REYNOLDS AMERICAN INC. LONG-TERM INCENTIVE PLAN RESTRICTED STOCK AGREEMENT DATE OF GRANT: MARCH 6, 2007
Exhibit 10.12
XXXXXXXX AMERICAN INC.
LONG-TERM INCENTIVE PLAN
LONG-TERM INCENTIVE PLAN
DATE OF GRANT: MARCH 6, 2007
W I T N
E S S E T H:
1. Grant of Restricted Stock. Pursuant to the provisions of the Long-Term Incentive
Plan (the “Plan”), Xxxxxxxx American Inc. (the “Company”) on the above date has granted, and this
Restricted Stock Agreement (this “Agreement”) evidences the grant, to
Xxxxxxx X. Xxxxxxx (the “Grantee”)
subject to the terms and conditions which follow and the terms and conditions of the Plan, of a
total of
9,151 shares
of Common Stock of the Company (“Common Stock”). A copy of the Plan has been provided to the
Grantee and is made a part of this Agreement with the same effect as if set forth in the Agreement
itself. All capitalized terms used in this Agreement below shall have the meaning set forth in the
Plan, unless otherwise indicated.
2. Receipt and Delivery of Stock. The Grantee waives receipt from the Company of a
certificate or certificates representing the shares of Common Stock granted hereunder, registered
in the Grantee’s name and bearing a legend evidencing the restrictions imposed on such shares of
Common Stock by this Agreement. The Grantee acknowledges and agrees that the Company shall retain
custody of such certificate or certificates until the restrictions imposed by Section 3 of this
Agreement on the shares of Common Stock granted hereunder lapse. The Grantee acknowledges and
agrees that, alternatively, the shares of Common Stock granted hereunder may be maintained in
book-entry form with instructions from the Company to the Company’s transfer agent that such shares
shall remain restricted until the restrictions imposed by Section 3 of this Agreement on such
shares lapse.
3. Restrictions on Transfer of Stock. (a) The shares of Common Stock
granted
hereunder may not be sold, tendered, assigned, transferred, pledged or otherwise encumbered until
the restrictions lapse. Restrictions will lapse on 100% of the shares at the earliest of:
| (i) | March 6, 2010; | ||
| (ii) | the date of the Grantee’s death; | ||
| (iii) | the date of the Grantee’s Permanent Disability (as defined in the Company’s Long-Term Disability Plan); or | ||
| (iv) | the date of the Grantee’s voluntary Termination of Employment, including retirement; or | ||
| (v) | the date of the Grantee’s involuntary Termination of Employment without cause (as such terms are defined in Section 5 of the Agreement), including his retirement; or | ||
| (vi) | the date of a Change of Control (as defined in the Plan). |
(b) Notwithstanding anything to the contrary contained in this Section 3 or in any other
Section of this Agreement, if the Grantee has a written employment or severance agreement with the
Company or one of its subsidiaries, and such other agreement contains provisions relating to the
lapsing of the restrictions imposed by this Section 3 on the shares of Common Stock granted
hereunder (including, without limitation, provisions relating to the termination of the employment
of the Grantee), and such provisions are different than the comparable provisions of this
Agreement, then the provisions of such other agreement shall govern.
(c) At the time the restrictions imposed by this Section 3 shall lapse, the appropriate number
of shares of Common Stock shall be delivered to the Grantee without a restrictive legend on any
Common Stock certificate, or, if such shares are held in book-entry form, the Company’s transfer
agent shall be instructed to remove the restrictions on such shares.
4. Forfeiture of Stock. (a) For the shares of Common Stock granted
hereunder
to vest, the Company must pay to its shareholders a dividend of at least $.75 per share in each
fiscal quarter during the period commencing on the Date of Grant and ending on December 31, 2009
(the “Threshold Requirement”), unless the Company’s Board of Directors specifically approves the
nonforfeiture of such shares upon the declaration of a quarterly dividend of less than $.75 per
share. In the event the Company fails to pay to its shareholders a dividend of at least $.75 per
share in any fiscal quarter during the period from the Date of Grant and ending on December 31,
2009, and the Company’s Board of Directors does not approve the nonforfeiture of the shares of
Common Stock granted hereunder, the Grantee shall forfeit all right, title and interest in and to
the
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shares of Common Stock still subject to the restrictions set forth in Section 3 of this Agreement
and to any dividends to be paid thereafter on such shares.
(b) Upon the Grantee’s Termination
of Employment for Cause (as such terms are defined in Section 5 of this Agreement), the Grantee
shall forfeit all right, title and interest in and to the shares of Common Stock still subject to
the restrictions set forth in Section 3 of this Agreement and to any dividends to be paid
thereafter on such shares.
(c) Any shares of Common Stock granted hereunder and subsequently
forfeited shall revert to the Company and shall not become transferable by the Grantee or anyone
claiming through the Grantee. The Compensation Committee of the Company’s Board of Directors (the
“Compensation Committee”) or its agent shall act promptly to record forfeitures pursuant to this
Section 4 on the stock transfer books of the Company.
5. Termination of Employment. (a) For purposes of this Agreement, the
term
“Termination of Employment” shall mean termination from active employment with the Company or a
subsidiary of the Company; it does not mean the termination of pay and benefits at the end of a
period of salary continuation (or other form of severance pay or pay in lieu of salary).
(b) For purposes of this Agreement, if the Grantee has an employment or
severance agreement or is covered under a severance plan of the Company or one of its subsidiaries,
employment shall be deemed to have been terminated for “Cause” only as such term is defined in such
employment or severance agreement or such severance plan. For purposes of this Agreement, if the
Grantee does not have an employment or severance agreement that defines the term “Cause,” the
Grantee’s employment shall be deemed to have been terminated for “Cause” if the Termination of
Employment results from the Grantee’s: (i) criminal conduct; (ii) deliberate and continual refusal
to perform employment duties on substantially a full time basis; (iii) deliberate and continual
refusal to act in accordance with any specific lawful instructions of an authorized officer or
employee more senior than the Grantee or a majority of Board of Directors of the Company; or (iv)
deliberate misconduct which could be materially damaging to the Company or any of its business
operations without a reasonable good faith belief by the Grantee that such conduct was in the best
interests of the Company. A Termination of Employment shall not be deemed for Cause hereunder
unless the chief human resources executive of the Company shall confirm that any such Termination
of Employment is for Cause; provided, however, that the chief executive officer of
the Company shall be required to confirm that a Termination of Employment of the chief human
resources officer of the Company is for Cause. Any voluntary Termination of Employment by the
Grantee in anticipation of an involuntary Termination of Employment for Cause shall be deemed to be
a Termination of Employment for Cause.
6. Dividends. If the Grantee is a shareholder of record on any
applicable
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record date, the Grantee shall receive any dividends on the shares of Common Stock granted
hereunder when paid regardless of whether the restrictions imposed by Section 3 of this Agreement
have lapsed.
7. Voting. If the Grantee is a shareholder of record on any applicable
record
date, the Grantee shall have the right to vote the shares of Common Stock granted hereunder,
regardless of whether the restrictions imposed by Section 3 of this Agreement have lapsed.
8. No Right to Employment. The execution and delivery of this Agreement
and the granting of shares of Common Stock hereunder shall not constitute or be evidence of any
agreement or understanding, express or implied, on the part of the Company or its subsidiaries to
employ the Grantee for any specific period or in any particular capacity and shall not prevent the
Company or its subsidiaries from terminating the Grantee’s employment at any time with or without
Cause.
9. Registration. The shares of Common Stock granted hereunder may be
offered and sold by the Grantee only if such shares are registered for resale under the Securities
Act of 1933 (the “1933 Act”), as amended, or if an exemption from registration under such Act is
available. The Company has no obligation to effect such registration. By executing this
Agreement, the Grantee (a) agrees not to offer or sell the shares of Common Stock granted hereunder
unless and until such shares are registered for resale under the 1933 Act or an exemption from
registration is available, (b) represents that the Grantee accepts such shares of Common Stock for
his own account for investment and not with a view to, or for sale in connection with, the
distribution of any part thereof and (c) agrees that the Grantee or the Grantee’s beneficiary, on
request, will be obligated to repeat these representations in writing prior to any future delivery
of such shares of Common Stock.
10. Change in Common Stock or Corporate Structure. In the event of any
stock
split, spin-off, stock dividend, extraordinary cash dividend, stock combination or
reclassification, recapitalization or merger, Change of Control, or similar event, the Compensation
Committee shall make an appropriate adjustment to the number or kind of shares or other
consideration covered by this Agreement and to the level of dividends required under Section 4(a)
of this Agreement, and such other revisions to this Agreement as it deems are equitably required.
Any adjustment or revision made by the Compensation Committee shall be final and binding on the
Grantee, the Company and all other interested persons; provided, however, that the
Compensation Committee may not make any such adjustments or revisions that are adverse to the
Grantee without the Grantee’s written consent.
11. Application of Laws. The granting of shares of Common Stock
hereunder
shall be subject to all applicable laws, rules and regulations and to such approvals of any
governmental agencies as may be required.
12. Taxes. Any taxes required by federal, state or local laws to be
withheld by
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the Company on the Date of Grant or the delivery of unrestricted shares of Common Stock hereunder
shall be paid to the Company by the Grantee by the time such taxes are required to be paid or
deposited by the Company. The Grantee hereby authorizes the Company to deduct a sufficient number
of shares of Common Stock (rounded up to the nearest whole share) to satisfy the minimum tax
withholding amount prior to the delivery of unrestricted shares of Common Stock.
13. Notices. Any notices required to be given hereunder to the Company
shall
be addressed to The Secretary, Xxxxxxxx American Inc., Xxxx Xxxxxx Xxx 0000, Xxxxxxx-Xxxxx, XX
00000-0000, and any notice required to be given hereunder to the Grantee shall be sent to the
Grantee’s address as shown on the records of the Company.
14. Administration and Interpretation. In consideration of the grant,
the
Grantee specifically agrees that the Compensation Committee shall have the exclusive power to
interpret the Plan and this Agreement and to adopt such rules for the administration,
interpretation and application of the Plan and Agreement as are consistent therewith and to
interpret or revoke any such rules. All actions taken and all interpretations and determinations
made by the Compensation Committee shall be final, conclusive, and binding upon the Grantee, the
Company and all other interested persons. No member of the Compensation Committee shall be
personally liable for any action, determination or interpretation made in good faith with respect
to the Plan or the Agreement. The Compensation Committee may delegate its interpretive authority
to an officer or officers of the Company.
15. Amendment. This Agreement is subject to the Plan, a copy of which
has
been provided. The Board of Directors may amend the Plan and the Compensation Committee may amend
this Agreement at any time and in any way, except that any amendment of the Plan or this Agreement
that would impair the Grantee’s rights under this Agreement may not be made without the Grantee’s
written consent.
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16. GOVERNING LAW. THE LAWS OF THE STATE OF NORTH
CAROLINA SHALL GOVERN THE INTERPRETATION, VALIDITY AND PERFORMANCE OF THE TERMS OF THIS AGREEMENT,
REGARDLESS OF THE LAW THAT MIGHT BE APPLIED UNDER PRINCIPLES OF CONFLICTS OF LAWS.
IN WITNESS WHEREOF, the Company, by its duly authorized officer, and the Grantee have executed
this agreement as of the Date of Grant first above written.
| XXXXXXXX AMERICAN INC. |
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| By: | /s/ Xxxx X. Xxxxxxxx | |||
| Authorized Signature | ||||
/s/
Xxxxxxx X. Xxxxxxx |
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Grantee’s Taxpayer Identification Number: |
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Grantee’s Home Address: |
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