Exhibit (d)(8)
XXXXXXX & XXXX FINANCIAL, INC.
RESTRICTED STOCK AWARD AGREEMENT
XXXXXXX & XXXX FINANCIAL, INC., a corporation organized and existing
under the laws of the state of Delaware (or any successor corporation) (the
"Company"), does hereby grant and give unto ((Name)) (the "Awardee"), an
award of restricted shares of Stock (the "Restricted Stock") upon the terms
and conditions hereinafter set forth (the "Award").
AUTHORITY FOR GRANT
1. STOCK INCENTIVE PLAN. The Restricted Stock is granted under the
provisions of the Xxxxxxx & Xxxx Financial, Inc. 1998 Stock Incentive Plan,
as amended and restated (the "Plan"), and is subject to the terms and
conditions set forth in this Restricted Stock Award Agreement (the
"Agreement") and not inconsistent with the Plan. Capitalized terms used but
not defined herein shall have the meaning given them in the Plan, which is
incorporated by reference herein.
TERMS OF AWARD
2. NUMBER OF SHARES. In consideration of exchanging options for this
Award pursuant to the Company's Tender Offer dated February 12, 2003, the
Awardee is hereby granted ((Shares)) shares of Restricted StocK (the
"Shares") of the Company's Class A common stock, par value $.01 on March ___,
2003 (the "Grant Date"), subject to repurchase of a portion thereof by the
Company pursuant to Section 13.
3. RESTRICTIONS. The Restricted Stock may not be sold, transferred,
pledged, assigned or otherwise alienated or hypothecated until its
restrictions are removed or expire as described in Sections 4, 5 and 6 of
this Agreement.
4. EXPIRATION OF RESTRICTIONS. The restrictions of the Restricted
Stock will expire as set forth in this Section 4, as of the vesting dates set
forth below.
PERCENTAGE OF SHARES OF
WHICH RESTRICTIONS EXPIRE EXPIRATION DATE
------------------------- ---------------
33 1/3% March ___, 2005
33 1/3% March ___, 2006
33 1/3% March ___, 2007
TERMINATION OF AWARD
5. TERMINATION OF EMPLOYMENT.
(a) TERMINATION OF EMPLOYMENT DUE TO DEATH, DISABILITY OR
NORMAL RETIREMENT. If an Awardee's employment with the Company or any
of its Subsidiaries or Affiliates terminates by reason of death,
Disability or Normal Retirement, the
restrictions with respect to the Restricted Stock which have not
lapsed shall immediately expire and all shares of the Restricted
Stock shall become fully transferable.
(b) TERMINATION OF EMPLOYMENT OTHER THAN DUE TO NORMAL
RETIREMENT, DEATH OR DISABILITY. If an Awardee's employment with the
Company or any of its Subsidiaries or Affiliates terminates for a
reason other than death, Disability or Normal Retirement, the shares of
Restricted Stock for which the restrictions have not expired as of the
date of such termination will continue to remain restricted and the
restrictions will expire pursuant to Sections 4 and 6.
6. CHANGE IN CONTROL OR POTENTIAL CHANGE IN CONTROL OF THE COMPANY.
In the event of a Change in Control, unless otherwise determined by the
Committee in writing after the Grant Date, but prior to the occurrence of
such Change in Control, or, in the event of a Potential Change in Control, if
and to the extent so determined by the Committee in writing after the Grant
Date (subject to any right of approval expressly reserved by the Committee at
the time of such determination): (a) the restrictions with respect to the
Restricted Stock shall expire and such shares shall be deemed fully
transferable; and (b) the value of the outstanding Stock previously subject
to restrictions, shall, to the extent determined by the Committee at or after
the Grant Date, be settled on the basis of the Change in Control Price as of
the date the Change in Control occurs or Potential Change in Control is
determined to have occurred, or such other date as the Committee may
determine prior to the Change in Control or Potential Change in Control. In
the sole discretion of the Committee, such settlements may be made in cash or
in stock, as shall be necessary to effect the desired accounting treatment
for the transaction resulting in the Change in Control or Potential Change of
Control.
GENERAL TERMS AND PROVISIONS
7. ADMINISTRATION OF AWARD. The Restricted Stock shall be maintained
in a book-entry account (the "Account") by and at the Company's transfer
agent until the restrictions associated with such Restricted Stock expire
pursuant to Sections 4, 5 or 6. The Awardee shall execute and deliver to the
transfer agent one or more stock powers in blank for the Restricted Stock.
The Awardee hereby agrees that the transfer agent shall maintain such Account
and the related stock power(s) pursuant to the terms of this Agreement until
such restrictions expire pursuant to Sections 4, 5 or 6.
8. OWNERSHIP OF RESTRICTED STOCK. From and after the time that the
Account representing the Restricted Stock has been activated, the Awardee
will be entitled to all the rights of absolute ownership of the Restricted
Stock, including the right to vote those shares and to receive dividends
thereon if, as, and when declared by the Board, subject, however, to the
terms, conditions and restrictions set forth in this Agreement. Dividends
paid in stock of the Company or stock received in connection with a Stock
split with respect to the Restricted Stock shall be subject to the same
restrictions as on such Restricted Stock. The shares of Restricted Stock
subject to this Award are not eligible to be enrolled in any dividend
re-investment program until the restrictions thereon lapse or expire.
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9. ADJUSTMENT OF SHARES FOR RECAPITALIZATION, ETC. In the event
there is any change in the outstanding Stock of the Company by reason of any
reorganization, recapitalization, stock split, stock dividend, combination of
shares or otherwise, there shall be substituted for or added to each share of
Stock theretofore appropriated or thereafter subject, or which may become
subject, to this Award, the number and kind of shares of stock or other
securities into which each outstanding share of Stock shall be so changed or
for which each such share shall be exchanged, or to which each such share
shall be entitled, as the case may be. Adjustment under the preceding
provisions of this Section 9 will occur automatically upon any such change in
the outstanding Stock of the Company. No fractional interest will be issued
under the Plan on account of any such adjustment.
10. CONDITIONS TO DELIVERY OF STOCK AND REGISTRATION. Nothing herein
shall require the Company to issue or the transfer agent to deliver any
shares with respect to the Award if (a) that issuance would, in the opinion
of counsel for the Company, constitute a violation of the Securities Act of
1933, as amended, or any similar or superseding statute or statutes, any
other applicable statute or regulation, or the rules of any applicable
securities exchange or securities association, as then in effect; or (b) the
withholding obligation as provided in Section 13 of this Agreement has not
been satisfied. From time to time, the Board and appropriate officers of the
Company are authorized to and shall take whatever actions are necessary to
file required documents with governmental authorities, stock exchanges, and
other appropriate persons to make shares of Stock available for issuance.
11. NO LIMITATION ON EXCESS PARACHUTE PAYMENTS. The provisions of
Section 14 of the Plan regarding the payment of any "Excess Parachute
Payment" within the meaning of Section 280G(b)(1) of the Internal Revenue
Code of 1986, as amended, shall not apply to this Agreement.
12. NON-SOLICITATION.
(a) As a material inducement to the Company to enter into
this Agreement with the Awardee, and in consideration for the
compensation and other benefits payable hereunder to the Awardee, and
for other good and valuable consideration, the Awardee hereby
covenants and agrees that, during the Term of Non-Solicitation, the
Awardee will not (other than for the benefit of the Company pursuant
to this Agreement) directly or indirectly, individually or as an
officer, director, employee, shareholder, consultant, contractor,
partner, joint venturer, agent, equity owner or in any capacity
whatsoever, (i) recruit, hire, assist in hiring, attempt to hire,
contract with, or contact or solicit with respect to hiring any
employee or agent (including, but not limited to, financial advisors)
of the Company, or (ii) induce or attempt to induce any employee or
agent (including, but not limited to, financial advisors) of the
Company to terminate, or in any way interfere with, the relationship
between the Company and any employee or agent thereof. As used in this
Section 12, "COMPANY" shall include the Company and any of its
Subsidiaries or Affiliates and "Term of Non-Solicitation" shall mean
the period beginning on the Grate Date and continuing until the second
anniversary of the Awardee's termination of employment with the
Company or any of its Subsidiaries or
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Affiliates for any reason, regardless of the expiration of
restrictions on the Restricted Stock as contemplated under Sections
4, 5 or 6 of this Agreement.
(b) The Awardee acknowledges and agrees that the covenants
contained in this Section 12 are reasonable and necessary to protect
the business and goodwill of the Company and that their enforcement
would not cause the Awardee any undue hardship or unreasonably
interfere with the Awardee's ability to earn a livelihood. The Awardee
further acknowledges and agrees that a breach of these covenants will
result in irreparable harm and continuing damage to the Company. The
Awardee therefore acknowledges that money damages would not be a
sufficient remedy for any breach of this Section 12 by the Awardee,
and the Company shall be entitled to specific performance and
injunctive relief as remedies for such breach or any threatened
breach. Such remedies shall not be deemed the exclusive remedies for a
breach of this Section 12, but shall be in addition to all remedies
available at law or in equity to the Company, including, without
limitation, the recovery of damages from the Awardee and their agents
involved in such breach. Further, if the Awardee violates the
covenants and restrictions herein and the Company brings legal action
for injunctive or other equitable relief, the Awardee agrees that the
Company shall not be deprived of the benefit of the full period of the
restrictive covenant, as a result of the time involved in obtaining
such relief. Accordingly, the Awardee agrees that the provisions in
this Section 12 shall have a duration stated as the Term of
Non-Solicitation set forth in Section 12(a) above, extended by the
period of time during which such legal action for injunctive or other
equitable relief is pending. The Awardee hereby waives any requirement
for the securing or posting of any bond in connection with the
obtaining of any such equitable relief.
(c) The Awardee is prohibited from disparaging the Company,
the Board, the Company's executives, its employees and its products or
services. For purposes of this Section 12(c), disparagement does not
include (i) compliance with legal process or subpoenas to the extent
only truthful statements are rendered in such compliance attempt, (ii)
statements in response to an inquiry from a court or regulatory body,
or (iii) statements or comments in rebuttal of media stories or
alleged media stories to the extent only truthful statements are
rendered in such rebuttal. Violation of this Section 12(c) shall
entitle the Company to complete relief from such violation including,
but not limited to, injunctive relief and damages.
(d) If any court or arbitrator or panel of arbitrators
determines that any portion of this Section 12 is invalid or
unenforceable, the remainder of this Section 12 shall not thereby
be affected and shall be given full effect without regard to the
invalid provisions. If any court or arbitrator or panel of
arbitrators construes any of the provisions of this Section 12, or
any part thereof, to be unreasonable because of the duration or
scope of such provision, such court or arbitrator or panel of
arbitrators shall have the power to reduce the duration or scope of
such provision and to enforce such provision as so reduced.
13. PAYMENT OF TAXES. The settlement of shares of Stock pursuant to
this Award is conditioned upon satisfaction of any withholding obligation
described in this Section 13. The Awardee may be required, from time to time,
in the Company's discretion, to pay to the
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Company (or any Subsidiary or Affiliate as applicable), the amount that the
Company deems necessary to satisfy the Company's or its Subsidiary's or
Affiliate's current or future obligation to withhold federal, state or local
income or other taxes incurred by the Awardee as a result of the Award. With
respect to any required tax withholding, the Awardee may (a) upon election at
the time and in the manner prescribed by the Company, direct the Company to
purchase from the Awardee the number of shares of Restricted Stock issued
pursuant to this Award equal in value to the amount of such obligations based
on the shares' Fair Market Value at the time such obligation is incurred, or
(b) deliver sufficient cash to the Company to satisfy the Company's tax
withholding obligations. In the event the Company subsequently determines
that the aggregate Fair Market Value of any shares of Restricted Stock
repurchased as payment of any tax withholding obligation is insufficient to
discharge that tax withholding obligation, then the Awardee shall pay to the
Company, immediately upon the Company's request, the amount of that
deficiency in cash.
14. COMPANY RECORDS. Records of the Company or its Subsidiaries or
Affiliates regarding any period(s) of employment, termination of employment
and the reason therefor, leaves of absence, re-employment, and other matters
shall be conclusive for all purposes hereunder, unless determined by the
Company to be incorrect.
15. RIGHT OF THE COMPANY AND SUBSIDIARIES TO TERMINATE EMPLOYMENT.
Nothing contained in this Agreement shall confer upon the Awardee the right
to continue in the employ of the Company or any Subsidiary or Affiliate, or
interfere in any way with the rights of the Company or any Subsidiary or
Affiliate to terminate the Awardee's employment at any time.
16. NO LIABILITY FOR GOOD FAITH DETERMINATIONS. The members of the
Board and the Committee shall not be liable for any act, omission,
interpretation or determination taken or made in good faith with respect to
this Agreement or the Restricted Stock granted hereunder and all members of
the Board or the Committee and each and any officer or employee of the
Company acting on their behalf shall, to the extent permitted by law, be
fully indemnified and protected by the Company with respect to any such
action, determination or interpretation.
17. SEVERABILITY. If any provision of this Agreement is held to be
illegal or invalid for any reason, the illegality or invalidity shall not
affect the remaining provisions hereof, but such provision shall be fully
severable and this Agreement shall be construed and enforced as if the
illegal or invalid provision had never been included herein.
18. SUCCESSORS. This Agreement shall be binding upon the Awardee,
their legal representatives, heirs, legatees and distributees, and upon the
Company, its successors and assigns.
19. NOTICES. Any notices required by or permitted to be given to the
Company under this Agreement shall be made in writing and addressed to the
Secretary of the Company in care of the Company's Legal Department, 0000
Xxxxx Xxxxxx, Xxxxxxxx Xxxx, Xxxxxx 00000. Any such notice shall be deemed to
have been given when received by the Company.
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20. HEADINGS. The titles and headings herein are included for
convenience of reference only, do not constitute a part of this Agreement and
shall not be deemed to limit or affect any of the provisions hereof.
21. RULES OF CONSTRUCTION. This Agreement has been executed and
delivered by the Company in
Kansas and shall be construed and enforced in
accordance with the laws of said State, other than any choice of law rules
calling for the application of laws of another jurisdiction. Should there be
any inconsistency or discrepancy between the provisions of this Agreement and
the terms and conditions of the Plan under which this Award is granted, the
provisions in the Plan shall govern and prevail.
22. AMENDMENT. This Agreement may be amended by the Committee;
provided, however, that no amendment may decrease rights inherent in this
Award prior to such amendment without the express written consent of the
parties hereto. Notwithstanding the provisions of this Section 22, this
Agreement may be amended by the Committee to the extent necessary to comply
with applicable laws and regulations and to conform the provisions of this
Agreement to any changes thereto.
23. EFFECTIVE DATE. This Agreement has been executed this ____ day
of ________, 2003, effective as of ____________, 2003.
XXXXXXX & XXXX FINANCIAL, INC.
By:
-------------------------------------
Xxxx X. Xxxxxxx, Xx., Senior Vice
President and Chief Financial Officer
"Company"
---------------------------------------
((Name))
"Awardee"
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Exhibit (d)(8)
STOCK POWER
FOR VALUE RECEIVED, ((Name)) does hereby assign and transfer unto
XXXXXXX & XXXX FINANCIAL, INC. (00-0000000) __________ shares of Class A
common stock of Xxxxxxx & Xxxx Financial, Inc., a Delaware corporation, as
granted on March ___, 2003, as evidenced by the
Restricted Stock Award
Agreement of even date herewith and standing in the name of the undersigned
on the books of Xxxxxxx & Xxxx Financial, Inc. The undersigned does hereby
appoint EquiServe Trust Company, N.A. as attorney-in-fact to transfer the
said stock on the books of Xxxxxxx & Xxxx Financial, Inc. with full power of
substitution in the premises.
Dated as of this ____ day of ____________, 2003.
------------------------------------
((Name))
