Exhibit 10.16.11
Form of 2007 Performance Share
Unit Agreement
For France in connection with the
2007 Incentive Award Plan
And French Sub-Plan for
Restricted Stock Units
Name of Performance Stock Unit
Recipient:
Grant Date:
Service Date, as a Condition to
Vesting:
Performance Period, as a Condition
to Vesting:
Base Year:
We are pleased to advise you of your
20 Performance Share Unit Award
(“PSU Award”) from Coca-Cola Enterprises Inc. (also
referred to as the “Company”), under the 2007 Incentive
Award Plan (the “U.S. Plan”) and the French RSU
Sub-Plan (together with the U.S. Plan, the “Plan”). The
PSU Award is subject to the terms and conditions of the Plan and as
described below. All capitalized terms shall have the meaning
assigned to them in this agreement (the “Agreement”),
the U.S. Plan or the French RSU Sub-Plan.
By signing and returning the
acceptance form attached to this Agreement, you confirm having read
and understood the Agreement which was provided to you in English.
A request for a copy of the U.S. Plan and the French RSU Sub-Plan,
as well as any questions pertaining to the Plan should be directed
to the Company’s Stock Plan Administrator. You accept the
terms of this grant accordingly.
En renvoyant le document
signé d’acceptation qui est joint au Contrat, vous
confirmez avoir lu et compris le Contrat qui vous a
été remis en anglais. Vous pouvez demander une copie
du Plan Américain, du Sous-Plan d’attribution
d’actions gratuites français et poser toute question
relative au Plan auprès de l’Administrateur du Plan.
Vous acceptez les termes de cette attribution en connaissance de
cause.
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1.
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20
Performance Share Unit
Award. A
performance share unit account has been established on your behalf
under the Plan, and it has been credited with
<<TotPSU>> performance share units
(“PSUs”).
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2.
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Vesting
in Your 20 PSU Award.
Upon
the satisfaction of both the performance and service conditions to
vesting described below and subject to Paragraph 6 of this
Agreement, the Company will distribute a share of Coca-Cola
Enterprises Inc. common stock to you for each PSU earned under your
20 PSU Award.
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a
. Performance Condition to
Vesting . Your
20 PSU Award will vest only if, and
to the extent that, the Company’s compound annual growth rate
of Earnings Per Share (“EPS”) during the Performance
Period (measured from Base Year EPS) satisfies the performance
goals set forth in the chart below:
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Compound Annual Growth Rate of EPS
for
2008-2010 Performance
Period**
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Percentage of Your
PSU Target Award Earned**
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Less
than %
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-0-
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%
– Minimum Goal
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50%
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%
– Target Goal
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100%
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%
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133%
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10%
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166%
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12%
– Maximum Goal
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200%
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**
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Award levels for actual
performance between minimum and target and between target and
maximum will be determined based on a straight-line interpolation,
rounded to the nearest 100 th of a percent.
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b. Service Condition to
Vesting. You must
remain continuously employed by the Company or an Affiliated
Company until [ insert Service Date] , to satisfy the
service condition to vesting. Although the performance condition
must be satisfied to determine the number of PSUs, if any, that you
will earn, the service condition will be waived under the following
circumstances:
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i.
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For
100% of your PSU Award, in the event of your termination on account
of Disability (as defined in Paragraph 5.d. below).
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ii.
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For a
pro rata portion of your PSU Award, upon your termination
before [ insert service date] and on or after you reach age
55 provided your age and years of service added together equal 75
and your termination is not for Cause. The pro ration
fraction is determined by dividing the number of months between the
Grant Date of this Award and your termination date by
42.
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c. Special Vesting in the
Event of Your Death or Termination Without Cause Within Two Years
Following a Change in Control of the Company.
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i.
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In
the event of your death prior to [ insert last day of
Performance Period] , 100% of your Target PSU Award will be
immediately vested. In the event of your death after [ insert
last day of Performance Period] , 100% of the 20
PSU Award that is earned under
Paragraph 2.a. above, will be immediately vested. The Company shall
issue the underlying shares of Stock to your heirs upon their
request for a period of six months following the date of your
death. If your heirs do not request the issuance of the shares of
Stock within the six-month period following your death, the
Performance Share Unit Award will be forfeited.
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ii.
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In
the event you are terminated without Cause within two years
following a Change in Control of the Company and before [ insert
last day of Performance Period] , 100% of your Target PSU Award
will be immediately vested. In the event you are terminated within
two years following a Change in Control and after [ insert last
day of Performance Period] , 100% of the 20
PSU Award that is earned under
Paragraph 2.a., above, will be immediately vested. Such a Change in
Control may trigger the disqualification of the PSU Award if the
two-year minimum vesting period required under French law is not
satisfied at the time of the Change in Control and the Award may
thus no longer qualify for the favorable tax and social security
regime in France.
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3.
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Dividend
Equivalents on Your 20 PSU
Award. Your
PSU Award account will not earn any additional credits related to
any dividends declared by the Board on the Company’s Stock.
Such credits are not permissible under the French rules applicable
to the French RSU Sub-Plan.
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4.
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Form
and Timing of Payments from Your PSU Account.
The
Company will distribute a share of Coca-Cola Enterprises Inc.
common stock to you (electronically or in certificate form) for
each PSU earned under your 20 PSU
Award. Your PSU account will be distributed to you or your heirs,
as follows:
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a.
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If
your death occurs at any time prior to [i nsert Service
Date] , the Company shall issue the underlying shares of Stock
to your heirs upon their request for a period of six months
following the date of your death.
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b.
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If
your termination without Cause within two years of a Change in
Control occurs prior to [ insert Service Date] , the Company
shall issue the underlying shares of Stock to you as soon as
practicable after the date of such termination.
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c.
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Otherwise,
the Company will issue the underlying shares as soon as practicable
following [ insert Service Date] , subject to Paragraph 6 of
this Agreement.
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5.
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Definitions.
For
purposes of this Award, the following definitions apply:
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a.
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An
“Affiliated Company” includes The Coca-Cola Company and
any company of which the Company or The Coca-Cola Company owns at
least 20% of the voting stock or capital if (i) such company
is a party to an agreement that provides for continuation of
certain employee benefits upon immediate employment with such
company and (ii) the Company agrees to this subsequent
employment.
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b.
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“Cause” means
(i) willful or gross misconduct that is materially detrimental
to the Company, (ii) acts of personal dishonesty or fraud
toward the Company or (iii) conviction of a felony, except for
a conviction
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2
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related to vicarious liability
based solely on an employee’s position with the Company,
provided that the officer had no involvement in actions leading to
such liability or had acted upon the advice of the Company’s
counsel.
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c.
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“Change
in Control” is defined in the 2007 Incentive Award
Plan.
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d.
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“Disability”
means your inability, by reason of a medically determinable
physical or mental impairment, to engage in any substantially
gainful activity, which condition, in the opinion of a physician
approved of by the Company, is expected to have a duration of not
less than one year.
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e.
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“Earnings
Per Share” or “EPS” means the Company’s
diluted earnings per share determined under U.S. GAAP (Financial
Accounting Standard 128 and/or applicable standards or
interpretations for the applicable year). For purposes of this
award, adjustments will be made to the numerator of the EPS
calculation, for the following: (i) the effect on the deferred
tax asset and liability attributable to changes in federal, state,
provincial, or international income tax rates or laws becoming
effective; (ii) for the performance period only, the impact of
changes in the exchange rate between international currencies and
the U.S. dollar in excess of $50 million as compared to [ insert
Base Year] ; and (iii) all of the items listed
below (referred to as “Specified Items”) that meet one
of the following criteria: (1) in any one fiscal year, the
after-tax amount of a single occurrence of a Specified Item exceeds
$5 million; or (2) in any one quarter within a fiscal
year, the after-tax amount of a series of related Specified Items
exceeds $5 million in the aggregate and each individual
Specified Item in the series exceeds $2 million.
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“Specified Items” are
(i) extraordinary items under GAAP and changes in applicable
accounting rules; (ii) impairment charges relating to
goodwill, franchise, other intangibles, school contracts or other
long term assets; (iii) legal settlements and judgments;
(iv) insurance proceeds related to losses not recorded in the
performance period; (v) the effect of acquisitions or
dispositions on current year operations and any resultant gains or
losses in accordance with applicable accounting standards, provided
the subsidiary involved meets the definition of “significant
subsidiary” as defined in Regulation S-X; (vi) gains or
losses on sales of long-lived assets and equity investments;
(vii) restructuring charges under GAAP and changes in
applicable accounting rules; (viii) retained or uninsured
losses related to acts of terrorism, product recalls, or natural
disasters, including named hurricanes, tornados, fires, etc.;
(ix) and the cost related to the early extinguishment or
modification of debt. Notwithstanding the foregoing, EPS for the
performance period will be certified by the Human Resources and
Compensation Committee of the Board (the “Committee”).
In the rare and infrequent event that the Committee feels that the
EPS computation provides a result that is not in the best interest
of the Company, the Committee may exclude or modify any of the
Specified Items to reduce such EPS result.
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6.
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Restriction
on Transfer of the Shares.
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a.
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After
issuance of the shares of Stock, you will be required to hold the
shares in an account with the Company and the shares shall bear a
legend setting forth the restriction on transfer for the time
periods set forth in this Paragraph 6. You will not be authorized
to sell or transfer the shares until the expiration of a two-year
period from the Vesting Date of the Performance Share Unit Award (
i.e ., two years after the issuance of the shares of Stock),
or any other minimum mandatory holding period applicable to
French-Qualified performance share units under Section
L. 225-197-1 of the French Commercial Code, or the relevant
Sections of the French Tax Code or French Social Security Code, as
amended. At the end of this two-year period, any shares of Stock
that are not subject to the additional holding period set forth in
Paragraph 6.c. below will be delivered to you as a credit to an
account with a Company-designated broker (the “Broker”)
maintained in your name and the stock certificates representing
such shares will be free of any restrictive legend, other than as
may be required by applicable securities laws. This two-year
restriction on transfer does not apply in the event of your
termination of employment on account of your death or Disability
(as defined in the French RSU Sub-Plan).
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b.
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Furthermore,
the shares of Stock shall not be sold during the following Closed
Periods, to the extent applicable under French law:
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i.
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Ten
quotation days preceding and following the disclosure to the public
of the consolidated financial statements or the annual statements
of the Company (including the Company’s Form 10-K, Form 10-Q
and earnings releases); or
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3
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ii.
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The
period as from the date the corporate management of the Company
(involved in the governance of the company, such as the Board,
Committee, supervisory directorate, etc.) has been disclosed
information which could, if disclosed to the public, significantly
impact the trading price of the Company’s Stock, until ten
quotation days after the day such information is disclosed to the
public. Thus, you are required to maintain your shares of Stock
with the Broker until their subsequent sale.
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c.
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Since,
at the Grant Date, you hold one of the following positions,
Président du Conseil d’Administration, Directeur
Général, Directeur Général
Délégué, Membre du Directoire, or
Gérant de Sociétés par actions, you will be
required to hold twenty percent (20%) (or such other amount as
is required by applicable law) of the shares of Stock issued to you
on the Vesting Date in an account with the Company (as described in
Paragraph 6.a. above) until you no longer hold any of the foregoing
positions. You will be subject to this share-holding requirement as
long as it is applicable to French-Qualified performance share
units granted by the Company.
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7.
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Acceptance
of Award. This
document is a summary of your 20
Award under the Coca-Cola Enterprises Inc. 2007 Incentive Award
Plan and the French RSU Sub-Plan, the terms of which are
incorporated by reference into this document. You must expressly
accept the terms and conditions of your Performance Share Unit
Award as set forth in this Agreement by signing and returning the
acceptance form attached hereto to the Company .
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8.
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Nature
of Performance Share Units. Your
Performance Share Unit Award represents an unfunded and unsecured
promise by the Company to issue shares in the future in accordance
with the terms of this Award. The Performance Share Unit Award does
not entitle you to vote any shares of the Company’s Stock or
receive actual dividends. Your Performance Share Unit Award may not
be transferred, assigned, hypothecated, pledged, or otherwise
encumbered or subjected to any lien, obligation, or liability of
you or any other party. As stated above, the performance share
units granted under this Agreement are intended to be
French-Qualified performance share units that qualify for the
favorable tax and social security regime in France, as set forth in
the French RSU Sub-Plan. Certain events may affect the status of
the performance share units as French-Qualified performance share
units and the Award may be disqualified in the future. The Company
does not make any undertaking or representation to maintain the
qualified status of the French-Qualified performance share units
during the life of the Award, and you will not be entitled to any
damages if the Award no longer qualifies as a French-Qualified
Performance Share Unit Award.
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9.
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Acknowledgment
of Nature of Plan and Performance Share Units.
In
accepting the Award, you acknowledge that:
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a.
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the
Plan is established voluntarily by the Company, it is discretionary
in nature and may be modified, amended, suspended or terminated by
the Company at any time, as provided in the Plan;
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b.
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the
Award of performance share units is voluntary and occasional and
does not create any contractual or other right to receive future
Awards of performance share units, or benefits in lieu of
performance share units even if performance share units have been
awarded repeatedly in the past;
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c.
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all
decisions with respect to this Award and future Awards, if any,
will be at the sole discretion of the Company and the performance
share units are not an employment condition for any purpose
including, but not limited to, for purposes of any legislation
adopted to implement EU Directive 2000/78/EC of November 27,
2000;
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d.
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your
participation in the Plan is voluntary;
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e.
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the
performance share units are an extraordinary item that does not
constitute compensation of any kind for services of any kind
rendered to the Company, an Affiliated Company or to your employer,
and the performance share units are outside the scope of your
employment contract, if any;
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f.
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performance
share units are not part of normal or expected compensation or
salary for any purposes, including, but not limited to, calculation
of any severance, resignation, termination, redundancy, end of
service payments, bonuses, long-service awards, pension or
retirement benefits or similar payments;
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g.
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neither
the Award of performance share units nor any provision of this
Agreement, the Plan or the policies adopted pursuant to the Plan
confer upon you any right with respect to employment or
continuation of current employment, and in the event that you are
not an employee of the Company, performance share units shall not
be interpreted to form an employment contract or relationship with
the Company;
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h.
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the
future value of the underlying shares of Stock is unknown and
cannot be predicted with certainty;
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i.
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if
you receive shares of Stock, the value of such shares acquired on
vesting of performance sha
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