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”).
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.
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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. 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.
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.
d. Settlement and Timing of Award
Payouts. In settlement of its
obligations for Awards under this Agreement, the Company shall
deliver to the Participant:
i) 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);
ii) an amount in cash representing the dividend equivalents as
computed in accordance with subsection c.; and
iii) an amount in cash representing any other sums due under this
Agreement.
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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 or is terminated
during a Performance Cycle by Retirement, 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 or Disability 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 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
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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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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 in i) or ii) above, as the case may be, 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 application Performance Shares that would have been earned
from the 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 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 th
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