Exhibit 10.20
AWARD AGREEMENT
AWARD AGREEMENT
(“Agreement”) made as of
the date shown below by and between Innophos Holdings, Inc
., a Delaware corporation (the “Company”), and the
individual named on the signature page hereof (“the
Participant”).
Introductory
Statement
This Agreement evidences the terms
and conditions under which (i) options to purchase (referred
to individually as an “Option” and collectively as the
“Options”) shares of the Company’s Common Stock,
par value $0.001 per share (“Common Stock”) are being
granted and/or (ii) shares of Common Stock are being awarded
(referred to individually as an “Award” and
collectively as “Awards”) on a conditional or
contingent basis, in each case pursuant to the Company’s
benefit plan or plans identified herein (collectively, the
“Plan”). Shares of Common Stock issued upon exercise of
Options under this Agreement are referred to as “Option
Shares.” Shares of Common Stock issued pursuant to Awards
made under this Agreement are referred to as “Restricted
Shares” or “Performance Shares,” as the case may
be. Collectively, Option Shares, Restricted Shares and Performance
Shares are sometimes referred to as “Shares.”
Capitalized terms used in this Agreement without definition herein
are intended to have the meanings given to those terms in the
applicable Plan.
Agreements:
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1.
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Granting and
Exercise of Options
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a.
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Option
Grants . The Company
grants to the Participant Options to purchase the total number of
shares of Common Stock at the per share Option Price as set forth
on Schedule A attached to this Agreement and made a part
hereof. The Option Price is subject to adjustment as provided in
Section 4 in connection with changes in the Company’s
capitalization or otherwise as provided in the Plan. Options are
granted subject to all provisions of the Plan, except as provided
otherwise in this Agreement (but only to the extent the terms of
this Agreement are permitted to vary from the Plan.) Unless
indicated otherwise on Schedule A, the Options are intended to be
“Incentive Stock Options” to the maximum extent
permitted under the Code, and it is the parties’ intention
that any ambiguities in construction be interpreted to effectuate
that intent. To the extent that the Options do not qualify as
“Incentive Stock Options,” the validity of the Options
shall be unaffected, and instead they shall constitute
Non-qualified Stock Options.
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b.
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Exercisability/Vesting. On each date set forth on Schedule A, the
Options shall vest or become exercisable with respect to the number
or percentage of Option Shares originally granted hereunder, if the
Participant is has been employed by, or served in the designated
position with, the Company or any of its Subsidiaries from the date
of this Agreement continuously (excepting agreed upon leaves of
absence and short-term disabilities not constituting a break in
service) through such date, all as specified in particular on
Schedule A.
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c.
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Acceleration
and Early Termination on Change in Control. Notwithstanding any schedule established
pursuant to subsection b., if the Participant has been in service
continuously (as provided in that subsection) with the Company or a
Subsidiary from the date of this Agreement until the occurrence of
a Change in Control (or if the Participant’s service is
terminated by the Company or a Subsidiary other than for Cause or
by the Participant for Good Reason [with the term “Good
Reason” having the meaning as provided in any written
employment arrangements of the Participant with the Company or any
of its Subsidiaries] during the 90 day period ending on any Change
in Control), all Options that have not yet become exercisable or
vested at the date of the first to occur of any Change in Control
event will become exercisable and vest simultaneously with that
event. The Company will use its best efforts to notify the
Participant as promptly as practicable of any Change in Control
event of which it obtains knowledge, and notwithstanding any other
provision of this Agreement, the calculation of periods related to
any Change in Control shall be determined from the later to occur
of (i) the date of the Company notice to the Participant of
any such event or (ii) the date of the consummation of the
event itself. Any Options that have not been exercised by the end
of the Change in Control period as specified in Schedule A will
terminate at that time, unless otherwise determined by the
Board.
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d.
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Expiration
and Termination. The
Options will expire on the earliest to occur of (i) the date
or dates established in Schedule A, (ii) the final date under,
or computed in accordance with the Plan, by which all Options must
expire, (iii) the date (or dates if more than one is provided)
that equal the number of days following termination of the
Participant’s employment or other affiliation with the
Company and its Subsidiaries as specified for
“post-termination” exercise in Schedule A, or
(iv) the date calculated for the end of the Change in Control
period in Schedule A. In any conflict among dates calculated
pursuant to clause (i), (iii) or (iv) of this subsection
d., the result yielding the latest date for the Participant shall
control; provided , that the date determined under clause
(ii) of this paragraph will control all other dates as the
date by which all Options must expire.
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e.
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Rules and
Procedures for Exercise. Any exercise of an Option must comply with the
terms and conditions respecting exercise set forth in the Plan,
this Agreement and any forms and other documents established by the
Committee for use in exercising Options.
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2.
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Granting and
Settlement of Performance Share Awards
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a.
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Award of
Performance Shares. The
Company awards to the Participant the number of Target Performance
Shares for the Performance Cycle set forth on Schedule B
attached to this Agreement and made a part hereof. Except as
otherwise provided by the Plan or this Agreement, each Performance
Cycle shall commence on January 1 of the year and end on
December 31 of the year indicated in the cycle.
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b.
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Performance
Measures and Amount of Award Earned. The Performance Measures for the Performance
Cycle established for the Awards made in subsection a. are set
forth in, or referenced by, Schedule B. The amount of each Award
earned relative to the number of Target Performance Shares awarded
shall depend on the relative degree to which the Performance
Measures, as certified in writing by the Committee, are met,
equaled or exceeded (including interpolations, if any) as set forth
in, or referenced by, Schedule B. To the extent not set forth in
Schedule B, documentation setting forth all Performance Measures
and effects on the number of Target Performance Shares will be
furnished to the Participant. Performance Shares are deemed to be
earned only upon the completion of a Performance Cycle; provided
that any termination of the Plan under which Performance Shares
have been awarded prior to the normal expiration of the cycle will
be deemed to be the completion of the cycle.
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c.
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Dividends. The number of Target Performance Shares will be
increased each quarter during a Performance Cycle by the amount of
any dividends paid by the Company in the form of Common Stock on a
like number of shares for that quarter. An amount equivalent to
dividends paid by the Company in cash (or the Fair Market Value of
those paid in stock other than Common Stock or in kind) will be
accrued for the period covered by each Performance Cycle on the
number of Performance Shares ultimately issued (including those
added by reason of the operation of the preceding sentence) and
paid, without compounding or interest (except as specifically
provided in this Agreement), upon settlement of the
Award.
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d.
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Settlement
and Timing of Award Payouts. In settlement of its obligations for Awards
under this Agreement, the Company shall deliver to the
Participant:
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i)
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one share of
Common Stock for each Performance Share earned as determined in
accordance with the provisions of this Agreement (with fractional
shares of Common Stock rounded up to the nearest whole
share);
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ii)
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an amount in
cash representing the dividend equivalents as computed in
accordance with subsection c.; and
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iii)
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an amount in
cash representing any other sums due under this
Agreement.
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Settlement shall be made prior to
the last day in February in the calendar year following the last
calendar year to occur in each Performance Cycle, provided that
settlement shall occur no later than 60 days following any
completion of a Performance Cycle other than on the last day of a
calendar year. For any Participant who is a “specified
employee” within the meaning of Section 409A
(a)(2)(B)(i) of the Code who is entitled to a payment under the
circumstances described in subsection e. iii. or subsection e. iv.
below that constitutes deferred compensation subject to
Section 409A, settlement shall be made upon the later of
(a) the settlement date that otherwise applies under the
preceding sentence or (b) the date that is six months after
the date that the Participant terminates employment with the
Company or, if earlier, the Participant’s date of death. For
payouts made under the eligibility conditions set forth in
subsection e. ii. involving a Change in Control, in subsection e.
iii. or subsection e. iv, simple interest shall accrue and be paid
in cash based on the Fair Market Value at the time of payment of
the Award so determined under the applicable clause, calculated
from the effective date of the Change of Control to the date of
payment and based on the applicable federal “short-term
rate” determined under Section 1274(d) of the Code in
effect on the date the Change in Control occurs.
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e.
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Eligibility
for Payout. A Participant
shall be eligible for a payment of earned Performance Shares and
any other property only if:
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i)
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The
Participant’s employment with the Company or any Subsidiary
continues through the end of the Performance Cycle, in which
instance the Participant will have earned the number of Performance
Shares and any other property as calculated under subsections b.
and c.;
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ii)
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The Participant’s
employment with the Company or any Subsidiary is terminated due to
death, Disability or Retirement during a Performance Cycle, in
which instance the Participant will have earned a fraction of the
number of Targeted Performance Shares and any other property over
the complete Performance Cycle as calculated under subsections b.
and c., determined using a numerator that equals the number of
complete calendar months elapsed since the beginning of the
Performance Cycle through the
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Participant’s date of
employment termination, and a denominator that equals the total
number of months in the Performance Cycle through its completion. A
Participant’s month of employment termination will be
considered a complete month if the effective date of termination
occurs on or after the 15th day of that month. In the event of a
Participant’s death, the Participant’s beneficiary or
estate shall be entitled to the Performance Shares and other
property to which the Participant otherwise would have been
entitled under the same conditions as would have been applicable to
the Participant; provided, however , if the
Participant’s employment is terminated due to death,
Disability or Retirement and subsequently there occurs during the
Performance Cycle a Change in Control where the Company is not the
surviving entity, the Participant’s entitlement fraction
shall be calculated as above, but the number of Performance Shares
against which the fraction shall be applied shall be those derived
under clause iii.) of this subsection e.;
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iii)
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There occurs
during the Participant’s employment a Change in Control where
the Company is not the surviving entity, in which instance the
Participant will be deemed to have earned the greater of:
(i) 100% of the Target Performance Shares granted to the
Participant in subsection a. and such other property resulting from
the application of subsection c. determined as of the effective
date of such Change in Control; or (ii) the number of
Performance Shares that would have been earned from the application
of subsection b. and such other property resulting from the
application of subsection c. that would have been earned by the
Participant if the Performance Cycle had been completed on the
effective date of the Change in Control; or
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iv)
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There occurs a
Change of Control during a Performance Cycle where the Company is
the surviving entity, and within two years after the effective date
of such Change in Control, the Participant’s employment is
terminated by the Company or any Subsidiary other than for Cause or
by the Participant for Good Reason, in which instance the
Participant will be deemed to have earned amounts determined
according to clause iii above.
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f.
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Termination
for Other Reason. In the
event that the Participant’s employment terminates during a
Performance Cycle for any reason other than those reasons set forth
in subsection e., the entire Award shall be forfeited, and no
payment shall be made to the Participant.
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3.
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Granting of
Restricted Share Awards. The Company awards to the Participant the number
of Restricted Shares set forth on Schedule C attached to
this Agreement and made a part hereof. Such Restricted Shares shall
be issued to the Participant following the effectiveness of this
Agreement, and, upon issuance, shall constitute duly and validly
issued and outstanding Shares of the Company, fully paid and
non-assessable. Shares for which restrictions lapse as provided in
Schedule C or herein shall be vested entirely in the Participant.
Shares for which restrictions do not so lapse as and when provided
in Schedule C or herein shall be forfeited back to the Company,
and, thereafter, the Participant shall have no further property
rights in, or claims to, such Shares. A grant of Restricted Shares
shall be treated by the Company as subject to tax under
Section 83 of the Internal Revenue Code, and not as a plan of
deferred compensation.
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a.
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Record
Holder . Restricted
Shares shall be issued and registered in the name of the
Participant. Prior to any forfeiture of Restricted Shares, the
Participant shall be treated as the holder of record of such Shares
for all purposes under applicable corporate law, including
receiving all dividends and other distributions to which such
holders are entitled and receiving notice of, and voting on or
consenting to, all matters which are properly submitted to the
stockholders of the Company for determination by them.
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b.
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Shares to be
Held in Escrow . Unless
otherwise permitted by the Committee, Restricted Shares shall be
held by the Company or its agents in escrow for delivery to the
Participant upon the lapse of all risks of forfeiture relating to
such Shares (or portions thereof) and the satisfaction of all other
conditions, if any, to delivery of such Shares, all as set forth on
Schedule C to the extent not set forth herein. Delivery of such
Shares from escrow shall be in such form and with such further
restrictions as the Company may reasonably require as necessary to
comply with applicable law.
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c.
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Change in
Control . If the
Participant has been in active service with the Company or a
Subsidiary (to the extent required by Schedule C) from the date of
this Agreement until the occurrence of a Change in Control (or if
the Participant’s service is terminated by the Company or a
Subsidiary other than for Cause or by the Participant for Good
Reason, in the case of a Participant who then has an employment
agreement with the Company which addresses termination by the
Participant for Good Reason, with the term “Good
Reason” having the meaning set forth in such employment
agreement) within two years after the effective date of such Change
in Control, then, notwithstanding Schedule C, all other conditions
to vesting of Restricted Shares shall be deemed to have been
satisfied, all forfeiture restrictions shall lapse, and all
Restricted Shares covered by this Agreement, to the extent not
previously vested, shall vest in the Participant. The Company will
use its best efforts to notify the Participant as promptly as
practicable of any Change in Control event of which it obtains
knowledge, and notwithstanding any other provision of this
Agreement, the calculation of periods related to any Change in
Control shall be determined from the later to occur of (i) the
date of the Company notice to the Participant of any such event or
(ii) the date of the consummation of the event
itself.
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4.
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Schedules
Form Part of Agreement. Schedule A, Schedule B, Schedule C and the other
schedules, if any (including their respective attachments, if any),
which shall be identified sequentially as “D, “
“E,” etc., attached to this Agreement form an integral
part of this Agreement and are incorporated herein by reference as
if set out at length in the body of this Agreement. In the event of
any inconsistency between any schedule and the remainder of this
Agreement, the text of the schedule in question (including any
calculation) shall be deemed to control. The grant of Options and
Awards specified in this Agreement is being made in consideration,
among other things, of the Participant’s compliance with the
terms of the schedules. This Agreement and all schedules are
governed by the terms of the Plan under which the Options or Awards
are granted; provided, however , where the Plan permits the
terms of an Award Agreement to differ from any Plan provision, the
terms of this Agreement shall be deemed control the rights of the
parties as to that provision.
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5.
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Continuity
of Shares and Adjustments. For all purposes of this Agreement, Option
Shares and Performance Shares (prior to issuance) include shares of
Common Stock and the Company’s capital stock of any class or
series issued with respect to Common Stock by way of a stock split,
stock dividend, reclassification or other recapitalization to the
fullest extent permitted by the Plan. The exercise price of Options
granted under this Agreement, the number of Option Shares issuable
in respect of Options and the number of Performance Shares issuable
in respect of Awards shall be subject to equitable adjustment by
the Company as a result of any of the events referred to in this
section or those determined in the absolute discretion of the
Company to be analogous thereto; provided , that all such
adjustments shall be made equally and ratably among all
Participants as to the Plan involved.
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6.
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Non-Transferability of Options
and Awards. The Options
and Awards are personal to the Participant and may not be sold,
transferred, pledged, assigned, or otherwise alienated or
hypothecated (a “Transfer”) other than by will or by
the laws of descent and distribution, except
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to the extent specifically
provided in the Plan. Only the Participant or the
Participant’s permitted representatives are entitled to
exercise Options. If any non-permitted Transfer, whether voluntary
or involuntary, of Options or Awards is made or attempted, or if
any attachment, execution, garnishment, or lien shall be issued
against or placed upon Options or Awards, as the case may be, the
Participant’s right to such property shall be forfeited
immediately to the Company, and this Agreement shall lapse as to
such property. Notwithstanding the previous sentence, the
Participant’s obligations under this Agreement shall survive
any such forfeiture and lapse.
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7.
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No Rights as to
Relationship. This Agreement shall not confer
upon the Participant any right to continuation of employment by the
Company or any Subsidiary, nor will this Agreement interfere in any
way with any such employer’s rights to terminate the
Participant’s employment at any time. The grant of Options or
Awards of Performance Shares shall confer no rights on the
Participant as a stockholder until such time as the related Shares
are issued. 1
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8.
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Tax and
Stock Withholding. The
Company shall have the power and the right to deduct or withhold,
or require the Participant or the Participant’s beneficiary
to remit to the Company, an amount sufficient to satisfy federal,
state, and local taxes, domestic or foreign, required by law or
regulation to be withheld with respect to any taxable event arising
as a result of this Agreement. With respect to withholding required
upon any taxable event arising as a result of Options or Awards
granted hereunder, the Company shall satisfy the tax
with
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