Exhibit 99.2
XXXXXXX INCORPORATED
STOCK APPRECIATION RIGHTS AGREEMENT
XXXXXXX INCORPORATED 2005 INCENTIVE AWARD PLAN
GRANT: _____ STOCK APPRECIATION RIGHTS NAME:
BASE PRICE: $
SIGNATURE:
GRANT DATE:
Effective on the Grant Date you have been granted the number of Stock
Appreciation Rights (the "Rights") set forth above, each Right entitles you to
the positive difference, if any, between the Base Price designated above and the
Fair Market Value of a share of Class B Common Stock, par value $0.01 per share
(the "Common Stock") of Xxxxxxx Incorporated (the "Company") on the date of
exercise (the "Spread"), in accordance with the provisions of this Agreement and
the Xxxxxxx Incorporated 2005 Incentive Award Plan (the "Plan"). Upon exercise
the Spread will be paid in whole shares of Common Stock with a Fair Market Value
equal to the Spread. You may only exercise a Right once it is vested, and will
forfeit all unvested Rights in the event of the termination of your employment
or service with the Company and all of its Subsidiaries for any reason, whether
such termination is occasioned by you, by the Company or any of its
Subsidiaries, with or without cause or by mutual agreement ("Termination of
Service").
The Rights will vest and may be exercised in one-third increments on each
anniversary of the Grant Date. Notwithstanding the foregoing, the Rights shall
be fully vested and exercisable (i) upon your Termination of Service by reason
of death or permanent disability, or (ii) upon a Change of Control.
Once vested, Rights may be exercised in whole or any part, at any time. However,
vested Rights must be exercised, if at all, prior to the earlier of:
(a) one year following Termination of Service by reason of death;
(b) 90 days following Termination of Service for any reason other
than death or Retirement; provided however if Termination of
Service is by reason of Retirement or by reason of permanent
disability and you die within 90 days following such
Termination of Service, then the vested Rights may be
exercised until one year following your Termination of
Service;
(c) the tenth anniversary of the Grant Date following Termination
by reason of Retirement; and
(d) the tenth anniversary of the Grant Date;
and if not exercised prior thereto, the Rights shall terminate and no longer be
exercisable.
"Permanent disability" means that you are unable to perform your duties by
reason of any medically determined physical or mental impairment which can be
expected to result in death or
which has lasted or is expected to last for a continuous period of at least 12
months, as reasonably determined by the Board of Directors in its discretion.
Additionally, "Retirement" means your Termination of Service other than by
reason of termination for death, permanent disability or Cause on or after age
55 and having at least 15 years of service with the Company. "Cause" means (i)
misconduct which is reasonably deemed to be prejudicial to the interest of the
Company, (ii) utilization or disclosure of confidential information of the
Company (or of any other entity learned in the course of your job) for reasons
unrelated to your employment with the Company, (iii) willful failure to perform
the material duties of your job, (iv) fraud in connection with the business
affairs of the Company regardless of whether said conduct is designed to defraud
the Company or otherwise, (v) violation of material policies of the Company,
(vi) violation of any fiduciary duty owed to the Company, or (vii) conviction
of, plea of no contest or guilty to a felony or other crime involving moral
turpitude. Cause shall be determined by the Committee (or such officer of the
Company as the Committee may delegate such authority) in its sole and exclusive
discretion.
Notwithstanding anything contained herein to the contrary, the Rights will
terminate and no longer be exercisable in the event that you are in Competition
with the Company. For this purpose, "Competition" shall mean that you, directly
or indirectly, anywhere in the United States or outside of the United States in
which the Company operates or otherwise sells its products in a competitive
market, own, manage, operate, join or control, or participate in the ownership,
management, operation or control of, or become a director or an employee of, or
a consultant to, any person, firm or corporation which competes with the
products and services of the Company; provided, however, that you shall not be
in Competition with the Company as a result of investments in shares of stock
traded on a national securities exchange or on the national over-the-counter
market with an aggregate market value, at the time of acquisition, of less than
two percent (2%) of the outstanding shares of such stock. As a precondition to
the exercise of any portion of the Rights, you must certify, in a form
satisfactory to the Company, that you have not been in Competition with the
Company at any time during the term of this Award.
The Rights will be deemed exercised upon receipt of the Exercise Notice attached
as Exhibit A. The Spread shall be determined by the Fair Market Value of Common
Stock on the date the Exercise Notice is received by the Company.
Rights are not transferable except by will or the laws of descent and
distribution.
The Company has the authority to deduct or withhold, or require you to remit to
the Company, an amount sufficient to satisfy applicable federal, state, local
and foreign taxes (including the Participant's FICA obligation) required by law
to be withheld with respect to any taxable event arising from the exercise of
any vested Rights. You may satisfy your tax obligation, in whole or in part, by
either: (i) electing to have the Company withhold shares of Common Stock
otherwise to be delivered with a Fair Market Value equal to the minimum amount
of the tax withholding obligation, (ii) surrendering to the Company previously
owned shares with a Fair Market Value equal to the minimum amount of the tax
withholding obligation, (iii) withholding from other cash compensation or (iv)
paying the amount of the tax withholding obligation directly to the Company in
cash; provided, however, that if the tax obligation arises during a period in
which the Participant is prohibited from trading under any policy of the Company
or by reason of the
2
Exchange Act, then the tax withholding obligation shall automatically be
satisfied in accordance with subsection (i) of this paragraph.
Nothing in the Plan or this Agreement shall be interpreted to interfere with or
limit in any way the right of the Company or any Subsidiary to terminate your
employment or services at any time, nor confer upon any you the right to
continue in the employ or service of the Company or any Subsidiary.
The Rights are granted under and governed by the terms and conditions of the
Plan. You acknowledge and agree that the Plan has been introduced voluntarily by
the Company and in accordance with its terms it may be amended, cancelled, or
terminated by the Company, in its sole discretion, at any time. The grant of the
Rights is a one-time benefit and does not create any contractual or other right
to receive additional stock appreciation rights or other benefits in lieu of
stock appreciation rights in the future. Future awards of stock appreciation
rights, if any, will be at the sole discretion of the Company, including, but
not limited to, the timing of the award, the number of shares subject to such
award and vesting provisions. By execution of this Agreement, you consent to the
provisions of the Plan and this Agreement. Defined terms used herein shall have
the meaning set forth in the Plan, unless otherwise defined herein.
XXXXXXX INCORPORATED
By:
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Its:
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EXHIBIT A
EXERCISE NOTICE
XXXXXXX INCORPORATED
2005 INCENTIVE AWARD PLAN
STOCK APPRECIATION RIGHTS
Compensation Committee
Xxxxxxx Incorporated
000 Xxxxx Xxxxxxx Xxxx
Xxxxxx, XX 00000-0000
Attn:
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The undersigned Participant hereby elects to exercise _________ vested
Rights pursuant to the Xxxxxxx Incorporated 2005 Incentive Award Plan and the
Stock Appreciation Rights Agreement dated _________ __, ____ (the "Grant Date").
I acknowledge that payment for the Rights will be made in accordance
with the terms set forth in the Stock Appreciation Rights Agreement, less any
legally required withholdings.
Name:
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Address:
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Taxpayer Identification Number:
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Date:
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Signature:
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Received by Xxxxxxx Incorporated this ___ day of ____________, ____.
By:
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Its:
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