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EXHIBIT 10(k)
RESTRICTED STOCK AGREEMENT
THIS AGREEMENT entered into as of this 14th day of August, 2001 (the
"Award Date") by and between XXXXXXX COMPANY, a Michigan corporation (the
"Company"), and XXXXXXX X. XXXXXXX (the "Executive").
WITNESSETH THAT:
WHEREAS, the Executive has performed exemplary services for the Company
during the current fiscal year resulting in a significant contribution to
shareholder value; and
WHEREAS, based upon the recommendation of the Compensation Committee, the
Board of Directors of the Company has agreed to award the Executive shares
of common stock of the Company, $.10 par value ("Common Stock"), subject to the
restrictions and provisions of this Agreement as a reward to Executive for his
services during fiscal 2001.
NOW, THEREFORE, the parties hereto agree as follows:
1. Grant. Subject to the terms of this Agreement, the Executive is hereby
awarded 12,000 shares of Common Stock ("Restricted Stock").
2. Vesting. Except as provided in Section 3 below, the Restricted Stock
awarded hereunder shall be permanently forfeited if the Executive's date of
termination of employment occurs prior to the second anniversary date of
this Agreement (the "Restricted Period").
3. Accelerated Vesting. Notwithstanding Section 2 above, if the Executive's
Date of Termination occurs because of death, Disability, involuntary
termination by the Company without Cause or voluntary termination by the
Executive for Good Reason, or in the event of a Change in Control of the
Company (as this is defined in the Xxxxxxx Company Incentive Stock Option
Plan in effect on the date to this Agreement), the Restricted Period and
the restrictions imposed hereunder shall end with respect to all of the
shares of Restricted Stock awarded hereunder.
4. Terms and Conditions of Restricted Stock. The Restricted Stock granted
under this Agreement shall be subject to the following additional terms and
conditions:
(i) Shares of Restricted Stock may not be sold, assigned, pledged or
otherwise encumbered prior to the end of the Restricted Period.
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(ii) Except as otherwise provided in this Agreement, the Executive
shall have all of the rights of a stockholder, including, but not
limited to, the right to vote such shares and the right to
receive dividends paid on such shares.
(iii) Each certificate issued with respect to the Restricted Stock
granted under Section 1 shall be registered in the name of the
Executive and shall bear the following legend:
"The transferability of this certificate and the shares of
stock represented hereby are subject to the terms and
conditions, including forfeiture, of an agreement entered
into between the registered owner and Xxxxxxx Company. A
copy of such agreement is on file in the office of the
Secretary of Xxxxxxx Company, 000 Xxxxxxx Xxxxxx, Xxxxxxx,
Xxxxxxxx 00000."
(iv) The Company may require a written statement that the Executive is
acquiring the shares of Restricted Stock for investment and not
for the purpose or with the intention of distributing the shares,
except for a sale to a purchaser who makes the same
representation in writing, and that the holder of the shares of
Restricted Stock, either before or after the end of the
Restricted Period, will not dispose of them in violation of the
registration requirements of the Securities Act of 1933 or any
other applicable law.
5. Adjustment to Shares. In the event of any stock dividend, stock split,
recapitalization or other change affecting the Common Stock as a class
without receipt of consideration, then any new, substituted or additional
securities or other property (including money paid other than as a regular
cash dividend), which is by reason of any such transaction distributed to
the Executive with respect to the shares of Restricted Stock, shall be
immediately subject to a similar Restricted Period. Appropriate adjustments
to reflect the distribution of such securities or property shall also be
made to the number of shares of Restricted Stock.
6. Withholding. This award is subject to the withholding of all applicable
taxes. The Company may withhold, or permit the Executive to remit to the
Company, any Federal, state or local taxes applicable to the grant, vesting
or other event giving rise to tax liability with respect to this award. The
Executive may elect to surrender previously acquired Common Stock or to
have the Company withhold Common Stock relating to this award in an amount
sufficient to satisfy all or a portion of such tax liability.
7. Compliance with Applicable Law. Notwithstanding any other provision of this
Agreement, the Company shall have no obligation to issue any shares of
Restricted Stock or Common Stock under this Agreement if such issuance
would
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violate any applicable law or any applicable regulation or requirement of
any securities exchange or similar entity.
8. Successors and Assigns. This Agreement shall be binding upon any or all
successors and assigns of the Company.
9. Definitions. The following terms shall have the meaning ascribed to such
terms below:
(i) Cause. A termination for "Cause" means in the reasonable judgment
of the Board of Directors of the Company (i) gross negligence or
willful and continued failure by the Executive to substantially
perform his duties as an employee of the Company (other than any
such failure resulting from incapacity due to physical or mental
illness), (ii) willful misconduct by the Executive which is
demonstrably and materially injurious to the company, monetarily
or otherwise, (iii) the engaging by the Executive in egregious
misconduct involving serious moral turpitude to the extent that
his credibility and reputation no longer conforms to the standard
of senior executives of the company, or (iv) the commission by
the Executive of a material act of dishonesty or breach of trust
resulting or intending to result in personal benefit or
enrichment to the Executive at the expense of the Company. For
purposes of this provision, no act or failure to act shall be
deemed "willful" unless done or omitted to be done not in good
faith and without reasonable belief that such action or omission
was in the best interest of the Company.
(ii) Disability means that (i) the Executive is eligible for
disability benefits under the Company's long-term disability
plan, or (ii) he has a physical or mental disability which
renders him incapable, after reasonable accommodation, of
performing substantially all of his duties hereunder for a period
of 180 days (which need not be consecutive) in any 12-month
period. In the event of a dispute as to whether the Executive is
Disabled, the Company may, at its expense, refer him to a
licensed practicing physician of the Company's choice and the
Executive agrees to submit to such tests and examination as such
physician shall deem appropriate. The determination of such
physician shall be final and binding on the Company and
Executive.
(iii) Good Reason. A termination for "Good Reason" means, without the
Executive's consent, (i) assigning duties to the Executive that
are inconsistent in any substantial respect with the position,
authority, or responsibilities associated with the office of
Executive Vice President and Chief Financial Officer, (ii) the
failure by the Company to pay the Executive any portion of his
current compensation within ten (10) business days of the date
such compensation is due, (iii) the failure by the Company to
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continue any incentive compensation plan in which the Executive
participates which is material to his compensation, unless an
equitable substitute plan or alternative plan is made available
to the Executive, and (iv) the failure by the Company to obtain a
satisfactory agreement from any successor to the business of the
Company to assume and agree to perform this Agreement. In the
case of clause (iv) next above, notice of termination for Good
Reason shall be given, if at all, within 30 days following the
occurrence of the event giving rise to the right to terminate for
Good Reason.
10. Applicable Law. This Agreement shall be governed by and construed and
enforced in accordance with the internal laws of the state of Michigan
without regard to principals of conflict of laws.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed effective as of the day and year first above written.
XXXXXXX COMPANY
By
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Xxxxxxx X. Xxxxxxxxx
Its: Chairman of the Board
ATTEST:
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Xxxx X. Xxxxxxx, Secretary
EXECUTIVE
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Xxxxxxx X. Xxxxxxx
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