EXHIBIT 10.2
PLATFORM SPECIALTY PRODUCTS CORPORATION
AMENDED AND RESTATED
2013 INCENTIVE COMPENSATION PLAN
_____________________________
FORM OF
PERFORMANCE-BASED RESTRICTED STOCK UNIT AWARD AGREEMENT
THIS PLATFORM SPECIALTY PRODUCTS CORPORATION PERFORMANCE-BASED RESTRICTED STOCK UNIT AWARD AGREEMENT (the “
Agreement
”) is made and entered into as of ______________ (the “
Grant Date
”), between Platform Specialty Products Corporation, a Delaware corporation (the “
Company
”) and _________________ (the “
Recipient
”).
Recitals
WHEREAS, the Compensation Committee of the Board of Directors of the Company (the “
Committee
”) has determined that it is in the best interests of the Company to recognize the Recipient’s performance and to provide an incentive to the Recipient to remain with the Company and its Related Entities by making this grant of performance-based Restricted Stock Units (“
PRSUs
”) representing hypothetical shares of the Company’s common stock (the “
Common Stock
”), in accordance with the terms of this Agreement; and
WHEREAS, the PRSUs are granted pursuant to the Platform Specialty Products Corporation Amended and Restated 2013 Incentive Compensation Plan, as the same may be amended and/or restated from time to time (the “
Plan
”), which is incorporated herein for all purposes.
NOW, THEREFORE, in consideration of the premises set forth herein and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows:
Agreement
1.
Grant of PRSUs
. Subject to the terms and conditions of this Agreement and the Plan, the Committee hereby grants to the Recipient a performance-based Restricted Stock Unit award (the “
PRSU Award
”) for a target number of ________________ PRSUs (the “
Target PRSU Amount
”). The number of PRSUs actually awarded to Recipient will be determined based on the achievement of Return on Invested Capital (“
ROIC
”) performance levels and of Annual Compound Total Shareholder Return (“
TSR
”) performance levels as set forth in Section 2 below at the end of the performance periods commencing (i) with respect to the achievement of ROIC, on _____________ and ending on ____________________ (the “
ROIC Performance Period
”), or (ii) with respect to the achievement of TSR, on the Grant Date and ending on _______________ (the “
TSR Performance Period
,” and together with the ROIC Performance Period, a “
Performance Period
”). Each PRSU will be equal in value to one Share of the Common Stock of the Company.
2.
Vesting of PRSUs
. Subject to the conditions contained herein and in the Plan, the PRSUs shall vest, and the restrictions on such PRSUs shall lapse, at the end of the applicable Performance Period as provided below. The total number of PRSUs actually awarded to Recipient shall be determined as follows: _____ percent (__%) shall be based on ROIC at the end of the ROIC Performance Period and ______ percent (__%) shall be based on TSR at the end of the TSR Performance Period; with each ROIC and TSR achievement calculated as set forth in
Exhibit A
attached hereto. The Committee shall determine ROIC and TSR in its sole discretion and no PRSUs shall vest, and the restrictions on such PRSUs shall not lapse, until the Committee certifies the applicable ROIC and/or TSR performance targets set forth herein.
(a)
PRSUs Based on ROIC
. At the end of the ROIC Performance Period, the Recipient shall earn, and become vested in, the PRSUs, if any, based on the ROIC of the Company over the ROIC Performance Period, taking into account the ROIC modifier (as defined below). The total number of PRSUs that shall vest based on the achievement of ROIC performance levels, subject to the Committee’s certification of the Company’s achievement of ROIC, shall equal the product of (i) ___ percent (___%)
multiplied by
(ii) the Target PRSU Amount
multiplied by
(iii) the ROIC Modifier (rounding down to the nearest whole share), as determined and approved by the Committee (the “
ROIC PRSU Amount
”).
ROIC Modifier
. Following the completion of the ROIC Performance Period, the ROIC PRSU Amount will be adjusted by the ROIC Modifier as set forth below (the “
ROIC Modifier
”):
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If the Company achieves less than a performance at less than the threshold level as noted on Exhibit A, then the ROIC Modifier will be equal to ___.
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If the Company achieves a performance between the threshold and target levels as noted on Exhibit A, then the ROIC Modifier will be _______ (linearly interpolated).
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If the Company achieves a performance between the target and stretch levels as noted on Exhibit A, then the ROIC Modifier will be _______ (linearly interpolated).
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(b)
PRSUs Based on TSR
. At the end of the TSR Performance Period, the Recipient shall earn, and become vested in, the PRSUs, if any, based on the TSR of the Company over the TSR Performance Period, taking into account the TSR Modifier (as defined below). For these purposes, TSR will be determined by the Committee using a “
Base Price
” and “
Vesting Date Price
”, each as defined in Section 2(b)(B) below. The total number of PRSUs that shall vest based on the achievement of TSR performance levels, subject to the Committee’s certification of the Company’s achievement of TSR, shall equal the product of (i) ___ percent (___%)
multiplied by
(ii) the Target PRSU Amount
multiplied by
(iii) the TSR Modifier (rounding down to the nearest whole share), as determined and approved by the Committee (the “
TSR PRSU Amount
,” and together with the ROIC PRSU Amount, the “
Actual PRSU Amount
”) in accordance with the performance goals set forth on Exhibit A attached hereto.
(A)
TSR Modifier
. Following the completion of the TSR Performance Period, the TSR PRSU Amount will be adjusted by the TSR Modifier as set forth below (the “
TSR Modifier
”):
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If the Company achieves a percentile performance as noted on Exhibit A of less than 50
th
percentile, then the TSR Modifier will be equal to ___.
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If the Company achieves a percentile performance as noted on Exhibit A between 50
th
percentile and 75
th
percentile, then the TSR Modifier will be _______ (linearly interpolated).
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If the Company achieves a percentile performance as noted on Exhibit A between 75
th
percentile and 100
th
percentile, then the TSR Modifier will be _______ (linearly interpolated).
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(B) For purposes of this Agreement, “
Base Price
” shall mean the thirty (30) calendar-day average closing sale price per share of common stock of the Company reported on a consolidated basis for stock listed on the principal stock exchange or market on which shares are traded, up to the Grant Date, and “
Vesting Date Price
” shall mean the thirty (30) calendar-day average closing sale price per share of common stock of the Company, reported on a consolidated basis for stock listed on the principal stock exchange or market on which shares are traded, up to the last day of the TSR Performance Period. The TSR shall be calculated on an annual compound return basis over the TSR Performance Period.
3.
Payout of PRSU Award
. If the Committee determines that the goals described in Section 2 above have been met and certifies the extent to which those goals have been met, and the terms and conditions set forth in this Agreement are fulfilled, then the Recipient’s Actual PRSU Amount as determined under Sections 2, 8 or 9, as applicable, shall no longer be restricted and Shares will be transferred to the Recipient after the end of the applicable Performance Period and on or before the March 15 of the calendar year immediately following the calendar year during which the applicable Performance Period ends, net of applicable income and employment tax withholdings.
4.
Transferability
. The PRSUs awarded hereunder are not transferable otherwise than by will or under the applicable laws of descent and distribution, and the terms of this Agreement shall be binding upon the executors, administrators, heirs, successors, and assigns of the Recipient. Any attempt to effect a Transfer of any PRSUs shall be void ab initio. For purposes of this Agreement, “
Transfer
” shall mean any sale, transfer, encumbrance, gift, donation, assignment, pledge, hypothecation, or other disposition, whether similar or dissimilar to those previously enumerated, whether voluntary or involuntary, and including, but not limited to, any disposition by operation of law, by court order, by judicial process, or by foreclosure, levy or attachment.
5.
Custody of PRSUs
. The PRSUs subject hereto shall be held in a restricted book entry account in the name of the Recipient. Upon completion of the applicable Performance Period, Shares issued pursuant to Section 3 above shall be released into an unrestricted book entry account;
provided
,
however
, that a portion of such Shares may be surrendered in payment of taxes in accordance with Section 11 below, unless the Company, in its sole discretion, establishes alternative procedures for the payment of such taxes.
6.
Hypothetical Nature of PRSUs
. The Recipient shall not have any rights, benefits, or entitlements with respect to the Shares corresponding to the PRSUs unless and until those Shares are delivered to the Recipient (and thus shall have no voting rights, or rights to receive any dividend declared, before those Shares are so delivered). On or after delivery, the Recipient shall have, with respect to the Shares delivered, all of the rights of a holder of Shares granted pursuant to the certificate of incorporation and other governing instruments of the Company, or as otherwise available at law.
7.
Termination of Continuous Service
. Except as set forth in Section 8 below, if the Recipient’s Continuous Service is terminated for any reason prior to the end of the applicable Performance Period, then any and all PRSUs granted hereunder shall be forfeited immediately upon such termination of Continuous Service and revert back to the Company without any payment to the holder thereof. The Committee shall have the power and authority to enforce on behalf of the Company any rights of the Company under this Agreement in the event of the forfeiture of PRSUs pursuant to this Section 7.
8.
Change in Control
. In the event of a Change in Control of the Company during the applicable Performance Period and prior to the termination of the Recipient’s Continuous Service with the Company and its Related Entities, if this Agreement and the PRSUs granted hereunder are not assumed or substituted by the purchaser in the Change in Control transaction, then the PRSUs shall become immediately vested, and for purposes of determining the Actual PRSU Amount, the Vesting Date Price shall be based on the per share Change in Control transaction price for purposes of determining the appropriate TSR Modifier.
9.
Section 409A
. Payments made pursuant to the Plan and this Agreement are intended to comply with or qualify for an exemption from Section 409A of the Internal Revenue Code of 1986, as amended (“
Section 409A
”). The Company reserves the right, to the extent the Company deems necessary or advisable in its sole discretion, to unilaterally amend or modify the Plan and/or this Agreement to ensure that all PRSU Awards are made in a manner that complies with Section 409A (including, without limitation, the avoidance of penalties thereunder),
provided
,
however
, that the Company makes no representations that the PRSU Awards will be exempt from any penalties that may apply under Section 409A and makes no undertaking to preclude Section 409A from applying to this PRSU Award.
Notwithstanding anything to the contrary in this Agreement or the Plan, if the Recipient is a “
Specified Employee
” (as defined below) then the delivery of Shares otherwise required to be made under this Agreement on account of the termination of the Recipient’s Continuous Service shall be made within thirty (30) days after the sixth (6
th
) month anniversary of the date of the termination of the Recipient’s Continuous Service or, if earlier, the date of the Recipient’s death if such deferral is required to comply with Section 409A of the Code. For purposes of this
Agreement, a “
Specified Employee
” shall mean any individual who, at the time of his or her separation from Continuous Service with the Company and its Related Entities, is a “key employee”, within the meaning of Section 416(i) of the Code, of the Company or any Related Entity, so long as the stock of the Company is publicly traded on an established securities market or otherwise as of the date of separation.
For purposes of applying the provisions of Section 409A to this Agreement, each separately identified amount to which the Recipient is entitled under this Agreement shall be treated as a separate payment. In addition, to the extent permissible under Section 409A, any series of installment payments under this Agreement shall be treated as a right to a series of separate payments.
10.
Taxes
.
(a) The Recipient shall be liable for any and all taxes, including withholding taxes and fringe benefit tax or such other taxes that the Recipient’s employer (the “
Employer
”) is legally allowed or permitted to recover from the Recipient, arising out of this grant or the issuance of Shares hereunder. In the event that the Company or the Employer is liable for taxes that are legally permitted to be recovered from the Recipient or is required to withhold taxes as a result of the grant of PRSUs or the issuance or subsequent sale of Shares acquired pursuant to such PRSUs, the Recipient shall surrender a sufficient number of whole Shares, make a cash payment or make adequate arrangements satisfactory to the Company and/or the Employer to withhold such taxes from the Recipient’s wages or other cash compensation paid to the Recipient by the Company and/or the Employer at the election of the Company, in its sole discretion, or, if permissible under local law, the Company may sell or arrange for the sale of Shares that Recipient acquires as necessary to cover all applicable required withholding taxes, taxes that are legally recoverable from the Recipient (such as fringe benefit tax) and required social security contributions at the time the Shares subject to the PRSUs are issued. The Recipient will receive a cash refund for any fraction of a surrendered Share or Shares in excess of any required withholding taxes, taxes that are legally recoverable from the Recipient (such as fringe benefit tax), and required social security contributions. To the extent that any surrender of Shares or payment of cash or alternative procedure for such payment is insufficient, the Recipient authorizes the Company, the Employer, and the Related Entities, which are qualified to deduct tax at source, to deduct from the Recipient’s compensation all applicable required withholding taxes, taxes that are legally recoverable from the Recipient (such as fringe benefit tax) and social security contributions. The Recipient agrees to pay any amounts that cannot be satisfied from wages or other cash compensation, to the extent permitted by law.
(b) In accepting the PRSU Award, the Recipient consents and agrees that in the event the PRSU Award becomes subject to an employer tax that is legally permitted to be recovered from the Recipient, as may be determined by the Company and/or the Employer at their sole discretion, and whether or not the Recipient’s Continuous Service is continuing at the time such tax becomes recoverable, the Recipient will assume any liability for any such taxes that may be payable by the Company and/or the Employer in connection with the PRSU Award. Further, by accepting the PRSU Award, the Recipient agrees that the Company and/or the Employer may collect any such taxes from the Recipient by any of the means set forth in this Section 11. The Recipient further agrees to execute any other consents or elections required to accomplish the above, promptly upon request of the Company.
11.
Acknowledgment and Waiver
. By accepting this grant of PRSUs, the Recipient acknowledges and agrees that: (i) the Plan is established voluntarily by the Company, it is discretionary in nature and may be modified, amended, suspended or terminated by the Company at any time unless otherwise provided in the Plan or this Agreement; (ii) the grant of PRSUs is voluntary and occasional and does not create any contractual or other right to receive future grants of Shares or PRSUs, or benefits in lieu of Shares or PRSUs, even if Shares or PRSUs have been granted repeatedly in the past; (iii) all decisions with respect to future grants, if any, will be at the sole discretion of the Company; (iv) the Recipient’s participation in the Plan shall not create a right to further employment with the Employer and shall not interfere with the ability of the Employer to terminate the Recipient’s employment relationship at any time with or without Cause, and it is expressly agreed and understood that employment is terminable at the will of either party, insofar as permitted by law; (v) the Recipient is participating voluntarily in the Plan; (vi) PRSUs, PRSU grants and resulting benefits are an extraordinary item that is outside the scope of the Recipient’s employment or service contract, if any; (vii) PRSUs, PRSU grants and resulting benefits are not part of normal or expected compensation or salary for any purposes, including, but not limited to, calculating any severance, resignation, termination, redundancy, end of
service payments, bonuses, long-service awards, pension or retirement benefits or similar payments insofar as permitted by law; (viii) this grant of PRSUs will not be interpreted to form an employment contract with the Company, the Employer or any Related Entity; (ix) the future value of the underlying Shares is unknown and cannot be predicted with certainty; (x) in consideration of this grant of PRSUs, no claim or entitlement to compensation or damages shall arise from termination of this grant of PRSUs or diminution in value of this grant of PRSUs resulting from termination of the Recipient’s Continuous Service (for any reason whatsoever and whether or not in breach of local labor laws) and the Recipient irrevocably releases the Company and the Employer from any such claim that may arise; if, notwithstanding the foregoing, any such claim is found by a court of competent jurisdiction to have arisen, then, by accepting the terms of this Agreement, the Recipient shall be deemed irrevocably to have waived any entitlement to pursue such claim; (xi) notwithstanding any terms or conditions of the Plan to the contrary, in the event of involuntary termination of the Recipient’s employment (whether or not in breach of local labor laws), the Recipient’s right to receive benefits under this Agreement after termination of Continuous Service, if any, will be measured by the date of termination of the Recipient’s active Continuous Service and will not be extended by any notice period mandated under local law; (xii) the Committee shall have the exclusive discretion to determine when the Recipient is no longer actively in the Continuous Service of the Company and its Related Entities for purposes of this grant of PRSUs; and (xiii) if the Company’s stock performance is below minimum levels as set forth in this Agreement, no PRSUs will be awarded and no Shares will be issued to the Recipient.
12.
Clawback of Benefits
. The Company may (i) cause the cancellation of the PRSUs, (ii) require reimbursement of any benefit conferred under the PRSUs to the Recipient or Beneficiary, and (iii) effect any other right of recoupment of equity or other compensation provided under the Plan or otherwise in accordance with any Company policies that currently exist or that may from time to time be adopted or modified in the future by the Company and/or applicable law (each, a “
Clawback Policy
”). In addition, the Recipient may be required to repay to the Company certain previously paid compensation, whether provided under the Plan or an award agreement or otherwise, in accordance with any Clawback Policy. By accepting this PRSU Award, the Recipient agrees to be bound by any existing or future Clawback Policy adopted by the Company, or any amendments that may from time to time be made to the Clawback Policy in the future by the Company in its discretion (including without limitation any Clawback Policy adopted or amended to comply with applicable laws or stock exchange requirements) and further agrees that all of the Recipient’s award agreements (and/or awards issued under the Prior Plan) may be unilaterally amended by the Company, without the Recipient’s consent, to the extent that the Company in its discretion determines to be necessary or appropriate to comply with any Clawback Policy.
13.
Miscellaneous
.
(a) The parties agree to execute such further instruments and to take such action as may reasonably be necessary to carry out the intent of this Agreement.
(b) Any notice required or permitted hereunder shall be given in writing and shall be deemed effectively given upon delivery to the Recipient at his or her address then on file with the Company and its Related Entities.
(c) The Plan is incorporated herein by reference. The Plan and this Agreement, together with each annual supplement hereto, constitute the entire agreement of the parties with respect to the subject matter hereof and supersede in their entirety all prior undertakings and agreements of the Company, its Related Entities and the Recipient with respect to the subject matter hereof, and may not be modified adversely to the Recipient’s interest except by means of a writing signed by the Company and the Recipient. Notwithstanding the foregoing, nothing in the Plan or this Agreement shall affect the validity or interpretation of any duly authorized written agreement between the Company and the Recipient under which an Award properly granted under and pursuant to the Plan serves as any part of the consideration furnished to the Recipient, including without limitation, any agreement that imposes restrictions during or after employment regarding confidential information and proprietary developments. This Agreement is governed by the laws of the state of Delaware.
(d) Neither this Agreement nor the grant of the Restricted Stock Units hereunder shall create or be construed to create a trust or separate fund of any kind or a fiduciary relationship between the Company and the Recipient or any other person. The Restricted Stock Units subject to this Agreement represent only the Company’s unfunded and unsecured promise to issue Shares to the Recipient in the future. To the extent that the Recipient or any other person
acquires a right to receive payments from the Company pursuant to this Agreement, that right shall be no greater than the right of any unsecured general creditor of the Company.
(e) If the Recipient has received this or any other document related to the Plan translated into a language other than English and if the translated version is different than the English version, the English version will control.
(f) The provisions of this Agreement are severable and if any one or more provisions are determined to be illegal or otherwise unenforceable, in whole or in part, the remaining provisions shall nevertheless be binding and enforceable.
(g) Any capitalized terms not defined herein shall have the same meaning they have in the Plan.
COMPANY
:
PLATFORM SPECIALTY PRODUCTS CORPORATION
By: __________________________________________
RECIPIENT
:
______________________________________________
EXHIBIT 10.3
PLATFORM SPECIALTY PRODUCTS CORPORATION
NON-QUALIFIED STOCK OPTION AGREEMENT
FOR
______________________________
Form of Agreement
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1.
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Grant of Option.
PLATFORM SPECIALTY PRODUCTS corporation (the “
Company
”) hereby grants, as of _________________ (“
Date of Grant
”), to _________________
(the “
Optionee
”) an option (the “
Option
”) to purchase up to ______ shares of the Company’s common stock (the “
Shares
”), at an exercise price per share equal to $____ (the “
Exercise Price
”). The Option shall be subject to the terms and conditions set forth herein. The Option is being granted pursuant to the Company’s Amended and Restated 2013 Incentive Compensation Plan (the “
Plan
”), which is incorporated herein for all purposes. The Option is a Non-Qualified Stock Option, and not an Incentive Stock Option. The Optionee hereby acknowledges receipt of a copy of the Plan and agrees to be bound by all of the terms and conditions hereof and thereof and all applicable laws and regulations.
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2.
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Definitions
. Unless otherwise provided herein, terms used herein that are defined in the Plan and not defined herein shall have the meanings attributed thereto in the Plan.
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3.
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Exercise Schedule
. Except as otherwise provided in Sections 6 or 9 of this Agreement, or in the Plan, the Option is exercisable once vested in installments as provided below, which shall be cumulative. To the extent that the Option has become exercisable with respect to a percentage of Shares as provided below, the Option may thereafter be exercised by the Optionee, in whole or in part, at any time or from time to time prior to the expiration of the Option as provided herein. The following table indicates each date (the “
Vesting Date
”) upon which the Optionee shall be entitled to exercise the Option with respect to the percentage of Shares granted as indicated beside the date, provided that the Continuous Service of the Optionee continues through and on the applicable Vesting Date:
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Percentage of Shares
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Vesting Date
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33.33%
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First Anniversary of Date of Grant
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33.33%
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Second Anniversary of Date of Grant
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33.34%
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Third Anniversary of Date of Grant
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Except as otherwise specifically provided herein, there shall be no proportionate or partial vesting in the periods prior to each Vesting Date, and all vesting shall occur only on the appropriate Vesting Date. Upon the termination of the Optionee’s Continuous Service, any unvested portion of the Option shall terminate and be null and void.
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4.
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Method of Exercise
. The vested portion of this Option shall be exercisable in whole or in part in accordance with the exercise schedule set forth in Section 3 hereof by written notice which shall state the election to exercise the Option, the number of Shares in respect of which the Option is being exercised, and such other representations and agreements as to the holder’s investment intent with respect to such Shares as may be required by the Company pursuant to the provisions of the Plan. Such written notice shall be signed by the Optionee and shall be delivered in person or by certified mail to the Secretary of the Company. The written notice shall be accompanied by payment of the Exercise Price. This Option shall be deemed to be exercised after both (a) receipt by the Company of such written notice accompanied by the Exercise Price and (b) arrangements that are satisfactory to the Committee in its sole discretion have been made for Optionee’s payment to the Company of the amount, if any, that is necessary to be withheld in accordance with applicable Federal or state withholding requirements. No Shares shall be issued pursuant to the Option unless and until
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such issuance and such exercise shall comply with all relevant provisions of applicable law, including the requirements of any stock exchange upon which the Shares then may be traded.
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5.
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Method of Payment
. Payment of the Exercise Price shall be by any of the following, or a combination thereof, at the election of the Optionee: (a) cash; (b) check; (c) to the extent permitted by the Committee, with Shares owned by the Optionee, or the withholding of Shares that otherwise would be delivered to the Optionee as a result of the exercise of the Option, (d) pursuant to a “cashless exercise” procedure, by delivery of a properly executed exercise notice together with such other documentation, and subject to such guidelines, as the Committee shall require to effect an exercise of the Option and delivery to the Company by a licensed broker acceptable to the Company of proceeds from the sale of Shares sufficient to pay the Exercise Price and any applicable income or employment taxes, or (e) such other consideration or in such other manner as may be determined by the Committee in its absolute discretion.
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6.
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Termination of Option
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(a)
General
. Any unexercised portion of the Option shall automatically and without notice terminate and become null and void immediately upon the termination of the Optionee’s Continuous Service by the Company or a Related Entity for Cause. In addition, unless exercised by the Optionee during the termination periods indicated below, any vested but unexercised portion of the Option shall automatically and without notice terminate and become null and void at the time of the earliest to occur of the following:
(i)
six months after the date on which the Optionee’s Continuous Service is terminated other than by reason of (A) by the Company or a Related Entity for Cause, (B) a Disability of the Optionee as determined by a medical doctor satisfactory to the Committee, or (C) the death of the Optionee; in each case, unless the Committee otherwise determines in writing in its sole discretion;
(ii)
twelve months after the date on which the Optionee’s Continuous Service is terminated by reason of retirement;
(iii)
twelve months after the date on which the Optionee’s Continuous Service is terminated by reason of a Disability as determined by a medical doctor satisfactory to the Committee;
(iv)
twelve months after the date of termination of the Optionee’s Continuous Service by reason of the death of the Optionee; or
(v)
the tenth (10
th
) anniversary of the Date of Grant.
(b)
Cancellation
. To the extent not previously exercised, (i) the Option shall terminate immediately in the event of (A) the liquidation or dissolution of the Company, or (B) any reorganization, merger, consolidation or other form of corporate transaction in which the Company does not survive or the Shares are exchanged for or converted into securities issued by another entity, or an affiliate of such successor or acquiring entity, unless the successor or acquiring entity, or an affiliate thereof, assumes the Option or substitutes an equivalent option or right pursuant to Section 10(c) of the Plan, and (ii) the Committee in its sole discretion may by written notice (“cancellation notice”) cancel, effective upon the consummation of any transaction that constitutes a Change in Control, the Option (or portion thereof) that remains unexercised on such date. The Committee shall give written notice of any proposed transaction referred to in this Section 6(b) a reasonable period of time prior to the closing date for such transaction (which notice may be given either before or after approval of such transaction), in order that the Optionee may have a reasonable period of time prior to the closing date of such transaction within which to exercise the Option if and to the extent that it then is exercisable (including any portion of the Option that may become exercisable upon the closing date of such transaction). The Optionee may condition his exercise of the Option upon the consummation of a transaction referred to in this Section 6(b).
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7.
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Transferability
. Unless otherwise determined by the Committee, the Option granted hereby is not transferable otherwise than by will or under the applicable laws of descent and distribution, and during the lifetime of the Optionee the Option shall be exercisable only by the Optionee, or the Optionee’s guardian or legal representative. In addition, the Option shall not be assigned, negotiated, pledged or hypothecated in any way (whether by operation of law or otherwise), and the Option shall not be subject to execution, attachment or similar process. Upon any attempt to transfer, assign, negotiate, pledge or hypothecate the Option, or in the event of any levy upon the Option by reason of any execution, attachment or similar process contrary to the provisions hereof, the Option shall immediately become null and void. The terms of this Option shall be binding upon the executors, administrators, heirs, successors and assigns of the Optionee.
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8.
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No Rights of Stockholders
. Neither the Optionee nor any personal representative (or beneficiary) shall be, or shall have any of the rights and privileges of, a stockholder of the Company with respect to any Shares purchasable or issuable upon the exercise of the Option, in whole or in part, prior to the date on which the Shares are issued.
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9.
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Acceleration of Exercisability of Option
.
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(a)
Acceleration Upon Certain Terminations or Cancellations of Option
. This Option shall become immediately fully exercisable in the event that, prior to the termination of the Option pursuant to Section 6 hereof, (i) the Option is terminated pursuant to Section 6(b)(i) hereof, or (ii) the Company exercises its discretion to provide a cancellation notice with respect to the Option pursuant to Section 6(b)(ii) hereof.
(b)
Acceleration Upon Change in Control.
Subject to Section 9(c) below, this Option shall become immediately fully exercisable in the event that, prior to the termination of the Option pursuant to Section 6 hereof, and during the Optionee's Continuous Service, there is a Change in Control, as defined in Section 9(b) of the Plan.
(c)
Exception to Acceleration Upon Change in Control.
Notwithstanding the foregoing, if in the event of a Change in Control the successor company assumes or substitutes for the Option, the vesting of the Option shall not be accelerated as described in Section 9(b). For the purposes of this paragraph, the Option shall be considered assumed or substituted for if following the Change in Control the Option or substituted option confers the right to purchase, for each Share subject to the Option immediately prior to the Change in Control, on substantially the same vesting and other terms and conditions as were applicable to the Option immediately prior to the Change in Control, the consideration (whether stock, cash or other securities or property) received in the transaction constituting a Change in Control by holders of Shares for each Share held on the effective date of such transaction (and if holders were offered a choice of consideration, the type of consideration chosen by the holders of a majority of the outstanding shares); provided, however, that if such consideration received in the transaction constituting a Change in Control is not solely common stock of the successor company or its parent or subsidiary, the Committee may, with the consent of the successor company, or its parent or subsidiary, provide that the consideration to be received upon the exercise or vesting of the Option will be solely common stock of the successor company or its parent or subsidiary substantially equal in Fair Market Value to the per share consideration received by holders of Shares in the transaction constituting a Change in Control. The determination of such substantial equality of value of consideration shall be made by the Committee in its sole discretion and its determination shall be conclusive and binding.
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10.
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No Right to Continued Employment
. Neither the Option nor this Agreement shall confer upon the Optionee any right to continued employment or service with the Company.
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11.
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Law Governing
. This Agreement shall be governed in accordance with and governed by the internal laws of the State of Delaware.
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12.
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Interpretation / Provisions of Plan Control
. This Agreement is subject to all the terms, conditions and provisions of the Plan, including, without limitation, the amendment provisions thereof, and to such rules,
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regulations and interpretations relating to the Plan adopted by the Committee as may be in effect from time to time. If and to the extent that this Agreement conflicts or is inconsistent with the terms, conditions and provisions of the Plan, the Plan shall control, and this Agreement shall be deemed to be modified accordingly. The Optionee accepts the Option subject to all of the terms and provisions of the Plan and this Agreement. The undersigned Optionee hereby accepts as binding, conclusive and final all decisions or interpretations of the Committee upon any questions arising under the Plan and this Agreement, unless shown to have been made in an arbitrary and capricious manner.
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13.
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Notices
. Any notice under this Agreement shall be in writing and shall be deemed to have been duly given when delivered personally or when deposited in the United States mail, registered, postage prepaid, and addressed, in the case of the Company, to the Company’s General Counsel at 245 Freight Street, Waterbury, Connecticut 06702, or if the Company should move its principal office, to such principal office, and, in the case of the Optionee, to the Optionee’s last permanent address as shown on the Company’s records, subject to the right of either party to designate some other address at any time hereafter in a notice satisfying the requirements of this Section.
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14.
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Non-Waiver of Breach
. The waiver by any party hereto of the other party's prompt and complete performance, or breach or violation, of any term or provision of this Agreement shall be effected solely in a writing signed by such party, and shall not operate nor be construed as a waiver of any subsequent breach or violation, and the waiver by any party hereto to exercise any right or remedy which he or it may possess shall not operate nor be construed as the waiver of such right or remedy by such party, or as a bar to the exercise of such right or remedy by such party, upon the occurrence of any subsequent breach or violation.
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15.
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Counterparts
.
This Agreement may be executed in two or more separate counterparts, each of which shall be an original, and all of which together shall constitute one and the same agreement.
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16.
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Clawback of Benefits
.
The Company may (i) cause the cancellation of the Option, (ii) require reimbursement of any benefit conferred under the Option to the Optionee or any beneficiary, and (iii) effect any other right of recoupment of equity or other compensation provided under the Plan or otherwise in accordance with any Company policies that currently exist or that may from time to time be adopted or modified in the future by the Company and/or applicable law (each, a “
Clawback Policy
”). In addition, the Optionee may be required to repay to the Company certain previously paid compensation, whether provided under the Plan or an award Agreement or otherwise, in accordance with any Clawback Policy. By accepting this award, the Optionee agrees to be bound by any existing or future Clawback Policy adopted by the Company, or any amendments that may from time to time be made to the Clawback Policy in the future by the Company in its discretion (including without limitation any Clawback Policy adopted or amended to comply with applicable laws or stock exchange requirements) and further agrees that all of the Optionee’s award Agreements (and/or awards issued under the Prior Plan) may be unilaterally amended by the Company, without the Optionee’s consent, to the extent that the Company in its discretion determines to be necessary or appropriate to comply with any Clawback Policy.
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IN WITNESS WHEREOF,
the undersigned have executed this Agreement as of the _______ day of _________________, 20__.
COMPANY:
PLATFORM SPECIALTY PRODUCTS CORPORATION,
a Delaware corporation
By:
Name:
Title:
The Optionee acknowledges receipt of a copy of the Plan and represents that he or she has reviewed the provisions of the Plan and this Option Agreement in their entirety, is familiar with and understands their terms and provisions, and hereby accepts this Option subject to all of the terms and provisions of the Plan and the Option Agreement. The Optionee further represents that he or she has had an opportunity to obtain the advice of counsel prior to executing this Option Agreement.
Dated:
OPTIONEE
:
By: _______________________________
