Common Stock;

b.    No Employee may be granted during any calendar year Stock Awards covering or relating to more than 1,000,000 shares of Common Stock (the limitation set forth in this clause (b), together with the limitation set forth in clause (a) above, being hereinafter collectively referred to as the “Stock-Based Award Limitations”); and

c.    No Employee may be granted Cash Awards that are intended to constitute Qualified Performance Awards having a maximum payment value in any calendar year in excess of $10,000,000.

 

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6. Administration .

 

  a. This Plan shall be administered by the Committee, except as otherwise provided herein.

 

  b. Subject to the provisions hereof, the Committee shall have full and exclusive power and authority to administer this Plan and to take all actions that are specifically contemplated hereby or are necessary or appropriate in connection with the administration hereof. The Committee shall also have full and exclusive power to interpret this Plan and to adopt such rules, regulations, and guidelines for carrying out this Plan as it may deem necessary or proper. The Committee may, in its discretion, provide for the extension of the exercisability of an Employee Award, accelerate the vesting or exercisability of an Employee Award, eliminate or make less restrictive any restrictions applicable to an Employee Award, waive any restriction or other provision of this Plan (insofar as such provision relates to Employee Awards) or an Employee Award, or otherwise amend or modify an Employee Award in any manner that is either (i) not adverse to the Participant to whom such Employee Award was granted (including in a manner which could result in accelerated or additional tax under Section 409A of the Code) or (ii) consented to by such Participant. Notwithstanding anything herein to the contrary, without the prior approval of the Company’s shareholders, Options or SARs issued under the Plan will not be repriced, replaced, or regranted through cancellation or by decreasing the exercise price of a previously granted Option or SAR, except as expressly provided by the adjustment provisions of Paragraph 18. The Committee may correct any defect or supply any omission or reconcile any inconsistency in this Plan or in any Award in the manner and to the extent the Committee deems necessary or desirable to further the Plan purposes. Any decision of the Committee in the interpretation and administration of this Plan shall lie within its sole and absolute discretion and shall be final, conclusive, and binding on all parties concerned.

 

  c. No member of the Committee or officer of the Company to whom the Committee has delegated authority in accordance with the provisions of Paragraph 7 of this Plan shall be liable for anything done or omitted to be done by him or her, by any member of the Committee, or by any officer of the Company in connection with the performance of any duties under this Plan, except for his or her own willful misconduct, bad faith, or as expressly provided by statute.

 

  d. The Board shall have the same powers, duties, and authority to administer the Plan with respect to Director Awards as the Committee retains with respect to Employee Awards.

 

7.

Delegation of Authority . Following the authorization of a pool of cash or shares of Common Stock to be available for Awards, the Board or the Committee may authorize a committee of one or more members of the Board, or one or more officers of the Company, to grant individual Employee Awards from such pool pursuant to such conditions or limitations as the Board or the Committee may establish consistent with applicable law.

 

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  The Committee may delegate to the Chief Executive Officer and to other employees of the Company its administrative duties under this Plan (excluding its granting authority for Awards, other than pursuant to authorization of a pool,) pursuant to such conditions or limitations as the Committee may establish. The Committee may engage or authorize the engagement of a third party administrator to carry out administrative functions under the Plan.

 

8. Employee Awards .

The Committee shall determine the type or types of Employee Awards to be made under this Plan and shall designate from time to time the Employees who are to be the recipients of such Awards. Each Employee Award shall be embodied in an Employee Award Agreement, which shall contain such terms, conditions, and limitations as shall be determined by the Committee in its sole discretion and, if required by the Committee, shall be signed by the Participant to whom the Employee Award is granted and signed for and on behalf of the Company. Employee Awards may consist of those listed in this Paragraph 8 and may be granted singly or in combination. Employee Awards may also be granted in combination with, in replacement of (subject to the last sentence of Paragraph 16), or as alternatives to, grants or rights under this Plan or any other employee plan of the Company or any Participating Employer, including the plan of any acquired entity. Subject to the immediately following Clauses a. and b., an Employee Award may provide for the grant or issuance of additional, replacement, or alternative Employee Awards upon the occurrence of specified events, including the exercise of the original Employee Award granted to a Participant. All or part of an Employee Award may be subject to conditions established by the Committee, which may include, but are not limited to, continuous service with the Company and the Participating Employers, achievement of specific business objectives, items referenced in Clause e. below, and other comparable measurements of performance. Upon the termination of employment by a Participant who is an Employee, any unexercised, deferred, unvested, or unpaid Employee Awards shall be treated as set forth in the applicable Employee Award Agreement or as otherwise specified by the Committee. Notwithstanding the foregoing, any Award that constitutes a “stock right” within the meaning of Section 409A of the Code shall only be granted to Participants with respect to whom the Company is an “eligible issuer of service recipient stock” under Section 409A of the Code.

 

  a. Options . An Employee Award may be in the form of an Option. The Grant Price of an Option shall be not less than the Fair Market Value of the Common Stock subject to such Option on the Grant Date. The term of the Option shall extend no more than 10 years after the Grant Date. Options may not include provisions that “reload” the Option upon exercise. Subject to the foregoing provisions, the terms, conditions, and limitations applicable to any Options awarded to Employees pursuant to this Plan, including the Grant Price, the term of the Options, the number of shares subject to the Option, and the date or dates upon which they become exercisable, shall be determined by the Committee.

 

  b.

Stock Appreciation Rights . An Employee Award may be in the form of an SAR. On the Grant Date, the Grant Price of an SAR shall be not less than the Fair Market

 

7


  Value of the Common Stock subject to such SAR. The exercise period for an SAR shall extend no more than 10 years after the Grant Date. SARs may not include provisions that “reload” the SAR upon exercise. Subject to the foregoing provisions, the terms, conditions, and limitations applicable to any SARs awarded to Employees pursuant to this Plan, including the Grant Price, the term of any SARs, and the date or dates upon which they become exercisable, shall be determined by the Committee.

 

  c. Stock Awards . An Employee Award may be in the form of a Stock Award. The terms, conditions and limitations applicable to any Stock Awards granted pursuant to this Plan shall be determined by the Committee.

 

  d. Cash Awards . An Employee Award may be in the form of a Cash Award. The terms, conditions, and limitations applicable to any Cash Awards granted pursuant to this Plan shall be determined by the Committee.

 

  e. Performance Awards . Without limiting the type or number of Employee Awards that may be made under the other provisions of this Plan, an Employee Award may be in the form of a Performance Award. The terms, conditions and limitations applicable to any Performance Awards granted to Participants pursuant to this Plan shall be determined by the Committee. The Committee shall set Performance Goals in its discretion which, depending on the extent to which they are met, will determine the value and/or amount of Performance Awards that will be paid out to the Participant and/or the portion of an Award that may be exercised.

 

  i. Non-Qualified Performance Awards . Performance Awards granted to Employees that are not intended to qualify as qualified performance based compensation under Section 162(m) of the Code shall be based on achievement of such goals and be subject to such terms, conditions and restrictions as the Committee shall determine.

 

  ii. Qualified Performance Awards . Performance Awards granted to Employees under this Plan that are intended to qualify as qualified performance based compensation under Section 162(m) of the Code (other than Options and SARs) shall be paid, vest or otherwise become deliverable solely on account of the attainment of one or more objective Performance Goals established by the Committee prior to the earlier to occur of (x) 90 days after the commencement of the period of service to which the Performance Goal relates or (y) the lapse of 25% of the period of service (as scheduled in good faith at the time the goal is established), and in any event while the outcome is substantially uncertain. A Performance Goal is objective if a third party having knowledge of the relevant facts could determine whether the goal is met. The business criteria that will be used to establish the Performance Goals shall be based on the attainment of specific levels of performance by the Employee, one or more business segments, units, or divisions of the Company, or the Company as a whole, and, if so desired by the Committee, by comparison with a peer group of companies (or a combination of these), and shall be limited to the following:

 

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    Cash flow measures (including but not limited to before or after tax cash flow, cash flow per share, cash flow return on capital, net cash flow or attainment of working capital levels);

 

    Expense measures (including but not limited to overhead cost, research and development expense, general and administrative expense and improvement in or attainment of expense levels);

 

    Income measures (including but not limited to net income and income before or after taxes);

 

    Operating measures (including operating income, funds from operations, cash from operations, after-tax operating income, net operating profit after tax, operating efficiency, production volumes and production efficiency);

 

    Return measures (including but not limited to return on capital employed, return on equity, return on investment and return on assets);

 

    Stock price measures (including but not limited to price per share, growth measures and total stockholder return);

 

    Earnings per share (actual or targeted growth);

 

    Earnings before interest, taxes, depreciation, and amortization (“EBITDA”);

 

    Net earnings;

 

    Market share;

 

    Debt to equity ratio;

 

    Debt reduction;

 

    Acquisition of financings;

 

    Economic value added (or an equivalent metric);

 

    Cash available for distribution;

 

    Cash available for distribution per share;

 

    Operating income;

 

9


    Margins;

 

    Obtaining regulatory approvals;

 

    Revenue or sales;

 

    Total market value;

 

    Reliability;

 

    Productivity;

 

    Corporate values measures (including but not limited to diversity commitment, ethics compliance, environmental and safety, product liability claims).

 

  f. Unless otherwise stated, such a Performance Goal need not be based upon an increase or positive result under a particular business criterion and could include, for example, maintaining the status quo or limiting economic losses (measured, in each case, by reference to specific business criteria). In interpreting Plan provisions applicable to Performance Goals for Qualified Performance Awards, it is the intent of this Plan to conform with the standards of Section 162(m) of the Code and Treasury Regulation §1.162-27(e)(2)(i), as to grants to those Employees whose compensation is, or is likely to be, subject to Section 162(m) of the Code, and the Committee in establishing such goals and interpreting this Plan shall be guided by such provisions. Prior to the payment of any compensation based on the achievement of Performance Goals for Qualified Performance Awards, the Committee must certify in writing that applicable Performance Goals and any of the material terms thereof were, in fact, satisfied. Subject to the foregoing provisions, the terms, conditions and limitations applicable to any Qualified Performance Awards made pursuant to this Plan shall be determined by the Committee.

 

9. Director Awards.

The Board may grant Director Awards to Nonemployee Directors of the Company from time to time in accordance with this Paragraph 9. Director Awards may consist of those listed in this Paragraph 9 and may be granted singly or in combination. Each Director Award may, in the discretion of the Board, be embodied in a Director Award Agreement, which shall contain such terms, conditions, and limitations as shall be determined by the Board in its sole discretion and, if required by the Board, shall be signed by the Participant to whom the Director Award is granted and signed for and on behalf of the Company.

 

  a.

Options . A Director Award may be in the form of an Option. The Grant Price of an Option shall be not less than the Fair Market Value of the Common Stock subject to such Option on the Grant Date. In no event shall the term of the Option extend more than 10 years after the Grant Date. Options may not include provisions that

 

10


  “reload” the option upon exercise. Subject to the foregoing provisions, the terms, conditions, and limitations applicable to any Options awarded to Participants pursuant to this Paragraph 9, including the Grant Price, the term of the Options, the number of shares subject to the Option and the date or dates upon which they become exercisable, shall be determined by the Board.

 

  b. Stock Appreciation Rights . A Director Award may be in the form of an SAR. On the Grant Date, the Grant Price of an SAR shall be not less than the Fair Market Value of the Common Stock subject to such SAR. The exercise period for an SAR shall extend no more than 10 years after the Grant Date. SARs may not include provisions that “reload” the SAR upon exercise. Subject to the foregoing provisions, the terms, conditions, and limitations applicable to any SARs awarded to Nonemployee Directors pursuant to this Plan, including the Grant Price, the term of any SARs, and the date or dates upon which they become exercisable, shall be determined by the Board.

 

  c. Stock Awards . A Director Award may be in the form of a Stock Award. Any terms, conditions, and limitations applicable to any Stock Awards granted to a Nonemployee Director pursuant to this Plan, including but not limited to rights to Dividend Equivalents, shall be determined by the Board.

 

  d. Performance Awards . Without limiting the type or number of Director Awards that may be made under the other provisions of this Plan, a Director Award may be in the form of a Performance Award. Any additional terms, conditions, and limitations applicable to any Performance Awards granted to a Nonemployee Director pursuant to this Plan shall be determined by the Board. The Board shall set Performance Goals in its discretion which, depending on the extent to which they are met, will determine the value and/or amount of Performance Awards that will be paid out to the Nonemployee Director.

 

10.

Change of Control . Notwithstanding any other provisions of the Plan, including Paragraphs 8 and 9 hereof, unless treatment of an Award upon Change of Control is otherwise expressly addressed in the applicable Award Agreement, in the event of a Change of Control during a Participant’s employment (or service as a Nonemployee Director) with the Company or a Participating Employer, followed within one year by the involuntary termination of employment of such Participant for any reason other than Cause (or separation from service of such Nonemployee Director), (i) each Award granted under this Plan to the Participant shall become immediately vested and fully exercisable and any restrictions applicable to the Award shall lapse and (ii) if the Award is an Option or SAR and has not been cancelled pursuant to the terms of the Plan, such Award shall remain exercisable until the expiration of the term of the Award. Notwithstanding the foregoing, with respect to any Stock Unit or Restricted Stock Unit or other Award that vests, pursuant to the terms of the Award Agreement, solely upon a Change of Control and that constitutes a “nonqualified deferred compensation plan” within the meaning of Section 409A of the Code, the settlement of such Award pursuant to this Paragraph 10 shall only occur upon the Change of Control if such Change of Control constitutes a “change in control event” within the meaning of Treasury Regulation § 1.409A-3(i)(5). For purposes of this Paragraph 10,

 

11


  an involuntary termination shall include constructive termination of employment for good reason, which shall have the meaning set forth in the Award Agreement or, if not otherwise defined, shall mean the occurrence, without the Participant’s express written consent, of a material diminution in the Participant’s employment duties, responsibilities or authority, any material reduction in the Participant’s base salary or targeted incentive compensation, or any relocation of the Participant’s principal place of employment as of the date of the Change of Control of more than 100 miles, following which (i) the Participant provides written notice of the existence of the condition within 90 days after its existence (ii) the Company and its Affiliates fail to cure the condition within 30 days after receipt of the notice, and (iii) the Participant terminates employment within twelve months after the Change of Control.

 

11. Non-United States Participants . The Committee may grant Awards to eligible persons outside the United States under such terms and conditions as may, in the judgment of the Committee, be necessary or advisable to comply with the laws of the applicable foreign jurisdictions and, to that end, may establish sub-plans, modified option exercise procedures, and other terms and procedures. Notwithstanding the above, the Committee may not take any actions hereunder, and no Awards shall be granted, that would violate the Exchange Act, the Code, any securities law, any governing statute, or any other applicable law. For purposes of paying Awards to persons outside the United States, the currency exchange rate shall be determined using the published intercompany exchange rate in effect for the month in which the payment is to be made; provided that if such rate has not been determined at the time the payment is processed, the currency exchange rate shall be determined by using the published intercompany exchange rate for the prior month.

 

12. Payment of Awards .

 

  a. General . Payment made to a Participant pursuant to an Award may be made in the form of cash or Common Stock, or a combination thereof as the Committee may determine, and may include such restrictions as the Committee shall determine, including, in the case of Common Stock, restrictions on transfer and forfeiture provisions. Any certificates evidencing shares of Restricted Stock (to the extent that such shares are so evidenced) shall contain appropriate legends and restrictions that describe the terms and conditions of the restrictions applicable thereto.

 

  b. Deferral . With the approval of the Committee and in a manner which is intended to either (i) comply with Section 409A of the Code or (ii) not cause an Award to become subject to Section 409A of the Code, amounts payable to U.S. Participants in respect of Awards may be deferred and paid either in the form of installments or as a lump-sum payment.

 

  c. Dividends, Earnings, and Interest . Rights to dividends or Dividend Equivalents may be extended to and made part of any Stock Award, subject to such terms, conditions, and restrictions as the Committee may establish. The Committee may also establish rules and procedures for the crediting of interest or other earnings on deferred cash payments and Dividend Equivalents for Stock Awards.

 

12


  d. Cash-out of Awards . At the discretion of the Committee, an Award settled under Paragraph 12(a) may be settled by a cash payment in an amount that the Board shall determine in its sole discretion is equal to the fair market value of such Award (which, in the case of an Option or SAR, may be the excess, if any, of the Fair Market Value of the Common Stock subject to such Award over Grant Price of such Award).

 

13. Option Exercise . The Grant Price of an Option shall be paid in full at the time of exercise in cash or, if permitted by the Committee and elected by the optionee, the optionee may purchase such shares by means of tendering Common Stock or surrendering a separate Award valued at Fair Market Value on the date of exercise, or any combination thereof (provided that such tendered or surrendered shares or Award do not result in adverse accounting treatment to the Company and such shares or Award are not subject to any pledge or security interest). The Committee shall determine acceptable methods for Participants who are Employees to tender Common Stock or other Employee Awards. The Committee may provide for procedures to permit the exercise or purchase of such Awards by use of the proceeds to be received from the sale of Common Stock issuable pursuant to an Award. The Committee may also provide that an Option may be exercised by a “net-share settlement” method for exercising outstanding Options, whereby the exercise price thereof and/or any tax withholding thereon are satisfied by withholding from the delivery of the shares as to which such Option is exercised a number of shares having a fair market value equal to the applicable exercise price and/or the amount of any tax withholding, canceling such withheld number, and delivering the remainder. The Committee may adopt additional rules and procedures regarding the exercise of Options from time to time, provided that such rules and procedures are not inconsistent with the provisions of this Paragraph 13.

 

14. Taxes . The Company or its designated third party administrator shall have the right to deduct applicable taxes from any Award payment and withhold, at the time of delivery or vesting of cash or shares of Common Stock under this Plan, an appropriate amount of cash or number of shares of Common Stock or a combination thereof for payment of taxes or other amounts required by law or to take such other action as may be necessary in the opinion of the Company to satisfy all obligations for withholding of such taxes. The Committee may also permit withholding to be satisfied by the transfer to the Company of shares of Common Stock theretofore owned by the holder of the Employee Award with respect to which withholding is required. If shares of Common Stock are transferred by the Participant to satisfy tax withholding, such shares must not be subject to any pledge or other security interest, must not result in adverse accounting treatment to the Company, and shall be valued based on the Fair Market Value when the tax withholding is required to be made.

 

15. Expatriate Participants. Grants of Awards and payments of Awards made to expatriate Participants will be, pursuant to the applicable expatriate assignment policy of the Participating Employer, tax normalized based on typical income taxes and social security taxes in the expatriate Participant’s home country relevant to the expatriate Participant’s domestic circumstances.

 

13


16. Amendment, Modification, Suspension, or Termination of the Plan and Awards . The Board may amend, modify, suspend, or terminate this Plan and any Award made thereunder at any time and for any reason, except that (i) no amendment or alteration that would adversely affect the rights of any Participant under any Award previously granted to such Participant shall be made without the consent of such Participant and (ii) no amendment or alteration shall be effective prior to its approval by the shareholders of the Company to the extent such approval is required by applicable legal requirements or the applicable requirements of the securities exchange on which the Company’s Common Stock is listed. Notwithstanding anything herein to the contrary, without the prior approval of the Company’s shareholders, Options or SARs issued under the Plan will not be repriced, replaced, or regranted through cancellation or by decreasing the Grant Price of a previously granted Option or SAR except as expressly provided by the adjustment provisions of Paragraph 18.

 

17. Assignability . Unless otherwise determined by the Committee and provided in an Award Agreement or the terms of an Award, no Award or any other benefit under this Plan shall be assignable or otherwise transferable except by will, by beneficiary designation, or by the laws of descent and distribution. In the event that a beneficiary designation conflicts with an assignment by will or the laws of descent and distribution, the beneficiary designation will prevail. The Committee may prescribe and include in applicable Award Agreements or the terms of the Award other restrictions on transfer. Any attempted assignment of an Award or any other benefit under this Plan in violation of this Paragraph 17 shall be null and void.

 

18. Adjustments .

 

  a. The existence of outstanding Awards shall not affect in any manner the right or power of the Company or its shareholders to make or authorize any or all adjustments, recapitalizations, reorganizations, or other changes in the capital stock of the Company or its business or any merger or consolidation of the Company, or any issue of bonds, debentures, preferred or prior preference stock (whether or not such issue is prior to, on a parity with or junior to the existing Common Stock), or the dissolution or liquidation of the Company, or any sale or transfer of all or any part of its assets or business, or any other corporate act or proceeding of any kind, whether or not of a character similar to that of the acts or proceedings enumerated above.

 

  b.

In the event of any subdivision or consolidation of outstanding shares of Common Stock, declaration of a dividend payable in shares of Common Stock or other stock split, recapitalization or capital reorganization of the Company, consolidation or merger of the Company with another corporation or entity, the adoption by the Company of any plan of exchange affecting Common Stock or any distribution to holders of Common Stock of securities or property (including cash dividends that the Board determines are not in the ordinary course of business but excluding normal cash dividends or dividends payable in Common Stock), the Board shall make such adjustments as it determines, in its sole discretion, appropriate to (x) the number and kind of shares of Common Stock or other securities reserved under this

 

14


  Plan and (y)(i) the number and kind of shares of Common Stock or other securities covered by Awards, (ii) the Grant Price or other price in respect of such Awards, (iii) the Stock-Based Award Limitations and (iv) the appropriate Fair Market Value and other price determinations for such Awards to reflect such transaction. In the event of a corporate merger, consolidation, acquisition of assets or stock, separation, reorganization, or liquidation, the Board shall be authorized (x) to assume under the Plan previously issued compensatory awards, or to substitute new Awards for previously issued compensatory awards, including Awards, as part of such adjustment; (y) to cancel Awards that are Options or SARs and give the Participants who are the holders of such Awards notice and opportunity to exercise for 15 days prior to such cancellation; or (z) to cancel any such Awards and to deliver to the Participants cash in an amount that the Board shall determine in its sole discretion is equal to the fair market value of such Awards on the date of such event, which in the case of Options or SARs shall be the excess, if any, of the Fair Market Value of Common Stock on such date over the Grant Price of such Award.

 

  c. Notwithstanding the foregoing: (i) any adjustments made pursuant to Paragraph 18 to Awards that are considered “deferred compensation” within the meaning of Section 409A of the Code shall be made in a manner which is intended to not result in accelerated or additional tax to a Participant pursuant to Section 409A of the Code; (ii) any adjustments made pursuant to Paragraph 18 to Awards that are not considered “deferred compensation” subject to Section 409A of the Code shall be made in such a manner intended to ensure that after such adjustment, the Awards either (A) continue not to be subject to Section 409A of the Code or (B) do not result in accelerated or additional tax to a Participant pursuant to Section 409A of the Code; and (iii) in any event, neither the Committee nor the Board shall have the authority to make any adjustments pursuant to Paragraph 18 to the extent the existence of such authority would cause an Award that is not intended to be subject to Section 409A of the Code at the Grant Date to be subject thereto as of the Grant Date.

 

19. Restrictions . No Common Stock or other form of payment shall be issued with respect to any Award unless the Company shall be satisfied based on the advice of its counsel that such issuance will be in compliance with applicable federal and state securities laws. Any certificates evidencing shares of Common Stock delivered under this Plan (to the extent that such shares are so evidenced) may be subject to such stop transfer orders and other restrictions as the Committee may deem advisable under the rules, regulations, and other requirements of the Securities and Exchange Commission, any securities exchange or transaction reporting system upon which the Common Stock is then listed or to which it is admitted for quotation and any applicable federal or state securities law. The Committee may cause a legend or legends to be placed upon such certificates (if any) to make appropriate reference to such restrictions.

 

20.

Unfunded Plan . This Plan shall be unfunded. Although bookkeeping accounts may be established with respect to Participants under this Plan, any such accounts shall be used merely as a bookkeeping convenience, including bookkeeping accounts established by a third party administrator retained by the Company to administer the Plan. The Company

 

15


  shall not be required to segregate any assets for purposes of this Plan or Awards hereunder, nor shall the Company, the Board or the Committee be deemed to be a trustee of any benefit to be granted under this Plan. Any liability or obligation of the Company to any Participant with respect to an Award under this Plan shall be based solely upon any contractual obligations that may be created by this Plan and any Award Agreement or the terms of the Award, and no such liability or obligation of the Company shall be deemed to be secured by any pledge or other encumbrance on any property of the Company. Neither the Company nor the Board nor the Committee shall be required to give any security or bond for the performance of any obligation that may be created by this Plan.

 

21. Right to Employment; Claims to Award . Nothing in the Plan or an Award Agreement shall interfere with or limit in any way the right of the Company or any Participating Employer to terminate any Participant’s employment or other service relationship at any time, or confer upon any Participant any right to continue in the capacity in which he or she is employed or otherwise serves the Company or any Participating Employer. Nothing in the Plan confers upon any Employee or Director of the Company or an Affiliate, or other person, any claim or right to be granted an Award under the Plan, or, having been selected for the grant of an Award, to be selected for a grant of any other Award.

 

22. Successors . All obligations of the Company under the Plan with respect to Awards granted hereunder shall be binding on any successor to the Company, whether the existence of such successor is the result of a direct or indirect purchase, merger, consolidation, or otherwise, of all or substantially all of the business and/or assets of the Company.

 

23. Governing Law . This Plan and all determinations made and actions taken pursuant hereto, to the extent not otherwise governed by mandatory provisions of the Code or the securities laws of the United States, shall be governed by and construed in accordance with the laws of the State of Texas without regard to conflicts of law principles.

 

24. Limitation on Parachute Payments . In the event the Award Agreement or any other agreement between the Participant and a Participating Employer does not contain any contrary provision regarding the method of avoiding or mitigating the impact of the golden parachute excise tax under Section 4999 of the Code on the Participant, then, notwithstanding any contrary provision of this Plan, if the aggregate present value of all parachute payments payable to or for the benefit of a Participant, whether payable pursuant to this Plan or otherwise, to the extent necessary, any Awards under the Plan shall be reduced in order that this limit not be exceeded, but only if, by reason of such reduction, the net after-tax benefit to the Participant shall exceed the net after-tax benefit if such reduction, together with all other reductions of parachute payments otherwise applicable, were not made. For purposes of this Paragraph 24, the terms “parachute payment,” “base amount” and “present value” shall have the meanings assigned thereto under Section 280G of the Code. It is the intention of this Paragraph 24 to avoid excise taxes on the Participant under Section 4999 of the Code or the disallowance of a deduction to the Company pursuant to Section 280G of the Code.

 

25.

Section 409A . It is the intention of the Company that Awards granted under the Plan either (i) shall not be “nonqualified deferred compensation” subject to Section 409A of the Code,

 

16


  or (ii) shall meet the requirements of Section 409A of the Code such that no Participant shall be subject to tax pursuant to Section 409A of the Code in respect thereof, and the Plan and the terms and conditions of all Awards shall be interpreted accordingly. Notwithstanding any other provision of the Plan to the contrary, any payments (whether in cash, shares of Common Stock, or other property) with respect to any Award that constitutes “nonqualified deferred compensation” subject to Section 409A of the Code, to be made upon a Participant’s termination of employment shall be made no earlier than (A) the first day of the seventh month following the Participant’s “separation from service” (within the meaning of Section 409A of the Code) and (B) the Participant’s death if at the time of such termination of employment the Participant is a “specified employee,” within the meaning of Section 409A of the Code (as determined by the Company in accordance with its uniform policy with respect to all arrangements subject to Section 409A of the Code).

 

26. Effectiveness and Term . The Plan is restated effective as of February 16, 2017. No Award shall be made under the Plan ten years or more after April 30, 2020.

 

27. No Rights as Stockholder. Except as otherwise specifically provided in the Plan or an Award Agreement, no person shall be entitled to the privileges of ownership in respect of shares of Common Stock that are subject to Awards until such time as such shares have been issued or delivered to that person.

 

28. Miscellaneous . Pronouns and other words in respect of gender shall be interpreted to refer to both genders, and the titles and headings of the sections in the Plan and Award Agreements are for convenience of reference only. In the event of any conflict, the text of the Plan (or applicable Award Agreement), rather than such titles and headings, shall control.

 

17


Attachment “A”

“Change of Control”

The following definitions apply to the Change of Control provision in Paragraph 10 of the foregoing Plan.

“Affiliate” shall have the meaning ascribed to such term in Rule 12b-2 of the General Rules and Regulations under the Exchange Act, as in effect at the time of determination.

“Associate” shall mean, with reference to any Person, (a) any corporation, firm, partnership, association, unincorporated organization, or other entity (other than the Company or a subsidiary of the Company) of which such Person is an officer or general partner (or officer or general partner of a general partner) or is, directly or indirectly, the Beneficial Owner of 10% or more of any class of equity securities, (b) any trust or other estate in which such Person has a substantial beneficial interest or as to which such Person serves as trustee or in a similar fiduciary capacity, and (c) any relative or spouse of such Person, or any relative of such spouse, who has the same home as such Person.

“Beneficial Owner” shall mean, with reference to any securities, any Person if:

 

  a. such Person or any of such Person’s Affiliates and Associates, directly or indirectly, is the “beneficial owner” of (as determined pursuant to Rule 13d-3 of the General Rules and Regulations under the Exchange Act, as in effect at the time of determination) such securities or otherwise has the right to vote or dispose of such securities;

 

  b. such Person or any of such Person’s Affiliates and Associates, directly or indirectly, has the right or obligation to acquire such securities (whether such right or obligation is exercisable or effective immediately or only after the passage of time or the occurrence of an event) pursuant to any agreement, arrangement, or understanding (whether or not in writing) or upon the exercise of conversion rights, exchange rights, other rights, warrants, or options, or otherwise; provided, however, that a Person shall not be deemed the Beneficial Owner of, or to “beneficially own,” (i) securities tendered pursuant to a tender or exchange offer made by such Person or any of such Person’s Affiliates or Associates until such tendered securities are accepted for purchase or exchange or (ii) securities issuable upon exercise of Exempt Rights; or

 

  c. such Person or any of such Person’s Affiliates or Associates (i) has any agreement, arrangement or understanding (whether or not in writing) with any other Person (or any Affiliate or Associate thereof) that beneficially owns such securities for the purpose of acquiring, holding, voting (except as set forth in the proviso to subsection (a) of this definition) or disposing of such securities or (ii) is a member of a group (as that term is used in Rule 13d-5(b) of the General Rules and Regulations under the Exchange Act) that includes any other Person that beneficially owns such securities;

provided, however, that nothing in this definition shall cause a Person engaged in business as an underwriter of securities to be the Beneficial Owner of, or to “beneficially own,” any securities acquired through such Person’s participation in good faith in a firm commitment underwriting until the expiration of 40 days after the date of such acquisition. For purposes

 

A-1


hereof, “voting” a security shall include voting, granting a proxy, consenting or making a request or demand relating to corporate action (including, without limitation, a demand for a shareholder list, to call a shareholder meeting, or to inspect corporate books and records), or otherwise giving an authorization (within the meaning of Section 14(a) of the Exchange Act) in respect of such security.

The terms “beneficially own” and “beneficially owning” shall have meanings that are correlative to this definition of the term “Beneficial Owner.”

“Board” shall have the meaning set forth in the foregoing Plan.

“Change of Control” shall mean any of the following occurring after the Effective Date:

 

  a. any Person (other than an Exempt Person) shall become the Beneficial Owner of 50% or more of the shares of Common Stock then outstanding or 50% or more of the combined voting power of the Voting Stock of the Company then outstanding; provided, however, that no Change of Control shall be deemed to occur for purposes of this subsection (a) if such Person shall become a Beneficial Owner of 50% or more of the shares of Common Stock or 50% or more of the combined voting power of the Voting Stock of the Company solely as a result of (i) an Exempt Transaction or (ii) an acquisition by a Person pursuant to a reorganization, merger, or consolidation, if, following such reorganization, merger, or consolidation, the conditions described in clauses (i), (ii), and (iii) of subsection (c) of this definition are satisfied;

 

  b. individuals who, as of the Effective Date, constitute the Board (the “Incumbent Board”) cease for any reason to constitute at least a majority of the Board; provided, however, that any individual becoming a director subsequent to the Effective Date whose election, or nomination for election by the Company’s shareholders, was approved by a vote of at least a majority of the directors then comprising the Incumbent Board shall be considered as though such individual were a member of the Incumbent Board; provided, further, that there shall be excluded, for this purpose, any such individual whose initial assumption of office occurs as a result of any actual or threatened Election Contest that is subject to the provisions of Rule 14a-11 of the General Rules and Regulations under the Exchange Act;

 

  c.

the Company shall consummate a reorganization, merger, or consolidation, in each case, unless, following such reorganization, merger, or consolidation, (i) 50% or more of the then outstanding shares of common stock of the corporation, or common equity securities of an entity other than a corporation, resulting from such reorganization, merger, or consolidation and the combined voting power of the then outstanding Voting Stock of such corporation or other entity are beneficially owned, directly or indirectly, by all or substantially all of the Persons who were the Beneficial Owners of the outstanding Common Stock immediately prior to such reorganization, merger, or consolidation in substantially the same proportions as their ownership, immediately prior to such reorganization, merger, or consolidation, of the outstanding Common Stock, (ii) no Person (excluding any Exempt Person or any Person beneficially owning, immediately prior to such reorganization, merger, or consolidation, directly or indirectly, 50% or more of the Common Stock then outstanding or 50% or more of

 

A-2


  the combined voting power of the Voting Stock of the Company then outstanding) beneficially owns, directly or indirectly, 50% or more of the then outstanding shares of common stock of the corporation, or common equity securities of an entity other than a corporation, resulting from such reorganization, merger, or consolidation or the combined voting power of the then outstanding Voting Stock of such corporation or other entity, and (iii) at least a majority of the members of the board of directors of the corporation, or the body which is most analogous to the board of directors of a corporation if not a corporation, resulting from such reorganization, merger, or consolidation were members of the Incumbent Board at the time of the initial agreement or initial action by the Board providing for such reorganization, merger, or consolidation; or

 

  d. (i) complete liquidation or dissolution of the Company unless such liquidation or dissolution is approved as part of a plan of liquidation and dissolution involving a sale or disposition of all or substantially all of the assets of the Company to a corporation with respect to which, following such sale or other disposition, all of the requirements of clauses (ii)(A), (B), and (C) of this subsection (d) are satisfied, or (ii) the Company shall consummate the sale or other disposition of all or substantially all of the assets of the Company, other than to a corporation or other entity, with respect to which, following such sale or other disposition, (A) 50% or more of the then outstanding shares of common stock of such corporation, or common equity securities of an entity other than a corporation, and the combined voting power of the Voting Stock of such corporation or other entity is then beneficially owned, directly or indirectly, by all or substantially all of the Persons who were the Beneficial Owners of the outstanding Common Stock immediately prior to such sale or other disposition in substantially the same proportion as their ownership, immediately prior to such sale or other disposition, of the outstanding Common Stock, (B) no Person (excluding any Exempt Person and any Person beneficially owning, immediately prior to such sale or other disposition, directly or indirectly, 50% or more of the Common Stock then outstanding or 50% or more of the combined voting power of the Voting Stock of the Company then outstanding) beneficially owns, directly or indirectly, 50% or more of the then outstanding shares of common stock of such corporation, or common equity securities of an entity other than a corporation, and the combined voting power of the then outstanding Voting Stock of such corporation or other entity, and (C) at least a majority of the members of the board of directors of such corporation, or the body which is most analogous to the board of directors of a corporation if not a corporation, were members of the Incumbent Board at the time of the initial agreement or initial action of the Board providing for such sale or other disposition of assets of the Company.

“Common Stock” shall have the meaning set forth in the foregoing Plan.

“Company” shall have the meaning set forth in the foregoing Plan.

“Election Contest” shall mean a solicitation of proxies of the kind described in Rule 14a-12(c) under the Exchange Act.

“Exchange Act” shall mean the Securities Exchange Act of 1934, as amended.

 

A-3


“Exempt Person” shall mean any of the Company, any subsidiary of the Company, any employee benefit plan of the Company or any subsidiary of the Company, and any Person organized, appointed or established by the Company for or pursuant to the terms of any such plan.

“Exempt Rights” shall mean any rights to purchase shares of Common Stock or other Voting Stock of the Company if at the time of the issuance thereof such rights are not separable from such Common Stock or other Voting Stock (i.e., are not transferable otherwise than in connection with a transfer of the underlying Common Stock or other Voting Stock), except upon the occurrence of a contingency, whether such rights exist as of the Effective Date or are thereafter issued by the Company as a dividend on shares of Common Stock or other Voting Securities or otherwise.

“Exempt Transaction” shall mean an increase in the percentage of the outstanding shares of Common Stock or the percentage of the combined voting power of the outstanding Voting Stock of the Company beneficially owned by any Person solely as a result of a reduction in the number of shares of Common Stock then outstanding due to the repurchase of Common Stock or Voting Stock by the Company, unless and until such time as (a) such Person or any Affiliate or Associate of such Person shall purchase or otherwise become the Beneficial Owner of additional shares of Common Stock constituting 1% or more of the then outstanding shares of Common Stock or additional Voting Stock representing 1% or more of the combined voting power of the then outstanding Voting Stock, or (b) any other Person (or Persons) who is (or collectively are) the Beneficial Owner of shares of Common Stock constituting 1% or more of the then outstanding shares of Common Stock or Voting Stock representing 1% or more of the combined voting power of the then outstanding Voting Stock shall become an Affiliate or Associate of such Person.

“Person” shall mean any individual, firm, corporation, partnership, association, trust, unincorporated organization, or other entity.

“Voting Stock” shall mean, (i) with respect to a corporation, all securities of such corporation of any class or series that are entitled to vote generally in the election of, or to appoint by contract, directors of such corporation (excluding any class or series that would be entitled so to vote by reason of the occurrence of any contingency, so long as such contingency has not occurred) and (ii) with respect to an entity which is not a corporation, all securities of any class or series that are entitled to vote generally in the election of, or to appoint by contract, members of the body which is most analogous to the board of directors of a corporation.

 

A-4

Exhibit 10.2

LYONDELLBASELL INDUSTRIES

2017 RESTRICTED STOCK UNIT AWARD AGREEMENT

By letter (the “Grant Letter”), effective as of the date specified in the Grant Letter (the “Grant Date”), LyondellBasell Industries N.V. (the “Company”), pursuant to the LyondellBasell Industries 2017 Long-Term Incentive Plan (the “Plan”), has granted to the Participant the number of units of Common Stock (as defined in the Plan) specified in the Grant Letter subject to transfer and forfeiture restrictions (“Restricted Stock Units”). These grants are all subject to adjustment as provided in the Plan, and the following terms and conditions (the “Award Agreement”):

 

  1. Relationship to Plan and Company Agreements.

This Restricted Stock Unit grant is subject to all Plan terms, conditions, provisions and administrative interpretations, if any, adopted by the Committee. Except as defined in this Award Agreement, capitalized terms have the same meanings ascribed to them in the Plan. Notwithstanding any provision of any employment agreement between the Participant and the Company regarding an award of restricted stock units of LyondellBasell Industries AF S.C.A., this Award Agreement is with respect to shares of common stock of LyondellBasell Industries N.V. as required pursuant to the terms of the Company’s long term incentive program as in effect on the Grant Date. To the extent that this Award Agreement is intended to satisfy the Company’s obligations under any employment agreement between the Company and the Participant, the Participant agrees and acknowledges that this Award Agreement fulfills the Company’s obligations under the employment agreement, this Award Agreement shall be interpreted and construed to the fullest extent possible consistent with such employment agreement, and in the event of a conflict between the terms of such employment agreement and the terms of this Award Agreement, the terms of this Award Agreement shall control.

 

  2. Restriction Period and Vesting Schedule.

(a) The Restriction Period applicable to the Restricted Stock Units shall lapse and Restricted Stock Units shall fully vest on the third anniversary of the Grant Date. The Participant must be in continuous Employment from the Grant Date through the third anniversary of the Grant Date to vest in Restricted Stock Units on that date.

(b) If the Participant has been in continuous Employment since the Grant Date, the Restriction Period shall lapse and the Restricted Stock Units shall become fully vested, irrespective of the limits in subparagraph (a), upon (1) an involuntary termination of Employment by the Company without Cause or a constructive termination of Employment by the Participant with good reason as defined in Section 10 of the Plan, either of which occurs within one year after the occurrence of a Change of Control or (2) any termination of Employment due to death or Disability.

(c) Irrespective of the limitations set forth in subparagraph (a) above, provided that the Participant has been in continuous Employment since the Grant Date, upon termination of Employment due to Retirement or involuntary termination not for

 

1


Cause, the Restriction Period shall lapse with respect to a pro rata portion of the Restricted Stock Units which shall be determined by multiplying the full number of Restricted Stock Units otherwise payable under this Award Agreement by a fraction, the numerator of which is the number of months (with any partial months being considered a full month) of the Participant’s Employment during the period beginning on the Grant Date and ending on the third anniversary of the Grant Date and the denominator of which is the number of months in such period. Remaining Restricted Stock Units shall be forfeited.

(d) The following definitions apply to this Award Agreement:

(i) “Disability” (i) a permanent and total disability as defined in the Company’s long-term disability plan in which the Participant is eligible to participate and (ii) the Participant is not eligible for Retirement.

(ii) “Employment” means employment as an Employee with the Company or any Participating Employer. Neither the Participant’s transfer from Company employment to employment by any Participating Employer, the Participant’s transfer from employment by any Participating Employer to Company employment, nor the Participant’s transfer between Participating Employers shall be deemed to be a termination of the Participant’s employment. Moreover, a Participant’s employment shall not be deemed to terminate because the Participant is absent from active employment due to temporary illness, during authorized vacation, during temporary leaves of absence granted by the Company or a Participating Employer for professional advancement, education, health or government service, during military leave for any period if the Participant returns to active employment within 90 days after military leave terminates, or during any period required to be treated as a leave of absence by any valid law or agreement.

(iii) “Misconduct” means any act or failure to act that (i) contributes to the Company having to restate all or a portion of its financial statements and (ii) materially increases the value of the compensation received by the Participant.

 

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(iv) “Retirement” means a Participant’s voluntarily initiated termination of service on or after the earliest of (i) age 65, (ii) age 55 with 10 years of participation service credited under the qualified defined benefit pension plan maintained by the Company or a Subsidiary or an Affiliate in which the Participant is eligible to participate, (iii) the time of retirement as defined in a written agreement between a Participant and a Participating Employer, or (iv) outside the U.S., the time when retirement is permitted and the Participant is eligible to receive a company retirement benefit under applicable law with respect to the Participant’s primary place of employment (as determined by the Committee in its sole judgment).

 

  3. Terms and Conditions.

Each Restricted Stock Unit shall be subject to the restrictions below and a substantial risk of forfeiture during the Restriction Period. A Participant shall not be entitled to any payment under Section 5 until the Restriction Period for affected Restricted Stock Units lapses. No rights related to a Restricted Stock Unit may be sold, transferred, assigned, pledged or otherwise encumbered or disposed of during the Restriction Period. Restricted Stock Units shall be forfeited on the date the Participant’s Employment terminates except as otherwise provided in Section 2 hereof.

 

  4. Registration of Units.

The Participant’s right to receive Common Stock in settlement of the Restricted Stock Units shall be evidenced by book entry (or by such other manner as the Committee may determine).

 

  5. Settlement.

Subject to Section 13 hereof, when the Restriction Period lapses and Restricted Stock Units vest under Section 2, a Participant shall become entitled to receive, within 60 days of the date the Restricted Stock Units vested, the number of shares of Common Stock equal to the number of Restricted Stock Units which have vested on the particular vesting date. Any shares of Common Stock paid under this Award shall remain subject to the Company Clawback Policy as set forth in Section 14.

 

  6. Dividend Equivalents.

The Company will pay Dividend Equivalents for each outstanding Restricted Stock Unit as soon as administratively practicable after dividends, if any, are paid on the Company’s outstanding shares of Common Stock; provided, however, that (i) such payment shall be made no later than March 15th following the year in which the dividends are paid and (ii) the Participant must be in Employment as of the date of such dividend payment.

 

  7. Withholding.

The Company shall withhold from any distribution under this Award shares of Common Stock having a Fair Market Value equal to all taxes required to be withheld with

 

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respect to the Award. In the event all federal, state and other governmental withholding tax requirements imposed upon the Company with respect to the Award cannot be satisfied in this manner, no shares of Common Stock shall be delivered to or for a Participant unless provision to pay required withholding has been made to the Committee’s satisfaction.

 

  8. Expatriate Participants.

Payments of Awards made to expatriate Participants will be, pursuant to the applicable expatriate assignment policy of the Participating Employer, tax normalized based on typical income taxes and social security taxes in the expatriate Participant’s home country relevant to the expatriate Participant’s domestic circumstances.

 

  9. Currency Exchange Rates.

For Participants who are not paid on a U.S. Dollar payroll, the currency exchange rate used to calculate the number of Restricted Stock Units was determined by the published intercompany exchange rate in effect for the month in which the Grant Date occurred; provided if such rate had not been determined at the Grant Date, the currency exchange rate was determined by using the published intercompany exchange rate for the month prior to the month in which the Grant Date occurred.

 

  10. No Fractional Shares.

No fractional shares of Common Stock are permitted in connection with this Award Agreement. For purposes of pro-ration in Section 2(c), Restricted Stock Units shall be rounded up to the nearest whole share of Common Stock. Any shares of Common Stock withheld pursuant to Section 8 shall be rounded to whole shares in the manner determined by the Committee to be appropriate to satisfy the minimum statutory withholding requirements.

 

  11. Successors and Assigns.

This Award Agreement shall bind and inure to the benefit of and be enforceable by the Participant, the Company and their respective permitted successors and assigns (including personal representatives, heirs and legatees), but the Participant may not assign any rights or obligations under this Award Agreement except to the extent and in the manner expressly permitted.

 

  12. No Guaranteed Employment.

No provision of this Award Agreement shall confer any right to continued employment.

 

  13. Section 409A.

It is intended that the provisions of this Award Agreement satisfy the requirements of Section 409A of the Code and the accompanying U.S. Treasury Regulations and pronouncements thereunder, and that the Award Agreement be operated in a manner consistent with such requirements to the extent applicable.

 

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For purposes of Section 409A of the Code, (a) if the Participant is Retirement Eligible, the time of settlement in Section 5 hereof constitutes a specified date within the meaning of Section 1.409A-3(a)(4) of the Treasury Regulations and is within the 90-day period described in Section 1.409A-3(b) of the Treasury Regulations and (b) if the Participant is not Retirement Eligible, the time of settlement in Section 5 hereof is within the short-term deferral period described in Section 1.409A-1(b)(4) of the Treasury Regulations. For purposes of this Section 13, “Retirement Eligible” means that the Participant will be eligible to terminate Employment by reason of Retirement prior to the date such Retirement would qualify for short-term deferral treatment under Section 409A of the Code.

If the Company is publicly-traded and the Participant is identified by the Company as a “specified employee” within the meaning of Section 409A(a)(2)(B)(i) of the Code on the date on which the Participant has a “separation from service” (other than due to death) within the meaning of Section 1.409A-1(h) of the Treasury Regulations, notwithstanding the provisions of Section 5 hereof, any transfer of shares payable on account of a separation from service that are deferred compensation shall take place on the earlier of (i) the first business day following the expiration of six months from the Participant’s separation from service, (ii) the date of the Participant’s death, or (iii) such earlier date as complies with the requirements of Section 409A of the Code.

 

  14. Company Clawback Policy.

If (a) the Committee determines that the Participant has either engaged in, or benefitted from, Misconduct and (b) the Participant is classified at a level of M-4 or above in the LyondellBasell Group compensation classification system at the time of such determination, upon notice from the Company, the Participant shall reimburse to the Company all or a portion of the payments received under this Award Agreement (or forfeit all or any portion of such payments to the extent they have not yet been paid) as the Committee deems appropriate under the circumstances. Such notice shall be provided within the earlier to occur of one year after discovery of the alleged Misconduct or the second anniversary of the Participant’s date of termination.

LYONDELLBASELL INDUSTRIES N.V.

 

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Exhibit 10.3

LYONDELLBASELL INDUSTRIES

2017 LONG-TERM INCENTIVE PLAN

2017 PERFORMANCE SHARE UNIT AWARD AGREEMENT

By letter (the “Grant Letter”), effective as of the date specified in the Grant Letter (the “Grant Date”), LyondellBasell Industries N.V. (the “Company”), pursuant to the LyondellBasell Industries 2017 Long-Term Incentive Plan (the “Plan”), has granted to the Participant a number of Stock Units (as defined in the Plan) equal to the Target multiplied by the Earned Percentage certified for the Performance Cycle, subject to the vesting provisions specified herein (the “PSU Award”). The applicable Target and Performance Cycle are set forth in the Grant Letter. The Earned Percentage shall be determined after the Performance Cycle based on the Performance Goals specified in the Grant Letter. This PSU Award is subject to adjustment as provided in the Plan, and the following terms and conditions (the “Award Agreement”):

 

  1. Relationship to Plan and Company Agreements.

This PSU Award is a Performance Award under the Plan and is subject to all applicable Plan terms, conditions, provisions and administrative interpretations, if any, adopted by the Committee. Except as defined in this Award Agreement, capitalized terms have the same meanings ascribed to them in the Plan. This Award Agreement is intended to satisfy any obligation of the Company to provide a performance share unit award to the Participant under any employment agreement between the Company and the Participant or otherwise, and the Participant agrees and acknowledges that this Award Agreement fulfills the Company’s obligations under the employment agreement, this Award Agreement shall be interpreted and construed to the fullest extent possible consistent with such employment agreement, and in the event of a conflict between the terms of such employment agreement and the terms of this Award Agreement, the terms of this Award Agreement shall control.

 

  2. Definitions.

The following definitions apply to this Award Agreement:

(a) “Date of Termination” means the date on which the Participant ceases to be an Employee.

(b) “Disability” means a permanent and total disability as defined in the applicable long-term disability plan of the Participating Employer. “Disabled” has the correlative meaning.

(c) “Earned Percentage” means the percentage of the Target that is earned during the Performance Cycle. The Earned Percentage is multiplied by the Target to determine the number of Stock Units granted under this PSU Award. The Earned Percentage shall be determined in accordance with the following:

(i) Following the close of the Performance Cycle, the Committee shall determine and certify the Earned Percentage for the Performance Cycle.

 

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(ii) The Earned Percentage shall not exceed 200 percent.

(iii) In the event any action or failure to act by the Participant constitutes Cause, the Committee may reduce the Participant’s Earned Percentage to the extent the Committee deems appropriate under the circumstances.

(iv) In the event of a Change of Control, the Earned Percentage shall be calculated by reference to the attainment of Performance Goals as of the close of the last quarter ending on or before the Change of Control.

(d) “Misconduct” means any act or failure to act that (i) contributes to the Company having to restate all or a portion of its financial statements and (ii) materially increases the value of the compensation received by the Participant.

(e) “Performance Cycle” means the three-calendar-year period set forth in the Grant Letter.

(f) “Performance Goals” means the performance goal or goals as set forth in the Grant Letter.

(g) “Retirement” means the Participant’s voluntarily initiated termination of service on or after the earliest of (i) age 65, (ii) age 55 with 10 years of participation service credited under the qualified defined benefit pension plan maintained by the Company or an Affiliate in which the Participant is eligible to participate, (iii) the time of retirement as defined in a written agreement between a Participant and the Company or an Affiliate, or (iv) outside the U.S., the time when retirement is permitted and the Participant is eligible to receive a retirement benefit from the Company or an Affiliate under applicable law with respect to the Participant’s primary place of employment (as determined by the Committee in its sole judgment).

(h) “Target” means the projected target number of Stock Units, as determined by the Committee and set forth in the Grant Letter, that may be payable to the Participant in satisfaction of this Award Agreement if the Committee determines that all Performance Goals for the Performance Cycle have been achieved and certifies an Earned Percentage of 100%.

 

  3. Vesting Schedule.

(a) The PSU Award shall fully vest upon the date following the end of the Performance Cycle upon which the Committee certifies the Earned Percentage applicable to the Performance Cycle, provided that the Participant is in continuous employment with a Participating Employer from the Grant Date through such date. Except as provided below, the PSU Award shall be forfeited if the Participant terminates employment prior to vesting.

(b) Notwithstanding paragraph (a), the Participant shall become vested in a pro-rated portion of the PSU Award upon the earliest of (i) the date the Participant

 

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becomes Disabled while employed by a Participating Employer or (ii) the Participant’s Date of Termination due to Retirement, death or involuntary termination not for Cause. The portion of the PSU Award that shall vest under this paragraph shall be determined by multiplying the number of Stock Units granted under the PSU Award (which is equal to product of the Target and the Earned Percentage for the Performance Cycle) by a fraction, the numerator of which shall be the number of whole calendar months of the Participant’s employment in such Performance Cycle ending on the earliest of the date of Disability or Date of Termination, as applicable, and the denominator of which shall be the number of whole calendar months in the Performance Cycle; provided that for purposes of this Section 3(b), partial service in a calendar month shall be considered service for the whole calendar month.

(c) Notwithstanding paragraph (a), upon a Change of Control, the Earned Percentage shall be calculated by reference to the attainment of Performance Goals as of the close of the last quarter ending on or before the Change of Control in accordance with Section 2(c)(iv). Following the Change of Control, the Participant shall fully vest in the PSU Award on the last day of the Performance Cycle, if the Participant is in continuous employment with a Participating Employer from the Grant Date through such date and shall forfeit the PSU Award if the Participant terminates prior to vesting. Notwithstanding the foregoing, the Participant shall become vested in a pro-rated portion of the PSU Award upon the earlier to occur of (i) a vesting event under Section 3(b) or (ii) an involuntary termination of employment of the Participant within one year following the Change of Control for any reason other than Cause (including a constructive termination of employment for good reason (as defined in Section 10 of the Plan)). The portion that shall vest shall be determined by multiplying the number of Stock Units granted under the PSU Award (which is equal to product of the Target and the Earned Percentage determined at the time of the Change of Control) by a fraction, the numerator of which shall be the number of whole calendar months of the Participant’s employment in such Performance Cycle ending on the earliest vesting event and the denominator of which shall be the number of whole calendar months in the Performance Cycle. For this purpose, partial service in a calendar month shall be considered service for the whole calendar month.

(d) Notwithstanding the foregoing, in the event a Participant: (1) takes a leave of absence from the Company for personal reasons or as a result of entry into the Armed Forces of the United States, or (2) terminates employment for reasons which, in the judgment of the Committee, are deemed to be special circumstances, the Committee may consider such circumstances and may take such action (to the extent consistent with Section 409A of the Code) as it may deem appropriate under the circumstances, including extending the rights of a Participant to continue participation in the Plan beyond his Date of Termination; provided, however, that in no event may participation be extended beyond the term of the Performance Cycle in question.

(e) Notwithstanding the foregoing, if the entity that is deemed to be the plan sponsor with respect to this PSU Award is or becomes a “nonqualified entity” (within the meaning of Section 457A(b) of the Code and applicable guidance thereunder), the provisions of Sections 3(b), 3(c) and 3(d) shall not apply with respect to any Participant who is a U.S. taxpayer if and to the extent such provisions would cause any amounts payable hereunder to be subject to Section 457A of the Code.

 

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(f) For all purposes of this PSU Award, involuntary termination not for Cause does not include the Participant’s voluntary termination of employment pursuant to a voluntary separation plan of a Participating Employer.

 

  4. Terms and Conditions.

The Participant shall not be entitled to any payment under Section 6 until the PSU Award vests under Section 3. No rights related to the PSU Award may be sold, transferred, assigned, pledged or otherwise encumbered or disposed of prior to the vesting of the PSU Award. The PSU Award shall be forfeited on the date the Participant’s employment terminates except as otherwise provided in this Award Agreement.

 

  5. Registration of Units.

The Participant’s right to receive Common Stock in settlement of the PSU Award shall be evidenced by book entry (or by such other manner as the Committee may determine).

 

  6. Settlement.

When the PSU Award, or a portion thereof, vests under Section 3, the Participant shall become entitled to receive a number of shares of Common Stock equal to the number of Stock Units granted under the PSU Award that have vested. Subject to Section 14 hereof, such shares of Common Stock shall be paid in a single lump sum payment on March 31 following the end of the Performance Cycle; provided, however, that in the event a pro-rata portion of the PSU Award vests upon an involuntary termination of employment of the Participant within one year following a Change of Control pursuant to Section 3(c), the shares of Common Stock shall be paid in a single lump sum payment within sixty (60) days after the Participant’s termination of employment. Any shares of Common Stock paid under this PSU Award shall remain subject to the Company Clawback Policy as set forth in Section 15.

 

  7. Dividend Equivalents.

If, prior to the date shares of Common Stock are settled on the Participant in accordance with Section 6, the Company declares a dividend on shares of Common Stock, then, the Participant’s Target shall be increased by the amount of the dividend the Participant would have received if he had been the actual owner on the dividend date of one share of Common Stock for each Stock Unit of the Participant’s Target. The increase in the Target shall be calculated as follows:

(a) In the event of a stock dividend, the Target shall be increased by one Stock Unit for each share of Common Stock (rounded to the nearest whole share) the Participant would have received under the dividend.

(b) In the event of a cash dividend, after the Performance Cycle the Target shall be increased by the number of Stock Units determined by dividing the value of

 

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all cash dividends the Participant would have received during the Performance Cycle by the fair market value of one share of Common Stock as of the last day of the Performance Cycle (rounded to the nearest whole share).

Any increase in the Target granted under this Section 7 shall be subject to the same terms and conditions as the original Target and shall vest and be forfeited (if applicable) at the same time as the original Target.

 

  8. Withholding.

The Company shall withhold from the PSU Award shares of Common Stock having a Fair Market Value equal to all taxes required to be withheld with respect to the award of the PSU Award. In the event all federal, state and other governmental withholding tax requirements imposed upon the Company with respect to the PSU Award cannot be satisfied in this manner, no shares of Common Stock shall be delivered to or for a Participant unless provision to pay required withholding has been made to the Committee’s satisfaction.

 

  9. Expatriate Participants.

Payments of Awards made to expatriate Participants will be, pursuant to the applicable expatriate assignment policy of the Participating Employer, tax normalized based on typical income taxes and social security taxes in the expatriate Participant’s home country relevant to the expatriate Participant’s domestic circumstances.

 

  10. Currency Exchange Rates.

For Participants who are not paid on a U.S. Dollar payroll, the currency exchange rate used to calculate the Target was determined using the published intercompany exchange rate in effect on the first day of the Performance Cycle.

 

  11. No Fractional Shares.

No fractional shares of Common Stock are permitted in connection with this Award Agreement. Any fractional number of Stock Units payable under the PSU Award shall be rounded up to the nearest whole share of Common Stock. Any shares of Common Stock withheld pursuant to Section 8 shall be rounded to whole shares in the manner determined by the Committee to be appropriate to satisfy the minimum statutory withholding requirements.

 

  12. Successors and Assigns.

This Award Agreement shall bind and inure to the benefit of and be enforceable by the Participant, the Company and their respective permitted successors and assigns (including personal representatives, heirs and legatees), but the Participant may not assign any rights or obligations under this Award Agreement except to the extent and in the manner expressly permitted.

 

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  13. No Guaranteed Employment.

No provision of this Award Agreement shall confer any right to continued employment.

 

  14. Section 409A.

It is intended that the provisions of this Award Agreement satisfy the requirements of Section 409A of the Code and the accompanying U.S. Treasury Regulations and pronouncements thereunder, and that the Award Agreement be operated in a manner consistent with such requirements to the extent applicable.

For purposes of Section 409A of the Code, (i) if the Participant vested pursuant to Section 3(b) or 3(c), other than under clause (ii) of Section 3(c), the time of settlement under Section 6 constitutes a specified time within the meaning of Section 1.409A-3(a)(4) of the Treasury Regulations and (ii) if the Participant vested pursuant to Section 3(a) or 3(c)(ii), the time of settlement under Section 6 is within the short-term deferral period described in Section 1.409A-1(b)(4) of the Treasury Regulations.

If the Participant is a U.S. taxpayer and is treated as a “specified employee” within the meaning of Section 409A as of the date of the Participant’s termination, then any transfer of shares payable upon the Participant’s “separation from service” within the meaning of Section 409A which are subject to the provisions of Section 409A and are not otherwise excluded under Section 409A and would otherwise be payable during the first six-month period following such separation from service shall be paid on the fifteenth business day next following the earlier of (1) the expiration of six months from the date of the Participant’s termination or (2) the Participant’s death.

 

  15. Company Clawback Policy.

If (a) the Committee determines that the Participant has either engaged in, or benefitted from, Misconduct and (b) the Participant is classified at a level of M-4 or above in the LyondellBasell Group compensation classification system at the time of such determination, upon notice from the Company, the Participant shall reimburse to the Company all or a portion of the payments received under this PSU Award (or forfeit all or any portion of this PSU Award to the extent it has not yet been paid) as the Committee deems appropriate under the circumstances. Such notice shall be provided within the earlier to occur of one year after discovery of the alleged Misconduct or the second anniversary of the Participant’s Date of Termination.

LYONDELLBASELL INDUSTRIES N.V.

 

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Exhibit 10.4

LYONDELLBASELL INDUSTRIES

2017 NONQUALIFIED STOCK OPTION AWARD AGREEMENT

By letter (the “Grant Letter”), effective as of the date specified in the Grant Letter (the “Grant Date”), LyondellBasell Industries N.V. (the “Company”), pursuant to the LyondellBasell Industries 2017 Long-Term Incentive Plan (the “Plan”), has granted to the Participant a right (the “Option”) to purchase from the Company up to but not exceeding in the aggregate the number of shares of Common Stock (as defined in the Plan) (the “Option Shares”) specified in the Grant Letter at the Grant Price per Option Share specified in the Grant Letter, such number of shares and such price per share being subject to adjustment as provided in the Plan, and further subject to the following terms and conditions (the “Award Agreement”):

1. Relationship to Plan and Company Agreements.

This Option is intended to be a nonqualified stock option within the meaning of Section 83 of the Code. This Option is subject to all of the Plan terms, conditions, provisions and administrative interpretations, if any, adopted by the Committee. Except as defined in this Award Agreement, capitalized terms have the same meanings ascribed to them in the Plan. Notwithstanding any provision of any employment agreement between the Participant and the Company regarding an award of an option to purchase shares of common stock of LyondellBasell Industries AF S.C.A., this Award Agreement is with respect to shares of common stock of LyondellBasell Industries N.V. as required pursuant to the terms of the Company’s long term incentive program as in effect on the Grant Date. To the extent that this Award Agreement is intended to satisfy the Company’s obligations under any employment agreement between the Company and the Participant, the Participant agrees and acknowledges that this Award Agreement fulfills the Company’s obligations under the employment agreement, this Award Agreement shall be interpreted and construed to the fullest extent possible consistent with such employment agreement, and in the event of a conflict between the terms of such employment agreement and the terms of this Award Agreement, the terms of this Award Agreement shall control.

2. Exercise Schedule.

(a) This Option shall become exercisable in three cumulative installments, with one-third of the Option Shares becoming exercisable on the first anniversary of the Grant Date, an additional one-third of the Option Shares becoming exercisable on the second anniversary of the Grant Date, and the final one-third of the Option Shares becoming exercisable on the third anniversary of the Grant Date. The Participant must be in continuous Employment from the Grant Date through the date of exercisability of each installment in order for the Option to become exercisable with respect to additional shares of Common Stock on such date.

(b) This Option shall become fully exercisable, irrespective of the limitations set forth in subparagraph (a) above, provided that the Participant has been in continuous Employment since the Grant Date, upon (1) an involuntary termination of Employment by the Company without Cause or a constructive termination of Employment by the

 

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Participant with good reason as defined in Section 10 of the Plan (a “Constructive Termination”), either of which occurs within one year after the occurrence of a Change of Control or (2) any termination of Employment due to death or Disability.

(c) Irrespective of the limitations set forth in subparagraph (a) above, provided that the Participant has been in continuous Employment since the Grant Date, upon termination of Employment due to Retirement or involuntary termination not for Cause, to the extent not previously vested pursuant to subparagraph (a) above, each third of the Option Shares described in subparagraph (a) above that are unvested as of the date of termination of Employment shall become exercisable in a pro rata amount determined by a fraction with respect to each such unvested third of the Option Shares, the numerator of which shall be the number of months (with any partial months being considered a full month) of the Participant’s Employment from the Grant Date through the date of the Participant’s termination of Employment, and the denominator of which shall be the number of months for the period beginning on the Grant Date and ending on the corresponding anniversary date on which each such unvested third of the Option Shares would have vested pursuant to subparagraph (a) above.

(d) For purposes of this Award Agreement, the following definitions apply:

(i) “Disability” means a permanent and total disability as defined in the Company’s long-term disability plan in which the Participant is eligible to participate.

(ii) “Employment” means employment as an Employee with the Company or any Participating Employer. Neither the Participant’s transfer from Company employment to employment by any Participating Employer, the Participant’s transfer from employment by any Participating Employer to Company employment, nor the Participant’s transfer between Participating Employers shall be deemed to be a termination of the Participant’s employment. Moreover, a Participant’s employment shall not be deemed to terminate because the Participant is absent from active employment due to temporary illness, during authorized vacation, during temporary leaves of absence granted by the Company or a Participating Employer for professional advancement, education, health or government services, during military leave for any period if the Participant returns to active employment within 90 days after military leave terminates, or during any period required to be treated as a leave of absence by any valid law or agreement.

(iii) “Misconduct” means any act or failure to act that (i) contributes to the Company having to restate all or a portion of its financial statements and (ii) materially increases the value of the compensation received by the Participant.

(iv) “Retirement” means a Participant’s voluntarily initiated termination of service on or after the earliest of (i) age 65, (ii) age 55 with 10 years of participation service credited under the qualified defined benefit pension plan maintained by the Company or a Subsidiary or an Affiliate in which the Participant is eligible to participate, (iii) the time of retirement as defined in a written agreement between a Participant and a Participating Employer, or

 

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(iv) outside the U.S., the time when retirement is permitted and the Participant is eligible to receive a company retirement benefit under applicable law with respect to the Participant’s primary place of employment (as determined by the Committee in its sole judgment).

3. Termination of Option.  The Option hereby granted shall terminate and be of no force and effect with respect to any shares of Common Stock not previously purchased by the Participant upon the first to occur of:

(a) the close of business on the date that is ten years from the Grant Date;

(b) with respect to

(i) the portion of the Option exercisable upon termination of Employment (or which becomes exercisable upon termination due to death, Disability, Retirement, involuntary termination not for Cause or Constructive Termination), the expiration of (A) 90 days following the Participant’s voluntary termination of Employment, involuntary termination of Employment not for Cause or Constructive Termination, and not due to death, Disability or Retirement, (B) one year following the Participant’s termination of Employment by reason of death or Disability; and (C) five years following the Participant’s termination of Employment by reason of Retirement.

(ii) the portion of the Option not exercisable upon termination of Employment, the date of the Participant’s termination of Employment; or

(c) the date of the Participant’s termination of Employment for any reason other than those described in (b) above.

4. Exercise of Option.  Subject to the limitations set forth herein and in the Plan, this Option may be exercised by written notice provided to the Company as set forth in Section 5. Such written notice shall (a) state the number of shares of Common Stock with respect to which the Option is being exercised and (b) be accompanied by a check, cash or money order payable to the Company in the full amount of the purchase price for any shares of Common Stock being acquired or, at the option of the Committee or its delegate, accompanied by Common Stock theretofore owned by such Participant that is equal in value to the full amount of the purchase price (or any combination of cash, check or such Common Stock) or in any other manner approved by the Committee or its delegate. For purposes of determining the amount, if any, of the purchase price satisfied by payment in Common Stock, such Common Stock shall be valued at its Fair Market Value on the date of exercise. Any Common Stock delivered in satisfaction of all or a portion of the purchase price shall be appropriately endorsed for transfer and assignment to the Company.

The Participant will not be entitled to exercise the Option granted pursuant hereto, and the Company will not be obligated to issue any Option Shares pursuant to this Award Agreement, if the exercise of the Option or the issuance of such shares would constitute a violation by the Participant or by the Company of any provision of any law or regulation of any governmental authority or any stock exchange or transaction quotation system.

 

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If any law or regulation requires the Company to take any action with respect to the shares specified in such notice, the time for delivery thereof, which would otherwise be as promptly as possible, shall be postponed for the period of time necessary to take such action.

5. Notices.  Notice of exercise of the Option must be made in the following manner, using such forms as the Company may from time to time provide:

(a) by mail or overnight delivery service, postage prepaid, to LyondellBasell Industries N.V., Attn: Manager of Executive Services, 1221 McKinney Street, Suite 700, Houston, Texas 77010, in which case the date of exercise shall be the date of mailing; or

(b) by hand delivery or otherwise to LyondellBasell Industries N.V., Attn: Manager of Executive Services, 1221 McKinney Street, Suite 700, Houston, Texas 77010, in which case the date of exercise shall be the date when receipt is acknowledged by the Company.

(c) by electronic delivery to Manager of Executive Services via e-mail to execserv@lyondellbasell.com or fax to +1 713 309 3028, in which case the date of exercise shall be the date of the e-mail or fax.

Notwithstanding the foregoing, (i) if the Company’s address is changed before the exercise date of this Option, notice of exercise shall be made instead under the previous provisions at the Company’s current address, or (ii) if the Committee delegates the administration of option exercises to a third party administrator, notice of exercise shall be made instead according to the written instructions that the third party administrator gives to the Participant for the option exercise.

Any other notices provided for in this Award Agreement or in the Plan shall be given in writing and shall be deemed effectively delivered or given upon receipt or, in the case of notices delivered by the Company to the Participant, five days after deposit in the mail or delivery to an overnight delivery service, postage prepaid, addressed to the Participant at the address specified at the end of this Award Agreement or at such other address as the Participant hereafter designates by written notice to the Company.

6. Assignment of Option. The Participant’s rights under the Plan and this Award Agreement are personal. No assignment or transfer of the Participant’s rights under and interest in this Option may be made by the Participant otherwise than by will or by the laws of descent and distribution. This Option is exercisable during his lifetime only by the Participant, or, in the case of a Participant who is mentally incapacitated, this Option shall be exercisable by his guardian or legal representative. After the death of the Participant, exercise of the Option shall be permitted only by the Participant’s executor or the personal representative of the Participant’s estate (or by his assignee, in the event of a permitted assignment) and only to the extent that the Option was exercisable on the date of the Participant’s death.

 

4


7. Stock Certificates.  Any certificates representing the Common Stock issued pursuant to the exercise of the Option will bear all legends required by law and necessary or advisable to effectuate the provisions of the Plan and this Option.

8. Withholding.  The Company shall withhold from any delivery of shares of Common Stock under this Option, shares having a Fair Market Value equal to all taxes required to be withheld with respect to the Option. In the event all federal, state and other governmental withholding tax requirements imposed upon the Company with respect to the Option cannot be satisfied in this manner, no shares of Common Stock shall be delivered to or for a Participant unless provision to pay required withholding has been made to the Committee’s satisfaction.

9. Expatriate Participants.  Exercises by expatriate Participants will be, pursuant to the applicable expatriate assignment policy of the Participating Employer, tax normalized based on typical income taxes and social security taxes in the expatriate Participant’s home country relevant to the expatriate Participant’s domestic circumstances.

10. Currency Exchange Rates. For Participants who are not paid on a U.S. Dollar payroll, the currency exchange rate used to calculate the number of Option Shares was determined by the published intercompany exchange rate in effect for the month in which the Grant Date occurred; provided if such rate had not been determined at the Grant Date, the currency exchange rate was determined by using the published intercompany exchange rate for the month prior to the month in which the Grant Date occurred.

11. No Fractional Shares.  No fractional shares of Common Stock are permitted in connection with this Award Agreement. For purposes of vesting in Section 2(a), Option Shares vesting on the second anniversary of the Grant Date shall be increased by any fractional shares resulting from the vesting schedule with respect to subsequent vesting dates and Option Shares vesting thereafter shall be rounded down to the nearest whole share. For purposes of pro-ration in Section 2(c), Option Shares shall be rounded up to the nearest whole share of Common Stock. Only whole Option Shares are exercisable pursuant to Section 4, and only whole shares of Common Stock may be delivered in satisfaction of the Grant Price. Any shares of Common Stock withheld pursuant to Section 8 shall be rounded to whole shares in the manner determined by the Committee to be appropriate to satisfy the minimum statutory withholding requirements.

12. Shareholder Rights.  The Participant shall have no rights of a shareholder with respect to shares of Common Stock subject to the Option unless and until such time as the Option has been exercised and ownership of such shares of Common Stock has been transferred to the Participant.

13. Successors and Assigns.  This Award Agreement shall bind and inure to the benefit of and be enforceable by the Participant, the Company and their respective permitted successors and assigns (including personal representatives, heirs and legatees), but the Participant may not assign any rights or obligations under this Award Agreement except to the extent and in the manner expressly permitted.

 

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14. No Guaranteed Employment.  No provision of this Award Agreement shall confer any right upon the Participant to continued employment.

15. Company Clawback Policy. If (a) the Committee determines that the Participant has either engaged in, or benefitted from, Misconduct and (b) the Participant is classified at a level of M-4 or above in the LyondellBasell Group compensation classification system at the time of such determination, upon notice from the Company, the Participant shall reimburse to the Company all or a portion of the payments received under this Award Agreement (or forfeit all or any portion of such payments to the extent they have not yet been paid) as the Committee deems appropriate under the circumstances. Such notice shall be provided within the earlier to occur of one year after discovery of the alleged Misconduct or the second anniversary of the Participant’s date of termination.

LYONDELLBASELL INDUSTRIES N.V.                    

 

6

Exhibit 10.5

LYONDELLBASELL INDUSTRIES N.V.

CORPORATE GOVERNANCE GUIDELINES

1. General. The Supervisory Board (the “Board”), which is appointed by the shareholders, is the ultimate decision-making body of LyondellBasell Industries N.V. and its subsidiaries (the “Company” or “LyondellBasell”), except with respect to those matters reserved to the Management Board and/or the shareholders. The Board is responsible for overseeing and ensuring the Management Board’s objectives, structure and operation of internal risk management and control systems, financial reporting process, compliance with legislation and regulations, business strategies and risks, operations, policies and processes maximize long-term shareholder value in the context of advancing the Company’s mission.

2. Election of Supervisory Directors . Beginning with the annual meeting of shareholders in 2017, each member of the Board will be elected annually. The number of directors that constitutes the Board (each a “Supervisory Director”) shall be fixed by the Board, but in no event shall be less than nine Supervisory Directors. There is no limitation on the number of terms for which a Supervisory Director may serve on the Board.

3. Succession Planning. The Board plans for succession to the position of Chief Executive Officer as well as certain other senior management positions. To assist the Board, the Chief Executive Officer annually provides the Board with an assessment of senior managers and their potential to succeed him. He also provides the Board with an assessment of persons considered potential successors to certain senior management positions.

4. Board Leadership. The Supervisory Directors will annually elect a Chairman of the Board. The Chairman of the Board shall preside at all meetings of the shareholders and of the Board as a whole. He shall perform such other duties, and exercise such powers, as from time to time shall be prescribed by the Board. The Chairman of the Board shall preside over executive sessions of the Company’s independent Supervisory Directors, facilitate information flow and communication among the Supervisory Directors, and perform such other duties as may be specified by the Board.

5. Supervisory Director Independence. It is the policy of the Company that at least a majority of the Supervisory Directors meet the New York Stock Exchange (“NYSE”) Listing Standard’s “independence” requirements. Annually, the Nominating & Governance Committee of the Board reviews all relevant information, not merely from the standpoint of the Supervisory Director, but also from that of persons or organizations with which the Supervisory Director has an affiliation, and makes recommendations to the Board concerning the independence of the Supervisory Directors. Based on those recommendations, the Board makes an affirmative determination as to the independence of each Supervisory Director. The Board has established categorical standards to assist in making such determinations. Such standards are set forth in Annex A hereto.

6. Board Size. It is the policy of the Company that the number of Supervisory Directors not exceed a number that can function efficiently as a body. The Nominating & Governance Committee considers and makes recommendations to the Board concerning the appropriate size and needs of the Board. The Nominating & Governance Committee considers candidates to fill new positions created by expansion and vacancies that occur by resignation, by retirement or for any other reason.

 

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7. Selection Criteria. The Nominating & Governance Committee works with the Board to determine the appropriate mix of characteristics, skills and experience for the Board as a whole and for individual Supervisory Directors. In evaluating the suitability of individuals for Board membership, the Nominating & Governance Committee takes into account many factors. Those include whether the individual meets various independence requirements; the individual’s general understanding of the varied disciplines relevant to the success of a large, publicly traded company in today’s global business environment, understanding of LyondellBasell’s global businesses and markets, professional expertise and educational background; and other factors that promote diversity of views and experience. The Nominating & Governance Committee evaluates each individual in the context of the Board as a whole, with the objective of recruiting and recommending a slate of directors that can best perpetuate LyondellBasell’s success and represent shareholder interests through the exercise of sound judgment, using its diversity of experience.

8. Supervisory Director Service on Other Public Boards. The Board does not believe that it should prohibit Supervisory Directors from serving on other organizations’ boards and committees. The Board expects each Supervisory Director to ensure that his commitments do not interfere with his duties as a Supervisory Director of LyondellBasell. Supervisory Directors consult with the Chairman and the Chair of the Nominating & Governance Committee before accepting the offer of another public company directorship or a request to serve as a member of the audit committee of any other public company. The Nominating & Governance Committee and the Board will take into account the nature and extent of the director’s other commitments when determining whether it is appropriate to nominate that individual for re-election. Service on boards and committees of other organizations should be consistent with LyondellBasell’s conflict of interest policies. If a member of the Company’s Audit Committee serves on more than three public company audit committees, the Board determines whether such simultaneous service impairs the director’s ability to serve effectively on LyondellBasell’s Audit Committee.

9. Change in Supervisory Director Occupation. When a Supervisory Director’s principal occupation or business association changes substantially during his or her tenure as a Supervisory Director, that Supervisory Director shall review and consult with the Chairman and the Chair of the Nominating & Governance Committee on the potential impact, if any, that the change may have on continued Board service.

10. Supervisory Director Compensation. The Nominating & Governance Committee annually reviews the compensation of Supervisory Directors and makes a recommendation to the Board regarding the form and amount of Supervisory Directors’ compensation.

11. Board and Committee Self-Evaluation. The Board, and each Committee, is required to conduct a self-evaluation of its performance at least annually.

12. Director Tenure Supervisory Directors shall not be renominated following their 75 th birthday. The Board does not endorse arbitrary term limits on Supervisory Directors’ service, nor does it believe in automatic annual re-nomination of a Supervisory Director until he reaches the mandatory retirement age. Therefore, the Board self-evaluation process is an important determinant for continuing service.

13. Committees. It is the general policy of the Company that all major decisions be considered by the Board as a whole. As a consequence, the committee structure of the Board is limited to those committees considered to be basic to, or required for, the operation of a publicly owned company.

 

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Currently these committees are the Audit Committee; Compensation Committee; Nominating & Governance Committee; Health, Safety, Environmental & Operations (“HSE&O”) Committee; Finance Committee and Executive Committee. The members and chairs of these committees are recommended to the Board by the Nominating & Governance Committee. The members of the Audit, Compensation and Nominating & Governance Committee shall meet NYSE’s independence requirements as well as the additional requirements for committee membership established by NYSE and any other applicable laws, rules and regulations and the applicable committee charter. At least one Audit Committee member shall be an “audit committee financial expert” as defined in the SEC’s regulations. Generally, the Board does not favor mandatory rotation of committee assignments or chairs, believing that experience and continuity are more important. However, from time to time, as the Board composition changes, the Nominating & Governance Committee may recommend rotation of committee and committee chair assignments.

14. Supervisory Director Orientation and Continuing Education. The Company provides an orientation process for new directors, including a review of LyondellBasell background materials, a briefing on key issues facing the Company and meetings with senior management. The Board and its committees receive regular presentations on the Company’s strategic and business plans, financial performance, legal and regulatory matters, compliance programs, as well as other matters. Supervisory Directors are encouraged to take advantage of continuing education opportunities that enhance their ability to fulfill their responsibilities. The Company reimburses directors for reasonable costs incurred in connection with such continuing education.

15. Chief Executive Officer Performance Goals and Annual Evaluation. The Compensation Committee is responsible for setting annual and long-term performance goals for the Chief Executive Officer and for evaluating his or her performance against such goals. The Compensation Committee meets annually with the Chief Executive Officer to receive his or her recommendations concerning such goals. Both the goals and the evaluation are then submitted for consideration by the outside Supervisory Directors of the Board at a meeting or executive session of that group. The Compensation Committee then meets with the Chief Executive Officer to evaluate his or her performance against such goals.

16. Communication with Stakeholders. The Chief Executive Officer is responsible for establishing effective communications with the Company’s stakeholder groups, i.e., shareholders, customers, Company associates, communities, suppliers, creditors, governments and corporate partners. It is the policy of the Company that management speaks for the Company.

17. Meeting Attendance. All Board members are expected to prepare themselves for and to attend all Board meetings and all meetings of the committees on which they serve. If circumstances require, a member of the Board may attend a meeting by conference telephone or other similar communications equipment, which allows such member to participate in the meeting as if he were present. It is understood that, on occasion, a director may be unable to attend a meeting.

18. Information Flow and Distribution of Meeting Materials. To facilitate active and informed discussion at Board and committee meetings, directors receive background materials in advance of meetings. Through these materials and presentations at meetings, the Board and its

 

3


committees keep abreast of the Company’s performance and businesses, plans (including acquisitions, divestitures and capital expenditures), various issues (including regulatory updates), and new developments. In addition to meeting-related materials, directors receive other regular and special reports throughout the year. Proprietary or otherwise sensitive materials may be reserved for distribution at meetings.

19. Board Meetings. At the invitation of the Board, members of senior management recommended by the Chief Executive Officer shall attend Board meetings or portions thereof for the purpose of participating in discussions. Generally, presentations of matters to be considered by the Board are made by the manager responsible for that area of the Company’s operations.

20. Supervisory Director Access to Corporate and Independent Advisors. Board members have free access to all members of management and employees of the Company. In addition, as necessary and appropriate, Board members may consult with independent legal, financial, accounting and other advisors to assist in their duties to the Company and its shareholders.

21. Executive Sessions. Executive sessions or meetings of Supervisory Directors without management present are held regularly. Additionally, executive sessions including only independent Supervisory Directors are held at least once a year.

22. Communications with the Board. Shareholders and other interested parties may write to Supervisory Directors at Corporate Secretary, LyondellBasell Industries, Suite 300, 1221 McKinney Street, Houston, Texas 77010 or via e-mail at Investors@lyondellbasell.com. The Supervisory Directors established procedures for handling such communications and directed the Corporate Secretary to act as their agent in processing such communications. The Corporate Secretary forwards communications relating to matters within the Board’s purview to the Supervisory Directors, communications relating to matters within a Board committee’s area of responsibility to the Chair of the appropriate committee, and communications relating to ordinary business matters, such as suggestions, inquiries and consumer complaints, to the appropriate LyondellBasell executive. The Corporate Secretary does not forward solicitations, junk mail and obviously frivolous or inappropriate communications, but makes them available to any independent Supervisory Director who requests them.

23. Periodic Review of Guidelines . The Board has the authority to amend these Guidelines. The Nominating & Governance Committee reviews these guidelines and reports on its review and recommends any changes to the Board.

Amended and Restated Effective February 16, 2017.

 

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ANNEX A

Categorical Standards of Supervisory Director Independence

A Supervisory Director is considered independent if the Board makes an affirmative determination after a review of all relevant information that the Supervisory Director has no material relationship with the Company or any of its subsidiaries. The Board has established the categorical standards set forth below, which either meet or exceed the independence requirements of the New York Stock Exchange listing standards, to assist it in making such determinations. A Supervisory Director will not be considered independent if the Supervisory Director, his wife, registered partner or other life companion, foster child or relative by blood or marriage up to the second degree as defined by Dutch law:

 

    is, or within the last five years has been, an employee or member of the Management Board of the Company or any of its subsidiaries;

 

    has received, or during any 12-month period within the last three years has received, more than $120,000 in direct compensation from the Company or its subsidiaries, other than Supervisory Director and committee fees and pension or other forms of deferred compensation for prior service (provided such compensation is not contingent on continued service);

 

    receives personal financial compensation from the Company, or a company associated with it, other than the compensation received for the work performed as a Board member and insofar as this is not in keeping with the normal course of business;

 

    is a current partner or employee of the independent auditors of the Company or any of its subsidiaries;

 

    was within the last three years (but is no longer) a partner or employee of the independent auditors of the Company or any of its subsidiaries and personally worked on the audit of the Company or any of its subsidiaries within that time;

 

    is, or within the last three years has been, employed as an executive officer of another company where any of the current executive officers of the Company or any of its subsidiaries serve, or within the last three years have served, on such other company’s compensation committee;

 

    has had an important business relationship with the Company, or a company associated with it, in the year prior to appointment. This includes the case where the Board member, or the firm of which he is a shareholder, partner, associate or advisor, has acted as advisor to the Company and the case where the Board member is a management board member or an employee of any bank with which the company has a lasting and significant relationship;

 

    has temporarily managed the Company during the previous twelve months where management board members have been absent or unable to discharge their duties; and

 

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    is a current employee of a company that makes payments to, or receives payments from, the Company or its subsidiaries in an amount which, in any single fiscal year for the last three fiscal years, exceeds the greater of $1 million or 2% of such other company’s consolidated gross revenues.

 

6

Exhibit 10.6

 

 

RULES

FOR THE

SUPERVISORY BOARD

OF

LYONDELLBASELL INDUSTRIES N.V.

 

 


CONTENTS

 

CLAUSE    PAGE  

1. INTRODUCTION

     3  

2. THE SUPERVISORY BOARD

     4  

2.1 Responsibilities

     4  

2.2 Composition and term

     5  

2.3 Appointment and dismissal of Members

     5  

2.4 Remuneration

     7  

2.5 Majority and quorum

     7  

2.6 Meetings

     7  

3. CONFLICT OF INTERESTS

     8  

4. CHAIRMAN AND MEMBERS

     8  

4.1 General

     8  

4.2 Tasks and responsibilities

     9  

5. COMMITTEES

     9  

6. GOVERNING LAW

     9  

 

2


RULES FOR THE

SUPERVISORY BOARD

OF

LYONDELLBASELL INDUSTRIES N.V.

 

1. INTRODUCTION

 

1.1 Article 16, paragraph 3 of the Articles provides that the Supervisory Board may adopt rules governing its internal affairs.

 

1.2 No amendment shall be made to the Rules which adversely affects the rights of Access Industries (and its affiliates) arising from any contractual arrangements between Access or any of its affiliates and the Company existing as of April 29, 2010 without the prior written approval of such party.

 

1.3 The Supervisory Board and each of its Members shall observe and comply with these Rules and action shall be taken by the Supervisory Board and its Members to ensure that each of the Members shall observe and comply with the principles set out in these Rules.

 

1.4 These Rules are complementary to (i) the provisions regarding the Supervisory Board and its Members contained in applicable law and regulations, including, when applicable, the principles of good governance and best practice provisions as contained in the Dutch Corporate Governance Code and the NYSE listing standards, (ii) the Articles and (iii) the rules pertaining to the relationship between the Supervisory Board and the Management Board, contained in the rules governing the Management Board’s internal affairs.

 

1.5 In these Rules, the following expressions shall have the following respective meanings:

Affiliate means, with respect to any person, any other person that, directly or indirectly, through one or more intermediaries, controls, or is controlled by, or is under common control with, such person. For purposes of this definition, the terms “control,” “controlling,” “controlled by” and “under common control with,” as used with respect to any person, means the possession, directly or indirectly, of the power to direct the management and policies of a person, whether through the ownership of voting securities, by contract or otherwise.

Articles means the articles of association of the Company.

Chairman means the chairman of the Supervisory Board, as referred to in Article 16 paragraph 1 of the Articles.

Clause means a clause of these Rules.

Committee means any committee which the Supervisory Board may establish from time to time in accordance with Clause 5.

 

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Company means LyondellBasell Industries N.V.

Deputy Secretary means the deputy secretary of the Supervisory Board, as referred to in Article 16 paragraph 1 of the Articles.

General Meeting means the Company’s general meeting of shareholders.

Management Board means the management board of the Company.

Members means the members of the Supervisory Board and Member means anyone of them.

Meeting means a meeting of the Supervisory Board.

Nomination Agreement means that Amended and Restated Nomination Agreement, by and between the Company and AI International Chemicals S.À R.L., a société à responsabilité limitée or limited liability company organized under the laws of Luxembourg, dated March 10, 2015.

NYSE means the New York Stock Exchange.

Rules means these rules governing the Supervisory Board’s internal affairs, including its annexes.

Secretary means the secretary of the Supervisory Board, as referred to in Article 16 paragraph 1 of the Articles.

Supervisory Board means the supervisory board of the Company.

Vice Chairman means the deputy chairman of the Supervisory Board, as referred to in Article 16 paragraph 1 of the Articles.

 

2. THE SUPERVISORY BOARD

 

2.1 Responsibilities

In addition to the responsibilities that follow from the law and the Articles, the Members shall be collectively responsible for the supervision of the policy of the management board and of the general course of affairs of the Company and its associated enterprise. In the performance of its duties, the Supervisory Board and each of its Members shall be guided by the interests of the Company and its associated enterprise. On an annual basis, the Supervisory Board shall review and adopt a five year strategic plan, an annual budget and business plan which shall be proposed by the Management Board.

 

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2.2 Composition and term

 

2.2.1 The Supervisory Board shall, in its sole discretion, determine the size of the Supervisory Board in accordance with and in order to comply with (i) the Articles, (ii) the terms of the Nomination Agreement, and (iii) applicable law or regulation, including the NYSE listing standards, provided that the Supervisory Board shall have no fewer than nine (9) and no more than twelve (12) Members unless required to effectuate one of the items set forth in (i)-(iii) hereof.

 

2.2.2 The members of the Supervisory Board shall be nominated for election to one-year terms, beginning with the annual general meeting of shareholders in 2017.

 

2.2.3 The Members shall be natural persons.

 

2.2.4 The Supervisory Board shall appoint a Chairman and, if necessary, a Vice Chairman from its number.

 

2.2.5 The Supervisory Board shall appoint a Secretary and, if necessary, a Deputy Secretary whether or not from its number.

 

2.2.6 The Supervisory Board shall adopt a profile of its size and composition, taking account of the nature of the business, its activities and the desired expertise and background of the Members; provided that the composition of the Supervisory Board shall comply with applicable listing standards and at least one member of the Supervisory Board who is deemed to be independent under NYSE Rule 303A.02 shall also be a “financial expert” pursuant to Section 407 of the Sarbanes-Oxley Act of 2002.

 

2.3 Appointment and dismissal of Members

 

2.3.1 Except as provided in Clause 2.3.7 and Article 12.4 of the Articles, the Members are appointed by the General Meeting. The appointment of a Member nominated pursuant to the Nomination Agreement shall take place by way of a binding nomination and shall be prepared by the Supervisory Board within three (3) months after the vacancy has arisen or as soon as practicable, in which event the Supervisory Board shall submit to the General Meeting the nomination received by it in accordance with the terms of the Nomination Agreement. To the extent the nomination for any vacancy is not submitted to the Supervisory Board pursuant to the Nomination Agreement, the Supervisory Board shall provide notice to the party having such nominations rights, and, no earlier than twenty (20) days after providing such notice and the continued failure by such party to identify the nominee, shall select an appropriate nominee based on candidates’ qualifications and profile, taking into due consideration the desired profile laid out in advance by the Supervisory Board in accordance with Clause 2.2.6, in which event the Supervisory Board shall submit a non-binding nomination to the General Meeting.

A resolution by the General Meeting on the proposal shall result in such person being appointed, unless the General Meeting renders the nomination non-binding by means of a resolution adopted by at least two-thirds of the valid votes cast and the valid votes cast represent more than half of the Company’s issued capital.

 

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Notwithstanding anything in this Clause 2.3.1 to the contrary, the provisions relating to the appointment of Members contained in the Nomination Agreement shall supplement the provisions of the Articles relating to the appointment of Members.

 

2.3.2 The binding nominations referred to in Clause 2.3.1 shall be made in accordance with article 2:142(3) of the Netherlands Civil Code and with due observance of Clause 2.5 and the terms and conditions agreed upon in the Nomination Agreement.

 

2.3.3 Except with respect to Members appointed in accordance with Clause 2.3.7, and unless the General Meeting, on the proposal of the Supervisory Board, determines that a Member shall be appointed for a longer period, a Member will be appointed for a maximum period of three (3) years, provided however that unless such Member has resigned at an earlier date, his term of office shall lapse at the end of the first annual General Meeting of shareholders, to be held after lapse of his term of appointment. A Member may be re-appointed with due observance of the preceding sentence. There is no limit to the number of times a Member can be reappointed; provided , however, a Member shall not be renominated following his 75 th birthday.

 

2.3.4 The Supervisory Board may draw up a retirement schedule for the Members. Periodical resignation will take place per the date of the annual General Meeting of shareholders.

 

2.3.5 The Members are suspended and dismissed by the General Meeting in the manner as described in Article 12 paragraphs 5, 6 and 7 of the Articles. If a Member is suspended and the General Meeting does not resolve to dismiss him or to terminate or continue the suspension within three (3) months from the date of suspension, the suspension shall lapse. A suspended Member shall be given an opportunity to account for his actions at the General Meeting and to be assisted by an adviser in doing so.

A resolution to continue the suspension as referred to above may be adopted only once. In such event the suspension may be continued for a maximum period of three (3) months commencing on the day the General Meeting has adopted the resolution to continue the suspension. If within the period of continued suspension the General Meeting has not resolved either to dismiss such Member or to terminate the suspension, the suspension shall lapse.

 

2.3.6 In case the number of Members will be less than nine (9), the Supervisory Board will remain competent.

 

2.3.7 In the event a party is entitled to submit the nomination of a Member pursuant to the terms of the Nomination Agreement, the Supervisory Board shall, subject to applicable law and regulation, as soon as practicable effect the appointment of such nominee in accordance with Article 12.4 of the Articles and Article 2:143 of the Civil Code, which appointment shall terminate on the date of the next General Meeting.

 

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2.4 Remuneration

Each Member shall be paid a fee at such rate as may from time to time be determined by the Supervisory Board upon recommendation of the Nominating and Governance Committee provided that the aggregate of all fees so paid per annum to the Members shall not exceed the amount per annum decided by the General Meeting.

 

2.5 Majority and quorum

 

2.5.1 Each Member shall have the right to cast one vote in a Meeting.

 

2.5.2 The Supervisory Board shall pass resolutions by an absolute majority of the votes cast. Abstentions will be regarded as votes not cast. In the event of a tie vote, the proposal will have been rejected.

In the event of a tie vote on persons, the resolution will be postponed until the next following Meeting provided that if there is a tie vote again, no resolution will be passed.

 

2.5.3 The determination of the Chairman with regard to the results of a vote, and, where there has been a vote about a proposal which has not been put in writing, his determination as to the contents of the resolution passed, shall be decisive. However, where the accuracy of the determination referred to in the previous sentence is contested promptly after it has been made, a new vote shall take place if so required by a majority of the votes or, where the first vote did not take place by response to a roll call or in writing, if one person present with the right to vote so requires. The legal consequences of the original vote shall become void as a result of the new vote. The Chairman does not hold a casting vote.

 

2.5.4 In order to hold a valid Supervisory Board Meeting a quorum constituting a majority of the number of Members holding office is required.

 

2.6 Meetings

 

2.6.1 The Supervisory Board will hold a Meeting whenever deemed desirable by the Chairman or the other Members. The Supervisory Board shall conduct at least four (4) regularly scheduled Meetings per year.

 

2.6.2 The Chairman shall chair the meetings of the Supervisory Board. If the Chairman is absent, the Vice Chairman, if appointed, shall chair the Meeting. If no chairman has been appointed, the Member present at the Meeting who has held that office longest shall chair the Meeting. If two or more Members have equal seniority, the eldest of them shall chair the Meeting.

 

2.6.3 A Member may be represented at a Meeting by a fellow Member, authorized in writing, only.

 

2.6.4

The notice of the Meeting shall be given by the Chairman, or in his absence the Vice Chairman, or in the event no Vice Chairman has been appointed, the Member referred to in 2.6.2, and shall set out an agenda identifying in reasonable detail the matters to be discussed at the meeting and shall be accompanied by copies of any relevant papers to be discussed at the meeting. Any matter which is to be submitted to the Supervisory Board for a decision which is not identified in reasonable detail as aforesaid may, notwithstanding the foregoing, be

 

7


  decided upon at the applicable Meeting, unless any Member, acting reasonably, requests reasonable detail in which case the meeting shall be adjourned, for fourteen (14) days maximum in which time the Member or Members having submitted the matter to the Supervisory Board shall supply reasonable detail to the others.

 

2.6.5 Meetings of the Supervisory Board generally shall be held in the United Kingdom. There shall be at least seven (7) days between the date on which notice is given to each of the Members and the date on which such Meeting is held, unless the person giving notice of the Meeting determines a shorter notice period is necessary.

 

2.6.6 Minutes of the proceedings at the meetings will be kept by the Secretary. The minutes will be confirmed and signed by the Chairman and Secretary, or in their absence, by the persons who will have acted as chairman and secretary, respectively, at the meeting.

 

3. CONFLICTS OF INTEREST

 

3.1 A Member shall not participate in the decision-making process on a subject or transaction in relation to which he has a direct or indirect personal interest (including through his relationship with the entity that is proposed to be a party to the transaction) which is in conflict with the interests of the Company and its associated enterprise. In the event that - as a result of such conflict of interest - no resolution of the Supervisory Board can be adopted in respect of a certain subject or transaction, the General Meeting shall decide on the matter concerned.

 

3.2 Without prejudice to Clause 3.1, and subject to the Supervisory Board Director Confidentiality Policy, Members shall not have any duty to refrain, directly or indirectly, from (a) pursuing a corporate opportunity in the same or similar business activities or lines of business in which the Company or any of its Affiliates now engages or proposes to engage or (b) otherwise competing with the Company or any of its Affiliates. The Members do not have any duty to offer to the Company an opportunity to participate in, any business opportunity which may be a corporate opportunity for the Company or any of its Affiliates.

 

3.3 In the event that a Member acquires knowledge of a potential transaction or other business opportunity which may be a corporate opportunity for the Company or any of its Affiliates, such Member shall have no duty to communicate or offer such transaction or other business opportunity to the Company or any of its Affiliates.

 

4. CHAIRMAN AND MEMBERS

 

4.1 General

 

4.1.1 The Chairman and the Members are equally responsible for the supervision of the policy of the management board and of the general course of affairs of the Company and its associated enterprise.

 

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4.2 Tasks and Responsibilities

 

4.2.1 The Chairman shall act as chairman of the General Meeting.

 

4.2.2 If the Chairman is permanently incapacitated or prevented from acting, the Vice Chairman, or in the event no Vice Chairman has been appointed, the Member referred to in Clause 2.6.2 shall be temporarily charged with his tasks.

 

5. COMMITTEES

 

5.1 The Supervisory Board shall have the following standing committees: an Audit Committee, a Nominating and Governance Committee, a Compensation Committee, a Health Safety Environmental and Operations Committee, a Finance Committee and an Executive Committee. The responsibilities for these Committees are set forth in written charters.

 

5.2 The Supervisory Board may establish one or more other additional committees from among its Members as it deems fit, subject to Clause 5.3 and provided that the composition and responsibilities for any such committee shall comply with applicable listing standards including the NYSE listing standards. The Supervisory Board may also delegate certain of its tasks to a Committee. The delegation of certain tasks to a Committee does not negate the joint responsibility of all Members. The Supervisory Board may reverse a delegation at any time

 

5.3 Each Committee may adopt internal rules as it deems fit provided that the adoption of internal rules by a Committee, as well as any amendment to the internal rules of a Committee, are subject to approval as referred to in Clause 1.2. The internal rules of each Committee will form an integral part of these Rules.

 

5.4 At least one Member of the Supervisory Board nominated by AI International Chemicals S.À R.L. (to the extent AI International is entitled to nominate three members of the Supervisory Board pursuant to the Nomination Agreement) shall be entitled to serve on each Committee, except as may be prohibited by law or regulation including the NYSE listing standards. Each member of the Supervisory Board nominated to serve on any Committee shall disclose any conflict of interest (as set forth under Clause 3) to the other members of such Committee and with respect to any matter in which such member has or reasonably could be expected to have a conflict of interest (as determined by the other members of such Committee or the other members of the Supervisory Board in their sole discretion) the member shall be recused and not receive information or participate in discussions, deliberations, or decision-making processes related to such matter.

 

6. MISCELLANEOUS

 

6.1 Governing Law .

These Rules shall be governed by, and be construed in accordance with, the laws of The Netherlands.

 

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6.2 Arbitration .

All disputes arising in connection with these Rules shall be finally settled in accordance with the arbitration rules of the Netherlands Arbitration Institute (NAI). The arbitral tribunal shall be composed of 3 (three) arbitrators: two selected by the Supervisory Board and the third agreed upon by the first two selected arbitrators. The place of arbitration shall be Amsterdam. The arbitral procedures shall be conducted in the English language. Consolidation of the arbitral proceedings with other arbitral proceedings pending in The Netherlands, as provided in article 1046 of the Netherlands Code of Civil Procedure, is excluded.

These Rules, as amended and restated, are adopted on February 16, 2017 in accordance with Article 16.3 of the Articles.

 

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