Exhibit 10.6
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EACH OF THE STOCK PLAN SUBCOMMITTEE OF THE COMPENSATION COMMITTEE AND THE
COMPENSATION COMMITTEE OF THE BOARD OF DIRECTORS OF THE XXXXX XXXXXX COMPANIES
INC. RESERVES THE RIGHT TO CHANGE PROVISIONS OF THIS AGREEMENT TO COMPLY WITH
THE AMERICAN JOBS CREATION ACT OF 2004.
RESTRICTED STOCK UNIT AGREEMENT UNDER
THE XXXXX XXXXXX COMPANIES INC.
AMENDED AND RESTATED FISCAL 2002 SHARE INCENTIVE PLAN (THE "PLAN")
This RESTRICTED STOCK UNIT AGREEMENT ("Agreement") provides for the granting by
The Xxxxx Xxxxxx Companies Inc., a Delaware corporation (the "Company"), to the
participant, an employee of the Company or one of its subsidiaries (the
"Participant"), of Stock Units under the Plan representing a notional account
equal to a corresponding number of shares of the Company's Class A Common Stock,
par value $0.01 (the "Shares"), on the terms and subject to the conditions
hereinafter provided (the "Restricted Stock Units"). The name of the
"Participant", the "Grant Date", the "Number of Restricted Stock Units", the
"Vesting Commencement Date", the "Vesting Schedule" and the "Vesting Period" are
stated in the attached "Notice of Grant", and incorporated herein by reference.
The other terms and conditions of this award are stated in this Agreement and in
the Plan. Terms not defined herein shall have the meaning set forth in the Plan
(including any amendments thereto).
1. AWARD GRANT. The Company hereby awards to the Participant an award of
Restricted Stock Units in respect of the number of Shares set forth in the
Notice of Grant.
2. VESTING. The Restricted Stock Units granted to the Participant shall vest and
become payable in accordance with the Vesting Schedule set forth in the Notice
of Grant. Such schedule indicates the vesting date upon which the Participant
shall be entitled to receive Shares, provided that as of such vesting date, the
Participant's employment with the Company has not been terminated, except as
otherwise provided herein.
3. PAYMENT OF AWARDS. Each Restricted Stock Unit granted hereunder shall
represent the right to receive one Share upon the vesting of such Restricted
Stock Unit.
Upon the occurrence of a Change in Control, (a) each unvested
Restricted Stock Unit will vest and become payable to the Participant in
accordance with the Plan and this paragraph and (b) each vested Restricted Stock
Unit not paid shall become payable to the Participant in accordance with the
Plan and this paragraph. Payments upon the occurrence of a Change in Control
shall be made as soon as practicable following the Change of Control, but in no
event later than two weeks after the Change in Control. If the Shares cease to
be outstanding immediately after the Change in Control (e.g., due to a merger
with and into another entity), then the consideration to be received per Share
shall equal the consideration paid to each stockholder per Share generally upon
such Change in Control. In the event of Participant's death, disability or
termination of employment without cause prior to the Change in Control, then
only such Restricted Stock Units that vested (in the case of death) or the
Restricted Stock Units that were to vest pro rata due to disability or
termination without cause shall vest and become payable in accordance with this
paragraph and all other unvested Restricted Stock Units shall be forfeited.
4. TERMINATION OF EMPLOYMENT. In the event the Participant's employment
terminates during the Vesting Period, all unvested Restricted Stock Units shall
be forfeited except for such vesting and payment of Restricted Stock Units as
follows, subject to the provisions of Paragraph 3:
(a) Death. In the event of the Participant's death, unvested Restricted
Stock Units shall vest as of the date of death pro rata based on the
number of full months the Participant was employed during the Vesting
Period after the last vesting date (i.e., the proration shall equal a
fraction the numerator of which is the number of full months of
service completed in the Vesting Period after the last vesting date
through the Participant's death and the denominator of which is the
number of full months after the last vesting date that are remaining
in the Vesting Period). For purposes hereof, "last vesting date" shall
be the grant date if the first vesting date has not yet occurred. As
an example, assume a grant to Participant X of Restricted Stock Units
for 300 shares with a three-year Vesting Period and one-third of the
units vesting at the end of each twelve-month period. If the
Participant X dies 18 months after the grant date and six months after
the last vesting date, then the estate or beneficiary of Participant X
would be entitled to payment of 50 Shares (before withholding).
Participant X would have already received 100 Shares (before
withholding) on the first anniversary of the grant date. Payment of
the vested Restricted Stock Units shall be made as soon as practicable
following such Participant's death and in accordance with any
applicable laws or Company procedures regarding such payments.
(b) Retirement. In the event of the Employee's formal retirement under the
terms of The Xxxxx Xxxxxx Companies Retirement Growth Account Plan (or
an affiliate or a successor plan or program of similar purpose), the
unvested Restricted Stock Units shall continue to vest and be paid in
accordance with the Vesting Schedule. Vesting and payment in respect
of any unvested Restricted Stock Unit after retirement shall be
subject to satisfaction of the conditions precedent that the
Participant neither (i) competes with, or takes employment with or
renders services to a competitor of, the Company, its subsidiaries or
affiliates without the written consent of the Company, nor (ii)
conducts himself or herself in a manner adversely affecting the
Company.
(c) Disability. In the event of the occurrence of the Participant's total
and permanent disability (as such status shall be determined under the
Company's long-term disability program), the unvested Restricted Stock
Units shall vest pro rata for full months employed during the Vesting
Period (with such proration methodology set forth in paragraph 4(a))
on the next vesting date during the Vesting Period. Payment of vested
Restricted Stock Units shall be made in accordance with the Vesting
Schedule (i.e., on the next vesting date during the Vesting Period).
(d) Termination of Employment Without Cause. In the event the
Participant's employment is terminated at the instance of the Company
or relevant subsidiary without Cause (as defined below), the unvested
Restricted Stock Units hereunder shall vest pro rata for full months
employed during the Vesting Period (with such proration methodology
set forth in paragraph 4(a)) on the next vesting date during the
Vesting Period. Payment of Restricted Stock Units shall be made in
accordance with the Vesting Schedule and payment in respect of any
unvested Restricted Stock Unit after last day of active employment
shall be subject to satisfaction of the conditions precedent that the
Participant neither (i) competes with, or takes employment with or
renders services to a competitor of, the Company, its subsidiaries or
affiliates without the written consent of the Company, nor (ii)
conducts himself or herself in a manner adversely affecting the
Company.
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(e) Termination of Employment By Employee. In the event the Participant
terminates his or her employment (e.g., by voluntarily resigning),
except in the case of retirement or disability, which are subject to
paragraphs 4(b) and 4(c) above, respectively, all unvested Restricted
Stock Units as of the effective date of resignation shall be
forfeited.
(f) Termination of Employment With Cause. In the event the Participant is
terminated for Cause, all unvested Restricted Stock Units as of the
effective date of resignation shall be forfeited. For purposes hereof,
"Cause" shall have the meaning in any employment agreement as in
effect between the Participant and the Company or any subsidiary and,
in the absence of any such agreement, shall mean any breach by the
Participant of any of his or her material obligations under any
Company policy or procedure, including, without limiting the
generality, the Code of Corporate Conduct.
5. NO RIGHTS OF STOCK OWNERSHIP. This grant of Restricted Stock Units will not
entitle the Participant to any interest in or to any voting or other rights
normally attributable to Share ownership.
6. WITHHOLDING. All payments or distributions of Shares covered by Restricted
Stock Units shall be net of any amounts required to be withheld pursuant to
applicable federal, national, state and local tax withholding requirements
imposed by each taxing authority having jurisdiction. The Company (or relevant
subsidiary) may require the Participant to remit to it an amount sufficient to
satisfy such tax withholding requirements prior to the delivery of any
certificates for such Shares. The Company (or relevant subsidiary) may, in its
discretion and subject to such rules as it may adopt (including any as may be
required to satisfy applicable tax and/or non-tax regulatory requirements),
permit the Participant to pay all or a portion of the federal, national, state
and local withholding taxes arising in connection with any Restricted Stock Unit
by electing to have the Company (or relevant subsidiary) withhold Shares equal
in Fair Market Value to the amount to be withheld, such tax calculated at
minimum statutory rates applicable to the Participant.
7. NONASSIGNABILITY. This award may not be assigned, pledged, or transferred
except, in the event of death, to a designated beneficiary or by will or by the
laws of descent and distribution. The foregoing restrictions shall not apply to
transfers pursuant to a court order, including, but not limited to, any domestic
relations order.
8. EFFECT UPON EMPLOYMENT. The Participant's right to continue to serve the
Company or any of its subsidiaries as an officer, employee, or otherwise, shall
not be enlarged or otherwise affected by the award hereunder. Nothing in this
Agreement or the Plan gives the Participant any right to continue in the employ
of the Company or any of its Subsidiaries or to interfere in any way with any
right the Company or any Subsidiary may have to terminate his or her employment
at any time. Payment of Shares is not secured by a trust, insurance contract or
other funding medium, and the Participant does not have any interest in any fund
or specific asset of the Company by reason of this Award or the account
established on his or her behalf. The Participant has no rights as a shareholder
of the Company pursuant to the Restricted Stock Units until Shares are actually
delivered to the Participant.
9. NOTICES. Any notice required or permitted under this Agreement shall be
deemed to have been duly given if delivered, telecopied or mailed, certified or
registered mail, return receipt requested or by internationally-recognized
courier guaranteeing next day delivery (a) to the Participant at such address as
the Company (or relevant subsidiary) shall maintain for the Participant per its
personnel records or (b) to the Company, attention Stock Plan Administration at
its principal executive offices, which are currently located at 000 Xxxxx
Xxxxxx, Xxx Xxxx, XX 00000.
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10. DISCLOSURE AND USE OF INFORMATION.
a. By signing and returning the attached Notice of Grant, and as a condition of
the grant of the Restricted Stock Units, the Participant hereby expressly
consents to the Company and its subsidiaries, and any agent of the Company
and/or its subsidiaries administering the Plan or providing Plan recordkeeping
service to the collection, use, and transfer of personal data as described in
this Section.
b. The Participant understands that the local employer, the Company and/or its
other subsidiaries holds, by means of an automated data file or otherwise,
certain personal information about the Participant, including, but not limited
to, name, home address and telephone number, date of birth, social insurance
number, salary, nationality, job title, any shares or directorships held in the
Company, details of all Restricted Stock Units or other entitlement to shares
awarded, canceled, exercised, vested, unvested, or outstanding in the
Participant's favor, for purposes of managing and administering the Plan
("Data").
The Participant further understands that part or all of his or her Data may be
also held by the Company and/or its subsidiaries, pursuant to a transfer made in
the past with the Participant's consent, in respect of any previous grant of
stock options or other awards, which was made for the same purposes of managing
and administering previous award/incentive plans, or for other purposes.
c. The Participant further understands that his or her local employer will
transfer Data to the Company and/or its subsidiaries among themselves as
necessary for the purposes of implementation, administration, and management of
the his or her participation in the Plan, and that the Company and/or its
subsidiaries may transfer data among themselves, and/or each, in turn, further
transfer Data to any third parties assisting the Company in the implementation,
administration, and management of the Plan ("Data Recipients").
d. The Participant understands that the Company and/or its subsidiaries, as well
as the Data Recipients, are or may be located in his or her country of residence
or elsewhere, such as the United States. The Participant authorizes the Company
and/or its subsidiaries, as well as Data Recipients to receive, possess, use,
retain, and transfer Data in electronic or other form, for the purposes of
implementing, administering, and managing his or her participation in the Plan,
including any transfer of such Data, as may be required for the administration
of the Plan and/or the subsequent holding of Shares on his or her behalf, to a
broker or third party with whom the Shares may be deposited.
e. The Participant understands that he or she may show opposition to the
processing and transfer of his or her Data, and, may at any time, review the
Data, request that any necessary amendments be made to it, or withdraw his or
her consent herein in writing by contacting the Company. The Participant further
understands that withdrawing consent may affect his or her ability to
participate in the Plan.
11. DISCRETIONARY NATURE AND ACCEPTANCE OF AWARD. By accepting this
Award, the Participant agrees to be bound by the terms of this
Agreement and acknowledges that:
a. The Company (and not the local employer) is granting Restricted Stock Units.
Furthermore, this Agreement is not derived from any preexisting labor
relationship between the Participant and the Company, but rather from a
mercantile relationship.
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b. The Company will administer the Plan from the United States or such other
country that may be outside the Participant's country of residence and the laws
of the State of New York (without regard to its choice of laws provisions) will
govern all Restricted Stock Units granted under the Plan.
c. That benefits and rights provided under the Plan are wholly discretionary
and, although provided by the Company, do not constitute regular or periodic
payments.
d. The benefits and rights provided under the Plan are not to be considered part
of the Participant's salary or compensation under his or her employment with the
local employer for purposes of calculating any severance, resignation,
redundancy or other end of service payments, vacation, bonuses, long-term
service awards, indemnification, pension or retirement benefits, or any other
payments, benefits or rights of any kind. The Participant waives any and all
rights to compensation or damages as a result of the termination of employment
with the Participant's local employer for any reason whatsoever insofar as those
rights result or may result from the loss or diminution in value of such rights
under the Plan or his or her ceasing to have any rights under, or ceasing to be
entitled to any rights under the Plan as a result of such termination.
e. The grant of Restricted Stock Units, hereunder, and any future grant of
Restricted Stock Units under the Plan is entirely voluntary, and at the complete
discretion of the Company. Neither the grant of the Restricted Stock Units nor
any future grant of Restricted Stock Units by the Company shall be deemed to
create any obligation to grant any further Restricted Stock Units, whether or
not such a reservation is explicitly stated at the time of such a grant. The
Company has the right in its sole discretion, at any time and/or on an annual
basis, to amend, suspend, or terminate the Plan; provided, however, that no such
amendment, suspension, or termination shall adversely affect the Participant's
rights hereunder.
f. The Plan shall not be deemed to constitute, and shall not be construed by as
constituting, part of the terms and conditions of employment. The Company shall
not incur any liability of any kind to the Participant as a result of any change
or amendment, or any cancellation, of the Plan at any time.
g. Participation in the Plan shall not be deemed to constitute, and shall not be
deemed by the Participant to constitute, an employment or labor relationship of
any kind with the Company.
12. FAILURE TO ENFORCE NOT A WAIVER. The failure of the Company to enforce at
any time any provision of this agreement shall in no manner be construed to be a
waiver of such provision or of any other provision hereof.
13. GOVERNING LAW. This Agreement shall be governed by and construed according
to the laws of the State of New York, applicable to agreements made and
performed in that state, without regard to the choice of law provisions thereof.
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14. PARTIAL INVALIDITY. The invalidity or illegality of any provision herein
shall not be deemed to affect the validity of any other provision.
15. SECTION 409A COMPLIANCE. This Agreement is intended to comply with Section
409A of the Internal Revenue Code of 1986, as amended, and any regulations or
notices provided thereunder. The Company reserves the unilateral right to amend
this Agreement upon written notice to the Participant in order to comply with
such section.
The Xxxxx Xxxxxx Companies Inc.
By:
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Executive Vice President,
Global Human Resources
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NOTICE OF GRANT UNDER
THE XXXXX XXXXXX COMPANIES INC.
AMENDED AND RESTATED FISCAL 2002 SHARE INCENTIVE PLAN (THE "PLAN")
This is to confirm that you were awarded a grant of Restricted Stock Units at
the most recent meeting of the Stock Plan Subcommittee of the Compensation
Committee of the Board of Directors representing the right upon vesting of such
units to receive shares of Class A Common Stock of The Xxxxx Xxxxxx Companies
Inc. (the "Shares"), subject to the terms of the Plan and the Restricted Stock
Unit Agreement. This award was made in recognition of the significant
contributions you have made as a key employee of the Company, and to motivate
you to achieve future successes by aligning your interests more closely with
those of our stockholders. This Restricted Stock Unit award is granted under and
governed by the terms and conditions of the Plan and the Restricted Stock Unit
Agreement (the "Agreement") attached hereto and made part hereof. Please read
these documents and keep them for future reference. The specific terms of your
award are as follows:
Participant: ((FIRST_NAME)) ((LAST_NAME))
SSN or Global Identification Number:
Number of Restricted Stock Units: ______________________
Grant Date: ______________________
Vesting Commencement Date: ______________________
Vesting Schedule: Subject to Participant's continuous employment, this
Restricted Stock Unit grant shall vest as to the
number of Shares set forth below:
Shares Vesting Date
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[*] [*]
[*] [*]
[*] [*]
Vesting Period: The Vesting Commencement Date through and including the
applicable date set forth in the Vesting Schedule
Questions regarding the award can be directed to Xxxxxx Xxxxx at (000) 000-0000
or Xxxxxxxx Xxxxxxxxxx at (000) 000-0000. If you wish to accept this grant,
PLEASE SIGN THIS NOTICE OF XXXXX AND RETURN IMMEDIATELY TO:
Compensation Department
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
ATTENTION: XXXXXX XXXXX
The undersigned hereby accepts, and agrees to, all terms and provisions of the
Agreement, including those contained in this Notice of Grant.
By_________________________ Date__________
Enclosure:
Restricted Stock Unit Agreement
Summary Plan Description
Restricted Stock Unit Q&A
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