EXHIBIT 10.4
RESTRICTED STOCK UNIT PARTICIPANT NAME
PARTICIPATION AGREEMENT
This Restricted Stock Unit Participation Agreement (the
"Agreement") is dated as of this ____ day of __________, 20___ and
sets forth the terms and conditions of the Award described below made
by Xxxxxxxx & Struggles International, Inc. (the "Company") to
_______________ (the "Participant"), pursuant to the 2007 Xxxxxxxx &
Struggles GlobalShare Program (the "Program").
As of _______________, 20___ (the "Grant Date"), the Company has
granted ____ Restricted Stock Units ("RSUs") to the Participant as set
forth herein. The RSUs are granted pursuant to the Program and are
governed by the terms and conditions of the Program. All defined terms
used herein, unless specifically defined in this Agreement, have the
meanings assigned to them in the Program. The Participant agrees to be
bound by all terms and conditions of the Agreement and the Program,
and has received and reviewed a copy of the Program and the Prospectus
for the Program dated _______________, 20___.
The RSUs granted under this Agreement shall not become valid or
enforceable unless and until the Participant executes the Agreement
and it is accepted by the Company. By the Participant's signature and
the Company's signature below, the Participant and the Company agree
that this constitutes the signature page of the Agreement.
Participant further agrees that the RSUs are granted under and
governed by the terms and conditions of the Agreement and the Program.
Agreements that are not signed and returned are considered null and
void.
IN WITNESS WHEREOF, the parties hereto have duly executed the
Agreement as of the date first set forth above.
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Name: PARTICIPANT NAME
Xxxxxxxx & Struggles International, Inc.
By:_________________________
Name:
Title: Secretary
NOW, THEREFORE, in consideration of the agreements of the Participant
herein provided and pursuant to the Program, the parties agree as
follows:
1. DEFINITIONS. All capitalized terms used herein, unless
specifically defined herein, shall have the same meanings as
established in the Program.
2. PARTICIPATION. Pursuant to the Program and contingent upon
the execution of the Agreement, the Company hereby grants to the
Participant ____ RSUs subject to the terms and conditions herein. As a
material condition and inducement to the Company's grant of RSUs to
the Participant, the Participant agrees that he or she has received
and reviewed the Program and the Prospectus, and further agrees to be
bound by all of the terms and conditions of the Agreement and the
Program, as may be amended by the Company from time to time.
3. VESTING OF RSUs.
(a) Subject to Section 3(b) below, all RSUs granted under
the Agreement shall vest in accordance with the
schedule set forth below; provided, the Participant has
been in Continuous Service through each vesting date.
For purposes of the Agreement, "Continuous Service"
shall mean the Participant's service with the Company
or any Subsidiary or Affiliate as an employee, or the
Participant's service as a member of the Board of
Directors of the Company, has not been interrupted or
terminated, and shall include any period during which
the Participant is on an approved leave of absence from
the Company or its Subsidiaries or Affiliates.
VESTING DATE NUMBER OF SHARES VESTING
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(b) Notwithstanding the terms of Section 3(a) above, if the
Participant's Continuous Service is terminated as a
result of the Participant's death or Disability, all
RSUs granted to the Participant under the Agreement
will immediately vest.
(c) In the case of a Participant who is both an employee of
the Company or any Subsidiary or Affiliate and a member
of the Board of Directors of the Company, Continuous
Service shall not end until the Participant's service
as both an employee and a director terminates.
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4. CHARACTERISTICS OF RSUs.
(a) RSUs are not Shares and the grant of RSUs shall provide
only those rights expressly set forth in the Agreement
and the Program. The Participant is not deemed to be a
stockholder in the Company or have any of the rights of
a stockholder in the Company by virtue of the grant of
RSUs.
(b) The Participant does not have voting rights or any
other rights inherent to the ownership of Shares,
including the rights to dividends, or other liquidating
or non-liquidating distributions, by virtue of being
granted RSUs.
(c) Neither the RSUs nor any right hereunder or under the
Program shall be transferable or be subject to
attachment, execution or other similar process. In the
event of any attempt by the Participant to alienate,
assign, pledge, hypothecate or otherwise dispose of the
RSUs or of any right hereunder or under the Program,
except as provided for in the Program, or in the event
of any levy or any attachment, execution or similar
process upon the rights or interest conferred by the
RSUs, the Company may terminate the RSUs by notice to
the Participant and the RSUs shall thereupon be
cancelled.
5. EFFECT OF VESTING.
(a) If, and at the time, the Participant's RSUs vest under
the terms of Section 3, such Participant shall receive
as full consideration for the RSUs a number of Shares
equal to the number of RSUs which vested on such date.
(b) The RSUs granted to the Participant shall be maintained
in a bookkeeping account with the custodian appointed
by the Committee from time to time (the "Custodian")
for such Participant if and until the RSUs are
converted into Shares pursuant to this Section 5, at
which time the Shares shall be issued to the
Participant in accordance with Section 7 below.
6. FORFEITURE OF RSUs. Subject to the next following sentence,
the Participant's RSUs shall be forfeited to the Company upon the
Participant's termination of Continuous Service with the Company and
its Subsidiaries and Affiliates for any reason other than the
Participant's death or Disability that occurs prior to the date the
RSUs vest as provided in Section 3 above. The foregoing provisions of
this Section 6 shall be subject to the provisions of the Company's
Policy for Treatment of RSUs Upon Retirement (the "Retirement
Policy"), and any written employment, severance or similar agreement
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that has been or may be executed by the Participant and the Company,
and the provisions in such Retirement Policy or agreement concerning
the vesting of RSUs in connection with the Participant's termination
of Continuous Service shall supercede any inconsistent or contrary
provision of this Section 6.
7. DELIVERY OF SHARES TO THE PARTICIPANT. As soon as
practicable after the RSUs vest and are converted into Shares, and
subject to Section 8, the Custodian shall, without transfer or issue
tax or other incidental expense to the Participant, deliver to the
Participant by first-class insured mail addressed to the Participant
at the address shown on page 1 or the last address of record on file
with the Custodian, (a) a statement from the Custodian referencing the
number of Shares held in the Participant's name in a book entry
account, or (b) at the Participant's request, certificate(s) for the
number of Shares as to which the RSUs vested. In any event, Shares
due the Participant shall be delivered as described above no later
than March 15 of the year following the calendar year in which such
RSUs vest.
8. TAX WITHHOLDINGS AND PAYMENTS.
(a) The Company or any Subsidiary or Affiliate is
authorized to withhold from any payment to be made to
the Participant, amounts of income tax withholding and
other taxes due in connection with compensation or any
other transaction under the Program, including the
receipt of Shares under Section 5. The Participant
shall hold the Company harmless for any damages caused
by his or her failure to so comply and for any other
damages caused by his or her actions or inactions.
(b) The Participant may pay such withholding taxes in cash,
by having Shares withheld by the Company from any
Shares that would otherwise be received by the
Participant under the Agreement (in which case, the
number of Shares so withheld shall have an aggregate
Fair Market Value at the time of such withholding
sufficient to satisfy the applicable withholding
taxes), or by any other method approved by the
Committee. If the Participant does not satisfy the
withholding obligation by cash payment within a
reasonable time established by the Committee, the
Participant's withholding obligation shall be satisfied
by the Company's withholding of Shares from the vested
RSUs.
9. MISCELLANEOUS.
(a) The granting of an Award under the Program and the
Agreement shall impose no obligation on the Company or
any Subsidiary or Affiliate to continue the employment
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relationship or any other relationship between it and
the Participant and shall not lessen or affect the
Company's, Subsidiary's or Affiliate's right to
terminate its relationship with the Participant. The
Participant shall have no claim to be granted any
further or other Award under the Program, and there is
no obligation for uniformity of treatment of the
Participants. The Participant acknowledges and agrees
that: (i) the Program is established voluntarily by the
Company, it is discretionary in nature and it may be
modified, amended, suspended or terminated by the
Company at any time; (ii) the grant of RSUs is
voluntary and occasional and does not create any
contractual or other right to receive future grants of
RSUs, or benefits in lieu of RSUs, even if RSUs have
been granted repeatedly in the past; (iii) all
decisions with respect to future RSU grants, if any,
will be at the sole discretion of the Company; (iv)
participation in the Program is voluntary; (v) the RSUs
are not a part of normal or expected compensation or
salary for any purposes, including, but not limited to,
calculating any severance, resignation, termination,
redundancy, end of service payments, bonuses,
long-service awards, pension or retirement benefits or
similar payments; (vi) the future value of the
underlying shares is unknown and cannot be predicted
with certainty; and (vii) in consideration of the grant
of RSUs, no claim or entitlement to compensation or
damages shall arise from termination of the RSUs or
diminution in value of the RSUs or Shares received upon
vesting including (without limitation) any claim or
entitlement resulting from termination of the
Participant's active employment by the Company or a
Subsidiary or Affiliate (for any reason whatsoever and
whether or not in breach of local labor laws) and the
Participant hereby releases the Company and its
Subsidiaries and Affiliates from any such claim that
may arise; if, notwithstanding the foregoing, any such
claim is found by a court of competent jurisdiction to
have arisen, then, by signing this Agreement, the
Participant shall be deemed irrevocably to have waived
the Participant's entitlement to pursue such claim.
(b) The Agreement shall, subject the terms hereof,
terminate upon the forfeiture and/or vesting of all
RSUs granted to the Participant hereunder, unless
otherwise agreed upon by the parties hereto.
(c) The Agreement may be amended by the written agreement
of the Company and the Participant. Notwithstanding the
foregoing, (i) the Company may amend, alter or
discontinue the Agreement, without the consent of the
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Participant so long as such amendment, alteration or
discontinuance would not impair any of the rights or
obligations under any Award theretofore granted to the
Participant under the Program; and (ii) the Committee
may amend the Agreement in such manner as it deems
necessary to permit the granting of Awards meeting the
requirements of the Code or other applicable laws.
(d) The parties agree that the Agreement shall be governed
by and interpreted and construed in accordance with the
laws of the United States and, in particular, those of
the State of Illinois without regard to its conflict of
law principles, as Illinois is the situs of the
principal corporate office of the Company. Furthermore,
to the extent not prohibited under applicable law, and
unless the Company affirmatively elects in writing to
allow the proceeding to be brought (or itself brings
such a proceeding) in a different venue, the parties
agree that any suit, action or proceeding with respect
to the Program, the RSUs or the Agreement shall be
brought in the state courts in Chicago, Illinois or in
the U.S. District Court for the Northern District of
Illinois. The parties hereby accept the exclusive
jurisdiction of those courts for the purpose of any
such suit, action or proceeding. Venue for any such
action, in addition to any other venue required or
otherwise mandated by statute, will be in Chicago,
Illinois. Each party further agrees to waive any
applicable right to a jury trial, and expressly elects
to have the matter heard as a bench trial.
(e) Unless waived by the Company, any notice to the Company
required under or relating to the Agreement shall be in
writing and addressed to:
Chief Legal Officer
Xxxxxxxx & Struggles International, Inc.
000 Xxxxx Xxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, XX 00000-0000
10. PROGRAM GOVERNS. All terms and conditions of the Program
are incorporated herein and made part hereof as if stated herein. If
there is any conflict between the terms and conditions of the Program
and the Agreement, the terms and conditions of the Program, as
interpreted by the Committee, shall govern.
11. DATA PRIVACY. By signing below, the Participant voluntarily
acknowledges and consents to the collection, use, processing and
transfer of personal data as described in this Section 11. The
Participant is not obliged to consent to such collection, use,
processing and transfer of personal data. However, the Participant's
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failure to provide the consent may affect the Participant's ability to
participate in the Program. The Company and its Subsidiaries and
Affiliates hold certain personal information about the Participant,
including the Participant's name, home address and telephone number,
date of birth, employee identification number, salary, nationality,
job title, any shares of stock or directorships held in the Company,
details of all options or any other rights or entitlements to shares
of stock in the Participant's favor, for the purpose of managing and
administering the Program ("Data"). The Company, its Subsidiaries and
its Affiliates will transfer Data amongst themselves as necessary for
the purpose of implementation, administration and management of the
Participant's participation in the Program, and the Company and any of
its Subsidiaries or Affiliates may each further transfer Data to any
third parties assisting in the implementation, administration and
management of the Program. These recipients may be located in the
European Economic Area, or elsewhere throughout the world, such as the
United States. The Participant authorizes them to receive, possess,
use, retain and transfer the Data, in electronic or other form, for
the purposes of implementing, administering and managing the
Participant's participation in the Program, including any requisite
transfer of such Data as may be required for the administration of the
Program and/or the subsequent holding of Shares on the Participant's
behalf to a broker or other third party with whom the Participant may
elect to deposit any Shares acquired pursuant to the Program. The
Participant may, at any time, review Data, require any necessary
amendments to it or withdraw the consents herein in writing by
contacting the Company; however, by withdrawing consent, the
Participant will affect his or her ability to participate in the
Program.
12. EXECUTION OF THE AGREEMENT.
(a) The Parties agree that this Agreement shall be
considered executed by both parties executing the
Agreement as the first page hereof, which is a part
hereof.
(b) This Agreement, or any amendments thereto, may be
executed in counterparts, each of which shall be deemed
an original but all of which shall constitute one and
the same instrument.
(c) All terms and conditions of the Program are
incorporated herein and made part hereof as if stated
herein. If there is any conflict between the terms and
conditions of the Program and the Agreement, the terms
and conditions of the Program, as interpreted by the
Committee, shall govern.
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