INCENTIVE PROGRAM RECOUPMENT AGREEMENT
Exhibit
10b (xxv)
X.X.
XXXXXXXX, INC.
This Incentive
Program Recoupment Agreement (this “Agreement”) is entered into as of
_____________ between X.X. Xxxxxxxx, Inc., an Illinois corporation (the
“Company”) and the undersigned Company executive (the “Executive”).
Subject to the
Executive’s acceptance of the terms and conditions of this Agreement and the
entry into an Unfair Competition Agreement concurrent herewith (the “Unfair
Competition Agreement”), Executive will be eligible for participation in the
2010 management incentive program or any program paid on the same basis such as
a covered employee benefit program (collectively “Covered Programs”) as set
forth in either the Summary Description of the 2010 Company Management Incentive
Program (the “Summary Description”) or the Covered Employee Annual Incentive
Award Section of the 2005 Incentive Plan (the “Annual Incentive Award
Section”). In turn, the Executive desires to enter into this
Agreement and the Unfair Competition Agreement and participate in the Covered
Programs all on the terms and conditions set forth in this Agreement and the
Unfair Competition Agreement and subject to the Summary Description or Annual
Incentive Award Section.
NOW, THEREFORE, in
consideration of the mutual promises set forth below and in the Unfair
Competition Agreement, the parties hereto agree as follows:
|
1.
|
General. The
Covered Programs are based on the Company’s achievement of certain
established targets as set forth in the Summary Description or the Annual
Incentive Award Section. Any payout made pursuant to the
Covered Programs are subject to terms and conditions as set forth on an
annual basis. Participation in the Covered Programs do not
guarantee a payout to the
Executive.
|
|
2.
|
Recoupment
of Incentive-based Compensation.
|
|
a.
|
If the Board
of Directors determines that the Executive has committed fraud against the
Company or has been engaged in any criminal conduct that involves or is
related to the Company and such Executive is entitled to receive
performance shares, stock options, restricted stock units or cash
incentive compensation (“Incentive Compensation”) then the Company shall
recover from the Executive such Incentive Compensation, in whole or in
part, for any period of time, as it deems appropriate under the
circumstances. The Board shall have sole discretion in
determining whether the Executive’s conduct was in compliance with the law
or Company policy and the extent to which the Company will seek recovery
of the Incentive Compensation notwithstanding any other remedies available
to the Company.
|
1
|
b.
|
In the event
of a restatement of materially inaccurate financial results, the Board has
the discretion to recover cash incentive payments or the settlement of
performance shares (“Incentive Payments”) that were paid or settled to the
Executive during the period covered by the restatement as set forth
herein. If the payment or settlement of Incentive Payments
would have been lower had the achievement of applicable financial
performance goals been calculated based on such restated financial
results, the Board may, if it determines appropriate in its sole
discretion, recover the portion of the paid or settled Incentive Payments
in excess of the payment or settlement that would have been made based on
the restated financial results. The Company will not seek to
recover Incentive Payments received or settled more than three years after
the date of the initial filing that contained the incorrect financial
results.
|
|
3.
|
Governing Law;
Jurisdiction. This Agreement shall be governed by and
construed in accordance with the laws of the State of Illinois. Any action
arising under or relating to this Agreement may be taken in a court of
appropriate jurisdiction, either state or federal, situated in Xxxx
County, Illinois. Each party hereby consents to the
jurisdiction of any court before which the action has been brought in
accordance with this Section and will accept service of process by any
method permitted by the rules of, or applicable to, such court, whether or
not such party then resides within such court’s
jurisdiction.
|
IN
WITNESS WHEREOF, the Company has caused this Incentive Program Recoupment
Agreement to be executed by a duly authorized Officer of the Company and the
Executive hereby agrees to all the terms and conditions set forth
above.
X.X.
XXXXXXXX, INC.
By:____________________________________
Xxxxx X. Xxxx
Chairman, President and Chief Executive
Officer
_____________________________________
Executive
(Signature)
_____________________________________
Executive (Print
Name)
_____________________________________
Date
2
