EXHIBIT 10.43
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XXXXXX INTERNATIONAL INDUSTRIES, INCORPORATED
RESTRICTED STOCK AGREEMENT
THIS RESTRICTED STOCK AGREEMENT (the "Agreement") dated
as of ___________, by and between XXXXXX INTERNATIONAL
INDUSTRIES, INCORPORATED, a Delaware Corporation (the
"Company"), and ___________ (the "Grantee"):
W I T N E S S E T H:
WHEREAS, the Grantee is an employee of [___________, a
Subsidiary of] the Company; and
WHEREAS, the execution of a restricted stock agreement in the form
hereof has been authorized by a resolution of the Compensation and
Option Committee (the "Committee") of the Board of Directors (the
"Board") of the Company duly adopted on ___________, (the "Date of
Grant");
NOW, THEREFORE, in consideration of these premises and the
covenants and agreements set forth in this Agreement, the Company and
the Grantee agree as follows:
1. Grant of Restricted Shares. Pursuant to the terms and conditions of
the Xxxxxx International Industries, Incorporated 1992 Incentive Plan (the
"Plan"), the Company hereby grants to Grantee _________ shares (the
"Restricted Shares") of the Company's Common Stock, par value $0.01
per share (the "Common Stock"), [at the price of $_____ per share (the
"Purchase Price"),] subject to the applicable terms and conditions of the
Plan and the terms, conditions, limitations and restrictions set forth herein.
[Upon payment in full of the Purchase Price] [T]he Restricted Shares shall
be fully paid and nonassessable and shall be represented by a certificate(s)
registered in the name of the Grantee and bearing a legend referring to the
restrictions set forth herein.
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2. Restrictions on Transfer of Restricted Shares. The Restricted Shares
may not be transferred, sold, pledged, exchanged, assigned or otherwise
encumbered or disposed of by the Grantee unless and until they have
become nonrestricted and nonforfeitable in accordance with Section 3
hereof; provided, however, that the Grantee's interest in the Restricted
Shares may be transferred at any time by will or the laws of descent and
distribution. Any purported transfer, encumbrance or other disposition of
the Restricted Shares that is in violation of this Section 2 shall be null and
void, and the other party to any such purported transaction shall not obtain
any rights to or interest in the Restricted Shares.
3. Vesting of Restricted Shares. (a) The Restricted Shares shall
become nonrestricted and nonforfeitable at the rate of _____ percent
thereof on each of the first __________ anniversaries of the Date of Grant
for so long as the Grantee remains in the continuous employ of the
Company or a Subsidiary. For the purposes of this Agreement, the
continuous employment of the Grantee with the Company or a Subsidiary
shall not be deemed to have been interrupted, and the Grantee shall not be
deemed to have ceased to be an employee of the Company or a Subsidiary,
by reason of (i) the transfer of his employment among the Company and
its Subsidiaries or (ii) a leave of absence approved by the Board.
(b) Notwithstanding the provisions of paragraph 3(a) hereof, all of the
Restricted Shares shall immediately become nonrestricted and
nonforfeitable upon the occurrence of a change in control of the Company.
A "change in control of the Company" means the occurrence, before the
Agreement terminates, of any of the following events:
(i) The acquisition by any individual, entity or group (within the
meaning of Section 13(d)(3) or 14(d)(2) of the Exchange Act) (a
"Person") of beneficial ownership (within the meaning of Rule 13d-3
promulgated under the Exchange Act) of 25% or more of the combined
voting power of the then outstanding securities of the Company entitled to
vote generally in the election of directors (the "Voting Stock");
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provided, however, that for purposes of this Section 3(b)(i), the following
acquisitions shall not constitute a Change in Control: (A) any issuance of
Voting Stock of the Company directly from the Company that is approved
by the Incumbent Board (as defined in Section 3(b)(ii), below), (B) any
acquisition by the Company or a Subsidiary of Voting Stock of the
Company, (C) any acquisition of Voting Stock of the Company by any
employee benefit plan (or related trust) sponsored or maintained by the
Company or any Subsidiary, or (D) any acquisition of Voting Stock of the
Company by any Person pursuant to a Business Combination that
complies with clauses (A), (B) and (C) of Section 3(b)(iii), below; 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 individual becoming a Director
after the date hereof whose election, or nomination for election by the
Company's shareholders, was approved by a vote of at least two-thirds of
the Directors then comprising the Incumbent Board (either by a specific
vote or by approval of the proxy statement of the Company in which such
person is named as a nominee for director, without objection to such
nomination) shall be deemed to have been a member of the Incumbent
Board, but excluding, for this purpose, any such individual whose initial
assumption of office occurs as a result of an actual or threatened election
contest (within the meaning of Rule 14a-11 of the Exchange Act) with
respect to the election or removal of Directors or other actual or threatened
solicitation of proxies or consents by or on behalf of a Person other than
the Board; or
(iii) consummation of a reorganization, merger or consolidation, a sale
or other disposition of all or substantially all of the assets of the Company,
or other transaction (each, a "Business Combination"), unless, in each
case, immediately following such Business Combination, (A) all or
substantially all of the individuals and
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entities who were the beneficial owners of Voting Stock of the Company
immediately prior to such Business Combination beneficially own,
directly or indirectly, more than 50% of the combined voting power of the
then outstanding shares of Voting Stock 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),
(B) no Person (other than the Company, such entity resulting from such
Business Combination, or any employee benefit plan (or related trust)
sponsored or maintained by the Company, any Subsidiary or such entity
resulting from such Business Combination) beneficially owns, directly or
indirectly, 25% or more of the combined voting power of the then
outstanding shares of Voting Stock of the entity resulting from such
Business Combination, and (C) at least a majority of the members of the
Board of Directors of the entity 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) approval by the shareholders of the Company of a complete
liquidation or dissolution of the Company, except pursuant to a Business
Combination that complies with clauses (A), (B) and (C) of
Section 3(b)(iii).
(c) Notwithstanding the provisions of paragraph 3(a) hereof, the
Committee may, in its sole discretion, determine that all of the Restricted
Shares shall immediately become nonrestricted and nonforfeitable if the
Grantee dies or becomes permanently disabled while in the employ of the
Company or a Subsidiary.
4. Forfeiture of Restricted Shares. (a) Any of the Restricted Shares that
have not become nonforfeitable in accordance with Section 3 hereof shall
be forfeited if the Grantee ceases for any reason to be employed by the
Company or a Subsidiary at any time prior to
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__________ years from the Date of Grant, unless the Committee
determines to provide otherwise at the time of the cessation of the
Grantee's employment.
(b) In the event that the Grantee commits an act that the Board
determines to have been intentionally committed and materially inimical
to the interests of the Company, any Restricted Shares that have not
become nonforfeitable in accordance with Section 3 hereof as of the time
of the commission of that act shall be forfeited, notwithstanding any other
provision of this Agreement. In the event of a forfeiture, the certificate(s)
representing Restricted Shares that have not become nonforfeitable in
accordance with Section 3 hereof shall be cancelled.
5. Dividend, Voting and Other Rights. The Grantee shall have all of the
rights of a stockholder with respect to the Restricted Shares, including the
right to vote the Restricted Shares and receive any dividends that may be
paid thereon; provided, however, that (a) any cash dividends and other
cash distributions that may be paid on any Restricted Shares that have not
become nonrestricted and nonforfeitable in accordance with Section 3
hereof shall be automatically sequestered and reinvested in additional
shares of Common Stock, which shall be subject to the same restrictions
hereunder as the forfeitable Restricted Shares on which the cash dividends
or other cash distributions are paid, and (b) any additional shares of
Common Stock that the Grantee may become entitled to receive pursuant
to a share dividend or a merger or reorganization in which the Company is
the surviving corporation or any other change in the capital structure of the
Company shall be subject to the same restrictions as the Restricted Shares.
6. Retention of Stock Certificate(s) by the Company. The certificate(s)
representing the Restricted Shares shall be held in custody by the
Company, together with a stock power endorsed in blank by the Grantee
with respect thereto, until the Restricted Shares have become nonrestricted
and nonforfeitable in accordance with Section 3 hereof.
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7. Compliance with Law. The Company shall make reasonable efforts
to comply with all applicable federal and state securities laws; provided,
however, that notwithstanding any other provision of this Agreement, the
Company shall not be obligated to issue any restricted or nonrestricted
shares of Common Stock or other securities pursuant to this Agreement if
the issuance thereof would result in a violation of any such law.
8. Adjustments. (a) The Committee may make such adjustments in the
number and kind of shares of stock or other securities covered by this
Agreement as the Committee may in good faith determine to be equitably
required in order to prevent any dilution or expansion of the Grantee's
rights under this Agreement that otherwise would result from any:
(i) stock dividend, stock split, combination of shares, recapitalization
or other change in the capital structure of the Company;
(ii) merger, consolidation, spin-off, reorganization, partial or complete
liquidation or issuance of rights or warrants to purchase securities of the
Company; or
(iii) other corporate transaction or event having an effect similar to any
of the foregoing.
(b) In the event that any transaction or event described or referred to in
Section 8(a) above shall occur, the Committee may provide in substitution
of any or all of the Grantee's rights under this Agreement such alternative
consideration as the Committee may in good faith determine to be
equitable under the circumstances.
9. Fractional Shares. The Company shall not be required to issue any
fractional share of restricted or unrestricted Common Stock pursuant to the
Restricted Shares. The Board of Directors may provide for the elimination
of fractions or for the settlement of fractions in cash.
10. Withholding Taxes. If the Company shall be required to withhold
any federal, state, local or foreign tax in connection with any issuance of
restricted or nonrestricted shares of
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Common Stock or other securities pursuant to this Agreement, it shall be a
condition to the issuance that the Grantee pay to the Company the balance
of such tax required to be withheld or make provisions that are satisfactory
to the Company for the payment thereof.
11. Right to Terminate Employment. No provision of this Agreement
shall limit in any way whatsoever any right that the Company or a
Subsidiary may otherwise have to terminate the employment of the
Grantee at any time.
12. Definition of Subsidiary. For the purposes of this Agreement, the
term "Subsidiary" means any corporation in which the Company directly
or indirectly owns or controls more than 50 percent of the total combined
voting power of all classes of stock issued by the corporation.
13. Communications. All notices, demands and other communications
required or permitted hereunder or designated to be given with respect to
the rights or interests covered by the Agreement shall be deemed to have
been properly given or delivered when delivered personally or sent by
certified or registered mail, return receipt requested, U.S. mail or reputable
overnight carrier with full postage prepaid and addressed to the parties as
follows:
If to the Company, at: 0000 Xxxxxxxxxxxx Xxxxxx, X.X.
Xxxxx 0000
Xxxxxxxxxx, X.X. 00000
Attention: Vice President-
Financial Operations
If to the Grantee: Grantee's address provided by
Grantee on the last page hereof
Either the Company or Grantee may change the above designated address
by written notice to the other specifying such new address.
14. Interpretation. The interpretation and construction by the Board of
Directors of the Agreement shall be final and conclusive. No member of
the Board of Directors shall be liable for any such action or determination
made in good faith.
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15. Amendment in Writing. In accordance with its terms, this
Agreement may be amended, but only in writing which specifically
references this Section and is signed by each of the parties hereto.
16. Integration. The Restricted Shares are granted pursuant to the Plan,
and this Agreement and the Restricted Shares are subject to all of the
terms and conditions of the Plan, a copy of which is available upon request
and incorporated herein by reference. As such, this Agreement embodies
the entire agreement and understanding of the parties hereto with respect
to the Restricted Shares, and supersedes any prior understandings or
agreements, whether written or oral, with respect to the Restricted Shares.
17. Severance. In the event that one or more of the provisions of this
Agreement shall be invalidated for any reason by a court of competent
jurisdiction, any provision so invalidated shall be deemed to be separable
from the other provisions hereof and the remaining provisions hereof shall
continue to be valid and fully enforceable.
18. Governing Law. This agreement is made under, and shall be
construed in accordance with, the laws of the District of Columbia.
19. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original and all of which
together shall constitute one and the same instrument.
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IN WITNESS WHEREOF, this Agreement is executed by the Company
on the day and year first above written.
XXXXXX INTERNATIONAL INDUSTRIES,
INCORPORATED
By ______________________
Name:
The undersigned Optionee hereby acknowledges receipt of an executed
original of this Nonqualified Stock Option Agreement and accepts the
Option subject to the applicable terms and conditions of the Plan and the
terms and conditions hereinabove set forth.
_____________________ Date:_________________________
Optionee
OPTIONEE: Please complete/update the following information.
Name: _________________________
Home Address: _________________________
_________________________
_________________________
Social Security Number: _________________________
Date of Hire: _________________________
Company or Division: _________________________
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