Exhibit 10.20
2003 DEFERRED RESTRICTED STOCK AGREEMENT
BETWEEN
THE XXXXXXX COMPANIES, INC.
AND
XXXX X. XXXXXXXX
THIS AGREEMENT, effective as of March 17, 2003 (the "Effective Date"),
is by and between The Xxxxxxx Companies, Inc., a Wisconsin corporation (the
"Company") and Xxxx X. Xxxxxxxx (the "Executive"), parties to this Agreement.
RECITALS
WHEREAS, the Executive is a key employee performing valuable services
for a wholly owned subsidiary of the Company, and the Company desires to
retain the Executive in such service; and
WHEREAS, it is to the mutual benefit of both parties to this Agreement
that the relationship continue and that the Executive continue to contribute
to the operation of the Company's affiliate, and
WHEREAS, the Company desires to reward the Executive for his past
service, loyalty and counsel, and wishes to provide an inducement to encourage
Executive's continued efforts on behalf of the Company's affiliate by agreeing
to issue shares of the Company's common stock to the Executive as of
January 31, 2005.
AGREEMENT
NOW, THEREFORE, the Company and the Executive agree, in consideration of
the mutual promises set forth in this Agreement, as follows:
1. Deferred Restricted Stock Promise. As of the Effective Date, the
Company shall recognize an obligation to issue to the Executive,
in accordance with Section 2 of the Agreement, 5,000 shares of the
Company's common stock (the "Deferred Restricted Stock"), as of
January 31, 2005.
2. Issuance of Deferred Restricted Stock. Effective as of January
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31, 2005, the Company shall issue to the Executive the Deferred
Restricted Stock promised under Section 1 of the Agreement. The
issuance of such Deferred Restricted Stock to the Executive shall
occur in a single issuance of shares on January 31, 2005.
Notwithstanding the foregoing, the Deferred Restricted Stock
promised under Section 1 of this Agreement shall be issued to the
Executive (or in the event of the Executive's death, to the
Executive's designated beneficiary) as soon as practicable after
the Executive's death, disability (as defined in Section 22(e)(3)
of the Internal Revenue Code), termination of employment with the
Company and all affiliates or upon a "change of control" of the
Company, if such death, disability, termination of employment or
"change of control" occurs before January 31, 2005. For this
purpose, "change of control" means: (a) a sale of over 50% of the
stock of the Company measured in terms of voting power, other than
in a public offering or in connection with the acquisition by the
Company of a business filing reports under Section 13 or 15(d) of
the Securities Exchange Act of 1934; or (b) the sale by the
Company of over 50% of its business or assets in one or more
transactions over a consecutive 12 month period; or (c) a merger
or consolidation by the Company with or into any other corporation
or entity such that the Company's shareholders prior to the
transaction or transactions do not own at least 50% of the
surviving entity measured in terms of voting power.
At the Company's option, the Shares of Deferred Restricted Stock
to be issued to the Executive under this Agreement may be
authorized but as yet unissued shares, treasury shares or shares
of the Company's common stock acquired on the open market.
3. No Trust Created. Nothing in this Agreement, and no action taken
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pursuant to the provisions of this Agreement, shall create or be
construed to create a trust of any kind, or a fiduciary
relationship between the Company and the Executive, his designated
beneficiary or any other person. The right of any person to
receive Deferred Restricted Stock under the provisions of this
Agreement shall be an unsecured claim against the Company, and no
person shall by virtue of the provisions of this Agreement have
any interest in such Deferred Restricted Stock. To the extent
that any person acquires a right to receive benefits under this
Agreement, such right shall be no greater than the right of any
unsecured general creditor of the Company.
4. Designated Beneficiary. The Executive shall designate one or more
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beneficiaries to receive any stock benefits under this Agreement
in the event of the Executive's death prior to issuance. The
Executive may change the designated beneficiary at any time by
filing a new beneficiary designation with the Company in a form as
prescribed by the Company. The beneficiary designation form on
file with the Company at the Executive's death shall be
controlling. If the Executive fails to validly designate a
beneficiary, any Deferred Restricted Stock to be issued after the
death of the Executive shall be issued to the Executive's estate.
5. Assignment Prohibited. The benefits promised hereunder may not be
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sold, transferred, pledged, assigned or otherwise alienated or
hypothecated, other than by will or by the laws of descent and
distribution.
6. Dividends, Other Distributions. Prior to the issuance of Deferred
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Restricted Stock hereunder, the Company shall make cash payments
to the Executive in amounts equal to the dividends the Executive
would have been entitled to receive had he been the actual owner
of 5,000 shares of the Company's common stock. Such cash payments
will be made at approximately the same time as dividends are paid
on the Company's common stock. Except as provided in this Section
6 and except as provided in Section 9, prior to the issuance of
the Deferred Restricted Stock, the Executive shall be entitled to
no other distributions which may be paid with respect to the
Company's common stock.
7. Binding Agreement. This Agreement constitutes the entire
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agreement between the parties, may be amended only in writing with
the consent of both parties, and shall be binding upon the parties
hereto, their heirs, executors, administrators, successors and
assigns, including any successor of the Company resulting from a
direct or indirect purchase, merger, consolidation, or otherwise,
of all or substantially all of the business and/or assets of the
Company.
8. Withholding.
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(a) The Company shall have the power and the right to deduct or
withhold, or require the Executive to remit to the Company,
an amount sufficient to satisfy federal, state and local
taxes (including the Executive's FICA obligations) required
by law to be withheld with respect to any taxable event
occurring in connection with the issuance of Deferred
Restricted Stock.
(b) With respect to any withholding required upon the issuance
of Deferred Restricted Stock, the Executive may elect,
subject to the approval of the Company, to satisfy the
withholding requirement, in whole or in part, by having the
Company withhold shares of Deferred Restricted Stock having
a Fair Market Value on the date the tax is to be determined
equal to the minimum statutory tax liability which could be
imposed on the transaction. Any election shall be
irrevocable, made in writing, and signed by the Executive.
9. Adjustments in Deferred Restricted Stock Shares. In the event of
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any merger, reorganization, consolidation, recapitalization,
separation, liquidation, partial liquidation, stock dividend,
extra-ordinary dividend, split-up, spin-off, share combination, or
other change in the corporate structure of the Company which
affects the Company's common stock, an appropriate and equitable
adjustment shall be made in the number of shares of Deferred
Restricted Stock, to prevent dilution or enlargement of rights and
to preserve the benefit of the Agreement to the Company and the
Executive.
10. Impact on Other Benefits. Neither the promise to issue Deferred
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Restricted Stock, nor the issuance of such Deferred Restricted
Stock under this Agreement, shall be taken into account in
determining the Executive's benefits under any other pension,
profit sharing, deferred compensation or welfare benefit plan or
program maintained by the Company or any affiliate, unless
specifically provided to the contrary in such other plan or
program.
11. Executive's Employment. Nothing in this Agreement shall interfere
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with or limit in any way the right of the Company or any affiliate
to terminate the Executive's employment at any time, nor confer
upon the Executive any right to continue in the employ of the
Company for any given period or upon any specific terms or
conditions.
12. Governing Law. This Agreement shall be construed in accordance
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with and governed by the internal laws of the State of Wisconsin
to the extent not preempted by federal law.
13. Requirements of Law. The issuance of Deferred Restricted Stock
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under this Agreement shall be subject to all applicable laws,
rules, and regulations, and to any approvals by governmental
agencies or national securities exchanges as may be required, and
the parties shall make a good faith effort to implement this
Agreement in compliance with such applicable laws, rules,
regulations and approvals.
14. Accounting Treatment. The parties intend that the issuance of
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Deferred Restricted Stock under this Agreement result in fixed, rather than
variable, accounting treatment to the Company and shall implement this
Agreement in a manner consistent with such intent.
IN WITNESS WHEREOF, the parties have executed this Agreement on this
17th day of March, 2003, to be effective as of the Effective Date first above
written.
THE XXXXXXX COMPANIES, INC.
By: /s/ Xxxxxxx X'Xxxxx
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Xxxxxxx X'Xxxxx
Title: Senior Vice President,
General Counsel and Secretary
EXECUTIVE:
/s/ Xxxx X. Xxxxxxxx
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Xxxx X. Xxxxxxxx
