FORM OF RESTRICTED STOCK UNIT AGREEMENT
Exhibit 10.2
FORM OF
RESTRICTED STOCK UNIT AGREEMENT
RESTRICTED STOCK UNIT AGREEMENT
This Restricted Stock Unit Agreement, dated as of ___, is between WESCO
International, Inc., a Delaware corporation (the “Company”), and the Grantee whose name appears on
the signature page (the “Grantee”).
The Board of Directors of the Company (the “Board”) has designated the Compensation Committee
of the Board (the “Committee”) to administer the Company’s 1999 Long-Term Incentive Plan (as
amended from time to time, the “Plan”).
The Board has determined to grant to the Grantee, under the Plan, Restricted Stock Units with
respect to the aggregate number of shares of the Company’s Common Stock, par value $.01 per share
(the “Common Stock”) set forth on the signature page (the “RSU Shares”).
To evidence the Restricted Stock Units and to set forth its terms and conditions under the
Plan, the Company and the Grantee agree as follows:
1. Confirmation of Grant.
(a) The Company grants to the Grantee, effective as of the date of this Agreement, Restricted
Stock Units (“RSUs”) with respect to the RSU Shares. This Agreement is subordinate to, and the
terms and conditions of the RSUs are subject to, the terms and conditions of the Plan.
(b) The RSUs granted under this Agreement shall be reflected in a bookkeeping account
maintained by the Company through the date on which the RSUs become vested pursuant to Section 2 or
Section 7 or are forfeited pursuant to Section 3. If and when the RSUs become fully vested
pursuant to Section 2 or Section 7, and upon the satisfaction of all other applicable conditions on
the RSUs, the RSUs (and any related Dividend Units described in Section 1(c) below) not forfeited
pursuant to Section 3 shall be settled in shares of Common Stock as provided in Section 1(e) and
otherwise in accordance with the Plan.
(c) With respect to each RSU, whether or not vested, that has not been forfeited (but only to
the extent the award of RSUs has not been settled for Common Stock), the Company shall, with
respect to any cash dividends paid on the Common Stock, accrue and credit to the Grantee’s
bookkeeping account a number of RSUs with a Fair Market Value (as defined in Section 4) as of the
date the dividend is paid equal to the cash dividends that would have been paid with respect to the
RSU if it were an outstanding share of Common Stock (the “Dividend Units”). These Dividend Units
shall (i) be treated as RSUs for purposes of future dividend accruals pursuant to this Section
1(c); and (ii) vest in the amounts (rounded to the nearest whole RSU) at the same time as the RSUs
with respect to which the Dividend Units were received. Any dividends or distributions on Common
Stock paid other than in cash shall accrue in the Grantee’s bookkeeping account and shall vest at
the same time as the RSUs with respect to which they are made (in each case in the same form, based
on the same record date and at the same time, as the dividend or other distribution is paid on the
Common Stock).
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(d) The Company’s obligations under this Agreement (with respect to both the RSUs and the
Dividend Units, if any) shall be unfunded and unsecured, and no special or separate fund shall be
established and no other segregation of assets shall be made. The rights of Grantee under this
Agreement shall be no greater than those of a general unsecured creditor of the Company. In
addition, the RSUs shall be subject to any restrictions the Company deems advisable under the
rules, regulations and other requirements of the Securities and Exchange Commission, any stock
exchange upon which Common Stock is listed, any Company policy and any applicable federal or state
securities law.
(e) Except as otherwise provided in this Agreement, in accordance with the provisions of this
Section 1(e), the RSUs shall be settled by delivery of the RSU Shares as soon as practicable after
the RSUs become vested pursuant to Section 2 or Section 7, and upon the satisfaction of all other
applicable conditions on the RSUs (including the payment by the Grantee of all applicable
withholding taxes).
2. Vesting Term. Subject to Section 3, the RSUs shall vest 100% on
___. Notwithstanding the foregoing, the RSUs shall be 100% fully vested upon the
Grantee’s Retirement at Normal Retirement Age (as defined in Section 4), death or Permanent
Disability (as defined in Section 4).
3. Forfeiture. If the Grantee terminates Active Employment prior to the date on which
the RSUs become vested pursuant to Section 2 or Section 7, all rights of the Grantee to the RSUs
that have not vested in accordance with Section 2 or Section 7 as of the date of termination shall
terminate immediately and be forfeited in their entirety.
4. Certain Definitions. As used in this Agreement the following terms shall have the
following meanings:
(a) “Active Employment” shall mean active employment with the Company or any direct or
indirect subsidiary of the Company.
(b) “Fair Market Value” shall mean the closing price per share of the Common Stock on
the New York Stock Exchange or other established stock exchange (or exchanges) on the applicable
date, or if no sale of Common Stock has been recorded on such day, then on the next preceding day
on which a sale was so made. If shares of Common Stock are not traded on an established stock
exchange on the applicable date, Fair Market Value shall be determined by the Committee in good
faith.
(c) “Retirement at Normal Retirement Age” shall mean retirement at age 65 or later.
(d) “Permanent Disability” shall mean a physical or mental disability or
infirmity that prevents the performance of the Grantee’s employment-related duties lasting (or
likely to last, based on competent medical evidence presented to the Board) for a continuous period
of six months or longer. The Board’s reasoned and good faith judgment of Permanent Disability
shall be final, binding and conclusive on all parties hereto and shall be based on any competent
medical evidence presented to it by the Grantee or by any physician or group of physicians or other
competent medical expert employed by the Grantee or the Company to advise the Board.
5. Tax Withholding. Upon the vesting of the RSUs pursuant to Section 2 or
Section 7, the Company may require the Grantee to remit to the Company an amount
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sufficient to
satisfy the employer’s minimum statutory U.S. federal, state and local and non-
U.S. tax withholding requirements. If shares of Common Stock are traded on a U.S. national
securities exchange or bid and ask prices for shares of Common Stock are quoted on the NASDAQ, the
Company may, if requested by the Grantee, withhold shares of Common Stock to satisfy applicable
minimum statutory withholding requirements, subject to the provisions of the Plan and any rules
adopted by the Board or the Committee regarding compliance with applicable law, including, but not
limited to, Section 16(b) of the U.S. Securities Exchange Act of 1934, as amended (the “Exchange
Act”).
6. Representations and Warranties of the Company. The Company represents and warrants
to the Grantee that (a) the Company has been duly incorporated and is an existing corporation in
good standing under the laws of the State of Delaware, (b) this Agreement has been duly authorized,
executed and delivered by the Company and constitutes a valid and legally binding obligation of the
Company enforceable against the Company in accordance with its terms, and (c) the shares of Common
Stock, when issued and delivered upon the vesting of the RSUs in accordance with the terms of this
Agreement, will be duly authorized, validly issued, fully paid and nonassessable, and free and
clear of any liens or encumbrances other than those created pursuant to this Agreement or otherwise
in connection with the transactions contemplated hereby.
7. Change in Control and Adjustments to Reflect Capital Changes.
(a) Accelerated Vesting Upon Change in Control. In the event of a Change in Control,
the RSUs shall become immediately and fully vested unless such Change in Control results from the
Grantee’s beneficial ownership (as defined in the rules under the Exchange Act) of Common Stock or
other Company Voting Securities (as defined in the Plan).
(b) Recapitalization. The number and kind of shares subject to the RSU shall be
appropriately adjusted to reflect any stock dividend, stock split or share combination or any
recapitalization, merger, consolidation, exchange of shares, liquidation or dissolution of the
Company or other change in capitalization with a similar substantive effect upon the Plan or the
RSUs. The Committee shall have the power and sole discretion to determine the amount of the
adjustment to be made in each case.
(c) Certain Mergers. After any Merger in which the Company is not the surviving
corporation or pursuant to which a majority of the shares which are of the same class as the shares
that are subject to the RSUs are exchanged for, or converted into, or otherwise become shares of
another corporation, the surviving, continuing, successor or purchasing corporation, as the case
may be (the “Acquiring Corporation”), will either assume the Company’s rights and obligations under
this Agreement or substitute an award in respect of the Acquiring Corporation’s stock for the RSUs,
however, if the Acquiring Corporation does not assume or substitute for the RSUs, the Board shall
provide prior to the Merger that any unvested portion of the RSUs shall be immediately vested as of
a date prior to the Merger, as the Board so determines. The vesting of the RSUs that was
permissible solely by reason of this Section 7(c) shall be conditioned upon the consummation of the
Merger. Comparable rights shall accrue to the Grantee in the event of successive Mergers of the
character described above.
(d) Certain Definitions.
(i) “Change in Control” means the first to occur of the following events: (a) the acquisition
by any person, entity or “group” (as defined in Section 13(d) of the Exchange Act), other than the
Company, its subsidiaries, any employee benefit plan of the
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Company or its subsidiaries, or any
successor investment vehicle, of 30% or more of the
combined voting power of the Company’s then outstanding voting securities; (b) the merger or
consolidation of the Company, as a result of which persons who were stockholders of the Company
immediately prior to such merger or consolidation, do not, immediately thereafter, own, directly or
indirectly, more than 70% of the combined voting power entitled to vote generally in the election
of directors of the merged or consolidated company; (c) the liquidation or dissolution of the
Company; (d) the sale, transfer or other disposition of all or substantially all of the assets of
the Company to one or more persons or entities that are not, immediately prior to such sale,
transfer or other disposition, affiliates of the Company; and (e) during any period of not more
than two years, individuals who constitute the Board as of the beginning of the period and any new
director (other than a director designated by a person who has entered into an agreement with the
Company to effect a transaction described in clause (a) or (b) of this sentence) whose election by
the Board or nomination for election by the Company’s stockholders was approved by a vote of at
least two-thirds (2/3) of the directors then still in office who were directors at such time or
whose election or nomination for election was previously so approved, cease for any reason to
constitute a majority of the Board.
(ii) “Merger” means any merger, reorganization, consolidation, share exchange, transfer of
assets or other transaction having similar effect involving the Company.
8. No Rights as Stockholder. The Grantee shall have no voting or other rights as a
stockholder of the Company with respect to any RSUs until the issuance of a certificate or
certificates to him for shares of Common Stock with respect to the RSUs. Except as provided in
Section 1(c), no adjustment shall be made for dividends or other rights for which the record date
is prior to the issuance of the certificate or certificates.
9. Non-Competition, Non-Solicitation and Confidentiality.
(a) Non-Competition and Non-Solicitation. During Grantee’s Active Employment
and for a period of one year thereafter:
(1) Grantee shall not directly or indirectly call upon, contact or solicit any
customer or prospective customer of the Company or its subsidiaries (i) with whom
Grantee dealt directly or indirectly or for which Grantee had responsibility while
employed by the Company or its subsidiaries, or (ii) about whom Grantee acquired
confidential information during Grantee’s employment with the Company or its
subsidiaries, for the purpose of offering, selling or providing products or services
that are competitive with those then offered by the Company or its subsidiaries.
Grantee shall not solicit or divert, or attempt to solicit or divert, either directly
or indirectly, any opportunity or business of the Company or its subsidiaries to any
competitor.
(2) Grantee shall not, to the detriment of the Company or its subsidiaries,
directly or indirectly, as an owner, partner, employee, agent, consultant, advisor,
servant or contractor, engage in or facilitate or support others to engage in the
distribution of electrical construction products or electrical and industrial
maintenance, repair and operating supplies, or the provision of integrated supply
services, or any other business that is in competition with any of the business
activities of the Company or its subsidiaries in which Grantee was engaged during
Grantee’s Active Employment and in which the Company or its subsidiaries were engaged
prior
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to the termination of Grantee’s Active Employment. This provision shall not
prevent Grantee from owning less than 1% of a publicly-owned entity or less than
3% of a private equity fund.
(3) Grantee shall not, directly or indirectly, solicit the employment of or
hire as an employee or consultant or agent (i) any employee of the Company or its
subsidiaries or (ii) any former employee of the Company or its subsidiaries whose
employment ceased within 180 days prior to the date of such solicitation or hiring.
(b) Confidentiality. “Confidential Information” means information regarding the
business or operations of the Company or its subsidiaries, both oral and written, including, but
not limited to, documents and the Company or subsidiary information contained in such documents;
drawings; designs; plans; specifications; instructions; data; manuals; electronic media such as
computer disks, computer programs, and data stored electronically; security code numbers;
financial, marketing and strategic information; product pricing and customer information, that the
Company or its subsidiaries disclose to the Grantee or the Grantee otherwise learns or ascertains
in any manner as a result of, or in relation to, Grantee’s employment by the Company or its
subsidiaries. Other than as required by applicable law, Grantee agrees: (1) to use Confidential
Information only for the purposes required or appropriate for Grantee’s employment with the Company
or its subsidiaries; (2) not to disclose to anyone Confidential Information without the Company’s
prior written approval; and (3) not to allow anyone’s use or access to Confidential Information,
other than as required or appropriate for Grantee’s employment with the Company or its
subsidiaries. The foregoing shall not apply to information that is in the public domain, provided
that Grantee was not responsible, directly or indirectly, for such information entering into public
domain without the Company’s approval. Grantee agrees to return to the Company all Confidential
Information in Grantee’s possession upon termination of Grantee’s employment or at any time
requested by the Company.
(c) The foregoing provisions shall survive and remain in full force and effect regardless of
any expiration, termination or cancellation of this Agreement.
(d) If any provision of this Agreement shall be invalid or unenforceable to any extent, the
remaining provisions of this Agreement shall not be affected, and each remaining provision shall be
enforceable to the fullest extent permitted by law. If any provision of this Agreement is so broad
as to be unenforceable, then such provision shall be interpreted to be only as broad as is
enforceable.
(e) Notwithstanding any provision to the contrary, the non-compete, non-solicitation and
confidentiality covenants of this Section 9 shall be in addition to, and shall not be deemed to
supersede, any existing covenants or other agreements between the Grantee and the Company or any of
its subsidiaries.
10. Miscellaneous.
(a) Notices. All notices and other communications required or permitted to be given
under this Agreement shall be in writing and shall be deemed to have been given if delivered
personally or sent by certified or express mail, return receipt requested, postage prepaid, or by
any recognized international equivalent of such delivery, to the Company, or the Grantee, as the
case may be, at the following addresses or to such other address as the Company or the Grantee, as
the case may be, shall specify by notice to the others:
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| (i) | if to the Company, to it at: | ||
| WESCO International, Inc. 000 Xxxx Xxxxxxx Xxxxxx Xxxxx, Xxxxx 000 Xxxxxxxxxx, Xxxxxxxxxxxx 00000-0000 Attention: Legal Department |
(ii) if to the Grantee, to the Grantee at the address set forth on the signature page.
All notices and communications shall be deemed to have been received on the date of delivery or on
the third business day after the mailing thereof.
(b) Binding Effect; Benefits. This Agreement shall be binding upon and inure to the
benefit of the parties to this Agreement and their respective successors and assigns. Nothing in
this Agreement, express or implied, is intended or shall be construed to give any person other than
the parties to this Agreement or their respective successors or assigns any legal or equitable
right, remedy or claim under or in respect of any agreement or any provision contained herein.
(c) Waiver; Amendment.
(i) Waiver. Any party hereto or beneficiary hereof, may, by written notice to the
other parties (A) extend the time for the performance of any of the obligations or other actions of
the other parties under this Agreement, (B) waive compliance with any of the conditions or
covenants of the other parties contained in this Agreement and (C) waive or modify performance of
any of the obligations of the other parties under this Agreement. Except as provided in the
preceding sentence, no action taken pursuant to this Agreement, including, without limitation, any
investigation by or on behalf of any party or beneficiary, shall be deemed to constitute a waiver
by the party or beneficiary taking such action of compliance with any representations, warranties,
covenants or agreements contained herein. The waiver by any party hereto or beneficiary hereof of
a breach of any provision of this Agreement shall not operate or be construed as a waiver of any
preceding or succeeding breach and no failure by a party or beneficiary to exercise any right or
privilege hereunder shall be deemed a waiver of such party’s or beneficiary’s rights or privileges
hereunder or shall be deemed a waiver of such party’s or beneficiary’s rights to exercise the same
at any subsequent time or times hereunder.
(ii) Amendment. This Agreement may not be amended, modified or supplemented orally,
but only by a written instrument executed by the Grantee and the Company.
(d) Assignability. Neither this Agreement nor any right, remedy, obligation or
liability arising hereunder or by reason hereof shall be assignable by the Company or the Grantee
without the prior written consent of the other parties.
(e) Applicable Law. This Agreement shall be governed by and construed in accordance
with the law of the Commonwealth of Pennsylvania, regardless of the law that might be applied under
principles of conflict of laws, except to the extent that the corporate law of the State of
Delaware specifically and mandatorily applies.
(f) Section and Other Headings, etc. The section and other headings contained in this
Agreement are for reference purposes only and shall not affect the meaning
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or interpretation of this Agreement. In this Agreement all references to “dollars” or “$” are
to United States dollars.
(g) Counterparts. This Agreement may be executed in any number of counterparts, each
of which shall be deemed to be an original and all of which together shall constitute one and the
same instrument.
(h) Delegation by the Board. All of the powers, duties and responsibilities of the
Board specified in this Agreement may, to the full extent permitted by applicable law, be exercised
and performed by any duly constituted committee thereof to the extent authorized by the Board to
exercise and perform such powers, duties and responsibilities.
IN WITNESS WHEREOF, the Company and the Grantee have executed this Agreement as of the date
first above written.
| WESCO INTERNATIONAL, INC. |
||||
| By: | ||||
| THE GRANTEE: |
||||
| By: | ||||
Total Number of Restricted
Stock Units Awarded: ___
Stock Units Awarded: ___
Grant Date: ___
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