EXHIBIT 99.1
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XXXXXXXXX INTERNATIONAL INC.
DEFERRED STOCK UNIT AGREEMENT
THIS AGREEMENT is made as of the ___ day of __________ (the "Grant
Date") between XXXXXXXXX INTERNATIONAL INC., a Delaware corporation (the
"Company"), and ______________ (the "Participant").
WITNESSETH:
WHEREAS, the Compensation Committee of the Board of Directors of the
Company (the "Committee") has granted the Participant a Deferred Stock Unit
Award under the Company's 1999 Stock Incentive Plan (the "Plan").
NOW THEREFORE, the parties hereto agree as follows:
1. GRANT. The Company hereby grants to the Participant _________
Deferred Stock Units. Each "Deferred Stock Unit" shall entitle the Participant
to one share ("Share") of the Company's Class A Common Stock, par value $0.01
per share, on the vesting date, subject to the terms of the Plan and this
Agreement. Unless the context clearly provides otherwise, the capitalized terms
in this Agreement shall have the meaning ascribed to such terms under the Plan.
2. VESTING; TERMINATION OF EMPLOYMENT. The Deferred Stock Units
awarded under this Agreement shall vest and become nonforfeitable in accordance
with the following:
(a) Subject to the following provisions of this Section 2, the
Deferred Stock Units shall vest and become nonforfeitable with
respect to 25% of the Deferred Stock Units awarded hereunder
on each of the first, second, third and fourth anniversaries
of the Grant Date, unless forfeited earlier under paragraph
(e) below.
(b) If the Participant's termination of employment occurs by
reason of death or permanent disability, any Deferred Stock
Units which have not yet vested shall vest and become
nonforfeitable on the date of such death or disability.
(c) If the Participant's termination of employment occurs by
reason of retirement from the Company or one of its
subsidiaries at or after attaining the age of 59 1/2 and after
having served as an employee of the Company and/or one of its
subsidiaries for at least five continuous years, any Deferred
Stock Units which have not yet vested shall vest and become
nonforfeitable on such termination of employment.
(d) Unless forfeited earlier under paragraph (e) below, the
Deferred Stock Units shall vest and become nonforfeitable upon
a Change in Control. For purposes of this Section 2(d), a
"Change in Control" shall be deemed to have occurred upon:
(1) the acquisition after the date of this Agreement by any
"person" (as defined in Sections 13(d) and 14(d) of the
Securities Exchange Act of 1934, as amended (the "Exchange
Act") (excluding for this purpose, (i) the Company or any
subsidiary of the Company or (ii) any employee benefit plan of
the Company or of any subsidiary of the Company or any person
or entity organized, appointed or established by the Company
for
or pursuant to the terms of any such plan which acquires after
the date of this Agreement beneficial ownership of voting
securities of the Company) of ownership of securities of the
Company whereby such person becomes the "beneficial owner" (as
defined in Rule 13d-3 under the Exchange Act), directly or
indirectly of securities of the Company representing more than
fifty percent (50%) of the combined voting power of the
Company's then outstanding securities; provided, however, that
no Change in Control will be deemed to have occurred as a
result of a change in ownership percentage resulting solely
from an acquisition of securities by the Company; or
(2) Xxxxxxx X. Xxxx, Xxxxx X. Xxxxxxxxx, Xxxxxx Xxxxxx,
Xxxxxx X. Paris, Xxxxxx X. Xxxxxx, Xxxxxxx X.X. Xxxxx, Xxxxx
X. Xxxxxxxx (collectively, "Incumbent Directors") and any new
directors whose election by the Board of Directors or
nomination by the Board of Directors for election by the
Company's stockholders was approved by a vote of a least
two-thirds (2/3) of the directors then still in office who
either are Incumbent Directors or whose election or nomination
for election was previously so approved (such new directors
being referred to as "Successor Incumbent Directors") ceasing
for any reason to constitute at least a majority of the Board
of Directors;
(3) the adoption, enactment or effectiveness of any action
(including, without limitation, by resolution or by amendment
to the Company's charter or bylaws) that materially limits or
diminishes the power or authority of the Company's board of
directors or any committee thereof, if such action has not
been approved by a vote of a least two-thirds (2/3) of the
directors then still in office who either are Incumbent
Directors or Successor Incumbent Directors; or
(4) the consummation of, or the execution of a definitive
agreement the consummation of which would result in, a
reorganization, merger or consolidation, or sale or other
disposition of all or substantially all of the assets of the
Company (a "Business Combination"), in each case, unless,
following such Business Combination, all or substantially all
of the individuals and entities who were the beneficial owners
of outstanding voting securities of the Company immediately
prior to such Business Combination beneficially own, directly
or indirectly, more than fifty percent (50%) of the combined
voting power of the then outstanding voting securities
entitled to vote generally in the election of directors of the
entity resulting from such Business Combination (including,
without limitation, an entity which, as a result of such
transaction, owns the Company, or all or substantially all of
the Company's assets, either directly or through one or more
subsidiaries) in substantially the same proportions as their
ownership, immediately prior to such Business Combination, of
the outstanding voting securities of the Company; or
(5) the consummation of a complete liquidation or
dissolution of the Company.
(e) Unless the Committee determines otherwise in its sole
discretion, if the Participant's employment with the Company
terminates for any reason not specified in paragraphs (a), (b)
or (c) next above, all Deferred Stock Units which have not
vested as of the date of such termination of employment shall
be permanently forfeited on such termination date.
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3. SETTLEMENT OF DEFERRED STOCK UNITS. Deferred Stock Units
shall be settled solely in Shares. As soon as practicable after each of the
vesting dates specified in Section 2 above, the Participant shall be transferred
one Share for each Deferred Stock Unit vesting on such date.
4. TAX WITHHOLDING. This Agreement is subject to all applicable
federal, state and local withholding taxes. The Participant may pay such
withholding taxes in cash, in Shares having a Fair Market Value equal to the
amount of such taxes, by having the Company withhold Shares otherwise
transferable to the Participant, or in any combination thereof. To the extent
provided by the Committee, the Fair Market Value of Shares, or Shares that have
been held by the Participant less than six months that are tendered in payment
of withholding, cannot exceed the minimum tax withholding required by law. No
Shares shall be transferred to the Participant hereunder until such time as all
applicable withholding taxes have been satisfied.
5. RIGHTS NOT CONFERRED. Nothing contained in the Plan or in this
Agreement shall confer upon the Participant any right with respect to continued
employment by the Company or any affiliate or interfere in any way with the
right of the Company to terminate the employment of the Participant at any time.
The Participant shall have none of the rights of a stockholder with respect to
the Deferred Stock Units until such time, if any, that Shares are delivered to
the Participant in settlement thereof.
6. AGREEMENT NOT ASSIGNABLE. Neither the Participant nor any
Beneficiary may sell, assign, transfer, discount, pledge as collateral for a
loan, or otherwise anticipate any right to any payment or benefit under this
Agreement, other than by will or by the applicable laws of descent and
distribution.
7. ADJUSTMENTS. In the event of a merger, reorganization,
consolidation, recapitalization, stock dividend, stock split, spin-off,
combination, repurchase or exchange of Shares or other securities of the
Company, or similar corporate transaction, the number and kinds of shares
subject to the Deferred Stock Units awarded hereunder shall be adjusted by the
Committee in such manner as it deems equitable to prevent dilution or
enlargement of the benefits or potential benefits intended to be made available
under this Agreement; provided that any fractional Share resulting from such an
adjustment shall be rounded to the nearest whole number.
8. GOVERNING LAW. This Agreement shall be construed in accordance
with and governed by the laws of the State of Delaware, without regard to its
principles of conflict of laws.
9. BINDING EFFECT. This Agreement shall be binding upon the
heirs, executors, administrators and successors of the parties hereto.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed as of the day and year first above written.
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Participant's Signature
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Participant's Name (Print or Type)
XXXXXXXXX INTERNATIONAL INC.
By:
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Name:
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Title:
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