Amendment to Current Report — Form 8-K Filing Table of Contents
Document/ExhibitDescriptionPagesSize 1: 8-K/A Form 8K/A Compensation Amendment HTML 43K
2: EX-10.1 Performance Rsu HTML 89K
3: EX-10.2 Performance Unit Award David N. Weidman HTML 89K
4: EX-10.3 Lti Cash Award Agreement HTML 38K
5: EX-10.4 Lti Award Clawback Agreement HTML 41K
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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.
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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.
Form
of Long-Term Incentive Award Claw-Back
Agreement.
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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.
