As filed with the Securities and Exchange Commission on June 2, 2017
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
XERIUM TECHNOLOGIES, INC.
(Exact name of registrant as specified in its charter)
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Delaware
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42-1558674
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(State or other jurisdiction of incorporation or organization)
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(I.R.S. Employer Identification No.)
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14101 Capital Boulevard
Youngsville, NC
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27596
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(Address of Principal Executive Offices)
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(Zip Code)
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Inducement Restricted Stock Unit Award Agreement with Mark Staton
(Full title of the Plan)
Phillip B. Kennedy
Vice President, Secretary and General Counsel
Xerium Technologies, Inc.
14101 Capital Boulevard
Youngsville, North Carolina 27596
(919) 526-1400
(Name, address and telephone number, including area code, of agent for service)
Copy to:
William P. O'Neill
Adam L. Kestenbaum
Latham & Watkins LLP
555 11th Street, NW, Suite 1000
Washington, DC 20004
202-637-2200
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company or emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company,” and “emerging growth company” in Rule 12b-2 of the Exchange Act.
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Large accelerated filer
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Accelerated filer
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Non-accelerated filer
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(Do not check if a smaller reporting company)
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Smaller reporting company
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Emerging growth company
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If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act.
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CALCULATION OF REGISTRATION FEE
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Title of securities to be registered
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Amount to be registered
(1)
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Proposed maximum offering price per share
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Proposed maximum aggregate offering price
(2)
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Amount of registration fee
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Common Stock, par value $0.001 per share reserved for issuance in connection with the Inducement Restricted Stock Unit Award Agreement with Mark Staton
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600,000
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$
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7.01
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$
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4,206,000
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$487.48
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(1)
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Pursuant to Rule 416(a) under the Securities Act of 1933, as amended, this Registration Statement also covers such additional shares of common stock, par value $0.001 per share (the “Common Stock”), of Xerium Technologies, Inc. (the “Registrant”) as may be issued to prevent dilution from stock splits, stock dividends and similar transactions.
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(2)
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Pursuant to Rules 457(c) and 457(h)(1) under the Securities Act of 1933, the proposed maximum offering price per share and the proposed maximum aggregate offering price for the shares have been calculated solely for the purpose of computing the registration fee on the basis of the average of the high and low prices of the Common Stock of the Registrant reported on the New York Stock Exchange on May 31, 2017.
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EXPLANATORY NOTE
This Registration Statement on Form S-8 is being filed for the purpose of registering 600,000 shares of the Registrant’s Common Stock, par value $0.001 per share, reserved for issuance in accordance with an Inducement Restricted Stock Unit Award Agreement to be entered into with Mark Staton in connection with his appointment as the Registrant’s President and Chief Executive Officer, which award will be made outside of a stockholder approved equity incentive plan in accordance with the employment inducement award exemption provided by Section 303A.08 of the New York Stock Exchange Listed Company Manual. The Inducement Restricted Stock Unit Award Agreement will provide Mr. Staton with the opportunity to earn up to 600,000 shares of the Registrant’s common stock if the Registrant’s stock price attains certain levels within certain time periods, subject to his continued employment with the Company.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
As permitted by the rules of the Commission, this Registration Statement omits the information specified in Part I of Form S-8. The documents containing the information specified in Part I will be delivered as required by Rule 428(b) under the Securities Act. Such documents are not being filed with the Commission as part of this Registration Statement or as a prospectus or prospectus supplement pursuant to Rule 424.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
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Item 3.
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Incorporation of Documents by Reference.
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The following documents filed with the Commission are hereby incorporated by reference in this Registration Statement:
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(a)
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The Registrant’s Annual Report on Form 10-K for the fiscal year ended December 31, 2016;
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(b)
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The Registrant's Quarterly Report on Form 10-Q for the quarterly period ended March 31, 2017;
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(c)
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The Registrant’s Current Reports on Form 8-K filed on May 1, 2017 and June 1, 2017; and
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(d) The description of the Registrant’s Common Stock, $0.001 par value per share, contained in Item 1 of Amendment No. 1 to the Registrant’s Registration Statement on Form 8-A, filed with the Commission pursuant to Section 12 of the Exchange Act on May 21, 2010, and any amendments or reports filed for the purpose of updating such description.
In addition, all documents subsequently filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended, prior to the filing of a post-effective amendment which indicates that all securities offered have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference in this Registration Statement and to be a part hereof from the date of filing of such documents. However, any documents or portions thereof, whether specifically listed above or filed in the future, that are not deemed “filed” with the Commission, including without limitation any information furnished pursuant to Item 2.02 or 7.01 of Form 8-K or certain exhibits furnished pursuant to Item 9.01 of Form 8-K, shall not be deemed to be incorporated by reference in this Registration Statement.
Any statement in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for the purposes of this Registration Statement to the extent that a statement contained herein or in any other subsequently filed document which also is incorporated or deemed to be incorporated by reference herein modifies or supersedes such statement. Any statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Registration Statement.
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Item 4.
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Description of Securities.
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Not applicable.
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Item 5.
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Interests of Named Experts and Counsel.
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Phillip B. Kennedy, the Registrant's Vice President, Secretary and General Counsel, has rendered his opinion regarding the validity of securities registered on this Registration Statement.
Mr. Kennedy is a full-time employee of the Registrant. Mr. Kennedy beneficially owns or has a right to acquire less than 0.01% shares of the Registrant's Common Stock.
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Item 6.
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Indemnification of Directors and Officers.
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The Registrant is incorporated under the laws of the State of Delaware. The General Corporation Law of the State of Delaware (“DGCL”) authorizes corporations to limit or eliminate the personal liability of directors to corporations and their stockholders for monetary damages for breaches of directors’ fiduciary duties. The Registrant’s second amended and restated certificate of incorporation includes a provision that eliminates the personal liability of directors for monetary damages for actions taken as a director to the fullest extent from time to time permitted by law, except for liability (i) for breach of duty of loyalty; (ii) for acts or omissions not in good faith or involving intentional misconduct or knowing violation of law; (iii) under Section 174 of the DGCL (unlawful dividends and stock repurchases); or (iv) for transactions from which the director derived improper personal benefit.
The Registrant’s second amended and restated certificate of incorporation provides that it must indemnify its directors and officers to the maximum extent permitted by the DGCL and must also pay expenses incurred in defending any such proceeding in advance of its final disposition upon delivery of an undertaking, by or on behalf of an indemnified person, to repay all amounts so advanced if it should be determined ultimately that such person is not entitled to be indemnified under the second amended and restated certificate of incorporation. The Registrant’s second amended and restated certificate of incorporation provides that the Registrant shall not indemnify a person in connection with an action initiated by the person, unless the initiation of the action was approved by the directors.
The indemnification rights set forth above shall not be exclusive of any other right which an indemnified person may have or hereafter acquire under any statute, provision of the Registrant’s certificate of incorporation or by-laws, agreement, vote of stockholders or disinterested directors or otherwise.
The Registrant maintains insurance to protect itself and its directors and officers, and those of its subsidiaries, against any such expense, liability or loss, whether or not the Registrant would have the power to indemnify them against such expense, liability or loss under applicable law.
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Item 7.
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Exemption from Registration Claimed.
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Not applicable.
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Exhibit
No.
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Description
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4.1
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Second Amended and Restated Certificate of Incorporation of Xerium Technologies, Inc., incorporated by reference to Exhibit 3.1 to Xerium Technologies, Inc.’s Current Report on Form 8-K filed on May 28, 2010, Commission File Number 001-32498.
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4.2
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Amended and Restated By-Laws of Xerium Technologies, Inc., incorporated by reference to Exhibit 3.1 to Xerium Technologies, Inc.’s Quarterly Report on Form 10-Q for the quarterly period ended March 31, 2015, filed on May 11, 2015, Commission File Number 001-32498.
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5.1
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Opinion of Phillip B. Kennedy, Vice President, Secretary and General Counsel of Xerium Technologies, Inc., as to the legality of the securities being registered (filed herewith).
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23.1
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Consent of Ernst & Young LLP (filed herewith).
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23.2
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Consent of Phillip B. Kennedy, Vice President, Secretary and General Counsel of Xerium Technologies, Inc. (Contained in Exhibit 5.1).
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24.1
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Power of Attorney (Contained on signature page).
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99.1
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Form of Inducement Restricted Stock Unit Award Agreement with Mark Staton (filed herewith).
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(a)
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The undersigned Registrant hereby undertakes:
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(1) To file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after the effective date of the Registration Statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the Registration Statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than 20 percent change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective Registration Statement; and
(iii) To include any material information with respect to the plan of distribution not previously disclosed in the Registration Statement or any material change to such information in the Registration Statement.
Provided, however, that
paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the Commission by the Registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the Registration Statement.
(2) That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the Registrant’s annual report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 that is incorporated by reference in the Registration Statement shall be deemed to be a new registration statement relating to the securities offered herein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(h) Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the Registrant pursuant to the foregoing provisions, or otherwise, the Registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the Town of Youngsville, State of North Carolina, on June 2, 2017.
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XERIUM TECHNOLOGIES, INC.
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By:
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/
S
/ Clifford E. Pietrafitta
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Name:
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Clifford E. Pietrafitta
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Title:
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Executive Vice President and Chief Financial Officer
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POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS that each individual whose signature appears below constitutes and appoints Mark Staton and Clifford E. Pietrafitta, and each of them, his or her true and lawful attorneys-in-fact and agents with full power of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments, including post-effective amendments, to this Registration Statement, and to file the same, with all exhibits thereto and all documents in connection therewith, making such changes in this Registration Statement as such person or persons so acting deems appropriate, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents or any of them, or his, her or their substitute or substitutes, may lawfully do or cause to be done or by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities and on the date indicated.
* * * * *
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Name
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Title
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Date
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/s/ Mark Staton
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Director, President and Chief Executive Officer (Principal Executive Officer)
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June 2, 2017
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Mark Staton
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/s/ Clifford E. Pietrafitta
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Executive Vice President and Chief Financial Officer (Principal Financial and Accounting Officer)
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June 2, 2017
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Clifford E. Pietrafitta
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/s/ James F. Wilson
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Chairman of the Board of Directors
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May 31, 2017
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James F. Wilson
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/s/ Roger A. Bailey
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Director
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June 1, 2017
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Roger A. Bailey
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/s/ Ambassador April H. Foley
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Director
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May 30, 2017
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Ambassador April H. Foley
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/s/ Jay J. Gurandiano
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Director
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May 31, 2017
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Jay J. Gurandiano
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/s/ John F. McGovern
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Director
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June 1, 2017
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John F. McGovern
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/s/ Mitchell I. Quain
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Director
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May 30, 2017
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Mitchell I. Quain
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/s/ Alexander Toeldte
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Director
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May 30, 2017
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Alexander Toeldte
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EXHIBIT INDEX
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Exhibit
No.
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Description
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4.1
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Second Amended and Restated Certificate of Incorporation of Xerium Technologies, Inc., incorporated by reference to Exhibit 3.1 to Xerium Technologies, Inc.’s Current Report on Form 8-K filed on May 28, 2010, Commission File Number 001-32498.
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4.2
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Amended and Restated By-Laws of Xerium Technologies, Inc., incorporated by reference to Exhibit 3.1 to Xerium Technologies, Inc.’s Quarterly Report on Form 10-Q for the quarterly period ended March 31, 2015, filed on May 11, 2015, Commission File Number 001-32498.
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5.1
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Opinion of Phillip B. Kennedy, Vice President, Secretary and General Counsel of Xerium Technologies, Inc., as to the legality of the securities being registered (filed herewith).
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23.1
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Consent of Ernst & Young LLP (filed herewith).
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23.2
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Consent of Phillip B. Kennedy, Vice President, Secretary and General Counsel of Xerium Technologies, Inc. (Contained in Exhibit 5.1).
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24.1
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Power of Attorney (Contained on signature page).
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99.1
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Form of Inducement Restricted Stock Unit Award Agreement with Mark Staton (filed herewith).
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Xerium Technologies, Inc.
June 2, 2017
Board of Directors
Xerium Technologies, Inc.
14101 Capital Boulevard
Youngsville, NC 27596
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Re:
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Registration Statement on Form S-8
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600,000 shares of Common Stock, par value $0.001 per share
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Ladies and Gentlemen:
I am Vice President, Secretary and General Counsel of Xerium Technologies, Inc., a Delaware corporation (the “
Company
”), and I offer this opinion in connection with the filing of a Registration Statement on Form S-8 (the “
Registration Statement
”) under the Securities Act of 1933, as amended (the “
Act
”) with the Securities and Exchange Commission (the “
Commission
”) on June 2, 2017, relating to the proposed issuance by the Company of 600,000 shares of the Company’s common stock, par value $0.001 per share (the “
Shares
”), pursuant to an Inducement Restricted Stock Unit Award Agreement between the Company and Mark Staton, its President and Chief Executive Officer (the “
Award
”). This opinion is being furnished in accordance with the requirements of Item 601(b)(5) of Regulation S-K under the Act, and no opinion is expressed herein as to any matter pertaining to the contents of the Registration Statement or prospectus forming a part thereof, other than as expressly stated herein with respect to the issue of the Shares.
I have examined and am familiar with the Award and have examined such records of the Company and such matters of fact and law as I have deemed necessary or advisable in rendering this opinion. I am opining herein as to the General Corporation Law of the State of Delaware and I express no opinion with respect to any other laws. My opinion is expressed as of the date hereof, and I do not assume any obligation to update or supplement my opinion to reflect any fact or circumstance subsequently arising or any change in law subsequently occurring after such date.
Based on the foregoing and the other matters set forth herein, it is my opinion that the Shares have been duly authorized and, when issued and duly delivered against payment therefor in accordance with the Award and upon either (a) the countersigning of the certificates representing the Shares by a duly authorized signatory of the registrar for the Company’s common stock, or (b) the book entry of the Shares by the transfer agent for the Company’s common stock, the Shares will be validly issued, fully paid and nonassessable.
This opinion is for your benefit in connection with the Registration Statement and may be relied upon by you and by persons entitled to rely upon it pursuant to the applicable provisions of the Act. I consent to the filing of this opinion as an exhibit to the Registration Statement and further consent to all references to myself in the Registration Statement and any amendments thereto. In giving such consent, I do not admit that I am in the category of persons whose consent is required under Section 7 of the Act or the rules and regulations of the Commission thereunder.
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Very truly yours,
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/s/ Phillip B. Kennedy
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Phillip B. Kennedy
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Vice President, Secretary and General Counsel
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XERIUM TECHNOLOGIES, INC.
INDUCEMENT RESTRICTED STOCK UNIT AWARD AGREEMENT
Dated as of June __, 2017 (the “Grant Date”)
THIS INDUCEMENT RESTRICTED STOCK UNIT AWARD AGREEMENT is made by and between Xerium Technologies, Inc. (the “Company”) and Mark Staton (the “Employee”).
WHEREAS, the Employee has entered into an employment agreement, executed and effective as of April 28, 2017, by and between the Employee and the Company (the “Employment Agreement”);
WHEREAS, in accordance with the terms of the Employment Agreement, the Committee desires to make an award of restricted stock units to the Employee, representing the “Special Incentive Opportunity” described in Section 2(c)(ii) of the Employment Agreement, as an “employment inducement award” (within the meaning of Rule 303A.08 of the New York Stock Exchange Listed Company Manual);
WHEREAS, capitalized terms used but not defined herein shall have the meanings set forth in the Employment Agreement, or if such terms are not defined in the Employment Agreement, in the Plan (as defined below).
NOW, THEREFORE, in consideration of the premises and mutual covenants contained herein, and for other good and valuable consideration, the parties agree as follows:
1.
The Restricted Stock Unit Award
. In accordance with the employment inducement award exception to the shareholder approval requirements of the New York Stock Exchange (the “NYSE”) set forth in Rule 303A.00 of the New York Stock Exchange Listed Company Manual, the Company hereby grants to the Employee an award of restricted stock units (the “Units”) representing the opportunity to earn up to 600,000 Shares. It is understood that the grant of such Units is not made pursuant to the Company’s 2010 Equity Incentive Plan (the “Plan”) or any other equity-based incentive plan of the Company or its Affiliates; provided, however, that, unless inconsistent with the express terms of this Agreement, this Agreement shall be construed, and the Units shall be administered, consistent with the provisions of the Plan, the terms of which are herein incorporated by reference. This Agreement is also subject to the terms of the Employment Agreement. To the extent there is any conflict between the terms of this Agreement and the Employment Agreement, the Employment Agreement shall control. Subject to the terms of this Agreement and the Employment Agreement, Shares will be issued hereunder, only to the extent that (i) the Award is Vested, as provided in this Agreement and the Employment Agreement, and (ii) the applicable performance levels are attained pursuant to the Special Incentive Matrix. The Employee’s rights to the Units are subject to the restrictions described in this Agreement and the Plan and the Employment Agreement in addition to such other restrictions, if any, as may be imposed by law.
2.
Definitions
. The following definitions will apply for purposes of this Agreement.
(a)
“Agreement” means this Inducement Restricted Stock Unit Award Agreement by and between the Company and the Employee.
(b)
“Award” means the grant of Units in accordance with this Agreement.
(c)
“Company Group” means the Company together with its Affiliates.
(d)
“Special Incentive Matrix” means the Special Incentive Matrix that is attached as Exhibit A to the Employment Agreement.
(e)
“Unit” means a notional unit which is equivalent to a single Share on the Grant Date, subject to Section 8(a).
(f)
“Vested” means that portion of the Award to which the Employee has a nonforfeitable right.
3.
Vesting; Forfeiture of Units
. Subject to Sections 5 and 6 below, and provided the Employee remains continuously employed with the Company Group through October 28, 2020 (the “Regular Vesting Date”), the Award shall become Vested on the Regular Vesting Date to the extent (and only to the extent) Shares are earned in accordance with the Special Incentive Matrix. To the extent not earned as of the Regular Vesting Date, the Award shall be forfeited without consideration as of such date.
4.
Payment of Award
. Subject to Section 8(d) below, and subject to earlier payment pursuant to Sections 5 and 6, as soon as practicable after the Regular Vesting Date, provided the Employee remains continuously employed with the Company Group through the Regular Vesting Date, the Company shall issue to the Employee that number of Shares as have been earned in accordance with the Special Incentive Matrix.
5.
Change in Control
. In the event of a Change in Control (as defined in the Plan), the number of Shares, if any, earned in respect of the Award will be determined based upon the stock price paid or implied in such transaction and the date on which the definitive agreements governing such transaction are executed, subject to any adjustments between such date and the closing date of the Change in Control transaction, as determined by the Board or Committee. Any such earned Shares will be issued to the Employee immediately prior to the consummation of such transaction. Except as expressly provided in the immediately preceding sentence, upon the occurrence of a Change in Control, this Award will terminate and no further Shares or other securities or property will thereafter be issued, paid or provided to the Employee in respect thereof.
6.
Termination of Employment
. If the Employee ceases to be employed by the Company Group prior to the Regular Vesting Date, the Award shall be forfeited without consideration, provided, however, that if the Employee’s employment is terminated by the Company Group without Cause or the Employee resigns his employment for Good Reason prior to the Regular Vesting Date, the provisions of Section 4(b)(v) of the Employment Agreement shall apply.
7.
No right to Dividends
. Prior to the issuance of any Shares following the Award becoming Vested, the Employee shall not have a right to receive any dividends or dividend equivalent payments in respect of the Units.
8.
Miscellaneous
.
(a)
Adjustments Based on Certain Changes in the Common Stock
. In the event of any stock split, reverse stock split, stock dividend, recapitalization or similar change affecting the Shares, the Award shall be equitably adjusted.
(b)
No Voting Rights
. The Award shall not be interpreted to bestow upon the Employee any equity interest or ownership in the Company or any Affiliate prior to the issuance of any Shares, and then only with respect to the Shares actually issued.
(c)
No Assignment
. No right or benefit or payment under the Award shall be subject to assignment or other transfer nor shall it be liable or subject in any manner to attachment, garnishment or execution.
(d)
Withholding
. The Employee is ultimately liable and responsible for all taxes owed in connection with the Award, regardless of any action the Company or any of its Affiliates takes with respect to any tax withholding obligations that arise in connection with the Award. Neither the Company nor any of its Affiliates makes any representation or undertaking regarding the treatment of any tax withholding in connection with the awarding or vesting of the Award or the subsequent sale of Shares. The Company and its Affiliates do not commit and are under no obligation to structure the Award to reduce or eliminate the Employee’s tax liability. Prior to any tax withholding becoming due, the Employee must make arrangements acceptable to the Committee to satisfy such withholding and must satisfy such tax withholdings when due. To the extent permitted by the Committee, the Company (or the employing Affiliate) will withhold a portion of the Shares distributable in connection with the Award that have an aggregate fair market value sufficient to pay the minimum federal, state and local income, employment and any other applicable taxes required to be withheld by the Company or the employing Affiliate with respect to the shares. Notwithstanding any contrary provision of this Agreement, no Shares will be issued by the Company unless and until satisfactory arrangements (as determined by the Committee) have been made by the Employee with respect to the payment of any income and other taxes which the Company determines must be withheld or collected as of the payment date with respect to such Shares. In addition and to the maximum extent permitted by law, and to the extent other satisfactory arrangements are not made by the Employee, the Company (or the employing Affiliate) has the right to retain from salary or other amounts payable to the Employee, cash having a value sufficient to satisfy any tax withholding obligations that cannot be satisfied by the withholding of otherwise deliverable Shares and any other arrangements made by the Employee.
(e)
Employment Rights
. This Agreement shall not create any right of the Employee to continued employment with the Company or its Affiliates or limit the right of Company or its Affiliates to terminate the Employee’s employment at any time and shall not create any right of the Employee to employment with the Company or any of its Affiliates. Except to the extent required by applicable law that cannot be waived, the loss of the Award shall not constitute an element of damages in the event of termination of the Employee’s employment even if the termination is determined to be in violation of an obligation of the Company or its Affiliates to the Employee by contract or otherwise.
(f)
Unfunded Status
. The obligations of the Company hereunder shall be contractual only. The Employee shall rely solely on the unsecured promise of the Company and nothing herein shall be construed to give the Employee or any other person or persons any right, title, interest or claim in or to any specific asset, fund, reserve, account or property of any kind whatsoever owned by the Company or any Affiliate.
(g)
Severability
. Any term or provision of this Agreement that is invalid or unenforceable in any situation in any jurisdiction will not affect the validity or enforceability of the remaining terms and provisions hereof or the validity or enforceability of the offending term or provision in any other situation or in any other jurisdiction. In the event that any provision hereof would, under applicable law, be invalid or unenforceable in any respect, such provision will be construed by modifying or limiting it so as to be valid and enforceable to the maximum extent compatible with, and possible under, applicable law.
(h)
Governing Law
. This Agreement and all actions arising in whole or in part under or in connection herewith, will be governed by and construed in accordance with the domestic substantive laws
of the State of Delaware, without giving effect to any choice or conflict of law provision or rule that would cause the application of the laws of any other jurisdiction.
(i)
409A
. The Award shall be construed and administered consistent with the intent that it be at all times in compliance with, or exempt from, the requirements of Section 409A of the Internal Revenue Code and the regulations thereunder.
(j)
Amendment
. This Agreement may be amended only by mutual written agreement of the parties.
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IN WITNESS WHEREOF, the undersigned have executed this Inducement Restricted Stock Unit Award Agreement as of the date first written above.
XERIUM TECHNOLOGIES, INC.
By: _________________________
Name: James F. Wilson
Title: Chairman of the Board
EMPLOYEE
By: ______________________
Mark Staton