EXHIBIT (10)(p)
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XXXXXXXX, INC.
RESTRICTED STOCK AWARD AGREEMENT
FOR KEY EMPLOYEES
UNDER THE 2005 LONG-TERM INCENTIVE PLAN
Xxxxxxxx, Inc., a Delaware corporation (the "Company"), hereby grants
to ________________ (the "Holder") as of ____________ (the "Grant Date"),
pursuant to the provisions of the Xxxxxxxx, Inc. 2005 Long-Term Incentive
Plan (the "Plan"), a restricted stock award (the "Award") of _____ shares
of the Company's Common Stock, $.10 par value ("Shares"), upon and subject
to the restrictions, terms and conditions set forth below. Capitalized
terms not defined herein shall have the meanings specified in the Plan.
1. AWARD SUBJECT TO ACCEPTANCE OF AGREEMENT. The Award shall be
null and void unless the Holder shall (a) accept this Agreement by
executing it in the space provided below and returning it to the Company
and (b) if requested by the Company, execute and return one or more
irrevocable stock powers to facilitate the transfer to the Company (or its
assignee or nominee) of the Shares subject to the Award if Shares are
forfeited pursuant to Section 4 hereof or if required under applicable laws
or regulations. As soon as practicable after the Holder has executed this
Agreement and, if requested by the Company, such stock power or powers, and
returned the same to the Company, the Company shall cause to be issued in
the Holder's name the total number of Shares subject to the Award.
2. RIGHTS AS A STOCKHOLDER. The Holder shall have the right to
vote the Shares subject to the Award and to receive dividends and other
distributions thereon unless and until such Shares are forfeited pursuant
to Section 4(c) hereof; provided, however, that a dividend or other
distribution with respect to such Shares (including, without limitation, a
stock dividend or stock split), other than a regular cash dividend, shall
be subject to the same restrictions as the Shares with respect to which
such dividend or other distribution was made (and if the Holder shall have
received such dividend or other distribution, the Holder shall deliver the
same to the Company and shall, if requested by the Company, execute and
return one or more irrevocable stock powers related thereto).
3. CUSTODY AND DELIVERY OF CERTIFICATES REPRESENTING SHARES. The
Shares subject to the Award shall be held by the Company or by a custodian
in book entry form, with restrictions on the Shares duly noted, until such
Award shall have vested pursuant to Section 4 hereof, and as soon
thereafter as practicable, the vested Shares shall be delivered to the
Holder as the Holder shall direct. Alternatively, in the sole discretion
of the Company, the Company shall hold a certificate or certificates
representing the Shares subject to the Award until such Award shall have
vested, in whole or in part, pursuant to Section 4 hereof, and the Company
shall as soon thereafter as practicable, deliver the certificate or
certificates for the vested Shares to the Holder and destroy the stock
power or powers relating to the vested Shares delivered by the Holder
pursuant to Section 1 hereof. If such stock power or powers also relate to
unvested Shares, the Company may require, as a condition precedent to
delivery of any certificate pursuant to this Section 3, the execution and
delivery to the Company of one or more stock powers relating to such
unvested Shares.
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4. VESTING.
(a) Subject to earlier vesting pursuant to Section 4(b) hereof or
in accordance with Section 6.8 of the Plan, the Award shall vest with
respect to _____ Shares on each of the first and second anniversaries of
the Grant Date and with respect to _____ Shares on the third anniversary of
the Grant Date.
(b) If the Holder ceases to be employed by the Company by reason of
Disability, by reason of retirement on or after age 65 (or prior to age 65
with the consent of the Committee), or by reason of the Holder's death,
each Share subject to the Award shall vest in full as of the date that the
Holder ceases to be employed by the Company or the date of death, as the
case may be.
(c) If the Holder ceases to be employed by the Company for any
reason other than Disability, retirement on or after age 65 (or prior to
age 65 with the consent of the Committee), or death, termination by the
Company without "Cause", or by the Holder for "Good Reason" (as such terms
are defined in the Holder's Employment Agreement with the Company) or
termination following a "Change in Control" (as defined in the Xxxxxxxx,
Inc. Executive Special Severance Plan) each Share subject to the Award
which has not vested prior thereto shall be forfeited by the Holder and
shall be transferred, without payment of any consideration to the Holder,
to the Company (or its assignee or nominee) and all rights of the Holder to
or with respect to such Share shall terminate; provided, however, that the
Committee may, in its discretion, accelerate the vesting thereof.
5. Additional Terms and Conditions of Award.
5.1. NONTRANSFERABILITY OF AWARD. Prior to the vesting of the
Shares subject to the Award, such Shares may not be transferred by the
Holder other than by will, the laws of descent and distribution or pursuant
to beneficiary designation procedures approved by the Company. Except to
the extent permitted by the foregoing, such unvested Shares may not be
sold, transferred, assigned, pledged, hypothecated, encumbered or otherwise
disposed of (whether by operation of law or otherwise) or be subject to
execution, attachment or similar process. Upon any attempt to so sell,
transfer, assign, pledge, hypothecate or encumber or otherwise dispose of
such Shares, the Award and all rights thereunder shall immediately become
null and void.
5.2. INVESTMENT REPRESENTATION. The Holder hereby represents and
covenants that (a) any Shares acquired upon the vesting of the Award will
be acquired for investment and not with a view to the distribution thereof
within the meaning of the Securities Act of 1933, as amended (the
"Securities Act"), unless such acquisition has been registered under the
Securities Act and any applicable state securities law; (b) any subsequent
sale of any such Shares shall be made either pursuant to an effective
registration statement under the Securities Act and any applicable state
securities laws, or pursuant to an exemption from registration under the
Securities Act and such state securities laws; and (c) if requested by the
Company, the Holder shall submit a written statement, in form satisfactory
to the Company, to the effect that such representation (x) is true and
correct as of the date of acquisition of any Shares hereunder or (y) is
true and correct as of the date of any sale of any such Shares, as
applicable. As a further condition precedent to the delivery to the Holder
of any Shares subject to the Award, the Holder shall comply with all
regulations and requirements of any regulatory authority having control of
or supervision over the issuance of the Shares and, in connection
therewith, shall execute any documents which the Board or the Committee
shall in its sole discretion deem necessary or advisable.
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5.3. COMPLIANCE WITH APPLICABLE LAW. The Award is subject to the
condition that if the listing, registration or qualification of the Shares
subject to the Award upon any securities exchange or under any law, or the
consent or approval of any governmental body, or the taking of any other
action is necessary or desirable as a condition of, or in connection with,
the vesting or delivery of such Shares, the Shares subject to the Award
shall not vest or be delivered, in whole or in part, unless such listing,
registration, qualification, consent, approval or other action shall have
been effected or obtained, free of any conditions not acceptable to the
Company. The Company agrees to use reasonable efforts to effect or obtain
any such listing, registration, qualification, consent, approval or other
action.
5.4. DELIVERY OF CERTIFICATES. Upon the vesting of the Award, in
whole or in part, the Company shall deliver or cause to be delivered one or
more certificates representing the number of vested Shares. The Company
shall pay all original issue or transfer taxes and all fees and expenses
incident to such delivery.
5.5. AWARD CONFERS NO RIGHTS TO CONTINUED BOARD MEMBERSHIP. In no
event shall the granting of the Award or its acceptance by the Holder give
or be deemed to give the Holder any right to continue as a member of the
Board.
5.6. DECISIONS OF BOARD OR COMMITTEE. The Board or the Committee
shall have the right to resolve all questions which may arise in connection
with the Award. Any interpretation, determination or other action made or
taken by the Board or the Committee regarding the Plan or this Agreement
shall be final, binding and conclusive.
5.7. AGREEMENT SUBJECT TO THE PLAN. This Agreement is subject to
the provisions of the Plan and shall be interpreted in accordance
therewith. The Holder hereby acknowledges receipt of a copy of the Plan.
6. Miscellaneous Provisions.
6.1. SUCCESSORS. This Agreement shall be binding upon and inure to
the benefit of any successor or successors of the Company and any person or
persons who shall, upon the death of the Holder, acquire any rights
hereunder in accordance with this Agreement or the Plan.
6.2. NOTICES. All notices, requests or other communications
provided for in this Agreement shall be made, if to the Company, to
Xxxxxxxx, Inc., 0 Xxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxx 00000, Attention: Vice
President, Treasurer, Secretary and Chief Financial Officer, and if to the
Holder, to the last known mailing address of the Holder contained in the
records of the Company. All notices, requests or other communications
provided for in this Agreement shall be made in writing either (a) by
personal delivery, (b) by facsimile with confirmation of receipt, (c) by
mailing in the United States mails or (d) by express courier service. The
notice, request or other communication shall be deemed to be received upon
personal delivery, upon confirmation of receipt of facsimile transmission,
or upon receipt by the party entitled thereto if by United States mail or
express courier service; provided, however, that if a notice, request or
other communication is not received during regular business hours, it shall
be deemed to be received on the next succeeding business day of the
Company.
6.3. GOVERNING LAW. This Agreement, the Award and all
determinations made and actions taken pursuant hereto and thereto, to the
extent not otherwise governed by the laws of the United States, shall be
governed by the laws of the State of Delaware and construed in accordance
therewith without giving effect to conflicts of laws principles.
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6.4. COUNTERPARTS. This Agreement may be executed in two
counterparts each of which shall be deemed an original and both of which
together shall constitute one and the same instrument.
XXXXXXXX, INC.
By:
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Name:
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Title:
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ACKNOWLEDGMENT, ACCEPTANCE AND AGREEMENT:
By signing below and returning this Agreement to Xxxxxxxx, Inc., Inc. at
the address stated herein, I hereby acknowledge receipt of the Agreement
and the Plan, accept the Award granted to me and agree to be bound by the
terms and conditions of this Agreement and the Plan.
____________________________________
Holder
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