EXHIBIT 9
NEW ENGLAND BUSINESS SERVICE, INC.
RESTRICTED STOCK AWARD AGREEMENT
(New England Business Service, Inc. Stock Compensation Plan)
Preamble
This restricted stock award agreement (the "Agreement") is made
and entered into as of August 1, 2003 (the "Date of Grant") by
New England Business Service, Inc. (the "Issuer") and Xxxxxx X.
Xxxxxx (the "Executive"), a key employee of the Issuer or a
Subsidiary1 of the Issuer (hereunder individually and
collectively referred to as the "Company").
1. Shares Subject to the Restricted Stock Award.
Pursuant to the provisions of the New England Business Service,
Inc. Stock Compensation Plan (the "Plan"), as in effect on the
Date of Grant, the Issuer hereby grants to the Executive a
restricted stock award ("Restricted Stock Award") of 5,366 shares
of its Stock (the "Awarded Shares"). The Awarded Shares are
being issued to the Executive in lieu of one hundred percent
(100%) of the gross bonus awarded to the Executive for the fiscal
year ended June 28, 2003 (the "Bonus Award") pursuant to the
FY2003 NEBS Special Performance Bonus Plan adopted by the
Organization and Compensation Committee of the Board for such
fiscal year and are valued for purposes of this Agreement at
$29.35 per share, the Fair Market Value of a share of Stock on
the Date of Grant, in accordance with and subject to all the
terms and conditions of the Plan and subject to the terms and
conditions hereinafter set forth. The Plan and any amendments
are hereby incorporated by reference and made a part hereof.
2. Terms and Conditions of the Restricted Stock Award.
The issuance of Awarded Shares pursuant to the Restricted
Stock Award shall be subject to the following terms and
conditions.
2.1 Withholding Taxes. Notwithstanding anything to the
contrary in Section 2.3(b), the Issuer's obligation to
deliver vested Awarded Shares pursuant to this Restricted
Stock Award shall be subject to the Executive's satisfaction
of all applicable federal, state and local income and
employment tax withholding obligations. Without limiting
the generality of the foregoing, the Company shall have the
right to deduct from payments of any kind otherwise due to
the Executive any federal, state or local taxes of any kind
required by law to be withheld with respect to any Awarded
Shares issued pursuant to this Restricted Stock Award. The
Executive may satisfy such withholding obligations by having
the Company withhold vested and unrestricted Awarded Shares,
or by delivering to the Company already owned unrestricted
shares of Stock, having a Fair Market Value as of the date
of delivery of such unrestricted shares equal to the amount
required to be withheld.
2.2 Vesting, Forfeiture or Early Vesting of Unvested
Awarded Shares.
(a) Except as provided in this Section 2.2, the Awarded
Shares shall remain unvested and subject to the
restrictions of this Section 2.2 and Section 2.3 until
the third annual meeting of stockholders of the Issuer
that follows the Date of Grant of the Awarded Shares (the
"Vesting Period").
(i) So long as the Executive's Service continues, the
Awarded Shares shall vest in the Executive (and shall
no longer be subject to the restrictions of this
Section 2.2 and Section 2.3 hereof) in accordance with
the following vesting schedule(rounded up to the
nearest whole share):
Vesting Schedule
Percentage of Cumulative
Vesting Date Awarded Percentage of
Shares Vesting Awarded Shares
Vested
Date of 1st annual 15% 15%
meeting of
stockholders
following Date of
Grant
Date of 2nd annual 35% 50%
meeting of
stockholders
following Date of
Grant
Date of 3rd annual 50% 100%
meeting of
stockholders
following Date of
Grant
(ii) If the Executive ceases to perform Service by reason of
death, Disability or Retirement, all Awarded Shares not
previously vested pursuant to this Section 2.2 shall
thereupon immediately vest in the Executive (or in the case
of death, in the person or persons to whom the Awarded
Shares pass by will or by the laws of descent and
distribution) or his permitted transferees pursuant to
Section 2.3(a) and shall no longer be subject to the
restrictions of this Section 2.2 and Section 2.3 hereof.
(iii) If the Executive voluntarily terminates Service or his
Service is involuntarily terminated for "cause", as
determined in good faith by the Board or Committee (which
determination shall be binding on both the Company and the
Executive and/or his permitted transferee(s) pursuant to
Section 2.3(a)), the Awarded Shares not previously vested
pursuant to this Section 2.2 shall thereupon be forfeited in
their entirety to the Issuer without any further action by
the Issuer or the Executive and for no consideration.
(iv) If the Executive's Service is involuntarily terminated
without cause, the Awarded Shares not previously vested
pursuant to this Section 2.2 shall thereupon be forfeited in
their entirety to the Issuer without any further action by
the Issuer or the Executive and for no consideration;
provided, however, that the Committee may, in its sole
discretion, waive the forfeiture of all or any portion of
the unvested Awarded Shares and such shares shall thereupon
immediately vest in the Executive and no longer be subject
to the restrictions of this Section 2.2 and Section 2.3
hereof.
(b) Notwithstanding any of the foregoing, if a Change in
Control occurs during the Vesting Period and prior to any
forfeiture of all or any portion of the Awarded Shares pursuant
to this Section 2.2, all Awarded Shares that were not previously
vested pursuant to this Section 2.2 and not forfeited by
termination of the Executive's Service prior to the occurrence of
the Change in Control shall thereupon immediately vest in the
Executive and the restrictions of this Section 2.2 and Section
2.3 shall terminate.
2.3 Restrictions on Transfer and Escrow of Unvested
Awarded Shares; Delivery of Vested Shares; Stockholder
Rights. The Executive hereby agrees to the following
conditions:
(a) Awarded Shares which are not yet vested may not be
sold, hypothecated or otherwise disposed of by the
Executive or anyone claiming through him; provided,
however, that Awarded Shares may be transferred by the
Executive, either directly or in trust, to one or more
members of Executive's Family, or to a family
partnership or other entity for the exclusive benefit
of one or more members of Executive's Family if and
only to the extent that (i) the Executive notifies the
Committee in writing of his desire to transfer Awarded
Shares and the Committee does not within thirty (30)
days of such notification advise the Executive in
writing that such transfer will not be allowed and (ii)
such Family member or trust or family partnership for
the benefit thereof executes an agreement to be subject
to all of the terms and conditions of this Agreement.
(b) Awarded Shares which are not yet vested shall be held
in escrow by the Issuer. Upon the vesting of any Awarded Shares
pursuant to Section 2.2 and the satisfaction of all obligations
imposed by Section 2.1, the Issuer shall promptly cause a
certificate to be issued for the Awarded Shares (or portion
thereof which has vested) and shall deliver such certificate to
the Executive or his permitted transferee(s) pursuant to Section
2.3(a).
(c) Subject to the terms hereof, the Executive shall have
all the rights of a stockholder with respect to the Awarded
Shares while they are held in escrow, and prior to their
forfeiture pursuant to Section 2.2, including without limitation,
the right to vote the Awarded Shares, except as provided in (d)
below.
(d) Any dividends declared and paid with respect to the
Awarded Shares while they are held in escrow, and prior to their
forfeiture pursuant to Section 2.2, shall not be paid to the
Executive but shall instead be automatically reinvested in shares
of Stock at the Fair Market Value of a share of Stock on the date
of such dividend payment, and such additional shares of Stock
shall be deemed additional Awarded Shares (granted, for purposes
of Section 2.2 only, on the Date of Grant) and shall be subject
to the forfeiture and other provisions of Section 2.2 and this
Section 2.3.
2.4 Investment Representation. The Executive shall hold
the Awarded Shares for investment and not with a view to,
or for resale in connection with, any public distribution
of such Shares, and if requested, shall deliver to the
Issuer an appropriate certification to that effect. This
restriction shall terminate upon the registration of such
Shares under federal securities laws or if, in the
opinion of counsel for the Issuer, such Shares may be
resold without registration.
2.5 Provision of Information. The Issuer will furnish
upon request of the Executive copies of the certificate
of incorporation of the Issuer, as amended, and by-laws
of the Issuer, as amended, and such publicly available
financial and other information concerning the Issuer and
its business and prospects as may be reasonably requested
by the Executive in connection with the issuance or
purchase of Awarded Shares pursuant to this Agreement.
2.6 Compliance with the Plan. The Executive shall
comply with all terms and conditions of the Plan (a copy
of which is attached hereto) and of this Agreement. All
decisions under, and interpretations of, the provisions
of the Plan and of this Agreement by the Board or by the
Committee shall be final, binding and conclusive upon the
Company and its successors and assigns and upon the
Executive and anyone claiming through the Executive.
3. Right to Terminate.
Nothing contained in the Plan or in this Agreement shall
restrict the right of the Company to terminate the employment of
the Executive at any time and for any reason, with or without
notice, or shall otherwise affect the terms and conditions of the
Executive's employment except as specifically provided in either
the Plan or in this Agreement.
4. Adjustment in Shares.
Appropriate adjustment shall be made by the Board or by the
Committee in the number and kind of the Awarded Shares issued
pursuant to this Restricted Stock Award to give effect to any
stock dividends, stock splits, stock combinations,
recapitalizations and other similar changes in the capital
structure of the Issuer after the Date of Grant. In the event of
a change of the Stock resulting from a merger or similar
reorganization as to which the Issuer is the surviving
corporation, or sale of all or substantially all of the assets of
Issuer to a corporation that does not result in a Change in
Control, the number and kind of the Awarded Shares issued
pursuant to this Agreement shall be appropriately adjusted in
such a manner as the Board or the Committee shall deem equitable
to prevent dilution or enlargement of the rights granted
hereunder.
5. Restrictions on Transfer of Stock.
The Awarded Shares shall be subject to any restrictions then
in effect pursuant to the certificate of incorporation or by-laws
of the Issuer and to any other restrictions or provisions
attached hereto and made a part hereof or set forth in any other
contract or agreement binding on the Executive.
6. Notice Concerning Tax Matters.
The Company makes no representation about the tax treatment to
the Executive with respect to the receipt of the Restricted Stock
Award or the acquisition, holding or disposition of the Awarded
Shares. The Executive is urged to consult a professional tax
adviser of his or her own choosing for advice as to the tax
consequences (including the application of Section 83 of the
Code) of receiving a Restricted Stock Award or of holding or
selling Awarded Shares issued pursuant to this Agreement.
7. Governing Law; Etc.
This Agreement shall be governed by, and construed and
enforced in accordance with, the laws of the State of Delaware,
without giving effect to principles of conflicts of law, and
applicable federal law. This Agreement shall be binding upon and
inure to the benefit of the heirs and legal representatives of
the Executive and the successors and assigns of the Issuer, but
shall not be assigned by the Executive at any time, except as
otherwise permitted by Section 2.3(a) hereof, without the prior
written permission of the Issuer.
8. Definitions.
8.1 "Affiliate" has the meaning set forth in Rule 12b-2
promulgated under Section 12 of the Exchange Act.
8.2 "Agreement" has the meaning defined in the Preamble
above.
8.3 "Awarded Shares" has the meaning defined in Section
1 above.
8.4 "Beneficial Owner" has the meaning set forth in Rule
13d-3 under the Exchange Act.
8.5 "Board" means the Board of Directors of the Issuer.
8.6 "Bonus Award" has the meaning set forth in Section 1
above.
8.7 "Change in Control" means the occurrence of any of
the following events:
(a) any Person is or becomes the Beneficial Owner, directly or
indirectly, of securities of the Issuer representing 35% or more
of either the then outstanding shares of common stock of the
Issuer or the combined voting power of the Issuer's then
outstanding securities, excluding any Person who becomes such a
Beneficial Owner in connection with a transaction described in
subparagraph (c)(i) below;
(b) the following individuals cease for any reason to constitute
a majority of the number of directors then serving: individuals
who, on the date hereof, constitute the Board and any new
director (other than a director whose initial assumption of
office is in connection with an actual or threatened election
contest, including but not limited to a consent solicitation,
relating to the election of directors of the Issuer) whose
appointment or election by the Board of Directors or nomination
for election by the Issuer's stockholders was approved or
recommended by a vote of at least two-thirds (2/3) of the
directors then in office who either were directors on the date
hereof or whose appointment, election or nomination for election
was previously so approved or recommended;
(c) there is consummated a merger or consolidation of the Issuer
or any direct or indirect Subsidiary of the Issuer with another
corporation, other than (i) a merger or consolidation which would
result in the voting securities of the Issuer outstanding
immediately prior to such merger or consolidation continuing to
represent (either by remaining outstanding or by being converted
into voting securities of the surviving entity or any parent
thereof) at least 60% of the combined voting power of the
securities of the Issuer or such surviving entity or any parent
thereof outstanding immediately after such merger or
consolidation, or (ii) a merger or consolidation effected to
implement a recapitalization of the Issuer (or similar
transaction) in which no Person is or becomes the Beneficial
Owner, directly or indirectly, of securities of the Issuer (not
including in the securities Beneficially Owned by such Person any
securities acquired directly from the Issuer of its Affiliates)
representing 35% or more of the combined voting power of the
Issuer's then outstanding securities; or
(d) the stockholders of the Issuer approve a plan of complete
liquidation or dissolution of the Issuer or there is consummated
an agreement for the sale or disposition by the Issuer of all or
substantially all of the Issuer's assets, other than a sale or
disposition by the Issuer of all or substantially all of the
Issuer's assets to an entity, at least 60% of the combined voting
power of the voting securities of which are owned by stockholders
of the Issuer in substantially the same proportions as their
ownership of the Issuer immediately prior to such sale.
8.8 "Code" means the Internal Revenue Code of 1986, as
heretofore and hereafter amended, and the regulations
promulgated thereunder.
8.9 "Committee" has the meaning defined in the Plan.
8.10 "Company" has the meaning defined in the Preamble
above.
8.11 "Date of Grant" has the meaning defined in the Preamble
above.
8.12 "Disability" has the meaning defined in Code Section
22(e)(3).
8.13 "Exchange Act" means the Securities Exchange Act of
1934, as heretofore and hereafter amended.
8.14 "Executive" has the meaning defined in the Preamble
above.
8.15 "Fair Market Value" means the last sales price per
share of Stock as reported on the New York Stock Exchange
prior to the Date of Grant (or other date on which such
valuation is made) or if no price has been so reported
within one week prior to the Date of Grant (or other date on
which such valuation is made), fair market value shall be
determined by a principal market maker for the Stock
designated by the Committee (or if no such market maker is
designated, by the Board in its good faith business
judgment).
8.16 "Family" means the Participant's: (i) spouse and lineal
descendants of such spouse; (ii) lineal descendants and the
spouses of such lineal descendants: (iii) lineal ancestors
and the spouses of such lineal ancestors; and (iv) siblings
and the spouses and children of such siblings.
8.16 "Issuer" has the meaning defined in the Preamble above.
8.17 "Person" shall have the meaning given in Section
3(a)(9) of the Exchange Act, as modified and used in
Sections 13(d) and 14(d) thereof, except that such term
shall not include (a) the Issuer or any of its Subsidiaries,
(b) a trustee or other fiduciary holding securities under an
employee benefit plan of the Issuer or any of its
Affiliates, (c) an underwriter temporarily holding
securities pursuant to an offering of such securities and
(d) a corporation owned, directly or indirectly, by the
stockholders of the Issuer in substantially the same
proportions as their ownership of stock of the Issuer.
8.18 "Plan" has the meaning defined in Section 1 above.
8.19 "Restricted Stock Award" has the meaning defined in
Section 1 above.
8.20 "Retirement" means the actual cessation of the
Executive's Services on or after the date that he attains
age 62.
8.21 "Service" means the performance of work for the Company
or a Subsidiary as an employee.
8.22 "Stock" has the meaning defined in the Plan.
8.23 "Subsidiary" has the meaning defined in Code Section
424(f).
8.24 "Vesting Period" has the meaning defined in Section 2.2
above.
9. Amendments.
Any amendment to this Agreement, or waiver of any terms
hereof, may be made only pursuant to a writing executed by the
Issuer and the Executive.
IN WITNESS WHEREOF, the undersigned have executed this Agreement
under seal as of the date first appearing above.
EXECUTIVE
___/s/ Xxxxxx X. Murray_______________
Signature
Address of Executive:
00 Xxxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
New England Business Service, Inc.
CORPORATE SEAL By:___/s/Xxxxxx X. Whitney___________
Name: Xxxxxx X. Xxxxxxx
Title: Senior Vice President, Human Resources
_______________________________
1 Capitalized terms not otherwise defined herein are defined in
Section 8 below.
