EXHIBIT 10.34
UNOVA, INC.
1999 STOCK INCENTIVE PLAN
RESTRICTED STOCK AGREEMENT
This Restricted Stock Agreement ("Agreement") is made this 2nd day of
August, 1999, between UNOVA, Inc., a Delaware corporation (the "Company"), and
Xxxxx X. Xxxxx (the "Grantee").
WHEREAS, the UNOVA, Inc. 1999 Stock Incentive Plan (the "1999 Plan") was
adopted by the Board of Directors of the Company on March 11, 1999, and was
approved by the shareholders of the Company on May 7, 1999; and
WHEREAS, as an inducement to the Grantee to accept employment with the
Company in the capacity of President and Chief Operating Officer, and to
increase the Grantee's proprietary interest in the business of the Company
through stock ownership, the Company desires to award the Grantee shares of
Restricted Stock (as that term is defined in the 1999 Plan) in accordance with
the terms and conditions of this Agreement;
NOW THEREFORE, in consideration of the premises, the mutual covenants
hereinafter set forth, and other good and valuable consideration, the Company
and the Grantee hereby agree as follows:
1. The Company hereby grants the Grantee, as a matter of separate
inducement and Agreement, and not in lieu of salary or other compensation for
services, an Award in the form of Restricted Stock comprising 109,585 shares of
the Common Stock, par value $.01 per share, of the Company on the terms and
conditions hereinafter set forth, such number of shares to be subject to
adjustment as provided in Section 3 of the 1999 Plan.
2. The 1999 Plan, a copy of which is attached hereto, is incorporated
herein by reference and is made part of this Agreement as if fully set forth
herein. Capitalized terms used in this Agreement which are not defined herein
shall have the meaning assigned to such terms in the 1999 Plan, it being
understood that the term "Restricted Stock" shall mean and refer only to those
shares of Restricted Stock granted pursuant to this Agreement. This Agreement is
subject to, and the Company and the Grantee agree to be bound by, all of the
terms and conditions of the 1999 Plan as the same exist at the time this
Agreement became effective. The 1999 Plan shall control in the event there is
any expressed conflict between the 1999 Plan and the terms hereof and with
respect to such matters as are not expressly covered in this Agreement.
Subsequent amendments to the 1999 Plan shall not adversely affect the Grantee's
rights under this Agreement without the Grantee's written consent, except such
an amendment made to cause the 1999 Plan to qualify for the exemption provided
by Rule 16b-3.
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3. The Restricted Stock awarded under this Agreement shall be evidenced by
a stock certificate or certificates registered in the name of the Grantee
bearing a legend in the following form:
The transferability of the shares of stock represented by this
certificate is subject to the terms and conditions (including
forfeiture) of the UNOVA, Inc. 1999 Stock Incentive Plan and a
Restricted Stock Agreement entered into between the Company and the
Grantee dated August 2, 1999. Copies of such Plan and Agreement are on
file at the principal executive offices of UNOVA, Inc.
4. The stock certificate or certificates representing such Restricted Stock
shall be retained in the custody of the Secretary of the Company until the
restrictions on the shares represented by any such certificate or certificates
shall have lapsed. Simultaneously with the execution and delivery of this
Agreement by the parties, the Grantee shall execute and deliver to the Company a
stock power relating to each certificate representing Restricted Stock, endorsed
in blank, substantially in the form of Exhibit A to this Agreement.
5. Subject to the provisions of Section 7 of this Agreement, there shall be
a Restriction Period beginning on the date of this Agreement with respect to the
shares of Restricted Stock awarded hereunder. With respect to 36,528 of such
shares, the Restriction Period shall expire on the third anniversary of the date
of this Agreement; with respect to 36,528 of such shares, the Restriction Period
shall expire on the fourth anniversary of the date of this Agreement; and with
respect to 36,529 of such shares, the Restriction Period shall terminate on the
fifth anniversary of the date of this Agreement. Except as otherwise provided in
this Agreement, in the event of the Grantee's Termination of Employment during
the Restriction Period, all shares still subject to restriction on the date of
Grantee's Termination of Employment shall be forfeited by the Grantee.
6. Until the earlier of (i) the expiration of the Restriction Period with
respect to any of the shares granted hereunder or (ii) the vesting of such
shares in accordance with the provisions of this Agreement or the 1999 Plan, the
Grantee shall not be permitted to sell, assign, transfer, pledge, or otherwise
encumber shares of Restricted Stock; provided that the foregoing shall not
prevent the Grantee from pledging Restricted Stock as security for a loan, the
sole purpose of which is to provide funds to pay the option price for stock
options granted to the Grantee under the 1999 Plan or any successor plan of the
Company.
7. Notwithstanding any other provision of this Agreement, all shares of
Restricted Stock granted hereunder still subject to restriction shall become
fully vested and transferable and become free of all restrictions and deferral
limitations to the full extent of the original grant upon the occurrence of any
of the following events:
(a) the Termination of Employment of the Grantee by reason of the
Grantee's death;
(b) the Termination of Employment of the Grantee by reason of the
Grantee's Disability;
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(c) the occurrence of a Change in Control as defined in Section 8(b) of
the 1999 Plan; or
(d) the Termination of Employment of the Grantee as a result of a Special
Severance.
For purposes of this Agreement, a Special Severance of the Grantee shall
mean the Grantee's Termination of Employment under the following circumstances:
(i) the Grantee shall have served as President and Chief Operating Officer of
the Company continuously from the date hereof until the first anniversary of the
date of this Agreement; (ii) within the period of 30 days following the first
anniversary of the date of this Agreement the Grantee (if not therefore elected,
appointed, or otherwise designated Chief Executive Officer of the Company) shall
fail to be elected, appointed, or otherwise designated Chief Executive Officer
of the Company; and (iii) within the period of 30 days from and after the 30-day
period specified in clause (ii), either the Company or the Grantee shall have
given the other party written notice of such party's intention that the
employment of the Grantee by the Company shall terminate.
Notwithstanding the foregoing, a Special Severance of the Grantee will not
be deemed to have occurred if, at any time prior to the date which is 30 days
following the first anniversary of this Agreement, the Grantee's employment
shall have been terminated for Cause. For purposes of this Agreement, "Cause"
shall mean:
(i) the willful and continued failure of the Grantee to perform
substantially the Grantee's duties with the Company or one of its Affiliates
(other than any such failure resulting from incapacity due to physical or mental
illness), after a written demand for substantial performance is delivered to the
Grantee by the Board or the Chief Executive Officer of the Company which
specifically identifies the manner in which the Board or Chief Executive Officer
believes that the Grantee has not substantially performed the Grantee's duties,
or
(ii) the willful engaging by the Grantee in illegal conduct or gross
misconduct which is materially and demonstrably injurious to the Company.
For purposes of this provision, no act or failure to act, on the part of
the Grantee, shall be considered "willful" unless it is done, or omitted to be
done, by the Grantee in bad faith or without reasonable belief that the
Grantee's action or omission was in the best interests of the Company. Any act,
or failure to act, based upon authority given pursuant to a resolution duly
adopted by the Board upon the instructions of the Chief Executive Officer or a
senior officer of the Company or based upon the advice of counsel for the
Company shall be conclusively presumed to be done, or omitted to be done, by the
Grantee in good faith and in the best interests of the Company. The cessation of
employment of the Grantee shall not be deemed to be for Cause unless and until
there shall have been delivered to the Grantee a copy of a resolution duly
adopted by the affirmative vote of not less than three-quarters of the entire
membership of the Board at a meeting of the Board called and held for such
purpose (after reasonable notice is provided to the Grantee and the Grantee is
given an opportunity, together with counsel, to be heard before the Board),
finding that, in the good faith opinion of the Board, the Grantee is guilty of
the conduct described in subparagraph (i) or (ii) above, and specifying the
particulars thereof in detail.
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In the case of the Termination of Employment of the Grantee as a result of
a Special Severance but not in the case of the occurrence of the events
specified in clauses (a), (b), and (c) above, the Company may, in lieu of
issuing unlegended shares for the Restricted Stock which has vested, pay to the
Grantee cash in the amount of the Fair Market Value of such Restricted Stock on
the date on which it vests, which shall be the Grantee's final day as a
full-time employee of the Company.
In the case of a Special Severance effected by action of the Company, it
shall be a condition of the vesting of Restricted Stock that the Grantee have
executed and delivered to the Company a waiver in form and substance
satisfactory to the Company of all claims against the Company or any subsidiary
or Affiliate which the Grantee may have as a result of the termination of the
Grantee's employment by the Company.
8. If and when the Restriction Period expires as to any shares of
Restricted Stock awarded hereunder without a prior forfeiture of the Restricted
Stock, or if and when Restricted Stock vests pursuant to the provisions of
Section 7 hereof, unlegended certificates or other evidence of ownership of such
shares shall be delivered to the Grantee and the legended certificates which
previously represented such shares shall be delivered to the Company's Transfer
Agent for cancellation.
9. Except as otherwise provided in this Agreement or the 1999 Plan, the
Grantee shall have all rights of a stockholder with respect to the shares of
Restricted Stock awarded hereunder, including the right to vote such shares and
the right to receive any cash dividends which may be declared on the Company's
Common Stock. Dividends payable in Common Stock shall be paid in the form of
additional shares of Restricted Stock and shall be held subject to the same
Restriction Period and vesting provisions applicable to the shares of Restricted
Stock on which such dividends were paid.
10. No later than the date as of which an amount first becomes includable
in the gross income of the Grantee for federal income tax purposes with respect
to any Restricted Stock granted by this Agreement, the Grantee shall pay to the
Company, or make arrangements satisfactory to the Company regarding the payment
of, any federal, state, local, or foreign taxes of any kind required by law to
be withheld by the Company with respect to such amount. Unless otherwise
determined by the Committee, withholding obligations may be settled with Stock,
including shares of the Restricted Stock that gives rise to the withholding
requirement. The obligations of the Company under the 1999 Plan shall be
conditional on such payment or arrangements, and the Company, and its
subsidiaries and its Affiliates shall, to the extent permitted by law, have the
right to deduct any such taxes from any payment otherwise due to the Grantee.
11. The grant of Restricted Stock to the Grantee in any year shall give the
Grantee neither any right to similar grants in future years nor any right to be
retained in the employ of the Company or its subsidiaries or Affiliates, such
employment being terminable to the same extent as if the 1999 Plan and this
Agreement were not in effect. The right and power of the Company, its
subsidiaries and Affiliates to dismiss or discharge the Grantee is specifically
and unqualifiedly unimpaired by this Agreement.
12. Each notice relating to this Agreement shall be in writing and
delivered in person or by mail to the Company at its office, 00000 Xxxxxxx
Xxxxxxxxx, Xxxxxxxx
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Xxxxx, Xxxxxxxxxx 00000-0000, to the attention of the Company's Secretary or at
such other address as the Company may specify in writing to the Grantee by a
notice delivered in accordance with this paragraph. All notices to the Grantee
shall be delivered to the Grantee at the Grantee's address specified below or at
such other address as the Grantee may specify in writing to the Secretary of the
Company by a notice delivered in accordance with this paragraph.
13. This Agreement, including the provisions of the 1999 Plan incorporated
by reference herein, comprises the whole Agreement between the parties hereto
with respect to the subject matter hereof, and shall be governed by and
construed in accordance with the laws of the State of Delaware, without
reference to principles of conflicts of law. The Committee may amend the terms
of this Agreement at any time, prospectively or retroactively, but no such
amendment shall impair the rights of the Grantee without the Grantee's written
consent, except such an amendment made to cause this Agreement and the
Restricted Stock granted hereby to qualify for the exemption provided by Rule
16b-3. This Agreement shall become effective when it has been executed by the
Company and the Grantee.
14. This Agreement shall inure to the benefit of and be binding upon each
successor of the Company and, to the extent specifically provided herein and in
the 1999 Plan, shall inure to the benefit of and shall be binding upon the
Grantee's heirs, legal representatives, and successors.
IN WITNESS WHEREOF, this Agreement is executed by the Grantee and by the
Company through its duly authorized officer or officers as of the day and year
first above written.
UNOVA, INC.
By
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GRANTEE:
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Signature
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Address
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Social Security Number
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EXHIBIT A
STOCK POWER
FOR VALUE RECEIVED the undersigned does hereby sell, assign, and transfer unto
______________________, in accordance with that certain Restricted Stock
Agreement (the "Agreement") dated as of the date hereof, between the undersigned
and UNOVA, Inc., ______ shares of UNOVA, Inc. Common Stock awarded to the
undersigned under the Agreement and the UNOVA, Inc. 1999 Stock Incentive Plan
subject to the restrictions of the Agreement and does hereby irrevocably
constitute and appoint the Secretary of UNOVA, Inc. as Attorney to transfer the
said stock on the books of UNOVA, Inc., with full power of substitution in the
premises.
DATED: August 2, 1999
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Xxxxx X. Xxxxx
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