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EXHIBIT 10.24
XXXXXX INDUSTRIES, INC.
RESTRICTED STOCK AGREEMENT
THIS AGREEMENT is entered into as of February 15, 1999, by and between
Xxxxxx Industries, Inc., (the "Company"), and D. Xxxxxxx Xxxxxxx (the "Holder").
RECITALS:
WHEREAS, the Board of Directors of the Company (the "Board") has agreed
to provide for the grant to the Holder of treasury shares of the Company's
common stock, par value $1.00 per share ("Stock");
WHEREAS, such shares shall be subject to the terms and conditions set
forth below and shall be in the form of an award of restricted stock (the
"Restricted Stock Award") granted in connection with the acceptance of and
continued employment with the Company by the Holder; and
WHEREAS, in consideration of the Restricted Stock Award and other
benefits, the Holder is willing to accept the Restricted Stock Award provided in
this Agreement and is willing to abide by the obligations imposed on him under
this Agreement and the other responsibilities of his position;
NOW, THEREFORE, in consideration of the mutual benefits hereinafter
provided, and each intending to be legally bound, the Company and the Holder
hereby agree as follows:
1. EFFECT OF THE AGREEMENT.
The Restricted Stock Award shall be subject to the terms and
conditions set forth in this Agreement. The Holder shall abide by, and the
Restricted Stock Award shall be subject to, all of the provisions of this
Agreement.
2. GRANT.
The Company hereby grants to the Holder a total of 3,333 shares
of Stock (the "Restricted Stock"). This Restricted Stock Award is made as of
February 15, 1999 (the "Grant Date").
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3. VESTING OF RESTRICTED STOCK.
3.1 SERVICE REQUIREMENT.
Except as otherwise provided in this Agreement, all of the
Restricted Stock granted hereby shall be forfeited by the Holder upon the
termination of his Service (as defined below) at any time before the first
anniversary of the Grant Date. The Holder shall have no rights with respect to
any of the Restricted Stock that has been forfeited, including, without
limitation, any right to vote or to receive dividends, if any. Any or all of the
Restricted Stock may become free of this risk of forfeiture by "vesting" in
accordance of this Agreement. Except in the case of death, disability or a
Change of Control of Company, One Thousand One Hundred and Eleven (1,111) shares
of Restricted Stock shall vest on the first anniversary of the Grant Date and on
each of the next two anniversaries of the Grant Date provided that the Holder is
in Service of the Company on each such date. "Service" means the Holder's
employment with the Company or a subsidiary of the Company.
3.2 RESTRICTED PERIOD.
The period during which any particular portion of the Restricted
Stock is subject to forfeiture is the "Restricted Period." During the Restricted
Period and prior to the satisfaction of any other restrictions prescribed under
this Agreement, the Holder may not sell, transfer, assign, pledge or otherwise
encumber or dispose of such portion of the Restricted Stock.
3.3 DELIVERY OF STOCK AND PAYMENT THEREFOR.
With respect to the whole or any part of the Restricted Stock,
until the applicable Restricted Period expires the Holder will be provided with
a copy of the actual Restricted Stock certificate which will contain a
restrictive legend referencing this Agreement. Upon the expiration of each
Restricted Period, the restrictions applicable to such Restricted Stock shall
lapse, and a stock certificate representing a number of shares of Stock equal to
the number of shares of Restricted Stock for which the restrictions have lapsed
shall be delivered, free of all the restrictions, to the Holder or his
beneficiary or estate, as the case may be.
3.4 DEATH OR DISABILITY.
If the Holder dies before the end of the Restricted Period,
provided the Holder was in the Service of the Company at the time of his death,
the Restricted Stock shall fully vest on the date of death and shall be
deliverable pursuant to Section 3.3 above to the executors, administrators,
legatees or distributees of the Holder's estate. If the Holder's Service with
the Company is terminated by reason of the Holder's "permanent and total
disability" as determined under the Company's long-term disability plan, the
Restricted Stock shall fully vest on the date of the Holder's permanent and
total disability.
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3.5 VESTING IN THE EVENT OF A CHANGE IN CONTROL OF THE COMPANY.
Notwithstanding any other provision of the Agreement to the
contrary, in the event of a Change in Control any Restricted Stock outstanding
as of the date such Change in Control is determined to have occurred shall
become fully vested.
For purposes hereof, a "Change in Control" shall mean the
happening of any of the following events:
(i) An acquisition by any individual, entity or group (within
the meaning of Section 13(d)(3) or 14(d) of the Securities Exchange Act of 1934
as amended from time to time, and any successor thereto, [the "Exchange Act"])
(a "Person") of beneficial ownership (within the meaning of Rule 13d-3
promulgated under the Exchange Act) of 30% or more of either (1) the then
outstanding shares of common stock of Xxxxxx Industries, Inc. (the "Outstanding
Company Common Stock") or (2) the combined voting power of the then outstanding
voting securities of Xxxxxx Industries, Inc., entitled to vote generally in the
election of directors (the "Outstanding Company Voting Securities"); excluding,
however, the following acquisitions of Outstanding Company Common Stock and
Outstanding Company Voting Securities: (1) any acquisition directly from the
Corporation, (2) any acquisition by the Corporation, (3) any acquisition by any
employee benefit plan (or related trust) sponsored or maintained by the
Corporation or any corporation controlled by the Corporation or (4) any
acquisition by any Person pursuant to a transaction which complies with clauses
(1), (2) and (3) of subsection (iii) hereof; or
(ii) Individuals who, as of the date hereof constitute the Board
(the "Incumbent Board") cease for any reason to constitute at least a majority
of the Board; provided, however, that any individuals who becomes a member of
the Board subsequent to such effective date, whose election, or nomination for
election by the shareholders, was approved by a vote of at least a majority of
directors then comprising the Incumbent Board shall be considered as though such
individual were a member of the Incumbent Board; but, provided further, that any
such individual whose initial assumption of office occurs as a result of either
an actual or threatened election contest (as such terms are used in Rule 14a-11
of Regulation 14A promulgated under the Exchange Act) or other actual or
threatened solicitation of proxies or consents by or on behalf of a Person other
than the Board shall not be so considered as a member of the Incumbent Board; or
(iii) Consummation by Xxxxxx Industries, Inc., of a
reorganization, merger or consolidation or sale or other disposition of all or
substantially all of its assets ("Business Combination"); excluding, however,
such a Business Combination pursuant to which (1) all or substantially all of
the individuals and entities who are the beneficial owners, respectively, of the
Outstanding Company Common Stock and Outstanding Company Voting Securities
immediately prior to such Business Combination own, directly or indirectly, more
than 60% of, respectively, the outstanding shares of common stock, and
the combined voting power of the then outstanding voting securities entitled to
vote generally in the election of directors, as the case may be, of the
corporation resulting
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from such Business Combination (including, without limitation, a corporation
which as a result of such transaction owns Xxxxxx Industries, Inc., or all or
substantially all of its assets either directly or indirectly or through one or
more subsidiaries) in substantially the same proportions as their ownership,
immediately prior to such Business Combination, of the Outstanding Company
Common Stock and Outstanding Company Voting Securities, as the case may be, (2)
no person (other than any employee benefit plan (or related trust) sponsored or
maintained by the Corporation or such corporation resulting from such Business
Combination) will beneficially own, directly or indirectly, 30% or more of,
respectively, the outstanding shares of common stock of the corporation
resulting from such Business Combination or the combined voting power of the
outstanding voting securities of such corporation entitled to vote generally in
the election of directors except to the extent that such ownership existed with
respect to the Xxxxxx Industries, Inc., prior to the Business Combination and
(3) at least a majority of the members of the board of directors of the
corporation resulting from such Business Combination were members of the
Incumbent Board at the time of the execution of the initial agreement, or of the
action of the Board, providing for such Business Combination; or
(iv) The approval of the shareholders thereof of a complete
liquidation or dissolution of Xxxxxx Industries, Inc.
4. DIVIDEND AND VOTING RIGHTS.
Subject to the following provisions, the Holder shall have the
right to vote the Restricted Stock and to receive any dividends declared or paid
thereon. Any distributions received by the Holder as a result of any stock
split, stock dividend, combination of shares or other similar transaction shall
be deemed to be a part of the Restricted Stock and subject to the same
conditions and restrictions applicable thereto. Any dividends paid on the
Restricted Stock shall, unless otherwise determined by the Board, be payable in
cash but shall be subject to the same conditions and restrictions as the
Restricted Stock.
5. REORGANIZATION.
Restricted Stock will be subject to the same adjustment, if any,
accorded to all other outstanding shares of Stock in the event of (i) any change
in the total number of shares of Stock of the Company outstanding or the number
or kind of securities into which shares have been changed, (ii) any
reorganization or change in the Company's capital structure, or (iii) any other
transaction or event having an effect similar to the foregoing.
6. REQUIREMENTS OF LAW.
Notwithstanding any other provision of this Agreement, the
Company shall not be required to deliver any shares of Stock under this
Agreement if the delivery of the shares would constitute a violation by the
Holder or by the Company of any provision of any law or regulation of any
governmental authority, including, without
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limitation, any federal or state securities laws or regulations. Notwithstanding
any other provisions of this Agreement, if at any time the Company shall
determine, in its sole discretion, that the listing, registration or
qualification of any shares of Stock subject to this Agreement upon any
securities exchange or under any state or federal law, or the consent or
approval of any government regulatory body, is necessary or desirable as a
condition of, or in connection with, the deliver of shares of Stock hereunder,
the Restricted Stock shall not vest in whole or in part unless the listing,
registration, qualification, consent or approval has been effected or obtained
free of any conditions not acceptable to the Company. Specifically in connection
with the Securities Act of 1933 (as now in effect or as hereafter amended) (the
"Act"), unless a registration statement under the Act is in effect with respect
to the shares of Stock covered by this Agreement, the Company shall not be
required to deliver the shares of Stock unless the Company has received evidence
satisfactory to it that the Holder may acquire the shares of Stock pursuant to
an exemption from registration under the Act. These determinations by the
Company shall be final, binding and conclusive. Notwithstanding any other
provision of this Agreement, as to any jurisdiction that expressly imposes the
requirement that the Restricted Stock shall not vest unless and until registered
or subject to an available exemption from registration, the vesting of the
Restricted Stock (under circumstances in which the laws of the jurisdiction
apply) shall be deemed conditional upon the effectiveness of the registration or
the availability of the exemption.
7. TAXES; WITHHOLDING OF TAXES.
7.1 TAX CONSEQUENCES.
The Holder understands that the Holder (and not the Company)
shall be responsible for his own federal, state, local or foreign tax liability
that may arise as a result of the transactions contemplated by this Agreement.
The Holder is relying solely on the determination of his tax advisors and or his
own determinations, and not on any statements or representations of the Company
or any of its agents with regard to all such tax matters. The Holder understands
that Section 83 of the Internal Revenue Code of 1986, as amended (the "Code")
taxes as ordinary income the difference between the amount, if any, paid for the
Restricted Stock and the fair market value of the Restricted Stock as of the
date any restrictions thereon lapse. The Holder understands that he may elect to
be taxed at the time the shares of Stock are awarded rather than when the
Restricted Period terminates or expires by filing an election under Section
83(b) of the Code with the I.R.S. within 30 days from the Grant Date and
attaching a copy of such election to his 1999 tax return.
THE HOLDER ACKNOWLEDGES THAT IT IS THE HOLDER'S SOLE
RESPONSIBILITY AND NOT THE COMPANY'S TO FILE TIMELY THE ELECTION UNDER CODE
SECTION 83(b)
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7.2 WITHHOLDING.
The Company shall have the right to deduct from payments of any
kind otherwise due to the Holder any federal, state, or local taxes of any kind
required by law to be withheld with respect to the vesting of or other, lapse of
restrictions applicable to Restricted Stock. At the time of the vesting or
lapse, the Holder shall pay to the Company any amount that the Company may
reasonably determine to be necessary to satisfy the legal withholding
obligation. Subject to prior approval of the Company, the Holder may elect to
satisfy these obligations, in whole or in part, (i) by causing the Company to
withhold shares of Stock otherwise deliverable or (ii) by delivering to the
Company, shares of Stock already owned by the Holder. The shares of Stock so
delivered or withheld shall have a fair market value equal to the withholding
obligations. The fair market value of the shares of Stock used to satisfy the
withholding obligation shall be determined by the Company as of the date that
the amount of tax to be withheld is to be determined based on the average
between the high and low trading price for the Stock on such date. If the Holder
makes an election pursuant to this Section 7.2, he may satisfy his withholding
obligation only with shares of Stock that are not subject to any repurchase,
forfeiture, unfulfilled vesting or other similar requirements.
8. DISCLAIMER OF RIGHTS.
No provision in this Agreement shall be construed (i) to confer
upon the Holder the right to remain in the Service of the Company or any
subsidiary or affiliate of the Company or (ii) to interfere in any way with the
right and authority of the Company, either to increase or decrease the
compensation of the Holder at any time or to terminate any employment, service
or other relationship with the Holder.
9. INTERPRETATION OF THIS AGREEMENT.
All determinations, decisions and interpretations made by the
Board with regard to any questions or matter arising under this Agreement or the
Plan shall be final, binding and conclusive on the Company and the Holder.
10. GOVERNING LAW.
This Agreement is executed pursuant to and shall be governed by
the laws of Delaware (but not including the choice of any law rules thereof).
11. SEVERABILITY.
If any provision of this Agreement is determined to be illegal
or unenforceable by any court of law in any jurisdiction, the remaining
provisions shall be severable and enforceable in accordance with their terms,
and all provisions shall remain enforceable in any other jurisdiction.
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12. NO WAIVER.
The failure or delay of the Company (whether on one or more
occasions) to enforce any of the provisions of this Agreement or to exercise any
right or privilege hereunder (including, without limitation, any right arising
from a breach or default by the Holder) shall not be a waiver of the provision,
right or privilege, either as to the specific instance(s) of the failure or
delay of its enforcement or exercise or as to its future enforcement or
exercise.
13. ENTIRE AGREEMENT.
This Agreement and all determinations, decisions, actions and
interpretations of the Board pursuant hereto, constitutes the entire agreement
between the parties hereto with respect to the Restricted Stock Award, and it
supersedes all prior oral or written agreements, commitments or understandings.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed as of the date first above written.
XXXXXX INDUSTRIES, INC.
By: /s/ Xxxxxxxx X. Xxxxxx
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Xxxxxxxx X. Xxxxxx
Vice President and
Secretary
D. Xxxxxxx Xxxxxxx
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D. Xxxxxxx Xxxxxxx
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ELECTION TO INCLUDE VALUE OF RESTRICTED PROPERTY
IN GROSS INCOME IN YEAR OF TRANSFER
UNDER INTERNAL REVENUE CODE SECTION 83(b)
The undersigned hereby elects pursuant to Section 83(b) of the Internal
Revenue Code with respect to the property described below and supplies the
following information in accordance with the regulations promulgated thereunder:
1. THE NAME, ADDRESS AND TAXPAYER IDENTIFICATION NUMBER OF THE UNDERSIGNED
ARE:
2. DESCRIPTION OF PROPERTY WITH RESPECT TO WHICH THE ELECTION IS BEING
MADE:
_________ shares of Common Stock, par value $1 per share of Xxxxxx
Industries, Inc.
3. THE DATE ON WHICH PROPERTY WAS TRANSFERRED IS FEBRUARY___,1999.
The taxable year to which this election relates is calendar year 1999.
4. THE NATURE OF THE RESTRICTION(S) TO WHICH THE PROPERTY IS SUBJECT IS:
If, on or before ________, the employment of the taxpayer by Xxxxxx Industries,
Inc. terminates, other than by reason of taxpayer's death or disability, or a
change in control of Xxxxxx Industries, Inc., the taxpayer loses his entitlement
to the property.
The property is non-transferable in the taxpayer's hand, by virtue of
language to that effect in the applicable restricted stock agreement.
5. FAIR MARKET VALUE:
THE FAIR MARKET VALUE AT TIME OF TRANSFER (DETERMINED WITHOUT REGARD TO
ANY RESTRICTIONS OTHER THAN RESTRICTIONS WHICH BY THEIR TERMS WILL NEVER
LAPSE) OF THE PROPERTY WITH RESPECT TO WHICH THIS ELECTION IS BEING MADE
IS $________PER SHARE.
6. AMOUNT PAID FOR PROPERTY:
The amount paid by taxpayer for the property is zero.
7. FURNISHING STATEMENT TO EMPLOYER:
A copy of this statement has been furnished to Xxxxxx Industries, Inc.
Dated: ,1999
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