Attached files
file | filename |
---|---|
EX-10.1 - FORM OF PERFORMANCE AND RETENTION AGREEMENT - Kior Inc | d316887dex101.htm |
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): March 9, 2012
KiOR, INC.
(Exact name of registrant as specified in its charter)
Delaware | 001-35213 | 51-0652233 | ||
(State or other jurisdiction of incorporation) |
(Commission File Number) |
(IRS Employer Identification No.) | ||
13001 Bay Park Road Pasadena, Texas |
77507 | |||
(Address of principal executive offices) | (Zip Code) |
Registrants telephone number, including area code: (281) 694-8700
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below):
¨ | Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
¨ | Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
¨ | Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
¨ | Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Item 5.02 | Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers. |
(e) On March 9, 2012, the Compensation Committee of the Board of Directors of KiOR, Inc. (the Company) approved the Companys entry into Performance and Retention Agreements with each of Fred Cannon, President and Chief Executive Officer, John H. Karnes, Chief Financial Officer, John Kasbaum, Senior Vice PresidentCommercial, and Christopher A. Artzer, Vice President, General Counsel and Secretary (each of Messrs. Cannon, Karnes, Kasbaum and Artzer, an Executive). Each Executive has entered into, or informed the Company of his intent to enter into, a Performance and Retention Agreement with the Company.
The form of Performance and Retention Agreement provides that all outstanding equity awards granted to the Executive pursuant to a Company equity or equity-based incentive plan prior to December 31, 2012 will become vested, exercisable in full and, where applicable, payable, upon (i) the Executives termination of his employment for Good Reason (as defined in the Performance and Retention Agreement) or the Companys termination of the Executives employment without Cause (as defined in the Performance and Retention Agreement) (each such termination referred to in this summary as a Qualifying Termination), or (ii) the termination of the Executives employment due to death or Disability (as defined in the Performance and Retention Agreement), subject to further compliance with the provisions described below.
In the event of acceleration of vesting and/or payment, equity awards that were intended to be qualified performance-based compensation under Section 162(m) of the Internal Revenue Code of 1986, as amended (the Code), will be paid at the time provided in existing award documentation, subject only to the satisfaction of applicable performance goals and not to the Executives continued service and without the exercise of any negative discretion under the existing award documentation. In the case of equity awards designed to be compliant with Section 409A of the Code, (i) if granted on or prior to the effective date of the Executives Performance and Retention Agreement, no accelerated payment shall apply (and only accelerated vesting shall apply) and (ii) if granted after the effective date of the Executives Performance and Retention Agreement, payment of the equity award will be made on the 65th day following the Executives Qualifying Termination or termination due to death or Disability unless the equity award provides for payment upon the Executives separation from service (as defined in Section 409A of the Code), in which case payment shall be made as so provided.
Accelerated vesting and/or payment of equity awards under the Performance and Retention Agreements are further subject to (i) the delivery by the Executive (or the Executives estate or other legal representative) of an executed release and waiver of claims against the Company, which release must be irrevocable and effective within 60 days after the date of the Executives termination, (ii) compliance by the Executive with a non-competition and a non-solicitation covenant for 12 months following the date of termination and (iii) compliance with a confidentiality covenant and a non-disparagement covenant at all times. In addition, if vesting or payment of an Executives equity awards is accelerated by the terms of the Performance and Retention Agreement, the Executive may not directly or indirectly transfer or dispose of any shares of Company common stock acquired through such acceleration, with such transfer
restriction lapsing as to 25% of the accelerated shares on each three month anniversary of the date of the Executives Qualifying Termination, death or Disability.
Notwithstanding the above, if a Qualifying Termination of the Executive occurs within 12 months following the date of a Change in Control (as defined in the Performance and Retention Agreement) of the Company or in anticipation of a Change in Control that actually occurs, the acceleration and payment of the Executives equity awards will not be subject to the Executives delivery of a release, compliance with the covenants or the transfer restriction as described in the preceding paragraph.
The provisions of the Performance and Retention Agreements, including the acceleration of vesting and/or payment, supersede any contrary provision in any equity award documentation to the extent the Performance and Retention Agreement is more favorable to the Executive. Disputes between the Company and the Executive arising out of the Performance and Retention Agreement are to be settled by binding arbitration.
The foregoing summary of the terms of the Performance and Retention Agreements is not complete and is qualified in its entirety by reference to the form of Performance and Retention Agreement filed herewith as Exhibit 10.1, which Exhibit is incorporated by reference into this Item 5.02(e).
Item 9.01. Financial Statements and Exhibits.
(d) | Exhibits. |
Exhibit No. |
Description | |
10.1 | Form of Performance and Retention Agreement. |
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
KiOR, Inc. | ||||||
Date: March 15, 2012 | By: | /s/ Christopher A. Artzer | ||||
Christopher A. Artzer | ||||||
Vice President, General Counsel and Secretary |
EXHIBIT INDEX
Exhibit No. |
Description | |
10.1 | Form of Performance and Retention Agreement. |