EXHIBIT 10.6
W. P. XXXXX & CO. LLC
RESTRICTED STOCK UNIT AGREEMENT
AGREEMENT dated as of January __, 20__, between W. P. Xxxxx & Co. LLC,
a Delaware limited liability company (the "Company"), and ___________________
(the "Grantee").
WHEREAS, the Company desires to grant to the Grantee restricted stock
units ("RSUs") under the 1997 Share Incentive Plan, as amended (the "Plan"), and
the Long-Term Incentive Program thereunder, providing Grantee with the right to
receive a common share of the Company (the "Shares") for each RSU granted to
Grantee.
WHEREAS, the parties to this Agreement wish to provide the terms and
conditions upon which the Company will grant RSUs to the Grantee.
WHEREAS, all capitalized terms not otherwise defined herein shall have
the meaning set forth in the Plan.
ACCORDINGLY, the parties agree as follows:
1. Grant of RSUs. The Company hereby grants to the Grantee _______
RSUs subject to the terms of this Agreement. Each RSU represents the right to
receive a Share, subject to adjustment as provided in the Plan. RSUs shall not
be entitled to voting rights.
2. Vesting and Payment. (a) The Grantee's rights to any RSU granted
under this Agreement shall become fully vested and nonforfeitable at the rate of
thirty-three and one-third percent (33 1/3%) per year during which Grantee
serves as an employee of the Company or its Affiliates except as described
below. February 15 shall be the anniversary date for purposes of this Agreement
so that the first 33 1/3% of RSUs shall vest on February 15, 20__. Except as
provided in this Agreement, if the Grantee's employment is terminated for any
reason prior to the date on which the RSUs become vested and nonforfeitable, the
Grantee shall automatically and immediately forfeit any such unvested RSUs.
(b) Notwithstanding the foregoing, if the Grantee either dies or
becomes totally and permanently disabled (within the meaning of Section 409A of
the Internal Revenue Code of 1986, as amended) while employed by the Company or
any Affiliate, the Grantee's rights hereunder shall automatically become fully
vested on the date he or she dies or becomes permanently disabled.
(c) Subject to Section 2(d), if and to the extent earned, one Share
shall be paid in satisfaction of each vested RSU as soon as practicable
following vesting, but in no event later than 2 1/2 months following the end of
the calendar year in which vesting has occurred and the RSU is no longer subject
to a substantial risk of forfeiture.
(d) If permitted by the Company, Grantee may elect, in accordance with
written plans or procedures adopted by the Company from time to time, to defer
the distribution of all or any portion of the Shares that would otherwise be
distributed to Grantee hereunder pursuant to Section 2 ("Deferred Shares"), or
result from dividend payments thereon as provided in Section 3. Any Deferred
Shares shall be credited to a bookkeeping account established on Grantee's
behalf under the Company's written plans and/or procedures then in effect with
respect to such Shares.
3. Dividend and Distribution Equivalents. With respect to each of the
RSUs granted hereunder, each time the Board of the Company shall declare a cash
dividend or distribution (or dividend or distribution payable in property other
than Shares) with respect to Shares, then provided the record date is on or
after the date of this Agreement and before the earliest of the (1) the date on
which such RSUs are forfeited, (2) the date on which Shares are recorded or paid
in satisfaction of such RSUs pursuant to Section 2(c), or (3) the date on which
Shares that would otherwise be distributed to Grantee are converted to Deferred
Shares under Section 2(d): a cash payment (or payment of other property) shall
be made to the Grantee on the distribution payment date fixed in such
declaration equal to the amount of the distribution payable per Share,
multiplied by the number of such RSUs held by the Grantee as of the record date
fixed in such declaration; provided, however, that the right to payment of such
dividend equivalents is contingent upon Grantee's employment by the Company on
such payment date.
4. Change in Control. Upon the occurrence of a Change of Control of
the Company, the Grantee's unvested RSUs shall become fully vested and
nonforfeitable.
5. Securities Law Compliance. (a) The Grantee represents and agrees
that he or she is acquiring any Shares upon payment of the RSUs for his or her
own account and not with the intention of reselling or distributing the Shares,
except as permitted under this Agreement and any applicable federal and state
securities laws.
(b) The Company shall have the right to take any actions it may deem
necessary or appropriate to ensure that any such issuance of Shares complies
with applicable federal and state securities laws.
6. Nontransferability of Benefits. Any RSUs are not subject to the
claims of Grantee's creditors and may not be voluntarily or involuntarily
transferred, assigned, alienated, accelerated or encumbered.
7. Tax Liability. To the extent required by any federal, state or
local law, the Grantee shall make such arrangements as may be required or be
satisfactory to the Company, in its sole and absolute discretion, for the
payment of any tax withholding obligations that arise in connection with the
payment of the Shares underlying the RSUs. The Company shall not be required to
deliver any Shares under this Agreement until such obligations are satisfied.
8. Effect on Employment Rights. Nothing in this Agreement shall be
construed as giving the Grantee any right to continued employment with the
Company or its Affiliates.
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Except as otherwise expressly provided herein, the terms and conditions of the
Grantee's employment with the Company shall remain unchanged.
9. Severability. If any portion of this Agreement shall be held
invalid or illegal for any reason, such event shall not affect or render invalid
or unenforceable the remainder of this Agreement.
10. Binding Effect. This Agreement shall be binding upon and inure to
the benefit of the Grantee, his or her beneficiary and the Company and its
successors and assigns.
11. Notice. Any notice, consent, election or demand required or
permitted to be given under the provisions of this Agreement shall be in
writing, and shall be signed by the party giving or making the same. If such
notice, consent, election or demand is to be mailed, it shall be sent by United
States certified mail, postage prepaid, addressed to such party's last known
address, or by facsimile with proof of transmission. The date of such mailing or
transmission shall be deemed the date of notice, consent, election or demand.
12. Administration. The Committee shall have full discretionary
authority to (a) interpret, construe and administer this Agreement and to
delegate all or a part of its duties and responsibilities hereunder, and (b)
make all determination as to any rights under the Agreement. The interpretation
and construction of this Agreement by the Committee or its delegate, and any
action taken hereunder, shall be final, binding and conclusive upon all parties
in interest. Neither the Committee nor any director, officer or Grantee of the
Company shall, in any event, be liable to any person for any action taken or
omitted to be taken in connection with the interpretation, construction or
administration of this Agreement, so long as such action or omission to act be
made in good faith.
13. Amendment. Except as provided herein, this Agreement may not be
amended, altered or modified in a manner materially adverse to the Grantee,
except by a written instrument signed by the parties hereto, or their respective
successors, and may not be otherwise terminated except as provided herein.
14. Applicable Law. This Agreement shall be construed and enforced in
accordance with the laws of the State of New York, without regard to its
conflicts of laws provisions.
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IN WITNESS WHEREOF, the Company and the Grantee have executed this
Agreement as of the date first set forth above.
W. P. XXXXX & CO. LLC
By:
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Title:
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GRANTEE:
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Name:
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