ABITIBIBOWATER INC.
PERFORMANCE-BASED VESTING
RESTRICTED STOCK UNIT AGREEMENT
THIS RESTRICTED
STOCK UNIT AGREEMENT, dated as of [Insert Date] (the “
Date of Grant ”) is made by and between AbitibiBowater
Inc., a Delaware corporation (the “ Company ”),
and
(“ Participant ”).
WHEREAS, the
Company has adopted the AbitibiBowater Inc. 2008 Equity Incentive
Plan (the “ Plan ”), pursuant to which
restricted stock units may be granted in respect of shares of the
Company’s common stock, par value $1.00 per share (“
Stock ”); and
WHEREAS, the Human
Resources and Compensation Committee of the Company (the “
Committee ”) has determined that it is in the best
interests of the Company and its stockholders to grant the
restricted stock unit award provided for herein to Participant
subject to the terms set forth herein.
NOW, THEREFORE,
for and in consideration of the premises and the covenants of the
parties contained in this Agreement, and for other good and
valuable consideration, the receipt of which is hereby
acknowledged, the parties hereto, for themselves, their successors
and assigns, hereby agree as follows:
1. Grant of
Restricted Stock Unit .
(a)
Grant . The Company hereby grants to Participant [
] restricted stock units (the “ RSU s”) (the
“ Target Amount ”), on the terms and conditions
set forth in this Agreement and as otherwise provided in the Plan.
Each RSU represents the right to receive payment in respect of one
share of Stock as of the Settlement Date, to the extent the
participant is vested in such RSUs as of the Settlement Date,
subject to the terms of this Agreement and the Plan.
(b)
Incorporation by Reference, Etc. The provisions of the Plan
are hereby incorporated herein by reference. Except as otherwise
expressly set forth herein, this Agreement shall be construed in
accordance with the provisions of the Plan and any interpretations,
amendments, rules and regulations promulgated by the Committee from
time to time pursuant to the Plan. Any capitalized terms not
otherwise defined in this Agreement shall have the definitions set
forth in the Plan. The Committee shall have final authority to
interpret and construe the Plan and this Agreement and to make any
and all determinations under them, and its decision shall be
binding and conclusive upon Participant and his legal
representative in respect of any questions arising under the Plan
or this Agreement.
(c)
Approval of the Plan . The RSUs granted under this Agreement
are subject to the Plan being approved by the shareholders of the
Company, as set forth in the Plan. If the shareholders do not
approve the Plan, then the RSU granted under this Agreement shall
become automatically void and of no further force or
effect.
(d)
Acceptance of Agreement . Unless you notify your local human
resources in writing within 14 days after the Date of Grant
that you do not wish to accept this Agreement, you will be deemed
to have accepted this Agreement and will be bound by the terms of
the Agreement and the Plan.
2. Terms and
Conditions .
(a) Performance
Target . Subject to continued employment or service with the
Company, the RSUs shall vest if both (i) the Participant is
actively employed or in service with the Company on
December 31, 2010, and (ii) the Company achieves
cumulative EBITDA during the three-year performance period
beginning January 1, 2008 and ending December 31, 2010
(“ Cumulative EBITDA ”) equal to or in excess of
the amounts set forth on Exhibit A (the “
Performance Target ”). The actual number of RSUs that
may vest may range from zero to 200% of the Target Amount based on
the extent to which the Performance Target is achieved, in
accordance with the methodology set out on Exhibit A .
If the
Company does
not achieve the minimum Performance Target as set out on
Exhibit A, then no RSUs shall vest and all RSUs shall be
cancelled in its entirety. Notwithstanding anything to the
contrary, no vesting shall occur unless and until the Committee
certifies that the Performance Target has been met (the “
Certification ”).
(b)
Settlement . The obligation to make payments and
distributions with respect to RSUs shall be satisfied through cash
payments (the “ settlement ”) and the settlement
of the RSUs, may be subject to such conditions, restrictions and
contingencies as the Committee shall determine. The RSUs shall be
settled as soon as practicable after the RSUs vest (the “
Settlement Date ”), but in no event later than
March 15, 2011. Notwithstanding the foregoing, the payment
dates set forth in this Section 2(b) have been specified for the
purpose of complying with the provisions of Section 409A of
the Internal Revenue Code (“ Section 409A ”). To
the extent payments are made during the periods permitted under
Section 409A (including any applicable periods before or after
the specified payment dates set forth in this Section 2(b),
the Company shall be deemed to have satisfied its obligations under
the Plan and shall be deemed not to be in breach of its payments
obligations hereunder.
(c)
Dividends and Voting Rights . The right to dividends
(including extraordinary dividends if so determined by the
Committee) declared and paid to other shareholders shall be accrued
during the vesting period and paid in cash to the Participant
(based on the number of RSUs vested) upon the Vesting Date, less
any applicable withholding taxes. No dividends shall be accrued for
the benefit of the Pa
