Attached files
Exhibit 10.8
DRESSER-RAND GROUP INC.
STANDARD TERMS AND CONDITIONS FOR
EMPLOYEE NONQUALIFIED STOCK OPTIONS
STANDARD TERMS AND CONDITIONS FOR
EMPLOYEE NONQUALIFIED STOCK OPTIONS
These Standard Terms and Conditions apply to any Options granted under the Dresser-Rand Group Inc.
2008 Stock Incentive Plan, as amended (the Plan), on or after January 1, 2011, which are
identified as nonqualified stock options and are evidenced by a Grant Notice or an action of the
Committee that specifically refers to these Standard Terms and Conditions.
1. | TERMS OF OPTION |
Dresser-Rand Group Inc. (the Company) has granted to the Participant named in the Grant
Notice provided to said the Participant herewith (the Grant Notice) a nonqualified stock
option (the Option) to purchase up to the number of shares of the Companys common stock
(the Common Stock), set forth in the Grant Notice, at the purchase price per share and
upon the other terms and subject to the conditions set forth in the Grant Notice, these
Standard Terms and Conditions (as amended from time to time), and the Plan. For purposes of
these Standard Terms and Conditions and the Grant Notice, any reference to the Company shall
include a reference to any Subsidiary. Capitalized terms not defined in this document have
the meaning given to them in Plan or Grant Notice.
2. | NON-QUALIFIED STOCK OPTION |
The Option is not intended to be an incentive stock option under Section 422 of the Internal
Revenue Code of 1986, as amended (the Code) and will be interpreted accordingly.
3. | EXERCISE OF OPTION |
The Option shall not be exercisable as of the Grant Date set forth in the Grant Notice.
After the Grant Date, to the extent not previously exercised, and subject to termination or
acceleration as provided in these Standard Terms and Conditions and the Plan, the Option
shall be exercisable to the extent it becomes vested, as described in the Grant Notice, to
purchase up to that number of shares of Common Stock as set forth in the Grant Notice
provided that (except as set forth in Section 4.A below) the Participant remains employed
with the Company and does not experience a termination of employment. The vesting period
and/or exercisability of an Option may be adjusted by the Committee to reflect the decreased
level of employment during any period in which the Participant is on an approved leave of
absence or is employed on a less than full time basis, provided that the Committee may take
into consideration any accounting consequences to the Company.
To exercise the Option (or any part thereof), the Participant shall deliver to the Company a
Notice of Exercise on a form either provided by the Company or follow a mechanism
established by the Company with the broker administering the Option, specifying the number
of whole shares of Common Stock the Participant wishes to purchase and how
the Participants shares of Common Stock should be registered (in the Participants name
only or in the Participants and the Participants spouses names as community property or
as joint tenants with right of survivorship).
The exercise price (the Exercise Price) of the Option is set forth in the Grant Notice.
The Company shall not be obligated to issue any shares of Common Stock until the Participant
shall have paid the total Exercise Price for that number of shares of Common Stock. The
exercise price of may be paid in Common Stock, cash or a combination thereof, including an
irrevocable commitment by a broker to pay over such amount from a sale of the Common Stock
issuable under the Option, the delivery of previously owned Common Stock and withholding of
Common Stock deliverable upon exercise.
Fractional shares may not be exercised. Shares of Common Stock will be issued as soon as
practical after exercise. Notwithstanding the above, the Company shall not be obligated to
deliver any shares of Common Stock during any period when the Company determines that the
exercisability of the Option or the delivery of shares hereunder would violate any federal,
state or other applicable laws.
4. | EXPIRATION OF OPTION |
Except as provided in this Section 4, the Option shall expire and cease to be exercisable as
of the Expiration Date set forth in the Grant Notice.
A. | If the Participants employment terminates by reason of Retirement (as defined
in Section 14.F below), the Participant (or the Participants estate, beneficiary or
legal representative), subject to Section 9, may exercise the Option to the extent
vested or exercisable until the Expiration Date. Upon Retirement, the unvested portion
of the Option shall continue to vest under the schedule described in the Grant Notice;
provided, however, that if the Grantees Retirement is less than twelve (12) months
after the Grant Date, only the following portion of the unvested Option shall continue
to vest under the schedule described in the Grant Notice: (x) the number of
then-unvested Options granted hereunder, (y) multiplied by a fraction, (I) the
numerator of which is the number of full days from the Grant Date through the date of
Retirement, and (II) the denominator of which is 365. The remaining unvested portion
of the Option shall be forfeited and canceled as of the date of such Retirement. |
B. | If the Participants employment terminates by reason of death or Disability,
the Participant (with Participants estate, beneficiary or legal representative, may
exercise the Option (regardless of whether then vested or exercisable) until the
earlier of (i) the twelve month anniversary of the date of such termination and (ii)
the Expiration Date. |
C. | If the Participants employment terminates for any reason other than death,
Disability, Cause or Retirement, the Participant may exercise any Options that are
vested and exercisable at the time of such termination of employment until the
earlier of (A) the 90-day anniversary of the date of such termination of employment
and (B) the Expiration Date. Any portion of the Option that is not vested and
exercisable at the time of such a termination of employment shall be forfeited and
canceled as of the date of termination of employment. |
D. | If the Participants employment is terminated for Cause, the entire Option,
whether or not then vested and exercisable, shall be immediately forfeited and canceled
as of the date of such termination of employment. |
5. | CHANGE IN CONTROL |
Unless otherwise provided in an employment, severance or other agreement between the Company
and the Participant, the Committee shall determine the effect of a Change in Control on the
Options. Without limitation, the Committee may provide for the acceleration of vesting and
exercisability of any unvested Options, for a cash payment based on the Change in Control
Price in settlement of the Options, or for the assumption or substitution of Options by the
Participants employer (or the parent or an Affiliate of such employer) that engages the
Participant immediately following the Change in Control.
6. | RESTRICTIONS ON RESALES OF SHARES ACQUIRED PURSUANT TO OPTION EXERCISE |
The Company may impose such restrictions, conditions or limitations as it determines
appropriate as to the timing and manner of any resales by the Participant or other
subsequent transfers by the Participant of any shares of Common Stock issued as a result of
the exercise of the Option, including without limitation (a) restrictions under an insider
trading policy, (b) restrictions designed to delay and/or coordinate the timing and manner
of sales by the Participant and other optionholders and (c) restrictions as to the use of a
specified brokerage firm for such resales or other transfers.
7. | INCOME TAXES |
The Company shall not deliver shares of Common Stock in respect of the exercise of any
Option unless and until the Participant has made arrangements satisfactory to the Committee
to satisfy applicable withholding tax obligations. Unless otherwise permitted by the
Committee, withholding shall be effected by withholding Common Stock issuable in connection
with the exercise of the Option. The Participant acknowledges that the Company shall have
the right to deduct any taxes required to be withheld by law in connection with the exercise
of the Options from any amounts payable by it to the Participant (including, without
limitation, future cash wages).
8. | NON-TRANSFERABILITY OF OPTION |
The Participant may not assign or transfer the Option to anyone other than by will or the
laws of descent and distribution and, subject to Section 4.B, the Option shall be
exercisable only by the Participant during his or her lifetime. The Company may cancel the
Participants Option if the Participant attempts to assign or transfer it in a manner
inconsistent with this Section 8.
9. | RESTRICTED ACTIVITIES |
A. | By accepting the Option, the Participant acknowledges and agrees that (i) the
Company is engaged in a highly competitive business; (ii) the Company has expended
considerable time and resources to develop goodwill with its customers, vendors, and
others, and to create, protect, and exploit its Confidential Information (as defined in
Section 14.B below); (iii) the Company must continue to prevent the dilution of its
goodwill and unauthorized use or disclosure of its Confidential Information to avoid
irreparable harm to its legitimate business interests; (iv) the Participants
participation in or direction of the Companys day-to-day operations and strategic
planning are an integral part of the Companys continued success and goodwill; (v) in
the period between the Participants notice to the Committee of the Participants
Retirement and the date of the Participants Retirement (the Transition Period), the
Participant will participate in identifying a successor, transitioning his or her
responsibilities to and training a successor, and engaging in other transition
activities (the Transition Process); (vi) given the Participants position and
responsibilities, including during the Transition Period, he or she necessarily will be
relying on and/or creating Confidential Information that belongs to the Company and
enhances the Companys goodwill; during the Transition Process will be transmitting
Confidential Information to his or her successor; and in carrying out his or her
responsibilities, including during the Transition Process, the Participant in turn will
be relying on the Companys goodwill and the disclosure by the Company to him or her of
Confidential Information; (vii) the Participant will have access to Confidential
Information, including concerning the Transition Process, that could be used by any
competitor of the Company in a manner that would irreparably harm the Companys
competitive position in the marketplace and dilute its goodwill; (viii) the
Participants engaging in any of the Restricted Activities during the Restriction
Period would result in the inevitable disclosure or use of Confidential Information for
the Competitors benefit or to the detriment of the Company; (ix) the Participant will
return to the Company upon Retirement all the Confidential Information, in whatever
form or media and all copies thereof, in his or her possession, custody, or control;
(x) by giving advance notice of his or her Retirement, the Participant represents that
he or she will not engage in the Restricted Activities; (xi) the Company is relying on
such representation in providing the Participant continuing access to Confidential
Information and authorizing him or her to engage in the Transition Process and other
activities that will create new and additional Confidential Information during the
Transition Period; and (xii) absent the Participants agreement to this Section 9, the
Company
would not authorize the Participant to participate in the Transition Process and
engage in other activities that will create new and additional Confidential
Information in an unfettered fashion and would not provide for the extended
exercisability of the Option (regardless of whether then vested or exercisable) upon
Retirement as provided for in Section 4.A. |
B. | The Company, by granting the Option, and the Participant, by accepting the
Option, thus acknowledge and agree that during the remaining term of the Participants
employment with the Company, including the Transition Period, the Participant (i) will
receive Confidential Information that is unique, proprietary, and valuable to the
Company; (ii) will rely on and/or create Confidential Information that is unique,
proprietary, and valuable to the Company; and (iii) will benefit, including without
limitation by way of increased earnings and earning capacity, from the goodwill the
Company has generated and from the Confidential Information. |
C. | Accordingly, in consideration of the promises of the Company set out in Section
9.B, the Option, and the extended exercisability of the Option (regardless of whether
then vested or exercisable) upon Retirement as provided for in Section 4.A, the
Participant agrees that: |
1. | He or she will not engage in any of the Restricted Activities
(as defined in Section 14.D below) during the Restriction Period (as defined in
Section 14.E below); |
2. | If he or she engages in, or threatens to engage in, any of the
Restricted Activities during the Restriction Period or otherwise violates his
or her obligations under this Section 9, then (x) the Option shall immediately
expire and cease to be exercisable (regardless of whether then vested or
exercisable) and (y) with respect to any Option (or any part thereof) that has
been exercised, the Participant shall immediately pay to the Company the excess
of the fair market value of the Common Stock associated with the exercise of
the Option (or any part therof) at the time of exercise over the Exercise
Price; |
3. | If he or she engages in, or threatens to engage in, any of the
Restricted Activities during the Restriction Period or otherwise violates his
or her obligations under this Section 9, the Company would not have an adequate
remedy at law and would be irreparably harmed and, accordingly, that the
Company shall be entitled to equitable relief, including preliminary and
permanent injunctions and specific performance, in the event the Participant
engages or threatens to engage in any of the Restricted Activities during the
Restriction Period or otherwise violates his or her obligations under this
Section 9, without the necessity of posting any bond or proving special damages
or irreparable injury; and |
4. | Neither Section 9.C.2 nor Section 9.C.3 constitute the
Companys exclusive remedy for a breach or threatened breach of the
Participants obligations under this Section 9, but shall be in addition to all
other remedies available to the Company at law or equity. |
D. | By accepting the Option, the Participant acknowledges and agrees that (i) the
restrictions contained in this Section 9 are ancillary to an otherwise enforceable
agreement, including without limitation the mutual promises and undertakings set out in
Section 9.A and B, the Option, and the extended exercisability of the Option
(regardless of whether then vested or exercisable) upon Retirement as provided for in
Section 4.A; (ii) the Companys promises and undertakings set out in these Standard
Terms and Conditions, and in particular Section 9.B, the Grant Notice, and the Plan,
and the Participants position and responsibilities with the Company and his or her
promises and undertakings set out in Section 9.A, give rise to the Companys interest
in restricting the Participants post-Retirement activities; (iii) such restrictions
are designed to enforce the Participants promises and undertakings set out in Section
9.A and his or her common-law obligations and duties owed to the Company; (iv) the
restrictions are reasonable and necessary, are valid and enforceable, and do not impose
a greater restraint than necessary to protect the Companys goodwill, Confidential
Information, and other legitimate business interests; (v) he or she will immediately
notify the Company in writing should he or she believe or be advised that the
provisions of this Section 9 are not, or likely are not, valid and enforceable; (vi) he
or she will not challenge the enforceability of this Section 9; (vii) absent the
Participants agreement to this Section 9, the Company would not authorize the
Participant to participate in the Transition Process and engage in other activities
that provide access to or create new and additional Confidential Information in an
unfettered fashion and would not provide for the extended exercisability of the Option
(regardless of whether then vested or exercisable) upon Retirement as provided for in
Section 4.A. |
E. | The provisions of Section 4.A providing for the extended exercisability of all
or a portion of the Option (regardless of whether then vested or exercisable) upon
Retirement and this Section 9 are mutually dependent and not severable, and the
Participant acknowledges and agrees that the Company would not provide for the extended
exercisability of the Option (regardless of whether then vested or exercisable) upon
Retirement as provided for in Section 4.A but for the Participants promises set out in
and the enforceability of this Section 9. Accordingly, if Section 9 or any part of it
is ever declared to be illegal, invalid, or otherwise unenforceable in any respect by a
court of competent jurisdiction, then the Participant agrees that (x) the Option shall
immediately expire and cease to be exercisable (regardless of whether then vested or
exercisable) and (y) with respect to any Option (or any part thereof) that has been
exercised, the Participant shall immediately pay to the Company the excess of the fair
market value of the Common Stock associated with the exercise of the Option (or any
part therof) at
the time of exercise over the Exercise Price; provided that if the scope of the
restrictions in this Section 9 as to time, geography, or scope of activities are
deemed by court of competent jurisdiction to exceed the limitations permitted by
applicable law, the Participant and the Company agree that the restrictions so
deemed shall be, and are, automatically reformed to the maximum limitation permitted
by such law. |
10. | THE PLAN AND OTHER AGREEMENTS |
In addition to these Terms and Conditions, the Option shall be subject to the terms of the
Plan, which are incorporated into these Standard Terms and Conditions by this reference.
Capitalized terms not otherwise defined herein shall have the meaning set forth in the Plan.
The Grant Notice, these Standard Terms and Conditions and the Plan constitute the entire
understanding between the Participant and the Company regarding the Option. Any prior
agreements, commitments or negotiations concerning the Option are superseded.
11. | LIMITATION OF INTEREST IN SHARES SUBJECT TO OPTION |
Neither the Participant (individually or as a member of a group) nor any beneficiary or
other person claiming under or through the Participant shall have any right, title,
interest, or privilege in or to any shares of Common Stock allocated or reserved for the
purpose of the Plan or subject to the Grant Notice or these Standard Terms and Conditions
except as to such shares of Common Stock, if any, as shall have been issued to such person
upon exercise of the Option or any part of it. Nothing in the Plan, in the Grant Notice,
these Standard Terms and Conditions or any other instrument executed pursuant to the Plan
shall confer upon the Participant any right to continue in the Companys employ or service
nor limit in any way the Companys right to terminate the Participants employment at any
time for any reason.
12. | GENERAL |
Except as provided for in Section 9.E, in the event that any provision of these Standard
Terms and Conditions is declared to be illegal, invalid or otherwise unenforceable by a
court of competent jurisdiction, such provision shall be reformed, if possible, to the
extent necessary to render it legal, valid and enforceable, or otherwise deleted, and the
remainder of these Standard Terms and Conditions shall not be affected except to the extent
necessary to reform or delete such illegal, invalid or unenforceable provision.
The headings preceding the text of the sections hereof are inserted solely for convenience
of reference, and shall not constitute a part of these Standard Terms and Conditions, nor
shall they affect its meaning, construction or effect.
These Standard Terms and Conditions shall inure to the benefit of and be binding upon the
parties hereto and their respective permitted heirs, beneficiaries, successors and assigns.
These Standard Terms and Conditions shall be construed in accordance with and governed by
the laws of the State of Delaware, without regard to principles of conflicts of law.
All questions arising under the Plan or under these Standard Terms and Conditions shall be
decided by the Committee in its total and absolute discretion.
13. | ELECTRONIC DELIVERY |
By executing the Grant Notice, the Participant hereby consents to the delivery of
information (including, without limitation, information required to be delivered to the
Participant pursuant to applicable securities laws) regarding the Company and the
Subsidiaries, the Plan, the Options and the Common Stock via Company web site or other
electronic delivery.
14. | DEFINITIONS |
For purposes hereof, the following terms shall have the following meanings:
A. | Competitor shall mean any person or entity that carries on business
activities in competition with the activities of the Company, including but not limited
to (i) suppliers of rotating equipment, services and solutions for applications in the
oil, gas, petrochemical and process industries including for oil and gas production;
high-pressure gas injection, gas lift and other applications for enhanced oil recovery;
natural gas production and processing; gas liquefaction; gas gathering, transmission
and storage; hydrogen, wet and coker gas, synthesis gas, carbon dioxide and other
applications for the refining, fertilizer and petrochemical markets; (ii) several
applications for the armed forces; (iii) applications for general industrial markets
such as paper, steel, sugar, and distributed and independent power generation; (iv)
competing environmental solutions such as compressed air energy storage, combined heat
and power, air separation, bio fuels, and wave or wind energy or (v) servicing the
Companys installed base of equipment, and the installed base of the Companys class of
equipment of other suppliers through the provision of parts, repairs, overhauls,
operation and maintenance, upgrades, revamps, applied technology solutions, coatings,
field services, technical support and other extended services. The term Competitor
specifically includes but is not limited to the centrifugal turbo and reciprocating
compressor, steam and gas turbine, rotating machinery, related aftermarket parts and
services (including repairs, revamps, re-rates, upgrades, applied technology,
overhauls, remanufacturing, installation and start-up) and other competing businesses
of (x) GE Oil & Gas/Nuovo Pignone, Siemens (including TurboCare), Solar Turbines, Inc.,
Rolls-Royce Group plc, Elliott Company, General Electric,
Alstom, Mitsubishi Heavy Industries, Hitachi, MAN Turbo, Hickham USA, Sulzer Turbo
Services, Wood Group, Burckhardt Compression, Neuman & Esser Group, Ariel Corp.,
Thomassen Mitsui & Co., Ltd., Ebara, Shin Nippon Machinery Co. Ltd., Caterpillar
Inc., Solar, Hoerbiger, or, if those corporate names are not formally correct, the
businesses commonly referred to by those names; and (y) the successors to, assigns
of, and affiliates of the persons or entities described in clause (x). |
B. | Confidential Information shall mean, without limitation, all documents or
information, in whatever form or medium, or consisting of knowledge or know-how
whether or not recorded in any medium, concerning or evidencing sales; costs; pricing;
strategies; forecasts and long range plans; financial and tax information; personnel
information (including without limitation compensation, other terms of employment, or
performance other than as concerns solely the Participant); business, marketing and
operational projections, plans, and opportunities; and customer, vendor, and supplier
information; but excluding any such information that is or becomes generally available
to the public other than as a result of any unauthorized disclosure or breach of duty
by the Participant. |
C. | Noncompetition Area shall mean the following geographic areas to the extent
the Participants duties and responsibilities for the Company take or took place
anywhere in or are or were directed at any part of: (i) any foreign country in which
the Company has provided, sold, or installed its services, products, or systems or has
definitive plans to provide, sell, or install its services, products, or systems during
the Participants employment by the Company; and (ii) any state or territory of the
United States of America. |
D. | Restricted Activities means: |
1. | The Participant, whether on his or her own behalf or on behalf
of any other individual, partnership, firm, corporation, or business
organization, either directly or indirectly soliciting, inducing, persuading,
or enticing, or assisting another to solicit, induce, persuade, or entice, any
person who is then employed by or otherwise engaged to perform services for the
Company, or any person who at the time of the Participants conduct had been
employed by the Company within the previous 12 months, to leave that employment
or cease performing those services; |
2. | The Participant, whether on his or her own behalf or on behalf
of any other individual, partnership, firm, corporation, or business
organization, either directly or indirectly soliciting, inducing, persuading,
or enticing, or assisting another to solicit, induce, persuade, or entice, any
person or entity who is then a customer, supplier, or vendor of the Company to
cease being a customer, supplier, or vendor of the Company or to divert all or
any part of such persons or entitys business from the Company; and |
3. | The Participant, whether on his or her own behalf or on behalf
of any other individual, partnership, firm, corporation, or business
organization, either directly or indirectly soliciting, inducing, persuading,
or enticing, or assisting another to solicit, induce, persuade, or entice, any
person or entity who is a potential customer, supplier, or vendor of the
Company, or at the time of the Participants employment was a potential
customer, supplier, or vendor of the Company within the previous 12 months, not
to become a customer, supplier, or vendor of the Company or to divert all or
any part of such persons or entitys business from the Company; and |
4. | The Participants association directly or indirectly, as an
employee, officer, director, agent, partner, stockholder, owner, member,
representative, financial contributor, or consultant, with any Competitor. |
With respect to the post-Retirement Restriction Period, the Restricted Activities in
D.2 and D.3 extend only to a customer, supplier, or vendor or prospective customer,
supplier, or vendor with respect to whom or whose business the Participant has or
had Confidential Information (including without limitation knowledge of or
participation in a bid, proposal, or offer); and the Restricted Activities in D.4
extend only to a (x) the performance by the Participant, directly or indirectly, of
the same or similar activities the Participant performed for the Company prior to
Retirement or such other activities that by their nature are likely to lead to the
disclosure of Confidential Information; and (y) that take place anywhere in, or are
directed at any part of, the Noncompetition Area. The Restricted Activities do
not extend to the Participants investment in stock or other securities of a
Competitor listed on a national securities exchange or actively traded in the
over-the-counter market if he or she and the members of his or her immediate family
do not, directly or indirectly, hold more than a total of 5% of all such shares of
stock or other securities issued and outstanding.
E. | Restriction Period shall mean the period of the Participants employment by
the Company and continuing through the date that is three years after the Participants
Retirement. |
F. | Retirement shall mean the Participants voluntary termination of employment
or other service from the Company after the Participant has attained age sixty-two and
completed at least ten years of continuous service with the Company as of the date of
termination or has attained age sixty-five and completed at least five years of
continuous service with the Company as of the date of termination and in either event
with the express intent not to engage in any of the Restricted Activities after
termination, provided that the Participant has provided the Committee at least one
years advance notice of such retirement. |