EXHIBIT 10.13
GRAFTECH INTERNATIONAL LTD. 1995 EQUITY INCENTIVE PLAN
This 1995 Equity Incentive Plan was originally adopted by the
Board of Directors of GrafTech International Ltd. (formerly, UCAR International
Inc.) as of July 17, 1995. It was subsequently amended. This document restates
the Plan as amended (including amendments to eliminate provisions which are no
longer operative or which have been adopted concurrently with this restatement)
through July 31, 2003.
1. Purposes.
The purposes of the GrafTech International Ltd. 1995 Equity
Incentive Plan (the "Plan") are to: advance the interests of GrafTech
International Ltd. ("GrafTech") and its stockholders by providing incentives and
rewards to those employees who are in a position to contribute to the long-term
growth and profitability of GrafTech and its subsidiaries and owned affiliates
(collectively, the "Company"); assist the Company in attracting, retaining and
motivating highly qualified employees; make the Company's compensation program
competitive with those of other major employers; and allow the Company to use
equity to compensate certain consultants, advisers and other non-employees of
the Company and its Subsidiaries for services rendered to the Company or its
Subsidiaries.
2. Definitions and Interpretation.
2.1 "Award" means an award or grant made to a Participant under
the Plan.
2.2 "Award Agreement" means the agreement provided in
connection with an Award under the Plan.
2.3 "Award Date" means the date that an Award is made, as
specified in the relevant Award Agreement.
2.4 "Board" means the Board of Directors of GrafTech.
2.5 "Change in Control" means the occurrence of any of the
following events:
(i) any "person" or "group" within the meaning of
Section 13(d) or 14(d)(2) of the Exchange Act becomes the
beneficial owner of 15% or more of the then outstanding Common
Stock or 15% or more of the then outstanding voting securities
of GrafTech;
(ii) any "person" or "group" within the meaning of
Section 13(d) or 14(d)(2) of the Exchange Act acquires by
proxy or otherwise the right to vote on any matter or question
with respect to 15% or more of the then outstanding Common
Stock or 15% or more of the combined voting power of the then
outstanding voting securities of GrafTech;
(iii) Present Directors and New Directors cease for any
reason to constitute a majority of the Board (and, for
purposes of this clause (iii), "Present
Directors" shall mean individuals who at the beginning of any
consecutive twenty-four month period were members of the Board
and "New Directors" shall mean individuals whose election by
the Board or whose nomination for election as directors by
GrafTech's stockholders was approved by a vote of at least
two-thirds of the directors then in office who were Present
Directors or New Directors);
(iv) the stockholders of GrafTech approve a plan of
complete liquidation or dissolution of GrafTech; or
(v) consummation of:
(x) a reorganization, restructuring,
recapitalization, reincorporation, merger or
consolidation of GrafTech (a "Business Combination")
unless, following such Business Combination, (a) all
or substantially all of the individuals and entities
who were the beneficial owners of the Common Stock
and the voting securities of GrafTech outstanding
immediately prior to such Business Combination
beneficially own, directly or indirectly, more than
50% of the common equity securities and the combined
voting power of the voting securities of the
corporation or other entity resulting from such
Business Combination outstanding after such Business
Combination (including, without limitation, a
corporation or other entity which as a result of such
Business Combination owns GrafTech or all or
substantially all of the assets of GrafTech or the
Company either directly or through one or more
subsidiaries) in substantially the same proportions
as their ownership immediately prior to such Business
Combination of outstanding Common Stock and the
combined voting power of the outstanding voting
securities of GrafTech, respectively, (b) no "person"
or "group" within the meaning of Section 13(d) or
14(d)(2) of the Exchange Act (excluding (1) any
corporation or other entity resulting from such
Business Combination and (2) any employee benefit
plan (or related trust) of the Company or any
corporation or other entity resulting from such
Business Combination) beneficially owns 15% or more
of the common equity securities or 15% or more of the
combined voting power of the voting securities of the
corporation or other entity resulting from such
Business Combination outstanding after such Business
Combination, except to the extent that such
beneficial ownership existed prior to such Business
Combination with respect to the Common Stock and the
voting securities of GrafTech, and (c) at least a
majority of the members of the board of directors (or
similar governing body) of the corporation or other
entity resulting from such Business Combination were
members of the Board at the time of the execution of
the initial agreement providing for such Business
Combination or at the time of the action of the Board
approving such Business Combination, whichever is
earlier; or
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(y) any sale, lease, exchange or other
transfer (in one transaction or a series of related
transactions) of all or substantially all of the
assets of GrafTech or the Company, whether held
directly or indirectly through one or more
subsidiaries (excluding any pledge, mortgage, grant
of security interest, sale-leaseback or similar
transaction, but including any foreclosure sale),
provided, that, for purposes of clauses (v) (x) and
(v) (y) above, the divestiture of less than
substantially all of the assets of GrafTech or the
Company in one transaction or a series of related
transactions, whether effected by sale, lease,
exchange, spin-off, sale of stock of or merger or
consolidation of a subsidiary, transfer or otherwise,
shall not constitute a Change in Control.
Notwithstanding the foregoing, a Change in Control shall not
be deemed to occur pursuant to clause (i) or (ii) above, solely because 15% or
more of the then outstanding Common Stock or the then outstanding voting
securities of GrafTech is or becomes beneficially owned or is directly or
indirectly held or acquired by one or more employee benefit plans (or related
trusts) maintained by the Company.
For purposes hereof, references to "beneficial owner" and
correlative phrases shall have the same definition as set forth in Rule 13d-3
under the Exchange Act (except that ownership by underwriters for purposes of a
distribution or offering shall not be deemed to be "beneficial ownership") and
references to the Exchange Act or rules and regulations thereunder shall mean
those in effect on June 29, 2000.
2.6 "Code" or "Internal Revenue Code" means the Internal
Revenue Code of 1986, as amended, and any successor statute.
2.7 "Committee" means the Organization, Compensation and
Pension Committee of the Board. Where appropriate, references to the Committee
shall include also the Chief Executive Officer of GrafTech.
2.8 "Disability" means a Participant's inability to engage in
any substantial gainful activity because of any medically determinable physical
or mental impairment which can be expected to result in death or which has
lasted, or can be expected to last, for a continuous period of 6 months or
longer.
2.9 "Dividend Equivalent" means an amount equal to the amount
of the cash dividends that are declared and become payable during the period
beginning on the day after the Award Date of the Stock Equivalent Units Award to
which the Dividend Equivalent relates and ending on the Settlement Date of the
Stock Equivalent Units Award.
2.10 "Employee" means all employees of the Company, including
officers of GrafTech, as well as officers of GrafTech who are also directors of
GrafTech.
2.11 "Exchange Act" means the Securities Exchange Act of 1934,
as amended.
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2.12 "Incentive Stock Option" or "ISO" means any Stock Option
granted pursuant to this Plan which is designated in an Award Agreement as such
by the Committee and which complies with Section 422 of the Code.
2.13 "Market Price" as of any date is the mean of the high and
low prices of a share of Stock as reported by the principal stock exchange on
which the Stock is listed (or, if not so listed, as reported by the principal
inter-dealer quotation system on which the Stock is traded) on such date (or on
the next preceding day such Stock was traded on such exchange or system), except
that in the case of an SAR that is exercised for cash during the first three
days of the ten day period set forth in Section 7.5, "Market Price" is the
highest daily closing price of a share of Stock as so reported during such ten
day period. Notwithstanding the foregoing, if an SAR is exercised during the 60
day period commencing on the date of a Change in Control, the Market Price for
purposes of determining the stock appreciation shall be the highest of: (1) the
Market Price of a share of Stock, as determined under the preceding sentence;
(2) the highest daily closing price of a share of Stock as so reported during
the 90 day period ending on the date of exercise of the SAR; (3) the highest
price per share of Stock shown on Schedule 13D or an amendment thereto filed
pursuant to Section 13(d) of the Exchange Act by any person holding 20% of the
combined voting power of GrafTech's then outstanding voting securities; or (4)
the highest price paid or to be paid for a share of Stock pursuant to a tender
or exchange offer as determined by the Committee.
2.14 "Non-Employee" means any consultant, adviser or other
non-employee of the Company or any of its Subsidiaries who is specifically
identified by the Board or the Committee.
2.15 "Non-Qualified Stock Option" means any Stock Option
granted pursuant to this Plan which is not an Incentive Stock Option.
2.16 "Option Price" or "Exercise Price" means the amount that a
Participant must pay to exercise an Option with respect to one share of Stock
subject to such Option.
2.17 "Other Award" means, with respect to any Participant, (a)
any award or right that is valued or measured in whole or in part by reference
to, or is otherwise based on, Common Stock, including an award of shares of
Common Stock (other than an award of a Stock Option, Stock Appreciation Right,
Restricted Stock, Stock Equivalent Unit, Dividend Equivalent, Performance Unit
or Restricted Matching Stock) and (b) any award issued in respect of any Other
Award referred to in clause (a) above by way of distribution or in connection
with a merger, consolidation, reorganization, recapitalization or similar event.
Other Awards permitted under the Plan shall include, without limitation, (a)
phantom stock, stock units, performance shares, stock options and restricted
shares of Common Stock with terms different than those specified herein for an
award of a Stock Option, Stock Appreciation Right, Restricted Stock, Stock
Equivalent Unit, Dividend Equivalent, Performance Unit or Restricted Matching
Stock, and unrestricted shares of Common Stock and (b) awards and rights with
respect to compensation previously earned or accrued.
2.18 "Outside Director" means a member of the Board who is not
an Employee.
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2.19 "Performance Unit" means an Award denominated in cash, the
amount of which shall be based on the attainment over specified periods of
individual performance targets or other parameters.
2.20 "Retirement" means retirement from employment by the
Company with the right to receive immediately a non-actuarially reduced pension
from the Company.
2.21 "Restricted Matching Stock" means Restricted Stock granted
pursuant to Section 13.
2.22 "Restricted Stock" means Stock subject to restrictions on
transfer, conditions of forfeitability, or any other limitations or restrictions
as determined by the Committee.
2.23 "Settlement Date" means: (i) with respect to any Stock
Option that has been exercised in whole or in part, the date upon which shares
of Stock are to be delivered to the Participant and the Option Price therefor
paid; (ii) with respect to any SARs that have been exercised, the date upon
which cash or shares of Stock are to be paid or delivered to the Participant, as
the case may be; (iii) with respect to Performance Units, the date upon which
cash or shares of Stock are to be paid or delivered to the Participant, as the
case may be; (iv) with respect to Dividend Equivalents, the date upon which cash
or an Award of shares of Stock is to be paid or made to the Participant; (v)
with respect to Stock Equivalent Units, the date upon which cash is to be paid
to the Participant; or (vi) such other date as may be set forth in the relevant
Award Agreement, in each case determined in accordance with the terms of the
relevant Award Agreement.
2.24 "Stock" or "Common Stock" means the Common Stock of
GrafTech.
2.25 "Stock Appreciation Right" or "SAR" means an Award that
entitles a Participant to receive an amount described in Section 7.3.
2.26 "Stock Equivalent Unit" means an Award that entitles the
Participant to receive on the Settlement Date an amount equal to the Market
Price of one share of Stock on such date.
2.27 "Stock Option" or "Option" means an Award that entitles a
Participant to purchase a share of Stock.
In addition, and notwithstanding anything contained in the Plan to the
contrary, in the event that any Award is made hereunder concurrently with an
award under any version of The GrafTech International Ltd. Management Stock
Incentive Plan (collectively, the "MSIP"), then the definitions and provisions
of the MSIP shall apply to and govern the Award made hereunder to the extent
necessary or appropriate for consistent administration and interpretation
thereof and consistency in benefits and obligations with respect thereto.
3. Participation.
The participants in the Plan ("Participants") shall be (i)
those Employees serving in a managerial, administrative or professional position
who are selected to participate in the
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Plan by the Committee and (ii) Non-Employees. Outside Directors are not eligible
for Awards under the Plan.
4. Administration.
The Plan shall be administered by the Committee. The Committee
shall have full power to: (i) interpret the Plan; (ii) select Award recipients
(subject to clause (iv) below); (iii) set the terms and conditions of Awards;
(iv) delegate to the Chief Executive Officer of GrafTech the right to grant
Awards to Non-Employees and Employees who are not officers or directors of
GrafTech within the meaning of the Exchange Act, such delegation to be subject
to such terms and conditions as the Committee in its discretion shall determine;
(v) establish administrative regulations to further the purpose of the Plan; and
(vi) take any other action desirable or necessary to interpret, construe or
implement properly the provisions of the Plan. The members of the Committee
shall not be eligible to participate in the Plan. All decisions and acts of the
Committee shall be final and binding upon all Participants.
5. Awards.
5.1 Types of Awards. Awards may be in any of the following
forms: (i) Stock Options; (ii) Stock Appreciation Rights; (iii) Restricted
Stock; (iv) Stock Equivalent Units; (v) Dividend Equivalents; (vi) Performance
Units; (vii) Restricted Matching Stock; or (viii) Other Awards.
5.2 Award Agreements. All Awards shall be made pursuant to
Award Agreements between the Participants and GrafTech. Award Agreements shall
set forth the details, conditions and limitations for each Award, which may
include the term of the Award (except that no Award (other than an Other Award)
shall vest prior to the earlier of one year after the Award Date, the death of
the Participant or a Change in Control, the provisions applicable in the event
the Participant's employment terminates, and GrafTech's authority to
unilaterally or bilaterally amend, modify, suspend, cancel or rescind any Award.
The Award Agreements shall be in such form as the Committee approves from time
to time.
5.3 Maximum Number of Shares Available. The total number of
shares of Stock (including Restricted Stock) optioned or granted under the Plan
shall not exceed 500,000 shares. No Participant may be granted, in the
aggregate, Awards which would result in the Participant receiving more than 20%
of the maximum number of shares available for award under the Plan. If an Award
expires unexercised or is forfeited, surrendered, cancelled or settled in cash
in lieu of Stock, shares of Stock previously set aside for such Award shall be
available for distribution in connection with future Awards; provided, however,
that with respect to the unexercised portion of any forfeited, lapsed or
cancelled Award, such shares shall not again be made subject to an Award to
Participants who are subject to Section 16 of the Exchange Act if any
Participant received directly or indirectly any of the benefits of ownership of
the securities of GrafTech underlying such Award (including the receipt of
dividend payments, but excluding (i) the right to vote such shares and (ii) the
accumulation of dividends or Dividend Equivalents which also are forfeited).
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5.4 Adjustment in the Event of Recapitalization, etc. In the
event of any change in the outstanding shares of Common Stock by reason of any
stock split, stock dividend, recapitalization, merger, consolidation,
combination or exchange of shares or other similar corporate change or in the
event of any special distribution to stockholders, the Committee shall make such
equitable adjustments in the number of shares and prices per share applicable to
Awards then outstanding and in the number of shares which are available
thereafter for Awards under the Plan as the Committee determines are necessary
and appropriate. Any such adjustment shall be conclusive and binding for all
purposes of the Plan.
6. Stock Options.
6.1 Grant of Award. Stock Options may be awarded to any
Participant. Except as otherwise provided below, Awards of Stock Options shall
be subject to such terms and conditions as are established by the Committee and
set forth in the Award Agreement. The Committee shall determine, with respect to
each Stock Option Award and designate in the applicable Award Agreement, whether
a Participant is to receive an Incentive Stock Option or a Non-Qualified Stock
Option. A Non-Employee may not receive an Incentive Stock Option.
6.2 Option Price. The Option Price of each share of Stock
subject to a Stock Option Award shall be specified in the Award Agreement, but
in no event shall the Option Price be less than the Market Price of a share of
Stock on the Award Date; provided, however, that in the case of an Option (other
than an ISO) granted retroactively in tandem with or as a substitution for
another Award, the Option Price shall not be less than 100% of the Market Price
of a share of Stock on the Award Date of such other Award.
6.3 Terms of Option. A Stock Option shall be of no more than 10
years' duration and shall be exercisable only after the earliest of: (i) such
period of time as the Committee shall determine and specify in the Award
Agreement, but in no event less than one year following the Award Date; (ii) the
Participant's death; or (iii) a Change in Control. During a Participant's
lifetime, a Stock Option shall be exercisable only by the Participant. A Stock
Option shall be exercisable by a Participant only while the Participant is in
active employment with the Company, except: (a) in the case of a Participant's
death, Retirement or Disability; (b) during a three year period commencing on
the date of a Participant's termination of employment by the Company other than
for cause; (c) during a three year period commencing on the date of termination
of employment, by the Participant or the Company, after a Change in Control,
unless such termination of employment is for cause; (d) if the Participant is a
Non-Employee, in which case the Committee shall determine the exercise period of
the Option; or (e) if the Committee decides that it is in the best interest of
the Company to permit individual exceptions. An Option may not be exercised
pursuant to this Section 6.3 after the expiration date of the Option.
6.4 Payment of Option Price. An Option may be exercised with
respect to part or all of the shares subject to the Option by giving written
notice to the Corporation of the exercise of the Stock Option. Without limiting
the Committee's authority under Section 15, the Option Price for the shares for
which an Option is exercised shall be paid within ten business days after the
date of exercise in cash, in whole shares of Stock, in a combination of cash and
whole shares of Stock or in any other manner that the Committee may approve. The
value of any share of
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Stock delivered in payment of the Option Price shall be the Market Price on the
date the Option is exercised.
6.5 Dividends on Shares Covered by Options. The Committee may,
in its discretion, grant to Participants holding Stock Options the right to
receive, with respect to each share covered by an Option, payments of amounts
equal to the regular cash dividends paid to holders of Stock during the period
that the Option is outstanding.
6.6 Limitation Applicable to ISOs. The aggregate fair market
value of all shares of Stock with respect to which Incentive Stock Options are
exercisable for the first time by a Participant in any one calendar year, under
the Plan or any other stock option plan maintained by GrafTech, shall not exceed
$100,000. The fair market value of such shares of Stock shall be the Market
Price on the date the related Stock Option is granted.
7. Stock Appreciation Rights.
7.1 Additional Right SAR. The Committee may award SARs to any
Participant separately from any other Award to such Participant ("Additional
Right SAR"). The exercise of an Additional Right SAR shall have no effect on the
exercisability of any other Award and the exercise of any other Award shall have
no effect on the exercisability of an Additional Right SAR.
7.2 Alternative Right SAR. The Committee may award SARs to any
Participant in conjunction with any other Award to such Participant
("Alternative Right SAR"). The exercise of an Award granted in conjunction with
an Alternative Right SAR shall terminate the Alternative Right SAR to the extent
of the shares of Stock with respect to which the Award is exercised. The
exercise of an Alternative Right SAR granted in conjunction with any other Award
shall terminate the Award to the extent of the shares of Stock with respect to
which the Alternative Right SAR is exercised.
7.3 Award. Upon the exercise of an SAR, the Participant shall
receive an amount equal to the excess of the Market Price of a share of Stock on
the Settlement Date over the Award Price of the SAR for the number of SARs
exercised. Except as otherwise provided in the next sentence, Awards of SARs
shall be subject to such other terms and conditions as are established by the
Committee and set forth in the Award Agreement. The Award Price for (i)
Additional Right SAR's shall be 100% of the Market Price of a share of Stock on
the Award Date and (ii) Alternative Right SAR's shall be 100% of the Market
Price of a share of Stock on the Award Date of the Award in conjunction with
which it is granted; provided, however, that, in the case of an SAR granted
retroactively in tandem with or as a substitution for another Award, the Award
Price of an SAR shall not be less than 100% of the Market Price of a share of
Stock on the Award Date of such other Award.
7.4 Form of Settlement. The Committee shall have the discretion
to either (i) determine the form in which payment of an SAR shall be made or
(ii) consent to or disapprove the election of a Participant to receive cash in
full or partial settlement of the SAR. Notwithstanding the foregoing, if a
Participant exercises an SAR during the 60 day period commencing on the date of
a Change in Control, the form of payment of an SAR shall be cash if
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such SAR was granted at least six months prior to the date of exercise and shall
be Stock if such SAR was granted six months or less prior to the date of
exercise.
7.5 Restrictions on Cash Exercise. Except in the case of an SAR
that was granted at least six months prior to exercise and is exercised for cash
during the 60 day period commencing on the date of a Change in Control, any
election by a Participant to receive cash in full or partial settlement of the
SAR shall be made only during the period beginning on the third business day
following the date of release of the quarterly or annual summary statements of
sales and earnings and ending on the twelfth business day following such date.
7.6 Restrictions. If a Participant is a person subject to
Section 16 of the Exchange Act, the SAR may not be exercised within six months
after the grant of an Option, unless otherwise permitted by law.
8. Restricted Stock.
8.1 Award. Shares of Restricted Stock may be awarded to any
Participant. Awards of Restricted Stock shall be subject to such terms and
conditions as are established by the Committee and set forth in the Award
Agreement. Such terms and conditions may include, but are not limited to, the
requirement of continued service with the Company, achievement of specific
business objectives and other measurements of individual or business unit
performance, the manner in which such Restricted Stock is held, the extent to
which the holder of such Restricted Stock has rights of a stockholder and the
circumstances under which such Restricted Stock shall be forfeited.
8.2 Transferability of Restricted Stock. Restricted Stock may
not be assigned, transferred, pledged or sold by the Participant until the
termination or lapse of the restrictions relating to the Award of the Restricted
Stock.
8.3 Dividends. The Committee may provide in the Award Agreement
that dividends on Restricted Stock may be paid currently in cash or credited to
a Participant's account for subsequent distribution as determined by the
Committee. The Award Agreement may provide for the reinvestment of dividends
paid on Restricted Stock in shares of Stock.
9. Stock Equivalent Units.
Stock Equivalent Units may be awarded to any Participant. An
Award of Stock Equivalent Units shall be subject to such conditions and
restrictions as are established by the Committee and set forth in the Award
Agreement. Such terms and conditions may include, but are not limited to, the
requirement of continued service with the Company, the achievement of specific
business objectives and other measurements of individual or business unit
performance that may include, but shall not be limited to, earnings per share,
net profits, total shareholder return, cash flow, return on shareholders' equity
and cumulative return on net assets employed.
10. Dividend Equivalents.
Any Award Agreement in which Stock Equivalent Units are
awarded may provide that such Stock Equivalent Units may accrue Dividend
Equivalents. In lieu of awarding
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Dividend Equivalents, the Committee may provide for automatic awards of
additional Stock Equivalent Units on each date that cash dividends are paid on
Stock in an amount equal to (i) the product of the dividend per share of Stock
times the total number of Stock Equivalent Units then held by the Participant,
divided by (ii) the Market Price of the Stock on the dividend payment date.
11. Performance Units.
Performance Units may be awarded to any Participant.
Performance Units shall be based on the attainment, over a specified period, of
individual performance targets or other parameters, which may include earnings
per share, total shareholder return, return on stockholders' equity, cash flow
and cumulative return on net assets employed. Performance Units may be paid in
Stock, cash or any other form as the Committee shall determine. An Award of
Performance Units shall be subject to such other conditions and restrictions as
are established by the Committee and set forth in the Award Agreement.
12. Exercise Payments.
The Committee may award Participants the right to receive
exercise payments when they exercise a Stock Option or SAR while an active
Employee of the Company. The amount of the exercise payment shall be determined
by the Committee, in its discretion, but may not exceed 60% of the excess of the
Market Price of the underlying Stock on the date of exercise over the Option
Price or Award Price, as the case may be. Such amount shall be reduced by any
dividend payments received or credited with respect to the Award being exercised
during the period that such Award was outstanding. At the discretion of the
Committee, the exercise payments may be made in cash, shares of Stock or any
combination thereof. In the case of the Participant's death, any exercise
payments awarded to the Participant shall be paid if the Award is exercised
within nine months after a Participant's death, but before the expiration of the
Award. In the case of a Participant's Retirement, any exercise payments awarded
to the Participant shall be paid if the Award is exercised within the later of
(i) three months after Retirement or (ii) three months after such Award becomes
exercisable, but before the expiration date of such Award.
13. Restricted Matching Stock.
The Committee from time to time may authorize a Participant to
elect within 60 days of the receipt of a variable compensation payment paid by
the Company to the Participant to deposit with the Company shares of Stock owned
by the Participant with a value on the date of deposit not exceeding twenty-five
percent (25%) of the variable compensation payment, and receive a matching grant
of an equal number of shares of Restricted Stock subject to such terms and
conditions as may be determined by the Committee, including but not limited to
the following:
(a) a Participant may designate shares of Stock held for
the Participant's account in the UCAR Carbon Savings Plan in lieu of depositing
shares of Stock owned by the Participant;
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(b) the Restricted Stock shall be issued and registered in
the name of the Participant but shall be held in the custody of the Company
until the Restricted Stock becomes non-forfeitable;
(c) the Restricted Stock shall be nontransferable until
such time as the Committee shall specify; and
(d) the Restricted Stock shall be forfeitable by the
Participant in accordance with provisions determined by the Committee and set
forth in the relevant Award Agreement.
This Section 13 does not limit the Committee's authority under Section 8 to
grant Restricted Stock to Participants under different terms than those
described in this Section 13.
14. Other Awards.
Commencing January 16, 2003, Other Awards may be granted to
Participants who are Employees and, commencing June 26, 2003, Other Awards may
be granted to Non-Employees. The Committee shall grant Other Awards to
Participants. Other Awards may be granted alone or in addition to any other
Awards granted under the Plan. The Committee shall establish the terms and
conditions applicable to Other Awards granted by it at the time of grant, which
terms and conditions shall be set forth in the relevant Award Agreement or in
amendments to the Plan. Such terms and conditions may include, without
limitation, settlement in cash or shares of Common Stock or a combination
thereof (which form of settlement may be either prescribed by the Committee or
subject to the discretion of GrafTech or the Participant), performance measures,
tandem or reload features, vesting schedules (and provisions regarding
acceleration of vesting), registration provisions (including indemnification and
contribution arrangements), terms and conditions relating to withholding of
taxes, transferability provisions, forfeiture and clawback provisions,
anti-dilution provisions and provisions relating to adjustments to reflect
business combinations, provisions relating to dividends and distributions, and
exercise provisions (including provisions relating to conditional exercises, net
exercises and payment of exercise prices with outstanding shares of Common
Stock). Notwithstanding any provision in this Plan to the contrary, (i) the
Committee may delegate to the Chief Executive Officer of GrafTech the right to
grant Other Awards to Non-Employees and Employees who are not officers or
directors of GrafTech within the meaning of the Exchange Act, such delegation to
be subject to such terms and conditions as the Committee in its discretion shall
determine and (ii) this provision shall be applied, in relation to grants of
Other Awards to officers and directors, so that adoption hereof would not have
required stockholder approval under Section 17.
15. Settlement of Awards.
At the Committee's discretion and except as otherwise provided
in Section 7.4, Awards may be settled in cash, shares of Stock, other Awards or
any combination thereof. The Committee may (i) require or permit Participants to
defer the issuance or vesting of shares of Stock or the settlement of Awards in
cash and (ii) provide that Awards subject to deferred settlement include the
payment or crediting of interest on deferred amounts or the payment of Dividend
Equivalents on deferred settlements denominated in shares of Stock.
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16. General Provisions.
16.1 Transferability of Awards. No Awards under the Plan shall
be assignable, alienable, saleable or otherwise transferable other than by will
or the laws of descent and distribution or pursuant to a qualified domestic
relations order (as defined by the Code) or Title I of the Employee Retirement
Income Security Act or the rules thereunder, unless otherwise determined by the
Committee.
16.2 Unfunded Plan. Nothing contained herein shall require the
Company to segregate any monies from its general funds, to create any trusts or
to make any special deposits for any immediate or deferred amounts payable to
any Participant for any year.
16.3 No Right to Employment. Participation in this Plan shall
not affect the Company's right to discharge a Participant or constitute an
agreement of employment between a Participant and the Company.
16.4 Rights as a Shareholder. Except as otherwise provided in
any Award Agreement, a Participant shall have no rights as a shareholder of
GrafTech until he or she becomes the holder of record of the Stock covered
thereby.
16.5 Applicable Law. The validity, construction and effect of
the Plan, and any actions taken or relating to the Plan, shall be determined in
accordance with the laws of the State of Connecticut and applicable federal laws
(as to grants made prior to March 1, 2002) or the State of Delaware (as to
grants made on or after March 1, 2002).
16.6 Successors and Assigns. The Plan and any Award Agreement
shall be binding on all successors and assigns of a Participant, including,
without limitation, the estate of the Participant, the executor, administrator
or trustee of such estate or any receiver or trustee in bankruptcy or
representative of the Participant's creditors.
17. Amendment, Suspension, or Termination.
17.1 General Rule. The Board may suspend, terminate or amend
the Plan, including, but not limited to, such amendments as may be necessary or
desirable resulting from changes in the federal income tax or securities laws
and other applicable laws, but may not, without approval by the holders of a
majority of the outstanding shares of capital stock of GrafTech entitled to vote
on the subject at a meeting of stockholders of GrafTech, (a) increase the total
number of shares of Stock that may be optioned or granted under the Plan or (b)
amend any provision of the Plan which, with respect to directors and officers
(as defined in Rule 16a-1(f) under the Exchange Act) of GrafTech, materially
modifies eligibility requirements, materially increases benefits or materially
increases the number of shares of stock issuable.
17.2 Compliance with Rule 16b-3. With respect to any person
subject to Section 16 of the Exchange Act, transactions under the Plan are
intended to comply with the requirements of Rule 16b-3 under the Exchange Act,
as applicable during the term of the Plan. To the extent that any provision of
the Plan or action by the Committee or its delegates fail to so comply, it shall
be deemed null and void, to the extent permitted by law and deemed advisable by
the Committee.
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Should the requirements of Rule 16b-3 change, the Board may amend the Plan to
comply with the requirements of that Rule or any successor thereto.
18. Tax Withholding.
The Company shall have the right to (i) make deductions from
any settlement of an Award, including the delivery or vesting of shares, or
require shares or cash or both be withheld from any Award, in each case in an
amount sufficient to satisfy withholding of any federal, state, local or foreign
taxes required by law or (ii) take such other action as may be necessary or
appropriate to satisfy any such withholding obligations. The Committee may
determine the manner in which such tax withholding may be satisfied, and may
permit shares of Stock (rounded up to the next whole number) to be used to
satisfy required tax withholding based on the Market Price of a share of Stock
as of the Settlement Date of the applicable Award.
19. Effective Date and Duration of the Plan.
The Plan shall become effective upon the closing of the
initial public offering of shares of Stock. No Award of Incentive Stock Options
shall be granted under the Plan subsequent to June 30, 2005.
20. Board Authority.
The Board shall have the authority to exercise any authority
granted hereunder to the Committee or the Chief Executive Officer.
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