Form of Performance Award Stock Unit Agreement
Target Number of PSUs subject to Vesting and Performance Conditions:
Date of Grant:
Amended & Restated 2014 Omnibus Incentive Plan
Performance Award Stock Unit Agreement
This agreement (this “Agreement”) evidences an award (the “Award”) of restricted stock units subject to performance conditions (hereinafter referred to as Performance Award Stock Units or “PSUs”) granted by Trinseo S.A. (the “Company”) to the undersigned (the “Grantee”) pursuant to the Trinseo S.A. Amended & Restated 2014 Omnibus Incentive Plan (as amended from time to time, the “Plan”), which is incorporated herein by reference.
The grant of the PSUs is a one-time benefit and does not create any contractual or other right for the Grantee to receive a grant of PSUs or benefits in lieu of PSUs in the future.
The Award shall not be interpreted to bestow upon the Grantee any equity interest or ownership in the Company or any Affiliate prior to the date on which the Company delivers shares of Stock to the Grantee (if any). The Grantee is not entitled to vote any shares of Stock by reason of the granting of this Award or to receive or be credited with any dividends declared and payable on any share of Stock prior to the date on which any such share is delivered to the Grantee hereunder. The Grantee shall have the rights of a shareholder only as to those shares of Stock, if any, that are delivered under this Award.
|i.||If the Grantee’s Employment terminates as a result of the Grantee’s Retirement (as defined below), upon such termination, the Grantee will be deemed to have met the service vesting requirements under this Award and will be eligible to receive a number of PSUs equal to (X) multiplied by (Y), where: (X) equals the total number Banked Units to which the Grantee would be entitled based upon actual performance during each Performance Period as described in Schedule A, and (Y) is the ratio, the numerator of which is the number of full months occurring between the Grant Date and the date of Grantee’s Retirement, and the denominator of which is thirty-six (36). For purposes hereunder, “Retirement” means a retirement from active Employment after the Grantee has attained age 55 with at least 10 years of continuous service with the Company, or its predecessor entity, The Dow Chemical Company, or any of its subsidiaries, or as defined in the Grantee’s employment or other agreement with the Company.|
|ii.||If the Grantee’s Employment is terminated due to his or her death or by the Company due to his or her Permanent Disability, upon such termination, the Grantee will be eligible to receive a number of PSUs equal to (X) multiplied by (Y), where: (X) equals the total number of Eligible Units to which the Grantee would be entitled based upon Target performance during each Performance Period as described in the performance matrix set forth in Schedule A, and (Y) is the ratio, the numerator of which is the number of full months occurring between the Grant Date and the date of Grantee’s death or date of termination due to Permanent Disability, and the denominator of which is thirty-six (36).|
For purposes of this Agreement, “Change in Control” means the first to occur of any of the following events:
|i.||an event in which any “person,” as such term is used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934 (the “1934 Act”) (other than (A) the Company, (B) any subsidiary of the Company, (C) any trustee or other fiduciary holding securities under an employee benefit plan of the Company or of any subsidiary of the Company, and (D) any company owned, directly or indirectly, by the stockholders of the Company in substantially the same proportions as their ownership of stock of the Company), is or becomes the “beneficial owner” (as defined in Section 13(d) of the 1934 Act), together with all affiliates and associates (as such terms are used in Rule 12b-2 of the General Rules and Regulations under the 1934 Act) of such person, directly or indirectly, of securities of the Company representing 40% or more of the combined voting power of the Company’s then outstanding securities;|
|ii.||the consummation of the merger or consolidation of the Company with any other company, other than (i) a merger or consolidation which would result in the voting securities of the Company outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into voting securities of the surviving entity), in combination with the ownership of any trustee or other fiduciary holding securities under an employee benefit plan of the Company or any subsidiary of the Company, more than 50% of the combined voting power of the voting securities of the Company or such surviving entity outstanding immediately after such merger or consolidation and (ii) a merger or consolidation effected to implement a recapitalization of the Company (or similar transaction) after which no “person” “beneficially owns” (with the determination of such “beneficial ownership” on the same basis as set forth in clause (1) of this definition) securities of the Company or the surviving entity of such merger or consolidation representing 50% or more of the combined voting power of the securities of the Company or the surviving entity of such merger or consolidation; or|
|iii.||the complete liquidation of the Company or the sale or disposition by the Company of all or substantially all of the Company’s assets.|
Notwithstanding the foregoing, to the extent any amount constituting “nonqualified deferred compensation” subject to Section 409A would become payable under the Award by reason of a Change in Control, it shall become payable only if the event or circumstances constituting the Change in Control would also constitute a change in
the ownership or effective control of the Company, or a change in the ownership of a substantial portion of the Company’s assets, within the meaning of subsection (a)(2)(A)(v) of Section 409A and the Treasury Regulations thereunder.
Prior to any relevant taxable or tax withholding event, as applicable, the Grantee will pay or make adequate arrangements satisfactory to the Company and/or its Affiliates to satisfy all Tax-Related Items. In this regard, the Grantee authorizes the Company and/or its Affiliates, or their respective agents, at
their discretion, to satisfy the obligations with regard to all Tax-Related Items by one or a combination of the following:
(i)withholding from the Grantee’s wages/salary or other cash compensation paid to the Grantee by the Company and/or its Affiliates; or
(ii) withholding from proceeds of the Stock acquired upon vesting/settlement of the PSUs either through a voluntary sale or through a mandatory sale arranged by the Company (on Grantee’s behalf pursuant to this authorization); or
(iii) withholding in Stock to be issued upon vesting/settlement of the PSUs provided, however, that if the Grantee is a Section 16 officer of the Company under the U.S. Securities and Exchange Act of 1934, as amended, then the Company will withhold in shares of Stock upon the relevant taxable or tax withholding event, as applicable, unless the use of such withholding method is problematic under applicable tax or securities law or has materially adverse accounting consequences, in which case, the obligation for Tax-Related Items may be satisfied by one or a combination of methods (i) and (ii) above.
To avoid negative accounting treatment, the Company and/or its Affiliates may withhold or account for Tax-Related Items by considering applicable minimum statutory withholding amounts or other applicable withholding rates. If the obligation for Tax-Related Items is satisfied by withholding in Stock, for tax purposes, the Grantee is deemed to have been issued the full number of shares of Stock attributable to the vested PSUs, notwithstanding that a number of share are held back solely for the purpose of paying the Tax-Related Items due as a result of any aspect of the Grantee’s participation in the Plan.
The Grantee shall pay to the Company and/or its Affiliates any amount of Tax-Related Items that the Company and/or its Affiliates may be required to withhold or account for as a result of the Grantee’s participation in the Plan that will not for any reason be satisfied by the means previously described. The Company may refuse to issue or deliver the Stock or the proceeds of the sale of Stock if the Grantee fails to comply with the Grantee’s obligations in connection with the Tax-Related Items.
By accepting this grant of PSUs, the Grantee expressly consents to the methods of withholding Tax-Related Items by the Company and/or its Affiliates as set forth herein, including the withholding of Stock and the withholding from the Grantee’s wages/salary or other amounts payable to the Grantee. All other Tax-Related Items related to the PSUs and any Stock delivered in satisfaction thereof are the Grantee’s sole responsibility.
|(a)||The Grantee expressly acknowledges that because this Award consists of an unfunded and unsecured promise by the Company to deliver Stock in the future, subject to the terms hereof, it is not possible to make a so-called “83(b) election” under U.S. federal tax laws with respect to the Award.|
|(b)||If, at the time of the Grantee’s termination of employment, the Grantee is a “specified employee,” as defined below, to the extent required by Section 409A, any and all amounts payable on account of the Grantee’s separation from service that constitute deferred compensation and would (but for this provision) be payable within six (6) months following the date of termination, shall instead be paid on the next business day following|
|the expiration of such six (6) month period or, if earlier, upon the Grantee’s death. For purposes of this Agreement, all references to “termination of employment” and correlative phrases shall be construed to require a “separation from service” (as defined in Treasury Regulations section 1.409A-1(h) after giving effect to the presumptions contained therein), and the term “specified employee” means an individual determined by the Company to be a specified employee under Treasury Regulation section 1.409A-1(i). Each payment made under this Agreement shall be treated as a separate payment and the right to a series of installment payments under this Agreement is to be treated as a right to a series of separate payments.|
Finally, upon request of the Company or the Grantee’s employer (the “Employer”), the Grantee agrees to provide an executed data privacy consent form (or any other agreements or consents that may be required by the Company and/or the Employer) that the Company and/or the Employer may deem necessary to obtain from the Grantee for the purpose of administering the Grantee’s participation in the Plan in compliance with the data privacy laws in the Grantee’s country, either now or in the future. The Grantee understands and agrees that the Grantee will not be able to participate in the Plan if the Grantee fails to provide any such consent or agreement requested by the Company and/or the Employer.
[Signature page follows.]
IN WITNESS WHEREOF, the Company has caused this Agreement to be executed by its duly authorized officer.
Name: Frank Bozich
Title:President and Chief Executive Officer
Acknowledged and Agreed:
The number of PSUs to which the Grantee will be entitled if the Grantee satisfies the applicable service requirements will be calculated by the Committee (or sub-committee thereof) based on the Company’s “Relative Total Stockholder Return” (as defined below). Specifically, if the Grantee satisfies the applicable service requirements, the Committee shall calculate the number of Banked Units earned during each Performance Period by (x) multiplying the Grantee’s Target Number of PSUs by the applicable percentage set forth in each of section (a)-(d) below for each Performance Period (the “Eligible Units”), and (y) multiplying the number of Eligible Units by the applicable percentage determined as set forth below based on the Company’s Relative Total Stockholder Return results for the specified Performance Period. As noted in the Terms and Conditions to this Agreement, special rules apply under certain circumstances, such as death, Permanent Disability, Change in Control and Retirement.
For purposes of this Agreement, the term “Banked Unit” means a PSU that has been tentatively credited for the Grantee’s benefit based on the Grantee’s service through a specified date and the satisfaction of applicable performance conditions as provided below, provided however, that a Banked Unit will not represent a vested PSU except to the extent provided in Section 4. Shares associated with vested PSUs shall only become deliverable, in accordance with Section 5.
For purposes of this Agreement, the term “Performance Period” shall mean the following periods, and Banked Units shall be calculated as follows:
|(a)||Calendar Year 2021. Subject to the Grantee’s continued Employment by the Company or any of its Affiliates through December 31, 2021, 15% of the Target Number of PSUs shall become Banked Units, subject to adjustment based upon the Company’s Total Stockholder Return (as defined below) relative to the Total Stockholder Return of the Comparator Group (as defined below) from January 1, 2021 until December 31, 2021 in accordance with the Relative Total Stockholder Return Table in Schedule A.|
|(b)||Calendar Year 2022. Subject to the Grantee’s continued Employment by the Company or any of its Affiliates through December 31, 2022, 15% of the Target Number of PSUs shall become Banked Units, subject to adjustment based upon the Company’s Total Stockholder Return (as defined below) relative to the Total Stockholder Return of the Comparator Group (as defined below) from January 1, 2022 until December 31, 2022 in accordance with the Relative Total Stockholder Return Table in Schedule A.|
|(c)||Calendar Year 2023. Subject to the Grantee’s continued Employment by the Company or any of its Affiliates through December 31, 2023, 15% of the Target Number of PSUs shall become Banked Units, subject to adjustment based upon the Company’s Total Stockholder Return (as defined below) relative to the Total Stockholder Return of the Comparator Group (as defined below) from January 1, 2023 until December 31, 2023 in accordance with the Relative Total Stockholder Return Table in Schedule A.|
|(d)||Cumulative Period 2021–2023. Subject to the Grantee’s continued Employment by the Company or any of its Affiliates through December 31, 2023, 55% of the Target Number of PSUs shall become Banked Units, subject to adjustment based upon the Company’s|
|Total Stockholder Return (as defined below) relative to the Total Stockholder Return of the Comparator Group (as defined below) from January 1, 2021 until December 31, 2023 in accordance with the Relative Total Stockholder Return Table.|
The following table shall apply for calculating this Award:
Relative Total Stockholder Return Over Each Performance Period
Payout Level (% of Target)
Relative TSR Ranking
The maximum percentage by which the Grantee’s Target Number of PSUs is multiplied cannot exceed 200% and no PSUs shall become Banked Units unless the Company’s Relative Total Stockholder Return performance for the specified period is equal to or greater than the level required to earn an award of 50% of the Eligible Units for such period. Notwithstanding the above: (I) in the event that the Company’s Total Stockholder Return during any Performance Period is negative, the number of vested PSUs due to the Grantee cannot exceed 100% of the Grantee’s Eligible Units for such period, and (II) the fair market value of the total number of shares of Stock due to be delivered to the Grantee following the vesting of all Banked Units pursuant to Section 4 of the Agreement (determined on the certification date of the Award) shall not exceed 300% of the total fair market value of the shares of Stock attributable to the Eligible Units (determined as of the Grant Date).
If the Company’s Relative Total Stockholder Return performance falls between designated levels of performance set forth in the above table, the percentage by which the Grantee’s Eligible Units is multiplied will be calculated by linear interpolation.
Relative Total Stockholder Return shall mean the percentile ranking of the Company’s Total Stockholder Return (as defined below) measured relative to each company in the Comparator Group’s Comparator Total Stockholder Return (as defined below) during each Performance Period. The “Comparator Group” shall consist of all Chemical and Basic Materials companies in the S&P 600 Small Cap Index at the start of each Performance Period. Companies in the Comparator Group that are acquired during a Performance Period or are no longer publicly traded at the end of each Performance Period will be removed from the Comparator Group for such Performance Period. Any company in the Comparator Group which declares bankruptcy, is liquidated or is otherwise delisted during the relevant Performance Period shall remain in the Comparator Group and such
company’s performance shall be considered to have been at the bottom of the Comparator Group. The Comparator Group companies for the initial Performance Period are set forth on the next page.
The percentile ranking of the Company’s Relative Total Stockholder Return shall be that fraction which is calculated by dividing the number of companies in the Comparator Group whose Comparator Total Stockholder Return performance is exceeded by the Company (based on the Total Stockholder Return) by the total number of companies in the Comparator Group.
Except as noted in this Schedule A, no adjustments for extraordinary items shall be made when calculating Relative Total Stockholder Return.
Total Stockholder Return shall mean the percentage rate of growth during each relevant Performance Period of an investment of $1,000 in shares of Stock on the first day of each such Performance Period, assuming reinvestment of all dividends paid during each such Performance Period and adjusted in an equitable manner for any material stock splits, reverse stock splits or similar transactions.
Comparator Total Stockholder Return for an applicable company in the Comparator Group shall mean the percentage rate of growth during each relevant Performance Period of an investment of $1,000 in shares of the common stock of the applicable company in the Comparator Group on the first day of each Performance Period, assuming reinvestment of all dividends paid during each Performance Period and adjusted in an equitable manner for any material stock splits, reverse stock splits or similar transactions.
Total Stockholder Return for the Company or any applicable company in the Comparator Group shall be measured based on the average fair market value (“FMV”) of the applicable share of stock for the thirty (30) trading days following the commencement of the Performance Period as compared to the average FMV of the same shares for the last thirty (30) trading days prior to the Service Vesting Date. The FMV of the Company’s Stock or of a share of the common stock of a company in the Comparator Group shall mean the closing price of a share of that stock on the New York Stock Exchange or other national stock exchange on which that stock is actively traded for that date as reported in the Wall Street Journal, Eastern Edition or such other standard reference service as the Committee may select.
Comparator Group (Performance Peer Group)
for initial Performance Period
(updated as set forth in Schedule A)
Primary Listing: US Stock Exchange
ADDITIONAL TERMS AND CONDITIONS TO
PERFORMANCE AWARD STOCK UNIT AGREEMENT
This Country Appendix (“Appendix”) includes the following additional terms and conditions that govern the Grantee’s PSU Award for all Grantees that reside and/or work outside of the United States.
This Appendix also includes information regarding exchange controls and certain other issues of which the Grantee should be aware with respect to the Grantee’s participation in the Plan. The information is based on the securities, exchange control and other laws in effect in the respective countries as of December 2020. Such laws are often complex and change frequently. As a result, the Company strongly recommends that the Grantee not rely on the information in this Appendix as the only source of information relating to the consequences of the Grantee’s participation in the Plan because the information may be out of date at the time that the PSUs vest, or Stock is delivered in settlement of the PSUs, or the Grantee sells any Stock acquired under the Plan.
In addition, the information contained herein is general in nature and may not apply to the Grantee’s particular situation, and none of the Company, its Affiliates, nor the Administrator is in a position to assure the Grantee of a particular result. Accordingly, the Grantee is advised to seek appropriate professional advice as to how the relevant laws in the Grantee’s country of residence and/or work may apply to the Grantee’s situation.
Finally, if the Grantee transfers employment after the Grant Date, or is considered a resident of another country for local law purposes following the Grant Date, the notifications contained herein may not be applicable to the Grantee, and the Administrator shall, in its discretion, determine to what extent the terms and conditions contained herein shall be applicable to the Grantee.
Terms and Conditions Applicable to All Non-U.S. Jurisdictions
English Language. The Grantee acknowledges and agrees that it is the Grantee’s express intent that this Agreement, the Plan and all other documents, rules, procedures, forms, notices and legal proceedings entered into, given or instituted pursuant to the PSU Award, be drawn up in English. If the Grantee has received this Agreement, the Plan or any other rules, procedures, forms or documents related to the PSU Award translated into a language other than English, and if the meaning of the translated version is different than the English version, the English version will control.
Compliance with Law. Notwithstanding any other provision of the Plan or this Agreement, unless there is an exemption from any registration, qualification or other legal requirement applicable to the Stock, the Company shall not be required to deliver any shares issuable upon settlement of the PSU prior to the completion of any registration or qualification of the shares under any local, state, federal or foreign securities or exchange control law or under rulings or regulations of the U.S.
Securities and Exchange Commission (“SEC”) or of any other governmental regulatory body, or prior to obtaining any approval or other clearance from any local, state, federal or foreign governmental agency, which registration, qualification or approval the Company shall, in its absolute discretion, deem necessary or advisable. The Grantee understands that the Company is under no obligation to register or qualify the shares with the SEC or any state or foreign securities commission or to seek approval or clearance from any governmental authority for the issuance or sale of the shares. Further, the Grantee agrees that the Company shall have unilateral authority to amend the Agreement without the Grantee’s consent to the extent necessary to comply with securities or other laws applicable to issuance of shares of Stock.
Insider Trading/Market Abuse. The Grantee acknowledges that, depending on the Grantee’s or his or her broker's country or where the shares of Stock are listed, the Grantee may be subject to insider trading restrictions and/or market abuse laws which may affect the Grantee’s ability to accept, acquire, sell or otherwise dispose of shares of Stock, rights to shares of Stock (e.g., PSUs) or rights linked to the value of shares of Stock (e.g., phantom awards, futures) during such times the Grantee is considered to have “inside information” regarding the Company as defined in the laws or regulations in the applicable jurisdictions). Local insider trading laws and regulations may prohibit the cancellation or amendment of orders the Grantee placed before the Grantee possessed inside information. Furthermore, the Grantee could be prohibited from (i) disclosing the inside information to any third party (other than on a “need to know” basis) and (ii) “tipping” third parties or causing them otherwise to buy or sell securities. Keep in mind third parties includes fellow employees. Any restrictions under these laws or regulations are separate from and in addition to any restrictions that may be imposed under any applicable insider trading policy of the Company. The Grantee is responsible for complying with any restrictions and should speak to his or her personal advisor on this matter.
Exchange Control, Foreign Asset/Account and/or Tax Reporting. Depending upon the country to which laws the Grantee is subject, the Grantee may have certain foreign asset/account and/or tax reporting requirements that may affect the Grantee’s ability to acquire or hold shares of Stock under the Plan or cash received from participating in the Plan (including from any dividends or dividend equivalents or sale proceeds arising from the sale of shares of Stock) in a brokerage or bank account outside the Grantee’s country of residence. The Grantee’s country may require that the Grantee reports such accounts, assets or transactions to the applicable authorities in his or her country. The Grantee also may be required to repatriate cash received from participating in the Plan to the Grantee’s country within a certain period of time after receipt. The Grantee is responsible for knowledge of and compliance with any such regulations and should speak with his or her personal tax, legal and financial advisors regarding same.
Commercial Relationship. The Grantee expressly recognizes that the Grantee’s participation in the Plan and the Company’s Award grant does not constitute an employment relationship between the Grantee and the Company. The Grantee has been granted PSUs as a consequence of the commercial relationship between the Company and the Employer, and the Employer is the Grantee’s sole employer. Based on the foregoing, (a) the Grantee expressly recognizes the Plan and the benefits the Grantee may derive from participation in the Plan do not establish any rights
between the Grantee and the Affiliate that employs the Grantee, (b) the Plan and the benefits the Grantee may derive from participation in the Plan are not part of the employment conditions and/or benefits provided by the Affiliate that employs the Grantee, and (c) any modifications or amendments of the Plan by the Company or the Administrator, or a termination of the Plan by the Company, shall not constitute a change or impairment of the terms and conditions of the Grantee’s employment with the Affiliate that employs the Grantee.
Private Placement. The grant of the Award is not intended to be a public offering of securities in the Grantee’s country of residence and/or employment but instead is intended to be a private placement. As a private placement, the Company has not submitted any registration statement, prospectus or other filings with the local securities authorities (unless otherwise required under local law), and the grant of the PSU Award is not subject to the supervision of the local securities authorities.
Additional Acknowledgements. The GRANTEE also acknowledges and agrees to the following:
|●||The Plan is established voluntarily by the Company, it is discretionary in nature, and it may be modified, amended, suspended or terminated by the Company at any time, to the extent permitted by the Plan.|
|●||All decisions with respect to future Awards or other grants, if any, will be at the sole discretion of the Company.|
|●||The future value of the underlying Stock is unknown, indeterminable and cannot be predicted with certainty.|
|●||The Award and the Stock subject to the Award, and the income and value of same, are not part of normal or expected compensation or salary for any purpose and are not intended to replace any pension rights or compensation.|
|●||The Grantee’s participation in the Plan is voluntary.|
|●||No claim or entitlement to compensation or damages arises from the forfeiture of the Award or any of the PSUs, the termination of the Plan, or the diminution in value of the PSUs or Stock, and the Grantee irrevocably releases the Company, its Affiliates, the Administrator and their affiliates from any such claim that may arise.|
|●||The PSU and the Stock subject to the PSU, and the income and value of same, are not part of normal or expected compensation for purposes of, including but not limited to, calculating any severance, resignation, termination, redundancy, dismissal, end of service payments, bonuses, holiday pay, long-service awards, pension or retirement or welfare benefits or similar payments.|
|●||Unless otherwise agreed with the Company in writing, the PSUs and the Stock subject to the PSUs, and the income and value of same, are not granted as consideration for, or in connection with, any service the Grantee may provide as a director of the Company or its Affiliates.|
|●||Neither the Company nor its Affiliates shall be liable for any foreign exchange rate fluctuation between the Grantee’s local currency and the U.S. Dollar that may affect the value of the PSUs or of any amounts due to the Grantee pursuant to the settlement of the PSUs or the subsequent sale of any Stock acquired upon settlement.|
|●||None of the Company, its Affiliates, nor the Administrator is providing any tax, legal or financial advice or making any recommendations regarding the Grantee’s participation in the Plan, the grant, vesting or settlement of the Grantee’s PSUs, or the Grantee’s acquisition or sale of the Stock delivered in settlement of the PSUs. The Grantee is hereby advised to consult with his own personal tax, legal and financial advisors regarding his participation in the Plan before taking any action related to the Plan.|
Securities Law Information. Neither this document nor any other materials relating to the grant of PSUs (a) constitutes a prospectus according to articles 35 et seq. of the Swiss Federal Act on Financial Services (“FinSA”), (b) may be publicly distributed nor otherwise made publicly available in Switzerland to any person other than an employee of the Company or (c) have been or will be filed with, approved or supervised by any Swiss reviewing body according to article 51 of FinSA or any Swiss regulatory authority, including the Swiss Financial Market Supervisory Authority (FINMA).