SECURITIES
AND EXCHANGE
COMMISSION
Washington,
D.C. 20549
FORM
8-K/A
(Amendment
No. 1)
Current
Report
Pursuant
to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of
Report (Date of earliest event reported):
December
11, 2008
CELANESE
CORPORATION
(Exact
Name of Registrant as specified in its charter)
DELAWARE
(State
or other jurisdiction
of
incorporation)
|
001-32410
(Commission
File
Number)
|
98-0420726
(IRS
Employer
Identification
No.)
|
1601 West LBJ Freeway,
Dallas, Texas 75234-6034
(Address
of Principal Executive Offices) (Zip Code)
Registrant's
telephone number, including area code:
(972)
443-4000
Not
Applicable
(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 (see General Instruction A.2. below):
[ ]
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))
|
Explanatory
Note:
Celanese
Corporation hereby (i) amends and restates, in its entirety, Item 5.02 of the
Current Report on Form 8-K (the “
8-K
”) filed with the
Securities and Exchange Commission on December 17, 2008, and (ii) amends the 8-K
by adding Item 9.01 and the exhibits set forth therein, as set forth
below. This amendment primarily corrects the description of the vesting of
awards following a Change in Control and the vesting date of the
performance-vesting awards.
Item
5.02
|
Departure of Director or Certain Officers;
Election of Directors; Appointment of Certain Officers; Compensatory
Arrangements of Certain
Officers.
|
On
December 11, 2008, the Compensation Committee (the “
Committee
”) of the
Board of Directors of Celanese Corporation (the “
Company
”) approved a
long-term incentive program (the “
2008 LTIP
”) pursuant
to which the Company made (i) awards of time-vesting cash to all of its
executive officers and certain other key employees (each, a “
Participant
”), (ii)
an award of Performance Units to Mr. Weidman, and (iii) awards of
performance-vesting restricted stock units (“
Performance RSUs
”) to
the Participants (other than Mr. Weidman). The Performance RSUs were
granted under the Company’s 2004 Stock Incentive Plan. The
Committee approved awards under the 2008 LTIP to the Company’s named executive
officers in the following amounts:
Executive Officer
|
Number
of
Performance
RSUs
at
Target
|
Number
of Performance
Units
at
Target
|
Value
of Time-Vesting
Cash
LTI
Award
($)
|
|
|
|
|
David
N. Weidman
|
N/A
|
200,000
|
$1,000,000
|
Steven
M. Sterin
|
13,400
|
N/A
|
$1,800,000
|
James
S. Alder
|
16,700
|
N/A
|
$750,000
|
John
J. Gallagher III
|
21,700
|
N/A
|
$975,000
|
Douglas
M. Madden
|
21,700
|
N/A
|
$975,000
|
Jay
C. Townsend
|
8,400
|
N/A
|
$375,000
|
John
A. O’Dwyer
|
8,400
|
N/A
|
$375,000
|
Performance-Vesting
Restricted Stock Units
In
connection with the approval noted above, the Company will enter into
a Performance-Vesting Restricted Stock Unit Award Agreement (the “
Performance RSU
Agreement
”) with each of the Participants (other than Mr.
Weidman). The percentage of the target number of Performance RSUs
awarded that may vest on October 14, 2011, is subject to the achievement of
specified levels of (i) Operating EBITDA during the 2009 and 2010 fiscal years
and (ii) “Total Shareholder Return” as compared to peer companies during the
period that commenced December 1, 2008 through September 30, 2011, and is set
forth in the following schedule:
|
|
Relative
TSR Achieved
|
|
|
Below
Threshold
|
Target
|
Stretch
|
Operating
EBITDA Achieved
|
Below
Threshold
|
0%
|
0%
|
0%
|
Target
|
50%
|
100%
|
150%
|
Stretch
|
75%
|
150%
|
225%
|
Upon the
termination of a Participant’s employment with the Company by reason of death or
disability, Performance RSUs in an amount equal to (i) the target number of
Performance RSUs granted multiplied by (ii) a fraction, the numerator of which
is the number of full months between December 11, 2008 and the date of such
termination, and the denominator of which is thirty-four, such product to be
rounded down to the nearest whole number (the “
Prorated Amount
”),
shall immediately vest and become deliverable to the
Participant. Upon the termination of a Participant’s employment with
the Company without cause, Performance RSUs in an amount equal to the Prorated
Amount shall vest and be deliverable to the Participant on the scheduled vesting
date, subject to adjustment for the achievement of the performance goals
outlined above and as applied to all other Participants. Upon the
termination of a Participant’s employment with the Company for any other reason,
the Performance RSU award shall be forfeited and cancelled without
consideration.
If a
Participant’s employment with the Company is terminated without cause following
a Change in Control, the target number of Performance RSUs will immediately vest
and become payable to the Participant within 30 days of such
termination. If the RSU award is not assumed by the Participant’s new
employer in connection with a Change in Control, or a substitute award is not
made, the target number of Performance RSUs will fully vest upon the Change in
Control, and shall be paid to the Participant within 30 days after the Change in
Control occurs.
The
description of the Performance RSU Agreement contained herein is qualified in
its entirety by reference to the form of Performance RSU Agreement that is
attached hereto as Exhibit 10.1 and incorporated herein by
reference.
Performance
Unit Award Agreement with David N. Weidman
In
connection with the approval noted above, the Company made a grant of
Performance Units (to be settled in cash) rather than a grant of Performance
RSUs to Mr. Weidman. Except as otherwise noted in this section, the
terms of the Performance Unit Award Agreement (the “
Performance Unit
Agreement
”) with Mr. Weidman are substantially similar to the terms of
the Performance RSU Agreement entered into with the other executive
officers. The value of each Performance Unit is equivalent to the
value of one share of the Company’s Series A Common Stock (“
Common Stock
”) and
any amounts that may vest under the Performance Unit Award Agreement are to be
settled in cash, rather than shares of Common Stock. Notwithstanding
the foregoing, at any time the Committee may elect to convert all or any portion
of the Performance Unit award to an award of an equivalent value of Performance
RSUs. If the Committee elects to convert the Performance Units, Mr.
Weidman shall receive a number of Performance RSUs equal to the number of
Performance Units granted to Mr. Weidman.
The
description of the Performance Unit Award Agreement contained herein is
qualified in its entirety by reference to the Performance Unit Award
Agreement, dated December 11, 2008, between the Company and David N. Weidman,
which is attached hereto as Exhibit 10.2 and incorporated herein by
reference.
Time-Vesting
Cash LTI Awards
In
connection with the approval noted above, the Company will also enter into a
Long-Term Incentive Cash Award Agreement (the “
Cash Award
Agreement
”) with each of the Participants (including Mr.
Weidman). Each award of cash will vest 30% on October 14, 2009, 30%
on October 14, 2010 and 40% on October 14, 2011.
Upon the
termination of a Participant’s employment with the Company by reason of death or
disability or by the Company without cause, cash in amount equal to (i) the
value of the cash award granted multiplied by (ii) a fraction, (x) the numerator
of which is the number of full months between December 11, 2008 and the date of
such termination, and (y) the denominator of which is thirty-four, such product
to be rounded down to the nearest whole number, and reduced by (iii) the value
of any cash award that previously vested, shall immediately vest and become
payable to the Participant as soon as reasonably practicable. Upon
the termination of a Participant’s employment with the Company for any other
reason, any unvested portion of the cash award shall be forfeited and cancelled
without consideration.
If a
Participant’s employment with the Company is terminated without cause following
a Change in Control, the cash award will immediately vest and become payable to
the Participant within 30 days of such termination. If the cash award
is not assumed by the Participant’s new employer in connection with a Change in
Control, or a substitute award is not made, the cash award will fully vest upon
the Change in Control, and shall be paid to the Participant within 30 days after
the Change in Control occurs.
The
Committee may elect at any time to convert all or any portion of the cash award
into time-vesting restricted stock units. If the Committee elects to
convert the cash award, the Participant shall receive a number of time-vesting
restricted stock units equal to (i) the value of the unvested portion of the
cash award being converted divided by (ii) the average of the high and low sale
price of the Common Stock on the day of such election.
The
description of the Cash Award Agreement contained herein is qualified in its
entirety by reference to the form of Time-Vesting Cash Award Agreement that is
attached hereto as Exhibit 10.3 and incorporated herein by
reference.
Long-Term
Incentive Award Claw-Back Agreement
In
connection with the 2008 LTIP and the awards of Performance RSUs, Performance
Units and cash thereunder, each Participant is required to execute a Long-Term
Incentive Award Claw-Back Agreement. The Long-Term Incentive
Award Claw-Back Agreements (the “
LTI Claw-Back
Agreement
”) contain provisions prohibiting the Participant from (i)
disclosing confidential or proprietary information and (ii) soliciting customers
of, or competing with, the Company for a period of one year following the
termination of the Participant’s employment with the Company for any
reason. If the Participant violates any of these provisions, the
Participant will (i) cease vesting and forfeit any rights or interest in cash
LTI awards, restricted stock units, stock options or any other form of equity
award that was granted on or after December 11, 2008 and that vested during the
period one year prior to the earlier of (a) the Participant’s violation of the
terms of the LTI Claw-Back Agreement and (b) the termination of the
Participant’s employment with the Company and (ii) be required to deliver to the
Company any amount received under any cash LTI award or gain realized on any
stock option exercises or any other transaction relating to an equity grant by
the Company on or after December 11, 2008 that were consummated during the
period one year prior to the earlier of (x) the Participant’s violation of the
terms of the LTI Claw-Back Agreement and (y) the termination of the
Participant’s employment with the Company.
The
description of the LTI Claw-Back Agreement contained herein is qualified in its
entirety by reference to the form of Long-Term Incentive Claw-Back Agreement
that is attached hereto as Exhibit 10.4 and incorporated herein by
reference.
Item
9.01
|
Financial Statements and
Exhibits.
|
(d)
Exhibits
Exhibit Number
|
Description
|
10.1
|
Form
of Performance-Vesting RSU Award Agreement.
|
10.2
|
Performance
Unit Award Agreement, dated December 11, 2008, between the Company and
David N. Weidman.
|
10.3
|
Form
of Long-Term Incentive Cash Award Agreement.
|
10.4
|
Form
of Long-Term Incentive Award Claw-Back
Agreement.
|
SIGNATURES
Pursuant
to the requirements of the Securities Exchange Act of 1934, the registrant has
duly caused this report to be signed on its behalf by the undersigned hereunto
duly authorized.
|
CELANESE
CORPORATION
|
|
|
|
|
|
Date: January
26, 2009
|
By:
|
/s/
Robert L. Villaseñor
|
|
|
|
Name:
Robert L. Villaseñor
|
|
|
|
Title:
Associate General Counsel and Assistant Secretary
|
|
|
|
|
|
EXHIBIT
INDEX
Exhibit Number
|
Description
|
10.1
|
Form
of Performance-Vesting RSU Award
Agreement.
|
10.2
|
Performance
Unit Award Agreement, dated December 11, 2008, between the Company and
David N. Weidman.
|
10.3
|
Form
of Long-Term Incentive Cash Award
Agreement.
|
10.4
|
Form
of Long-Term Incentive Award Claw-Back
Agreement.
|
EXHIBIT 10.1
CELANESE
CORPORATION
2004
STOCK INCENTIVE PLAN
PERFORMANCE-VESTING
RESTRICTED STOCK UNIT AWARD AGREEMENT
DATED
[
Grant Date
]
[Participant
Name]
Pursuant
to the terms and conditions of the Celanese Corporation 2004 Stock Incentive
Plan, you have been awarded Performance-Vesting Restricted Stock Units of
Celanese Common Stock, subject to the restrictions described in this
agreement:
Performance
RSU Target Award
[Number
of Performance Units] Units
This
grant is made pursuant to the Performance-Vesting RSU Award Agreement dated as
of [Grant Date] between Celanese and you, which Agreement is attached hereto and
made a part hereof.
CELANESE
CORPORATION
2004
STOCK INCENTIVE PLAN
PERFORMANCE-VESTING
RESTRICTED STOCK UNIT AWARD AGREEMENT
This Performance-Vesting RSU Award
Agreement (hereinafter called the “Agreement”) is made and entered into
effective as of [Grant Date] (the “Grant Date”) by and between Celanese
Corporation, a Delaware corporation (“Celanese” or the “Company”) and
[Participant Name] (the “Participant”), when fully executed thereby in
accordance with this Agreement. Except as defined herein, capitalized
terms shall have the same meaning ascribed to them under the Celanese
Corporation 2004 Stock Incentive Plan (the “Plan”), as amended from time to
time. To the extent that any provision of this Agreement conflicts
with the express terms of the Plan, it is hereby acknowledged and agreed that
the terms of this Agreement shall control with respect to this
Award.
1.
Performance
RSU Award
: In order to encourage Participant’s contribution to
the successful performance of the Company, Celanese hereby grants to Participant
as of the Grant Date, pursuant to the terms of the Plan and this Agreement, a
performance-vesting RSU award (the “Performance RSUs” or “Award”) representing
the right to acquire shares of the Company’s Series A Common Stock (“Common
Stock”). The number of shares that may become Vested Stock under this
Award is set forth in Appendix A. Participant hereby acknowledges and
accepts such Award upon such terms and subject to such performance requirements
and other conditions, restrictions and limitations contained in this Agreement
and the Plan.
2.
Performance-Based
Vesting
: The number of Performance RSUs that may vest and be
issuable as Common Stock based on Company performance shall be determined using
the methodology set forth in Appendix A and Appendix B, and shall be subject to
the following provisions.
(a)
Service
Period
: The Service
Period shall be the period commencing on [Grant Date] and ending on October 14,
2011.
(b)
Performance
Measures
: Performance vesting shall be based on achievement
against pre-determined targets for i) Operating EBITDA and ii) Relative Total
Shareholder Return (“Relative TSR”). These measures are described in,
and will be determined in accordance with, Appendix A.
(c)
Performance
Targets
: Threshold, Target and Stretch performance levels for
each performance measure for the performance period are described in Appendix
A.
(d)
Performance
Vesting
: The aggregate number of restricted stock units that
may actually vest shall be determined by reference to the target number of
Performance RSUs granted pursuant to the Award as adjusted for the Company’s
level of performance with respect to each performance measure as set forth in
Appendix A.
(e)
Vesting Date
:
The date upon
which any restricted stock units that may vest pursuant to this Award shall be
October 14, 2011 (the “Vesting Date”) so long as the New York Stock Exchange
shall be open for trading on such date (or on the preceding trading day if there
shall have been no trading on the Vesting Date).
3.
Effects
of Certain Events
:
(a)
Upon the
death of the Participant or the termination of the Participant’s employment with
the Company by reason of Total Disability, Performance RSUs in an amount equal
to (i) the Target number of Performance RSUs granted hereby multiplied by (ii) a
fraction, the numerator of which is the number of complete calendar months
between the Grant Date and the date of death or such termination, and the
denominator of which is thirty-four, such product to be rounded up to the
nearest whole number (the “Prorated Amount”), shall immediately become Vested
Stock and shall be delivered to the Participant within thirty (30) days after
the Participant’s death or Date of Termination (provided that if the
payment is by reason of termination due to Total Disability and the Participant
is a Specified Employee on the Date of Termination, payment shall not be made
until six (6) months and one day after the Participant’s Date of
Termination).
(b)
Upon the
termination of a Participant’s employment with the Company without Cause,
Performance RSUs in an amount equal to the Prorated Amount shall become Vested
Stock and be deliverable to the Participant on the date set forth in Section 4,
subject to adjustment for the achievement of the performance goals
outlined herein and as applied to all other Participants.
(c)
Upon the
termination of a Participant’s employment with the Company for any other reason,
the Award shall be forfeited and cancelled without consideration.
4.
Settlement
of Performance RSUs
: Subject to Sections 3(a) and 6 of this
Agreement, each vested Performance RSU shall be settled by the delivery of one
share of Common Stock to the Participant or a Company-designated brokerage
within fourteen (14) days after the Vesting Date.
5.
Rights as
a Stockholder
: The Participant shall have no rights as a
stockholder with respect to the Award.
6.
Change in
Control; Dissolution
:
(a)
Notwithstanding
any other provision of this Agreement to the contrary, upon the occurrence of a
Change in Control, with respect to any Performance RSUs granted pursuant to this
Agreement that have not previously become Vested Stock, been forfeited or
converted:
(i)
If the
unvested Award is assumed by the Participant’s new employer in connection with
the Change in Control, or a substitute award with the equivalent (or greater)
economic value and no less favorable vesting conditions is put in place
effective upon the Change in Control, the Award (or as applicable, the
substitute award) shall continue to be subject to the vesting and payment
conditions provided herein, provided that if the Participant’s employment is
terminated without Cause following the Change in Control, Performance RSUs in an
amount equal to the Target number of Performance RSUs granted hereby shall
immediately vest and shall be delivered in full within thirty (30) days after
the Participant’s Date of Termination provided that if the Participant is a
Specified Employee on the Date of Termination, delivery shall not be made until
six (6) months and one day after the Participant’s Date of
Termination.
(ii)
If the
Award is not assumed, or a substitute award is not made pursuant to Section
6(a)(i) above, then upon the Change of Control the Target number of Performance
RSUs granted hereby shall immediately become Vested Stock and shall be
delivered to the Participant within thirty (30) days after the Change in
Control occurs.
(b)
Notwithstanding
any other provision of this Agreement to the contrary, in the event of a
corporate dissolution of the Company that is taxed under Section 331 of the
Internal Revenue Code of 1986, as amended, then in accordance with Treasury
Regulation Section 1.409A-3(j)(4)(ix)(A), this Agreement shall terminate and any
Performance RSUs granted pursuant to this Agreement that have not
previously been forfeited shall immediately become Vested Stock and shall be
delivered to the Participant within thirty (30) of such
dissolution.
7.
Income
Taxes
: The Company shall not deliver shares in respect of any
Performance RSUs unless and until the Participant has made arrangements
satisfactory to the Committee to satisfy applicable withholding tax
obligations. Unless otherwise permitted by the Committee, withholding
shall be effected by withholding Common Stock issuable in connection with the
delivery of Performance RSUs. The Participant acknowledges that the
Company shall have the right to deduct any taxes required to be withheld by law
in connection with the delivery of Common Stock issued in respect of any vested
Performance RSUs from any amounts payable by it to the Participant (including,
without limitation, future cash wages). Any vested Performance RSUs
shall be reflected in the Company’s records as issued on the respective dates of
issuance set forth in this Agreement, irrespective of whether delivery of such
shares is pending the Participant’s satisfaction of his or her withholding tax
obligations.
8.
Non-Transferability
of Award
: The Participant represents and warrants that the
Performance RSUs are being acquired by the Participant solely for the
Participant’s own account for investment and not with a view to or for sale in
connection with any distribution thereof. The Participant further
understands, acknowledges and agrees that, except as otherwise provided in the
Plan, the Performance RSUs may not be sold, assigned, transferred, pledged or
otherwise directly or indirectly encumbered or disposed of except to the extent
expressly permitted hereby and at all times in compliance with the U.S.
Securities Act of 1933, as amended, and the rules and regulations of the
Securities and Exchange Commission thereunder, and in compliance with applicable
state securities or “blue sky” laws and non-U.S. securities
laws. Unless permitted by the Committee, the Performance RSUs may not
be sold, transferred, pledged, assigned, or otherwise alienated or hypothecated
by the Participant other than by will or the laws of descent and
distribution. Notwithstanding the foregoing, the Participant may
designate a beneficiary on a form provided by the Company, with such beneficiary
to receive any Common Stock issued hereunder following the Participant’s
death.
9.
Other
Agreements
: Subject to sections 10(a) and 10(b) below, this
Agreement and the Plan constitute the entire understanding between the
Participant and the Company regarding the Award, and any prior agreements,
commitments or negotiations concerning the Award are superseded.
(a)
The
Participant acknowledges that as a condition to receipt of the grant made
hereunder, the Participant shall have delivered to the Company an executed copy
of this Agreement and an executed Long-Term Incentive Claw-Back Agreement if a
current version of such Long-Term Incentive Claw-Back Agreement is not already
on file as determined by the Committee in its sole discretion. For
purposes hereof, “Long-Term Incentive Claw-Back Agreement” means an agreement
between the Company and the Participant associated with the grant of long-term
incentives of the Company evidenced by the Award, which contains terms,
conditions and provisions regarding one or more of (i) competition by the
Participant with the Company; (ii) maintenance of confidentiality of the
Company’s and/or clients’ information; and (iii) such other matters deemed
necessary, desirable or appropriate by the Company for such an agreement in view
of the rights and benefits conveyed in connection with the Award.
(b)
The Award
(including the terms described herein) is subject to the provisions of the Plan
and, if the Participant is outside the U.S., there may be an addendum containing
special terms and conditions applicable to awards in the Participant’s
country. The award of Performance RSUs to any such participant is
contingent upon the Participant executing and returning any such addendum in the
manner directed by the Company.
(c)
The
issuance of shares provided by this Agreement is subject to the restrictions in
Section 17 below and is made in reliance on the provision in Treasury Regulation
Section 1.409A-3(b) permitting distribution on the earlier of the Vesting Date,
a separation from service or a Change in Control as provided under this
Agreement.
10.
Not a
Contract for Employment; No Acquired Rights
: Nothing in the
Plan, in this Agreement or any other instrument executed pursuant to the Plan
shall confer upon the Participant any right to continue in the Company’s employ
or service, or any right to future awards, nor limit in any way the Company’s
right to terminate the Participant’s employment or other service at any time for
any reason.
11.
Severability
: In
the event that any provision of this Agreement is declared to be illegal,
invalid or otherwise unenforceable by a court of competent jurisdiction, such
provision shall be reformed, if possible, to the extent necessary to render it
legal, valid and enforceable, or otherwise deleted, and the remainder of this
Agreement shall not be affected except to the extent necessary to reform or
delete such illegal, invalid or unenforceable provision.
12.
Further
Assurances
: Each party shall cooperate and take such action as
may be reasonably requested by either party hereto in order to carry out the
provisions and purpose of this Agreement.
13.
Binding
Effect
: The Award and this Agreement shall inure to the
benefit of and be binding upon the parties hereto and their respective permitted
heirs, beneficiaries, successors and assigns.
14.
Electronic
Delivery
: By executing this Agreement, the Participant hereby
consents to the delivery of any and all information (including, without
limitation, information required to be delivered to the Participant pursuant to
applicable securities laws), in whole or in part, regarding the Company and its
subsidiaries, the Plan, and the Performance RSUs via the Company’s or plan
administrator’s web site or other electronic delivery.
15.
Governing
Law
: The Award and this Agreement shall be interpreted and
construed in accordance with the laws of New York and applicable federal
law.
16.
Validity
of Agreement
: This Agreement shall be valid, binding and
effective upon the Company on the Grant Date. However, the
Performance RSUs contained in this Agreement shall be forfeited by the
Participant and this Agreement shall have no force and effect if it is not duly
executed by the Participant on or before February 16, 2009.
17.
Compliance
with Section 409A of the Internal Revenue
Code
. Notwithstanding any provision in this Agreement to the
contrary, this Agreement will be interpreted and applied so that the Agreement
does not fail to meet, and is operated in accordance with, the requirements of
Section 409A of the Internal Revenue Code of 1986, as amended, and the
regulations thereunder. Further, in accordance with the restrictions
provided by Treasury Regulation Section 1.409A-3(j)(2), any subsequent
amendments to this Agreement or any other agreement, or the entering into or
termination of any other agreement, affecting the Performance RSUs provided by
this Agreement shall not modify the time or form of issuance of the Performance
RSUs set forth in this Agreement.
18.
Definitions
: The
following terms shall have the following meanings for purposes of this
Agreement, notwithstanding any contrary definition in the Plan:
(a)
“
Cause
” means (i) the
Participant’s willful failure to perform the Participant’s duties to the Company
(other than as a result of total or partial incapacity due to physical or mental
illness) for a period of 30 days following written notice by the Company to
Participant of such failure, (ii) conviction of, or a plea of nolo contendere
to, (x) a felony under the laws of the United States or any state thereof or any
similar criminal act in a jurisdiction outside the United States or (y) a crime
involving moral turpitude, (iii) the Participant’s willful malfeasance or
willful misconduct which is demonstrably injurious to the Company or its
Affiliates, (iv) any act of fraud by the Participant, (v) any material violation
of the Company’s business conduct policy, (vi) any material violation of the
Company’s policies concerning harassment or discrimination, (vii) the
Participant’s conduct that causes material harm to the business reputation of
the Company or its Affiliates, or (viii) the Participant’s breach of any
confidentiality, intellectual property, non-competition or non-solicitation)
applicable to the Participant under Section 7 or any other agreement between the
Participant and the Company or an Affiliate.
(b)
“
Change in Control
” shall
mean, in accordance with Treasury Regulation Section 1.409A-3(i)(5), any of the
following:
(i) any
one person, or more than one person acting as a group, acquires ownership of
stock of the Company that, together with stock held by such person or group,
constitutes more than 50% of the total voting power of the stock of the Company;
or
(ii) a
majority of members of the Board is replaced during any 12-month period by
directors whose appointment or election is not endorsed by a majority of the
members of the Board prior to the date of the appointment or election;
or
(iii) any
one person, or more than one person acting as a group, acquires (or has acquired
during the 12-month period ending on the date of the most recent acquisition by
such person or persons) assets from the Company that have a total gross fair
market value equal to 50% or more of all of the assets of the Company
immediately prior to such acquisition or acquisitions.
(c)
“
D
ate of Termination
” shall
mean in accordance with Treasury Regulation Section 1.409A-1(h)(1) and the
definition of “separation from service” in the Celanese Corporation Deferred
Compensation Plan, the date on which the Participant’s employment terminates
such that the Company anticipates no further services will be performed by the
Participant for the Company (or any services are reduced by 80% or more as
provided by Treasury Regulation Section 1.409A-1(h)(1)(ii)).
(d)
“
Effective Date
” means
[Effective Date].
(e)
“
Operating EBITDA
” means a
measure used by the Company’s management to measure performance, and is defined
as operating profit from continuing operations, plus equity in net earnings from
affiliates, other income and depreciation and amortization, and further adjusted
for Other Charges and other adjustments as determined by the Company and as
approved by the Committee.
(f)
“
Specified Employee
” has the
meaning set forth in the Celanese Americas Supplemental Retirement Pension Plan
and the Company shall be considered a “Participating Company” for purposes of
such definition.
(g)
“
Person
” means any person,
firm, partnership, joint venture, association, corporation or other business
organization, entity or enterprise whatsoever.
(h)
“
Total Disability
” has
the same meaning as “Disability” in the Celanese Corporation Deferred
Compensation Plan.
(i)
“
Total Shareholder Return
” or
“
TSR
” means the change
in the price of the Company’s Common Stock, including dividends (as if
reinvested), cumulatively over the period December 1, 2008 through September 30,
2011 (the “TSR Performance Period”), as determined in good faith and in the sole
discretion of the Committee. Total Shareholder Return for the Company
and the Peer Group shall be calculated using the average of the last reported
sales price per share of voting common stock on the New York Stock Exchange
Composite Transactions (or such other comparable securities exchange or trading
market as the common stock of the Company or the applicable Peer Group company
shall then be traded) for the last twenty (20) trading days preceding
December 1, 2008, and for the last twenty (20) trading days preceding
October 1, 2011.
(j)
“
Vested Stock
” shall mean
shares of Common Stock covered by the Performance RSU Award which are issued in
Participant’s name or otherwise issued for the benefit of
Participant.
This
Performance-Vesting Restricted Stock Unit Award Agreement dated [Grant Date] has
been delivered to the Participant pursuant to such action approved by the
Committee on the Grant Date and can be accepted only by the signature of the
Participant and timely delivery thereof to the Company in accordance with the
terms of this Agreement.
IN
WITNESS WHEREOF, this Award Agreement has been executed and delivered by the
parties hereto.
ACCEPTED AND
AGREED:
PARTICIPANT
By:
Name:
[Participant Name]
Employee
ID: [Personnel Name]
Date:
APPENDIX
A
CALCULATION OF THE
PERFORMANCE-BASED VESTING
Name
of Participant:
|
[Participant
Name]
|
Grant
Date:
|
[Grant
Date]
|
|
Threshold
(1)
|
Target
|
Maximum
|
Performance
RSUs subject to the Award:
|
[Threshold
Units]
|
[Target
Units]
|
[Maximum
Units]
|
(1)
No
Performance RSUs will be earned if Operating EBITDA performance results achieved
are below Threshold.
Performance-Based
Vesting Calculation
The
percentage of Performance RSUs that may vest on October 14, 2011 is subject to
the achievement of specified levels of (i) the Company’s Operating EBITDA during
its 2009 and 2010 fiscal years and (ii) the Company’s Total Shareholder Return
as compared with peer companies during the TSR Performance Period, where the
potential performance-based vesting outcomes are summarized as
follows:
Table
1 – Potential Performance-Based Vesting Outcomes:
|
|
Relative
TSR
|
|
|
Below
Threshold
|
Target
|
Stretch
|
Operating
EBITDA
|
Below
Threshold
|
0%
|
0%
|
0%
|
Threshold
|
25%
|
50%
|
75%
|
Target
|
50%
|
100%
|
150%
|
Stretch
|
75%
|
150%
|
225%
|
A.
Calculating the
Award Adjustment based on
the Operating EBITDA Results Achieved
The
following table outlines the respective measurement periods, weightings and
performance goals/ranges for the Operating EBITDA performance
measure.
Table
2 – Operating EBITDA Performance Goals and Payout Range:
Measurement
Period
|
Period
Weight
|
Operating
EBITDA
Performance
Goal / Range
|
Operating
EBITDA Performance Percentage Range
(1)
|
Threshold
|
Target
|
Stretch
|
Threshold
|
Target
|
Stretch
|
1/1/2009
to 12/31/2009
|
40%
|
|
|
|
20%
|
40%
|
60%
|
1/1/2010
to 12/31/2010
|
40%
|
|
|
|
20%
|
40%
|
60%
|
1/1/2009
to 12/31/2010
|
20%
|
|
|
|
10%
|
20%
|
30%
|
|
100%
|
|
|
|
50%
|
100%
|
150%
|
(1)
No
Operating EBITDA performance percentage will be earned (0%) if the actual
performance results achieved are below threshold for each respective measurement
period.
The
Participant’s Performance RSU Target Award will be adjusted (up or down) based
on the Company’s absolute achievement of the Operating EBITDA performance goals
as follows:
1.
|
The
Operating EBITDA performance percentage for each measurement period shall
be calculated by straight-line interpolation for results achieved between
Threshold and Target, or for results achieved between Target and
Stretch;
|
2.
|
For
each measurement period, the result of step 1 (a percentage) shall be
multiplied by the Target number of Performance
RSUs;
|
3.
|
The
results of step 2 for each measurement period shall be added together to
determine the total number of Operating EBITDA adjusted RSUs (“Adjusted
RSUs”).
|
B.
|
Calculating
the
Award
Adjustment based on the Relative TSR Results
Achieved
|
Relative TSR
performance will be calculated after the end of the TSR Performance
Period. The resulting calculation will increase or decrease the
number of Adjusted RSUs by a percentage between 50% and 150%.
Table
3 – TSR Performance Goals and Payout Range:
|
TSR
Performance Percentile
|
TSR
Payout Level
|
Threshold
|
20
th
or below
|
50%
|
Target
|
50
th
|
100%
|
Stretch
|
80
th
or above
|
150%
|
The Participant’s Adjusted RSUs will be
further adjusted based on Relative TSR as follows:
1.
|
Calculate
Total Shareholder Return for each company in the Peer Group (as set forth
on Appendix B) for the TSR Performance Period and rank such companies from
lowest to highest as measured by
TSR.
|
2.
|
Determine
the Threshold, Target and Stretch Performance Levels for the Peer Group
(excluding the Company) using a rank-based methodology as
follows:
|
N = the
number of companies that remain in the Peer Group on September 30,
2011
Threshold Performance Level
=
.2 (N+1)
Target Performance Level
= .5
(N+1)
Stretch Performance Level
=
.8 (N+1)
If any
Performance Level does not correspond exactly to a company in the Peer Group
ranking, then the company that corresponds most closely to the specific
performance level (whether higher or lower) shall represent such Performance
Level.
3.
|
Determine
the Company’s rank against the Peer Group TSR performance
results:
|
a.
|
if the
Company
’
s TSR
p
erformance achieved is
between Threshold and
Target
:
|
|
X%
= (100% – 50%) / (the number of companies ranked between Threshold
Performance Level and Target Performance Level including the
Company)
|
Add X% to
50% (the Threshold TSR Payout Level) for each position the Company is ranked
above the Threshold Performance Level.
b.
|
if the
Company
’
s TSR
p
erformance achieved is
between Target and Stretch
:
|
|
X%
= (150% – 100%) / (the number of companies ranked between Target
Performance Level and Stretch Performance Level including the
Company)
|
Add X% to
100% (the Target TSR Payout Level) for each position the Company is ranked above
Target Performance Level.
4.
|
Multiply
the percentage resulting from step 3 above by the number of Adjusted RSUs
to calculate the number of Performance RSUs that shall vest (rounded to
the nearest whole unit) and become
vested.
|
APPENDIX
B
PEER GROUP
COMPANIES
The peer
group was established by selecting all of the companies comprising the Dow Jones
U.S. Chemicals Index (DJUSCH) as of December 1, 2008 (the “Peer
Group”). The companies in the Index on that date, not including
Celanese, were:
Table
1 – Peer Group Companies:
|
Company
|
Ticker
|
|
Company
|
Ticker
|
1.
|
A.
Schulman Inc.
|
SHLM
|
19.
|
International
Flavors & Fragrances Inc.
|
IFF
|
2.
|
Air
Products & Chemicals Inc.
|
APD
|
20.
|
Lubrizol
Corp.
|
LZ
|
3.
|
Airgas
Inc.
|
ARG
|
21.
|
Minerals
Technologies Inc.
|
MTX
|
4.
|
Albemarle
Corp.
|
ALB
|
22.
|
Mosaic
Co.
|
MOS
|
5.
|
Ashland
Inc.
|
ASH
|
23.
|
Olin
Corp.
|
OLN
|
6.
|
Avery
Dennison Corp.
|
AVY
|
24.
|
OM
Group Inc.
|
OMG
|
7.
|
Cabot
Corp.
|
CBT
|
25.
|
PPG
Industries Inc.
|
PPG
|
8.
|
CF
Industries Holdings Inc.
|
CF
|
26.
|
Praxair
Inc.
|
PX
|
9.
|
Chemtura
Corp.
|
CEM
|
27.
|
Rockwood
Holdings Inc.
|
ROC
|
10.
|
Cytec
Industries Inc.
|
CYT
|
28.
|
Rohm
& Haas Co.
|
ROH
|
11.
|
Dow
Chemical Co.
|
DOW
|
29.
|
RPM
International Inc.
|
RPM
|
12.
|
E.
I. DuPont de Nemours & Co.
|
DD
|
30.
|
Sensient
Technologies Corp.
|
SXT
|
13.
|
Eastman
Chemical Co.
|
EMN
|
31.
|
Sigma-Aldrich
Corp.
|
SIAL
|
14.
|
Ecolab
Inc.
|
ECL
|
32.
|
Terra
Industries Inc.
|
TRA
|
15.
|
Ferro
Corp.
|
FOE
|
33.
|
Tredegar
Corp.
|
TG
|
16.
|
FMC
Corp.
|
FMC
|
34.
|
Valspar
Corp.
|
VAL
|
17.
|
H.
B. Fuller Co.
|
FUL
|
35.
|
W.
R. Grace & Co.
|
GRA
|
18.
|
Huntsman
Corp.
|
HUN
|
36.
|
Zep
Inc.
|
ZEP
|
If one or
more members of the Peer Group cease to be a publicly traded entity during the
TSR Performance Period, then that company will be removed from the Peer
Group. No additional companies will be added to the Peer Group
(closed group) for purposes of this Award.
EXHIBIT 10.2
CELANESE
CORPORATION
2008
PERFORMANCE UNIT AWARD AGREEMENT
DATED
DECEMBER 11, 2008
DAVID
N. WEIDMAN
You have
been awarded Performance Units with the restrictions,
terms and
conditions described in this agreement:
Performance
Unit Target Award
200,000
Units
This
grant is made pursuant to the Performance Unit Award Agreement dated as
of December 11, 2008 between Celanese and you, which Agreement is
attached hereto and made a part hereof.
CELANESE
CORPORATION
2008
PERFORMANCE UNIT AWARD AGREEMENT
This Performance Unit Award Agreement
(hereinafter called the “Agreement”) is made and entered into effective as of
December 11, 2008 (the “Grant Date”) by and between Celanese Corporation, a
Delaware corporation (“Celanese” or the “Company”) and
David N. Weidman
(the
“Participant”), when fully executed thereby in accordance with this
Agreement. Capitalized terms shall have the same meaning ascribed to
them in this Agreement.
1.
Performance
Unit Award
: In order to encourage Participant’s contribution
to the successful performance of the Company, Celanese hereby grants to
Participant as of the Grant Date, pursuant to the terms of this Agreement,
performance-vesting units (the “Performance Units” or “Award”) representing the
right to receive, at Target performance levels, the cash value of
200,000 shares of the Company’s Series A Common Stock (“Common
Stock”). The number of units that may vest and become payable as cash
under this Award is set forth in Appendix A. Participant hereby
acknowledges and accepts such Award upon such terms and subject to such
performance requirements and other conditions, restrictions and limitations
contained in this Agreement.
2.
Performance-Based
Vesting
: The number of Performance Units that may vest and be
payable as cash based on Company performance shall be determined using the
methodology set forth in Appendix A and Appendix B, and shall be subject to the
following provisions.
(a)
Service
Period
: The Service
Period shall be the period commencing on December 11, 2008 and ending on October
14, 2011.
(b)
Performance
Measures
: Performance vesting shall be based on achievement
against pre-determined targets for i) Operating EBITDA and ii) Relative Total
Shareholder Return (“Relative TSR”). These measures are described in,
and will be determined in accordance with, Appendix A.
(c)
Performance
Targets
: Threshold, Target and Stretch performance levels for
each performance measure for the performance period are described in Appendix
A.
(d)
Performance
Vesting
: The aggregate number of performance units that may
actually vest shall be determined by reference to the target number of
Performance Units granted pursuant to the Award as adjusted for the Company’s
level of performance with respect to each performance measure as set forth in
Appendix A.
(e)
Vesting Date
:
The date upon
which any performance units that may vest pursuant to this Award shall be
October 14, 2011 (the “Vesting Date”) so long as the New York Stock Exchange
shall be open for trading on such date (or on the preceding trading day if there
shall have been no trading on the Vesting Date).
3.
Effects
of Certain Events
:
(a)
Upon the
death of the Participant or the termination of the Participant’s employment with
the Company by reason of Total Disability, an amount equal to (i) the Target
number of Performance Units granted hereby multiplied by (ii) a fraction, the
numerator of which is the number of complete calendar months between the Grant
Date and the date of death or such termination, and the denominator
of which is thirty-four, such product to be rounded up to the nearest whole
number (the “Prorated Amount”), shall immediately vest and be payable in cash to
the Participant within thirty (30) days after the Participant’s death or Date of
Termination (provided that if the payment is by reason of termination due to
Total Disability and the Participant is a Specified Employee on the Date of
Termination, payment shall not be made until six (6) months and one day after
the Participant’s Date of Termination).
(b)
Upon the
termination of Participant’s employment with the Company without Cause, an
amount equal to the Prorated Amount shall vest and be payable in cash and be
deliverable to the Participant on the date set forth in Section 5, subject to
adjustment for the achievement of the performance goals outlined herein and
as applied to all other Participants.
(c)
Upon the
termination of Participant’s employment with the Company for any other reason,
the Award shall be forfeited and cancelled without consideration.
4.
Conversion
of Performance Units:
In its sole discretion, the Compensation
Committee of the Company’s Board of Directors (the “Committee”) may at any time
convert all or any portion of this Award into an award of Performance-vesting
Restricted Stock Units (“Performance RSUs”).
(a)
If the
Committee determines to convert all or any portion of this Award, any unvested
portion of such Award shall be immediately cancelled and converted into the
right to receive an award of an equivalent number of Performance RSUs, the
performance measures, terms and conditions of which shall be determined by the
Committee in its sole discretion.
(b)
If the
Committee determines to convert all or any portion of this Award, the provisions
of this Agreement shall no longer apply to the Award (or such portion that is
converted). The new award of Performance RSUs shall be governed by a
separate Performance RSU award agreement to be entered into by the Participant
and the Company at the time of conversion.
(c)
The
Committee shall provide the Participant with prompt written notice of any
conversion of such Participant’s Award into an award of Performance
RSUs.
5.
Settlement
of Performance Units
: Subject to Sections 3(a) and 7 of this
Agreement, each vested Performance Unit shall be settled by a cash payment to
the Participant within fourteen (14) days after the Vesting Date in an amount
equal to the Fair Market Value of one share of Common Stock on the Vesting
Date,
6.
Rights as
a Stockholder
: The Participant shall have no rights as a
stockholder with respect to the Award.
7.
Change in
Control; Dissolution
:
(a) Notwithstanding
any other provision of this Agreement to the contrary, upon the occurrence of a
Change in Control, with respect to any Performance Units granted pursuant to
this Agreement that have not previously been forfeited or
converted:
(i) If
the unvested Award is assumed by the Participant’s new employer in connection
with the Change in Control, or a substitute award with the equivalent (or
greater) economic value and no less favorable vesting conditions is put in place
effective upon the Change in Control, the Award (or as applicable, the
substitute award) shall continue to be subject to the vesting and payment
conditions provided herein, provided that if the Participant’s employment is
terminated without Cause following the Change in Control, Performance Units in
an amount equal to the Target number of Performance Units granted hereby shall
immediately vest and the value of such Performance Units shall be paid in cash
within thirty (30) days after the Participant’s Date of Termination provided
that if the Participant is a Specified Employee on the Date of Termination,
delivery shall not be made until six (6) months and one day after the
Participant’s Date of Termination.
(ii) If
the Award is not assumed, or a substitute award is not made pursuant to Section
7(a)(i) above, then upon the Change of Control the value equal to the Target
number of Performance Units granted hereby shall immediately become vested and
paid in cash to the Participant within thirty (30) days after the
Change in Control occurs.
(b) Notwithstanding
any other provision of this Agreement to the contrary, in the event of a
corporate dissolution of the Company that is taxed under Section 331 of the
Internal Revenue Code of 1986, as amended, then in accordance with Treasury
Regulation Section 1.409A-3(j)(4)(ix)(A), this Agreement shall terminate and any
Performance Units granted pursuant to this Agreement that have not previously
been forfeited or converted shall immediately become vested and paid in cash to
the Participant in an amount equal to the value of the Target number
of Performance Units within thirty (30) days of such dissolution.
8.
Income
Taxes
: The Company shall not deliver cash in respect of
any Performance Units unless and until the Participant has made arrangements
satisfactory to the Committee to satisfy applicable withholding tax
obligations. Unless otherwise permitted by the Committee, withholding
shall be effected by withholding cash payable in connection with the delivery of
Performance Units. The Participant acknowledges that the Company
shall have the right to deduct any taxes required to be withheld by law in
connection with the delivery of cash payable in respect of any vested
Performance Units from any amounts payable by it to the Participant (including,
without limitation, future cash wages).
9.
Non-Transferability
of Award
: The Participant represents and warrants that the
Performance Units are being acquired by the Participant solely for the
Participant’s own account for investment and not with a view to or for sale in
connection with any distribution thereof. The Participant further
understands, acknowledges and agrees that the Performance Units may not be sold,
assigned, transferred, pledged or otherwise directly or indirectly encumbered or
disposed of except to the extent expressly permitted hereby and at all times in
compliance with the U.S. Securities Act of 1933, as amended, and the rules and
regulations of the Securities and Exchange Commission thereunder, and in
compliance with applicable state securities or “blue sky” laws and non-U.S.
securities laws. Unless permitted by the Committee, the Performance
Units may not be sold, transferred, pledged, assigned, or otherwise alienated or
hypothecated by the Participant other than by will or the laws of descent and
distribution. Notwithstanding the foregoing, the Participant may
designate a beneficiary on a form provided by the Company, with such beneficiary
to receive any cash payable hereunder following the Participant’s
death.
10.
Other
Agreements
: Subject to sections 10(a) and 10(b) below, this
Agreement constitutes the entire understanding between the Participant and the
Company regarding the Award, and any prior agreements, commitments or
negotiations concerning the Award are superseded.
(a)
The
Participant acknowledges that as a condition to receipt of the grant made
hereunder, the Participant shall have delivered to the Company an executed copy
of this Agreement and an executed Long-Term Incentive Claw-Back Agreement if a
current version of such Long-Term Incentive Claw-Back Agreement is not already
on file as determined by the Committee in its sole discretion. For
purposes hereof, “Long-Term Incentive Claw-Back Agreement” means an agreement
between the Company and the Participant associated with the grant of long-term
incentives of the Company evidenced by the Award, which contains terms,
conditions and provisions regarding one or more of (i) competition by the
Participant with the Company; (ii) maintenance of confidentiality of the
Company’s and/or clients’ information; and (iii) such other matters deemed
necessary, desirable or appropriate by the Company for such an agreement in view
of the rights and benefits conveyed in connection with the Award.
(b)
The
payment of cash provided by this Agreement is subject to the restrictions in
Section 17 below and is made in reliance on the provision in Treasury Regulation
Section 1.409A-3(b) permitting distribution on the earlier of the Vesting Date,
a separation from service or a Change in Control as provided under this
Agreement.
11.
Not a
Contract for Employment; No Acquired Rights
: Nothing in this
Agreement or any other instrument executed by the Participant shall confer upon
the Participant any right to continue in the Company’s employ or service, or any
right to future awards, nor limit in any way the Company’s right to terminate
the Participant’s employment or other service at any time for any
reason.
12.
Severability
: In
the event that any provision of this Agreement is declared to be illegal,
invalid or otherwise unenforceable by a court of competent jurisdiction, such
provision shall be reformed, if possible, to the extent necessary to render it
legal, valid and enforceable, or otherwise deleted, and the remainder of this
Agreement shall not be affected except to the extent necessary to reform or
delete such illegal, invalid or unenforceable provision.
13.
Further
Assurances
: Each party shall cooperate and take such action as
may be reasonably requested by either party hereto in order to carry out the
provisions and purpose of this Agreement.
14.
Binding
Effect
: The Award and this Agreement shall inure to the
benefit of and be binding upon the parties hereto and their respective permitted
heirs, beneficiaries, successors and assigns.
15.
Electronic
Delivery
: By executing this Agreement, the Participant hereby
consents to the delivery of any and all information (including, without
limitation, information required to be delivered to the Participant pursuant to
applicable securities laws), in whole or in part, regarding the Company and its
subsidiaries, and the Performance Units via the Company’s or plan
administrator’s web site or other electronic delivery.
16.
Governing
Law
: The Award and this Agreement shall be interpreted and
construed in accordance with the laws of New York and applicable federal
law.
17.
Validity
of Agreement
: This Agreement shall be valid, binding and
effective upon the Company on the Grant Date. However, the
Performance Units contained in this Agreement shall be forfeited by the
Participant and this Agreement shall have no force and effect if it is not duly
executed by the Participant on or before [Date].
18.
Compliance
with Section 409A of the Internal Revenue
Code
. Notwithstanding any provision in this Agreement to the
contrary, this Agreement will be interpreted and applied so that the Agreement
does not fail to meet, and is operated in accordance with, the requirements of
Section 409A of the Internal Revenue Code of 1986, as amended, and the
regulations thereunder. Further, in accordance with the restrictions
provided by Treasury Regulation Section 1.409A-3(j)(2), any subsequent
amendments to this Agreement or any other agreement, or the entering into or
termination of any other agreement, affecting the Performance Units provided by
this Agreement shall not modify the time or form of issuance of the Performance
Units set forth in this Agreement.
19.
Definitions
: The
following terms shall have the following meanings for purposes of this
Agreement:
(a)
“
Cause
” means (i) the
Participant’s willful failure to perform the Participant’s duties to the Company
(other than as a result of total or partial incapacity due to physical or mental
illness) for a period of 30 days following written notice by the Company to
Participant of such failure, (ii) conviction of, or a plea of nolo contendere
to, (x) a felony under the laws of the United States or any state thereof or any
similar criminal act in a jurisdiction outside the United States or (y) a crime
involving moral turpitude, (iii) the Participant’s willful malfeasance or
willful misconduct which is demonstrably injurious to the Company or its
Affiliates, (iv) any act of fraud by the Participant, (v) any material violation
of the Company’s business conduct policy, (vi) any material violation of the
Company’s policies concerning harassment or discrimination, (vii) the
Participant’s conduct that causes material harm to the business reputation of
the Company or its Affiliates, or (viii) the Participant’s breach of any
confidentiality, intellectual property, non-competition or non-solicitation)
applicable to the Participant under Section 7 or any other agreement between the
Participant and the Company or an Affiliate.
(b)
“
Change in Control
” shall
mean, in accordance with Treasury Regulation Section 1.409A-3(i)(5), any of the
following:
(i) any
one person, or more than one person acting as a group, acquires ownership of
stock of the Company that, together with stock held by such person or group,
constitutes more than 50% of the total voting power of the stock of the Company;
or
(ii) a
majority of members of the Board is replaced during any 12-month period by
directors whose appointment or election is not endorsed by a majority of the
members of the Board prior to the date of the appointment or election;
or
(iii) any
one person, or more than one person acting as a group, acquires (or has acquired
during the 12-month period ending on the date of the most recent acquisition by
such person or persons) assets from the Company that have a total gross fair
market value equal to 50% or more of all of the assets of the Company
immediately prior to such acquisition or acquisitions.
(c)
“
Date of Termination
” shall
mean in accordance with Treasury Regulation Section 1.409A-1(h)(1) and the
definition of “separation from service” in the Celanese Corporation Deferred
Compensation Plan, the date on which the Participant’s employment terminates
such that the Company anticipates no further services will be performed by the
Participant for the Company (or any services are reduced by 80% or more as
provided by Treasury Regulation Section 1.409A-1(h)(1)(ii)).
(d)
“
Effective Date
” means
December 11, 2008.
(e)
“
Operating EBITDA
” means a
measure used by the Company’s management to measure performance, and is defined
as operating profit from continuing operations, plus equity in net earnings from
affiliates, other income and depreciation and amortization, and further adjusted
for Other Charges and other adjustments as determined by the Company and as
approved by the Committee.
(f)
“
Specified Employee
” has the
meaning set forth in the Celanese Americas Supplemental Retirement Pension Plan
and the Company shall be considered a “Participating Company” for purposes of
such definition.
(g)
“
Person
” means any person,
firm, partnership, joint venture, association, corporation or other business
organization, entity or enterprise whatsoever.
(h)
“
Total Disability
” has
the same meaning as “Disability” in the Celanese Corporation Deferred
Compensation Plan.
(i)
“
Total Shareholder Return
” or
“
TS
R
” means the change in the
price of the Company’s Common Stock, including dividends (as if reinvested),
cumulatively over the period December 1, 2008 through September 30, 2011 (the
“TSR Performance Period”), as determined in good faith and in the sole
discretion of the Committee. Total Shareholder Return for the Company
and the Peer Group shall be calculated using the average of the last reported
sales price per share of voting common stock on the New York Stock Exchange
Composite Transactions (or such other comparable securities exchange or trading
market as the common stock of the Company or the applicable Peer Group company
shall then be traded) for the last twenty (20) trading days preceding
December 1, 2008, and for the last twenty (20) trading days preceding
October 1, 2011.
This
Performance Unit Award Agreement dated December 11, 2008 has been delivered to
the Participant pursuant to such action approved by the Committee on the Grant
Date and can be accepted only by the signature of the Participant and timely
delivery thereof to the Company in accordance with the terms of this
Agreement.
IN
WITNESS WHEREOF, this Award Agreement has been executed and delivered by the
parties hereto.
ACCEPTED AND
AGREED:
PARTICIPANT
By:
Name:
David N.
Weidman
Employee
ID: [Personnel Number]
Date:
APPENDIX
A
CALCULATION OF THE
PERFORMANCE-BASED VESTING
Name
of Participant:
|
David
N. Weidman
|
Grant
Date:
|
December
11, 2008
|
|
Threshold
(1)
|
Target
|
Maximum
|
Performance
RSUs subject to the Award:
|
100,000
|
200,000
|
450,000
|
(1)
No
Performance Units will be earned if Operating EBITDA performance results
achieved are below Threshold.
Performance-Based
Vesting Calculation
The
percentage of Performance Units that may vest on October 14, 2011 is subject to
the achievement of specified levels of (i) the Company’s Operating EBITDA during
its 2009 and 2010 fiscal years and (ii) the Company’s Total Shareholder Return
as compared with peer companies during the TSR Performance Period, where the
potential performance-based vesting outcomes are summarized as
follows:
Table
1 – Potential Performance-Based Vesting Outcomes:
|
|
Relative
TSR
|
|
|
Below
Threshold
|
Target
|
Stretch
|
Operating
EBITDA
|
Below
Threshold
|
0%
|
0%
|
0%
|
Threshold
|
25%
|
50%
|
75%
|
Target
|
50%
|
100%
|
150%
|
Stretch
|
75%
|
150%
|
225%
|
A.
Calculating the
Award Adjustment based on
the Operating EBITDA Results Achieved
The
following table outlines the respective measurement periods, weightings and
performance goals/ranges for the Operating EBITDA performance
measure.
Table
2 – Operating EBITDA Performance Goals and Payout Range:
Measurement
Period
|
Period
Weight
|
Operating
EBITDA
Performance
Goal / Range
|
Operating
EBITDA Performance Percentage Range
(1)
|
Threshold
|
Target
|
Stretch
|
Threshold
|
Target
|
Stretch
|
1/1/2009
to 12/31/2009
|
40%
|
|
|
|
20%
|
40%
|
60%
|
1/1/2010
to 12/31/2010
|
40%
|
|
|
|
20%
|
40%
|
60%
|
1/1/2009
to 12/31/2010
|
20%
|
|
|
|
10%
|
20%
|
30%
|
|
100%
|
|
|
|
50%
|
100%
|
150%
|
(1)
No
Operating EBITDA performance percentage will be earned (0%) if the actual
performance results achieved are below threshold for each respective measurement
period.
The
Participant’s Performance Unit Target Award will be adjusted (up or down) based
on the Company’s absolute achievement of the Operating EBITDA performance goals
as follows:
1.
|
The
Operating EBITDA performance percentage for each measurement period shall
be calculated by straight-line interpolation for results achieved between
Threshold and Target, or for results achieved between Target and
Stretch;
|
2.
|
For
each measurement period, the result of step 1 (a percentage) shall be
multiplied by the Target number of Performance
Units;
|
3.
|
The
results of step 2 for each measurement period shall be added together to
determine the total number of Operating EBITDA adjusted Units (“Adjusted
Units”).
|
B.
|
Calculating
the
Award
Adjustment based on the Relative TSR Results
Achieved
|
Relative
TSR performance will be calculated after the end of the TSR Performance
Period. The resulting calculation will increase or decrease the
number of Adjusted Units by a percentage between 50% and 150%.
Table
3 – TSR Performance Goals and Payout Range:
|
TSR
Performance Percentile
|
TSR
Payout Level
|
Threshold
|
20
th
or below
|
50%
|
Target
|
50
th
|
100%
|
Stretch
|
80
th
or above
|
150%
|
The Participant’s Adjusted Units will
be further adjusted based on Relative TSR as follows:
1.
|
Calculate
Total Shareholder Return for each company in the Peer Group (as set forth
on Appendix B) for the TSR Performance Period and rank such companies from
lowest to highest as measured by
TSR.
|
2.
|
Determine
the Threshold, Target and Stretch Performance Levels for the Peer Group
(excluding the Company) using a rank-based methodology as
follows:
|
N = the
number of companies that remain in the Peer Group on September 30,
2011
Threshold Performance Level
=
.2 (N+1)
Target Performance Level
= .5
(N+1)
Stretch Performance Level
=
.8 (N+1)
If any
Performance Level does not correspond exactly to a company in the Peer Group
ranking, then the company that corresponds most closely to the specific
performance level (whether higher or lower) shall represent such Performance
Level.
3.
|
Determine
the Company’s rank against the Peer Group TSR performance
results:
|
a.
|
if the
Company
’
s TSR
p
erformance achieved is
between Threshold and
Target
:
|
|
X%
= (100% – 50%) / (the number of companies ranked between Threshold
Performance Level and Target Performance Level including the
Company)
|
Add X% to
50% (the Threshold TSR Payout Level) for each position the Company is ranked
above the Threshold Performance Level.
b.
|
if the
Company
’
s TSR
p
erformance achieved is
between Target and Stretch
:
|
|
X%
= (150% – 100%) / (the number of companies ranked between Target
Performance Level and Stretch Performance Level including the
Company)
|
Add X% to
100% (the Target TSR Payout Level) for each position the Company is ranked above
Target Performance Level.
4.
|
Multiply
the percentage resulting from step 3 above by the number of Adjusted Units
to calculate the number of Performance Units that shall vest (rounded to
the nearest whole unit) and become payable as
cash.
|
APPENDIX
B
PEER GROUP
COMPANIES
The peer
group was established by selecting all of the companies comprising the Dow Jones
U.S. Chemicals Index (DJUSCH) as of December 1, 2008 (the “Peer
Group”). The companies in the Index on that date, not including
Celanese, were:
Table
1 – Peer Group Companies:
|
Company
|
Ticker
|
|
Company
|
Ticker
|
1.
|
A.
Schulman Inc.
|
SHLM
|
19.
|
International
Flavors & Fragrances Inc.
|
IFF
|
2.
|
Air
Products & Chemicals Inc.
|
APD
|
20.
|
Lubrizol
Corp.
|
LZ
|
3.
|
Airgas
Inc.
|
ARG
|
21.
|
Minerals
Technologies Inc.
|
MTX
|
4.
|
Albemarle
Corp.
|
ALB
|
22.
|
Mosaic
Co.
|
MOS
|
5.
|
Ashland
Inc.
|
ASH
|
23.
|
Olin
Corp.
|
OLN
|
6.
|
Avery
Dennison Corp.
|
AVY
|
24.
|
OM
Group Inc.
|
OMG
|
7.
|
Cabot
Corp.
|
CBT
|
25.
|
PPG
Industries Inc.
|
PPG
|
8.
|
CF
Industries Holdings Inc.
|
CF
|
26.
|
Praxair
Inc.
|
PX
|
9.
|
Chemtura
Corp.
|
CEM
|
27.
|
Rockwood
Holdings Inc.
|
ROC
|
10.
|
Cytec
Industries Inc.
|
CYT
|
28.
|
Rohm
& Haas Co.
|
ROH
|
11.
|
Dow
Chemical Co.
|
DOW
|
29.
|
RPM
International Inc.
|
RPM
|
12.
|
E.
I. DuPont de Nemours & Co.
|
DD
|
30.
|
Sensient
Technologies Corp.
|
SXT
|
13.
|
Eastman
Chemical Co.
|
EMN
|
31.
|
Sigma-Aldrich
Corp.
|
SIAL
|
14.
|
Ecolab
Inc.
|
ECL
|
32.
|
Terra
Industries Inc.
|
TRA
|
15.
|
Ferro
Corp.
|
FOE
|
33.
|
Tredegar
Corp.
|
TG
|
16.
|
FMC
Corp.
|
FMC
|
34.
|
Valspar
Corp.
|
VAL
|
17.
|
H.
B. Fuller Co.
|
FUL
|
35.
|
W.
R. Grace & Co.
|
GRA
|
18.
|
Huntsman
Corp.
|
HUN
|
36.
|
Zep
Inc.
|
ZEP
|
If one or
more members of the Peer Group cease to be a publicly traded entity during the
TSR Performance Period, then that company will be removed from the Peer
Group. No additional companies will be added to the Peer Group
(closed group) for purposes of this Award.
EXHIBIT 10.3
CELANESE
CORPORATION
2008
LONG-TERM INCENTIVE CASH AWARD AGREEMENT
DATED
[Grant Date]
[Participant
Name]
You have
been granted a Long-Term Incentive Award delivered in the form of a Cash Award,
issued pursuant to the terms and conditions of this award
agreement:
2008
LTI Cash Award
[Cash
Award Value]
This
grant is made pursuant to the Cash Award Agreement dated as of [Grant Date]
between Celanese and you, which Agreement is attached hereto and made a part
hereof.
CELANESE
CORPORATION
2008
LONG-TERM INCENTIVE CASH AWARD AGREEMENT
This 2008 Long-Term Incentive Cash
Award Agreement (hereinafter called the “Agreement”) is made and entered into
effective as of [Grant Date] (the “Grant Date”) by and between Celanese
Corporation, a Delaware corporation (“Celanese” or the “Company”) and
[Participant Name]
(the
“Participant”), when fully executed thereby in accordance with the terms of this
Agreement.
1.
2008 LTI
Cash Award
: In order to encourage Participant’s contribution
to the successful performance of the Company, Celanese hereby grants to
Participant as of the Grant Date, pursuant to the terms of this Agreement, a
Long Term-Incentive Cash Award in the gross amount of [Cash Award Value] (the
“Cash Award” or “Award”). Participant hereby acknowledges and accepts
such Award upon such terms and subject to such performance requirements and
other conditions, restrictions and limitations contained in this
Agreement.
2.
Time-Based
Vesting
: Subject to Section 3 and Section 7 below, the Cash
Award shall vest and become payable to the Participant on each date set forth
below (each such date being referred to as a “Vesting Date”) according to the
following schedule:
Vesting
Date
|
Vested
Cash Award Amount
|
[1
ST
Vesting Date]
|
[1
ST
Vesting - 30% of Total]
|
[2
ND
Vesting Date]
|
[2
ND
Vesting - 30% of Total]
|
[3
RD
Vesting Date]
|
[3
RD
Vesting - 40% of
Total]
|
3.
Effects
of Certain Events
:
(a)
In the
event that any time prior to a Vesting Date, the Participant’s employment with
the Company is terminated by reason of death, Total Disability or is terminated
by the Company without Cause, then a prorated amount of the Cash Award shall
immediately become vested in an amount equal to the product of (1) the total
Cash Award granted hereunder, multiplied by (2) a fraction, the numerator of
which is the number of complete calendar months between the Grant Date and the
Date of Termination, and the denominator of which is thirty-four (34), such
product to be rounded down to the nearest whole number (the “Prorated Amount”).
Upon such termination, the Prorated Amount, less any Cash Award amount
previously vested and paid to the Participant before the Date of Termination,
shall immediately be paid to the Participant (or, if applicable, his or her
beneficiary) as soon as reasonably practicable following such termination of
employment, and in no event later than March 15 of the year following the year
in which such termination of employment occurs.
(b)
Upon the
termination of a Participant’s employment with the Company for any other reason,
the unvested Cash Award shall be forfeited and cancelled without
consideration.
4.
Payment
of Cash Award
: Subject to Sections 3(a) and 7 of this
Agreement, the vested Cash Award shall be payable to the Participant within
thirty days (30) days after the Vesting Date. The amount of the
vested Cash Award will be paid in local currency in the country where the
Participant is employed and receives all other forms of remuneration at the time
of each Vesting Date.
5.
Conversion
of Cash Award
: In its sole discretion, the
Compensation Committee of the Company’s board of directors (the “Committee”) may
at any time convert all or a portion of the Cash Award to an award of
time-vesting restricted stock units (“RSUs”).
(a)
If the
Committee determines to convert a Cash Award, all of the unvested portion of
such Cash Award shall be cancelled and converted into time-vesting RSUs
entitling the Participant to receive (upon vesting in full) an aggregate number
of Common Shares equal to the Unvested Cash Award Value divided by the Fair
Market Value of one Common Share on the date of conversion. The RSUs
shall vest on the same schedule applicable to the Cash Award.
(b)
In the
event of a conversion, the provisions of this Agreement shall no longer
apply. Rather, the new award shall be governed by a separate RSU
award agreement.
(c)
The
Committee shall provide the Participant with prompt written notice of any
conversion of such Participant’s Cash Award into RSUs.
6.
Rights as
a Stockholder
: The Participant shall have no rights as a
stockholder with respect to the Cash Award.
7.
Change in
Control
: Notwithstanding any other provision of the Agreement
to the contrary, upon the occurrence of a Change in Control, with respect to the
Cash Award granted pursuant to this Agreement that has not previously been
forfeited or converted:
(a)
If the
unvested Cash Award is assumed by the Participant’s new employer in connection
with the Change in Control, or a substitute award with the equivalent (or
greater) economic value and no less favorable vesting conditions is put in place
effective upon the Change in Control, the Cash Award (or as applicable, the
substitute award) shall continue to be subject to the vesting and payment
conditions provided herein, provided that if the Participant’s employment is
terminated without Cause following the Change in Control, the Cash Award (or, as
applicable, the substitute award) shall immediately vest and shall be paid in
full as soon as reasonably practicable following such termination of employment,
and in no event later than March 15 of the year following the year in which such
termination of employment occurs.
(b)
If the
Cash Award is not assumed, or a substitute award is not made pursuant to Section
7(a) above, then upon the Change of Control the Cash Award granted herein shall
immediately become vested and payable to the Participant within thirty (30) days
after the Change in Control occurs.
8.
Income
Taxes
: To the extent required by applicable Federal, state,
local or foreign law, the Company shall have the right to withhold and deduct
from the payments due under the Cash Award, amounts that would otherwise be
delivered pursuant hereto for the payment of taxes or other amounts required by
law and to take such other action as may be necessary in the opinion of the
Company to satisfy all obligations for withholding of such taxes.
9.
Non-Transferability
of Award
: The Cash Award may not be sold, transferred,
pledged, assigned, or otherwise alienated or hypothecated by the Participant
other than by will or the laws of descent and
distribution. Notwithstanding the foregoing, the Participant may
designate a beneficiary on a form provided by the Company, with such beneficiary
to receive any Cash Award payable hereunder following the Participant’s
death.
10.
Other
Agreements
: Subject to sections 10(a) and 10(b) below, this
Agreement constitutes the entire understanding between the Participant and the
Company regarding the Cash Award, and any prior agreements, commitments or
negotiations concerning the Cash Award are superseded.
(a)
The
Participant acknowledges that as a condition to receipt of the grant made
hereunder, the Participant shall have delivered to the Company an executed copy
of the Agreement and an executed Long-Term Incentive Claw-Back Agreement if a
current version of such Long-Term Incentive Claw-Back Agreement is not already
on file as determined by the Committee in its sole discretion. For
purposes hereof, “Long-Term Incentive Claw-Back Agreement” means an agreement
between the Company and the Participant associated with the grant of long-term
incentives of the Company evidenced by the Award, which contains terms,
conditions and provisions regarding one or more of (i) competition by the
Participant with the Company; (ii) maintenance of confidentiality of the
Company’s and/or clients’ information; and (iii) such other matters deemed
necessary, desirable or appropriate by the Company for such an agreement in view
of the rights and benefits conveyed in connection with the Award.
(b)
The Cash
Award (including the terms described herein) is subject to the provisions of
this Agreement and, if the Participant is outside the U.S., there may be an
addendum containing special terms and conditions applicable to awards in the
Participant’s country. The issuance of the Cash Award to any such
Participant is contingent upon the Participant executing and returning any such
addendum in the manner directed by the Company.
11.
Not a
Contract for Employment; No Acquired Rights
: Nothing in this
Agreement or any other instrument executed pursuant to this Cash Award shall
confer upon the Participant any right to continue in the Company’s employ or
service, or any right to future awards, nor limit in any way the Company’s right
to terminate the Participant’s employment or other service at any time for any
reason.
12.
Severability
: In
the event that any provision of the Agreement is declared to be illegal, invalid
or otherwise unenforceable by a court of competent jurisdiction, such provision
shall be reformed, if possible, to the extent necessary to render it legal,
valid and enforceable, or otherwise deleted, and the remainder of this Agreement
shall not be affected except to the extent necessary to reform or delete such
illegal, invalid or unenforceable provision.
13.
Further
Assurances
: Each party shall cooperate and take such action as
may be reasonably requested by another party in order to carry out the
provisions and purpose of this Agreement.
14.
Binding
Effect
: The Award and this Agreement shall inure to the
benefit of and be binding upon the parties hereto and their respective permitted
heirs, beneficiaries, successors and assigns.
15.
Electronic
Delivery
: By executing the Agreement, the Participant hereby
consents to the delivery of any and all information (including, without
limitation, information required to be delivered to the Participant pursuant to
applicable laws), in whole or in part, regarding the Company and the
Subsidiaries, and the Cash Award via the Company’s web site or other electronic
delivery.
16.
Governing
Law
: The Award and this Agreement shall be interpreted and
construed in accordance with the laws of New York and applicable federal
law.
17.
Validity
of Agreement
: This Agreement shall be valid, binding and
effective upon the Company on the Grant Date. However, the Cash Award
contained in this Agreement shall be forfeited by the Participant and this
Agreement shall have no force and effect if it is not duly executed by the
Participant on or before [Acceptance Date].
18.
Definitions
: The
following terms shall have the following meanings for purposes of this
Agreement, notwithstanding any contrary definition in the Plan:
(a)
“
Cause
” means (i) the
Participant’s willful failure to perform the Participant’s duties to the Company
(other than as a result of total or partial incapacity due to physical or mental
illness) for a period of 30 days following written notice by the Company to
Participant of such failure, (ii) conviction of, or a plea of nolo contendere
to, (x) a felony under the laws of the United States or any state thereof or any
similar criminal act in a jurisdiction outside the United States or (y) a crime
involving moral turpitude, (iii) the Participant’s willful malfeasance or
willful misconduct which is demonstrably injurious to the Company or its
Affiliates, (iv) any act of fraud by the Participant, (v) any material violation
of the Company’s business conduct policy, (vi) any material violation of the
Company’s policies concerning harassment or discrimination, (vii) the
Participant’s conduct that causes material harm to the business reputation of
the Company or its Affiliates, or (viii) the Participant’s breach of any
confidentiality, intellectual property, non-competition or non-solicitation)
applicable to the Participant under Section 7 or any other agreement between the
Participant and the Company or an Affiliate.
(b)
“
Change in Control
” shall
mean, in accordance with Treasury Regulation Section 1.409A-3(i)(5), any of the
following:
(i) any
one person, or more than one person acting as a group, acquires ownership of
stock of the Company that, together with stock held by such person or group,
constitutes more than 50% of the total voting power of the stock of the Company;
or
(ii) a
majority of members of the Board is replaced during any 12-month period by
directors whose appointment or election is not endorsed by a majority of the
members of the Board prior to the date of the appointment or election;
or
(iii) any
one person, or more than one person acting as a group, acquires (or has acquired
during the 12-month period ending on the date of the most recent acquisition by
such person or persons) assets from the Company that have a total gross fair
market value equal to 50% or more of all of the assets of the Company
immediately prior to such acquisition or acquisitions.
(c)
“
Common Share
” means a share
of the Company’s Series A common stock.
(d)
“
Date of Termination
” means,
in accordance with the definition of “separation from service” in the Celanese
Corporation Deferred Compensation Plan, the date on which the Participant’s
employment terminates such that the Company anticipates no further services will
be performed by the Participant for the Company (or any services are
reduced by 80% or more).
(e)
“
Effective Date
” means [Grant
Date].
(f)
“
Fair Market Value
” means, as
of any given date, the average of the high and low closing sales prices of the
Common Shares on the New York Stock Exchange Composite Tape or, if not listed on
such exchange, on any other national securities exchange on which the Common
Shares are listed, in any case, as reporting in such source as the Committee
shall select. If there is no regular public trading market for such
Common Shares, the Fair Market Value of the Common Shares shall be determined by
the Committee in good faith.
(g)
“
Person
” means any person,
firm, partnership, joint venture, association, corporation or other business
organization, entity or enterprise whatsoever.
(h)
“
Total Disability
” has
the same meaning as “Disability” in the Celanese Corporation Deferred
Compensation Plan.
(i)
“
Unvested Cash Award Value
”
means the aggregate dollar amount payable in respect of the portion of such Cash
Award which has not previously been paid to the Participant.
This 2008
Long-Term Incentive Cash Award Agreement dated December 11, 2008 has been
delivered to Participant pursuant to such action approved by the Committee on
the Grant Date and can be accepted only by the signature of the Participant and
timely delivery thereof to the Company in accordance with the terms of this
Agreement.
IN
WITNESS WHEREOF, this Award Agreement has been executed and delivered by the
parties hereto.
ACCEPTED AND
AGREED:
PARTICIPANT
By:
Name:
[Participant Name]
Employee
ID: [Personnel Number]
Date:
EXHIBIT 10.4
LONG-TERM
INCENTIVE AWARD CLAW-BACK AGREEMENT
This
Agreement between Celanese Corporation and
______________
(the
“Employee”) is entered into as of the date set forth on the signature page
below. The collective consideration for Employee’s obligations under
this Agreement, each component of which the Employee specifically acknowledges
both the receipt and independent sufficiency thereof as consideration, include:
(i) Employee’s receipt of cash and/or stock-related awards under the Celanese
Corporation 2004 Stock Incentive Plan (including any successor plan), or any
such other cash or stock-related award under any plan or arrangement sponsored
by Celanese (collectively referred to as the “Plan”), subject to the terms
thereof; (ii) Employee’s continued employment with Celanese; (iii) the
opportunity to receive special training and education, both on-the-job and
otherwise as feasible; and (iv) Employee’s receipt of confidential, proprietary
information relating to Celanese business and clients.
Accordingly,
Employee and Celanese agree as follows:
1. DEFINITIONS
a. “Celanese”
means Celanese Corporation, its direct and indirect subsidiaries, affiliated
entities, successors and assigns.
b. “Confidential
Information” means any non-public, proprietary or confidential information,
including without limitation trade secrets, know-how, research and development,
software, databases, inventions, processes, formulae, technology, designs and
other intellectual property, information concerning finances, investments,
profits, pricing, costs, products, services, vendors, customers, clients,
partners, investors, personnel, compensation, benefits, recruiting, training,
advertising, sales, marketing, promotions, government and regulatory activities
and approvals concerning the past, current or future business, activities and
operations of Celanese and/or any third party that has disclosed or provided any
of same to Celanese on a confidential basis. “Confidential
Information” also includes any information designated as a trade secret or
proprietary information by operation of law or otherwise, but shall not be
limited by such designation. “Confidential Information” shall not
include any information that is (i) generally known to the industry or the
public other than as a result of Employee’s breach of this covenant; (ii) made
legitimately available to Employee by a third party without breach of any
confidentiality obligation; or (iii) required by law to be disclosed; provided
that Employee shall give prompt written notice to Celanese of such requirement,
disclose no more information than is so required, and cooperate with any
attempts by Celanese to obtain a protective order or similar
treatment.
c. “Competitive
Business” means businesses that compete with products and services offered by
Celanese in those countries where Celanese manufactures, produces, sells,
leases, rents, licenses or otherwise provides its products or services during
the term of Employee’s employment with Celanese or, following the Employee’s
termination of employment, within two (2) years preceding the date of
termination (including, without limitation, businesses which Celanese has
specific plans to conduct in the future that were disclosed or made available to
Employee), provided that, if Employee’s duties were limited to particular
product lines or businesses during such period, the Competitive Business shall
be limited to those product lines or businesses in those countries for which
Employee had such responsibility.
d. “Effective
Date” means December 11, 2008.
e. “Restricted
Period” means one year from the date of Employee’s termination of employment
from Celanese for any reason.
2. DISCLOSURE
AND USE OF CONFIDENTIAL INFORMATION AND PROPRIETARY RIGHTS
a. Based
upon the assurances given by Employee in this Agreement, Celanese will provide
Employee with access to its Confidential Information. Employee hereby
reaffirms that all Confidential Information received by Employee prior to the
termination of this Agreement is the exclusive property of Celanese and Employee
releases any individual claim to the Confidential Information.
b. Employee
will not at any time (whether during or after Employee’s employment with
Celanese) (a) retain or use for the benefit, purposes or account of Employee or
any other person; or (b) disclose, divulge, reveal, communicate, share, make
available, transfer or provide access to any person outside Celanese (other than
its professional advisers who are bound by confidentiality obligations), any
Confidential Information without the prior written authorization of
Celanese.
c. Upon
termination of Employee’s employment with Celanese for any reason, Employee
shall (a) cease and not thereafter commence use of any Confidential Information
or intellectual property (including without limitation, any patent, invention,
copyright, trade secret, trademark, trade name, logo, domain name or other
source indicator) owned or used by Celanese; (b) immediately destroy, delete, or
return to Celanese, at Celanese’s option, all originals and copies in any form
or medium (including memoranda, books, papers, plans, computer files, letters
and other data) in Employee’s possession or control (including any of the
foregoing stored or located in Employee’s office, home, laptop or other
computer, whether or not Celanese property) that contain Confidential
Information or otherwise relate to the business of Celanese, except that
Employee may retain only those portions of any personal notes, notebooks and
diaries that do not contain any Confidential Information; and (c) notify and
fully cooperate with Celanese regarding the delivery or destruction of any other
Confidential Information of which Employee is or becomes aware.
d. If
Employee has previously entered into any confidentiality or non-disclosure
agreements with any former employer, Employee hereby represents and warrants
that such confidentiality and/or non-disclosure agreement or agreements have
been fully disclosed and provided to Celanese.
e. If
Employee has created, invented, designed, developed, contributed to or improved
any works of authorship, inventions, intellectual property, materials, documents
or other work product (including without limitation, research, reports,
software, databases, systems, applications, presentations, textual works,
content, or audiovisual materials) (“Works”), either alone or with third
parties, prior to Employee’s employment by Celanese, that are relevant to or
implicated by such employment (“Prior Works”), Employee hereby grants Celanese a
perpetual, non-exclusive, royalty-free, worldwide, assignable, sublicensable
license under all rights and intellectual property rights (including rights
under patent, industrial property, copyright, trademark, trade secret, unfair
competition and related laws) therein for all purposes in connection with
Celanese’s current and future business. A list of all such Works as
of the date hereof is attached hereto as Exhibit A.
f. If
Employee creates, invents, designs, develops, contributes to or improves any
Works, either alone or with third parties, at any time during Employee’s
employment by Celanese and within the scope of such employment and/or with the
use of any Celanese resources (“Company Works”), Employee shall promptly and
fully disclose same to Celanese and hereby irrevocably assigns, transfers and
conveys, to the maximum extent permitted by applicable law, all rights and
intellectual property rights therein (including rights under patent, industrial
property, copyright, trademark, trade secret, unfair competition and related
laws) to Celanese to the extent ownership of any such rights does not vest
originally in Celanese.
g. Employee
agrees to keep and maintain adequate and current written records (in the form of
notes, sketches, drawings, and any other form or media requested by Celanese) of
all Company Works. The records will be available to and remain the sole property
and intellectual property of Celanese at all times.
h. Employee
shall take all requested actions and execute all requested documents (including
any licenses or assignments required by a government contract) at Celanese’s
expense (but without further remuneration) to assist Celanese in validating,
maintaining, protecting, enforcing, perfecting, recording, patenting or
registering any of Celanese’s rights in the Prior Works and Company
Works. If Celanese is unable for any other reason to secure
Employee’s signature on any document for this purpose, then Employee hereby
irrevocably designates and appoints Celanese and its duly authorized officers
and agents as Employee’s agent and attorney in fact, to act for and in
Employee’s behalf and stead to execute any documents and to do all other
lawfully permitted acts in connection with the foregoing.
i. Employee
shall not improperly use for the benefit of, bring to any premises of, divulge,
disclose, communicate, reveal, transfer or provide access to, or share with
Celanese any confidential, proprietary or non-public information or intellectual
property relating to a former employer or other third party without the prior
written permission of such third party. Employee hereby indemnifies,
holds harmless and agrees to defend Celanese and its officers, directors,
partners, employees, agents and representatives from any breach of the foregoing
covenant. Employee shall comply with all relevant policies and
guidelines of Celanese, including regarding the protection of confidential
information and intellectual property and potential conflicts of
interest. Employee acknowledges that Celanese may amend any such
policies and guidelines from time to time, and that Employee remains at all
times bound by their most current version.
j. In
the event Employee leaves the employ of Celanese, Employee hereby grants consent
to notification by Celanese to any subsequent employer about Employee’s rights
and obligations under this Paragraph 2.
3. NON-COMPETITION
AND NON-SOLICITATION
a. During
the time of Employee’s employment with Celanese and for the Restricted Period
thereafter, Employee shall not, whether on Employee’s own behalf or on behalf of
or in conjunction with any person, directly or indirectly solicit or assist in
soliciting in competition with Celanese, the business of any customer,
prospective customer, client or prospective client: (i) with whom Employee had
personal contact or dealings on behalf of Celanese during the one year period
preceding the termination of Employee’s employment; (ii) with whom employees
directly or indirectly reporting to Employee have had personal contact or
dealings on behalf of Celanese during the one-year immediately preceding the
termination of Employee’s employment; or (iii) for whom Employee had direct or
indirect responsibility during the one year period immediately preceding the
termination of Employee’s employment.
b. During
the time of Employee’s employment with Celanese and for the Restricted Period
thereafter, Employee shall not directly or indirectly: (i) engage in any
Competitive Business, (ii) enter the employ of, or render any services to, any
person (or any division or controlled or controlling affiliate of any person)
who or which engages in a Competitive Business, (iii) acquire a financial
interest in, or otherwise become actively involved with, any Competitive
Business, directly or indirectly, as an individual, partner, stockholder,
officer, director, principal, agent, trustee or consultant, or (iv) interfere
with, or attempt to interfere with, business relationships between Celanese and
customers, clients, suppliers partners, members or investors of
Celanese. Notwithstanding the foregoing, Employee may directly or
indirectly own, solely as an investment, securities of any person engaged in the
business of Celanese which are publicly traded on a national or regional stock
exchange or on the over-the-counter market if Employee (x) is not a controlling
person of, or a member of a group which controls, such person and (y) does not,
directly or indirectly, own 5% or more of any class of securities of such
person.
4. NON-SOLICITATION
OF CELANESE EMPLOYEES AND CONSULTANTS
Employee
shall not:
a. During
the time of Employee’s employment with Celanese and for the Restricted Period
thereafter, Employee shall not, whether on Employee’s own behalf or on behalf of
or in conjunction with any Person, directly or indirectly: (i) solicit,
interview, encourage, or take any other action that would tend to influence in
any manner any employee of Celanese to leave the employment of Celanese (other
than as a result of a general advertisement of employment made by Employee’s
subsequent employer or business, not directed at any such employee), or (ii)
hire any such employee who was employed by Celanese as of the date of Employee’s
termination of employment or who left Celanese coincident with, or within one
year prior to or after, Employee’s termination of employment.
b. During
the time of Employee’s employment with Celanese and for the Restricted Period
thereafter, Employee shall not, directly or indirectly, solicit or encourage any
consultant then under contract with Celanese to cease to work with
Celanese.
5. EMPLOYEE’S
BEST EFFORTS AND EXCLUSIVE SERVICE
Employee
agrees to diligently and loyally serve Celanese, to devote his/her full best
efforts, full time and energy to such service, and to follow the directions of
Celanese in regard to such services. Employee agrees to conduct all
business activities in accordance with the directives, policies, and
instructions of Celanese in a proper and professional manner so as to maintain
Celanese’s ethical business, and professional standards, and the goodwill and
reputation of Celanese. Employee also warrants and represents that
he/she has been advised of and agrees to comply with Celanese’s Code of Business
Conduct, as amended from time to time, including Celanese’s policies against
discrimination and harassment.
Employee
further agrees that during employment with Celanese, he/she will not engage in
any other employment or business venture. Employee warrants that
he/she is not subject to any agreement with a prior employer or other party that
would restrict his/her employment by Celanese or the performance of his/her
duties under this Agreement.
6. EMPLOYMENT
RELATIONSHIP
Notwithstanding
any other provisions of this Agreement and unless contrary to applicable law or
the terms of a written contract executed by an officer of Celanese, employment
with Celanese is for an indefinite term and may be ended, with or without cause,
at any time by either the Employee or Celanese, with or without previous
notice. Nothing in this document will be construed to oblige Celanese
to continue Employee’s employment for any particular time or under any
particular terms and conditions of employment.
7. REMEDIES
AND ENFORCEMENT
a.
Forfeiture of Stock-Related
Benefits and Rights
: Employee acknowledges that the Plan is
intended to induce and reward Employee’s continued employment, commitment, and
loyalty to Celanese. As further consideration for Employee’s
stock-related awards, Employee agrees that (a) if at any time during his/her
employment with Celanese or after his/her termination of employment for any
reason, Employee breaks or states his/her intention to break the promises he/she
made in Paragraphs 2, 3, or 4 of this Agreement, or (b) it is determined by
Celanese that Employee engaged in conduct related to his/her employment with
Celanese for which he/she or Celanese could be held either criminally or civilly
liable, then Employee shall (x) immediately cease vesting in all awards granted
under the Plan on or after the Effective Date and (y) forfeit and return to
Celanese any and all rights and interests that he/she may have in any awards
(and, if applicable, repay the value of any awards Employee no longer holds by
means of a certified check) granted under the Plan on or after the Effective
Date in which Employee vested during the period that began on the date one year
preceding Employee’s breaking (or stating his/her intention to break) the
promises in Paragraphs 2, 3, or 4 of this Agreement, or one year preceding
Employee’s termination (whichever date is earlier), unless terminated or
forfeited sooner by operation of another term or condition of the
Plan.
b.
Reasonableness of
Restrictions / Injunctive Relief
: Employee acknowledges that
the provisions of this Agreement are reasonable and necessary for the protection
of Celanese’s legitimate business interests, including but not limited to its
Confidential Information, customer, vendor, supplier and business partner
relationships and goodwill. Employee also acknowledges that the
provisions of this Agreement would not impede his or her ability to earn a
living in his or her chosen profession should he or she terminate employment
with Celanese. Employee further acknowledges that a breach of any of
the provisions of this Agreement will result in continuing and irreparable
damages to Celanese for which there would be no adequate remedy at law and that
Celanese, in addition to all other relief available to it, shall be entitled to
the issuance of injunctive relief restraining him or her from committing or
continuing to commit any breach of this agreement. Accordingly, if
Employee breaches this Agreement, Celanese shall be entitled, in addition to all
other remedies it may have, to immediate injunctions or other appropriate orders
to restrain any such breach without requirement to post a bond. In
addition, in the event of a breach of Paragraphs 2, 3 or 4, Employee agrees to
pay to Celanese all costs of enforcement of this Agreement, including, but not
limited to, reasonable attorney fees.
c.
Reformation
: If
any provision of Paragraphs 2, 3 or 4 should be found by any court of competent
jurisdiction to be unreasonable by reason of its being too broad as to the
period of time, territory, aspects of business or clients covered or otherwise,
then, and in that event, such provision shall nevertheless remain valid and
fully effective, but shall be considered to be amended, for the limited purpose
of its application within the geographic jurisdiction of the court so finding,
so that any term of the provision found unreasonable shall be limited to the
maximum period of time, the largest territory, the most aspects of business and
clients covered and/or the broadest other limitations, as the case may be, which
would be found reasonable and enforceable by such court. Similarly,
if any remedy is found to be unenforceable in whole or in part, or to any
extent, such provision shall remain in effect only to the extent the remedy or
remedies would be enforceable by such court.
d.
Severability and
Survival
: Subject to the provisions of Subparagraph 7(c),
whenever possible, each provision of this Agreement will be interpreted in such
a manner as to be effective and valid under applicable law or public
policy. However, if any provision of this Agreement is held to be
prohibited by or invalid under applicable law or public policy, such provisions,
to the extent of such prohibition or invalidity, shall be deemed not to be part
of this Agreement otherwise applicable to Employee, and shall not invalidate the
remainder of such provision or the remaining provisions of this
Agreement.
e.
Right of
Set-Off
: Employee consents to a deduction from any amounts
Celanese may owe Employee from time to time, to the extent of the amounts
Employee owes Celanese (including, but not limited to, any amounts Employee owes
under the Subparagraphs 7(a) and 7(b) above). Any such set-off shall
be effected pursuant to the requirements of Section 409A of the Internal Revenue
Code of 1986, as amended. If Celanese does not recover by means of
set-off the full amount Employee owes, Employee agrees to pay immediately the
unpaid balance to Celanese upon Celanese’s demand.
8. DISCLOSURE
AND NOTIFICATION
a. Prior
to signing this Agreement, Employee shall disclose to Celanese in writing any
restrictions that may affect Employee’s ability to work on behalf of Celanese,
including, but not limited to, any existing non-compete agreements,
confidentiality agreements, court orders, or pending or threatened litigation
with prior employers/contractors/third parties. Such written
disclosure is attached to this Agreement as Exhibit B, which is fully
incorporated herein by reference. Employee further warrants and
represents he/she has not disclosed and will not disclose to Celanese, and has
not used and will not use on Celanese’s behalf, any trade secrets or
confidential, proprietary information belonging to a third party, without first
obtaining written consent from that third party.
b. Employee
agrees that he/she will (and Celanese may) notify anyone employing Employee or
evidencing an intention to employ Employee of the existence and provisions of
this Agreement.
9. CONSENT
TO JURISDICTION
To the
fullest extent allowed by applicable law, any dispute or conflict arising out of
or relating to this Agreement, except for an action brought by Celanese pursuant
to Paragraphs 2, 3 or 4 of this Agreement, must be brought in a court that has
jurisdiction over matters in Dallas County, Texas, which court(s) shall have
sole and exclusive jurisdiction of such matters. Furthermore, to the
fullest extent allowed by applicable law, Employee agrees such court shall have
personal jurisdiction over him/her and further agrees to waive any rights he/she
may have to challenge the court’s jurisdiction over him/her. To the
fullest extent allowed by applicable law, Employee further consents to such
selection of jurisdiction, forum and venue and to the uncontested enforcement of
a judgment from such court in any other jurisdiction where Employee or his/her
assets are located.
10. AMENDMENTS
This
Agreement may not be modified or amended except by a written instrument executed
by Employee and the Chief Executive Officer of Celanese Corporation, the Senior
Vice President of Human Resources of Celanese Corporation, or either of their
designees.
11. WAIVER
All the
rights of Celanese and Employee under this Agreement shall be cumulative and not
alternative, and a waiver or indulgence by either party shall not be construed
as a waiver of any other rights or entitlements hereunder.
12. ENTIRE
AGREEMENT
This
Agreement constitutes the parties’ entire agreement, and supersedes and prevails
over all other prior agreements, understandings or representations by or between
the parties, whether oral or written, with respect to the subject matters
herein, except as to (a) the terms of any Plan (as defined on page 1 of this
Agreement) which may apply, as supplemented by the provisions of Paragraph 7(a)
above; and (b) if a post-employment restrictive covenant in this Agreement is
found unenforceable (despite, and after application of, any applicable right to
reformation that could add or renew enforceability), then any prior agreement
between the parties that would provide for a restriction on the same or
substantially similar post-employment conduct of Employee shall not be
considered superseded and shall remain in effect.
The
parties have executed this Agreement as of the date indicated
below.
ACCEPTED AND
AGREED:
PARTICIPANT
By:
__________________________
Name:
Employee
ID:
Date:
________________________
EXHIBIT
A
LONG-TERM
INCENTIVE AWARD CLAW-BACK AGREEMENT
List of
Company Works Pursuant to Paragraph 2(e):
EXHIBIT
B
LONG-TERM
INCENTIVE AWARD CLAW-BACK AGREEMENT
Disclosure
of Restrictions Pursuant to Paragraph 8(a):