BOWNE & CO., INC. Amended Restricted Stock Unit Award Agreement — 2008 Granted Pursuant to the Bowne & Co., Inc.
Exhibit 10.13
XXXXX & CO., INC.
Amended Restricted Stock Unit Award Agreement — 2008
Granted Pursuant to the Xxxxx & Co., Inc.
1999 Incentive Compensation Plan, as amended and restated December 31, 2008
Employee: «Name»
Grant Date: «Grant_Date»
This Restricted Stock Unit Award Agreement (the “Agreement”) sets forth the terms of the grant
on «Grant_Date» (the “Grant Date”) by XXXXX & CO., INC., a Delaware corporation (the “Company”), to
«Name» (“Employee”) of Restricted Stock Units pursuant to the Company’s 1999 Incentive Compensation
Plan, amended and restated effective as of December 31, 2008 (the “Plan”); and
WHEREAS, it has been determined by the Committee that it would be in the best interests of the
Company to grant the Restricted Stock Units provided herein to the Employee.
WHEREAS, the Restricted Stock Units are hereby granted in contemplation of the receipt of
future services by the Employee.
NOW, THEREFORE, in consideration of the mutual covenants and premises hereinafter set forth
and for other good and valuable consideration, the parties hereto hereby mutually covenant and
agree as follows:
The Company hereby grants to the Employee «Shares_Granted» Restricted Stock Units,
representing a contingent commitment by the company to issue shares of Company Stock (“Common
Stock”) to the Employee at or following the applicable Vesting Date(s) listed in the following
table):
| Number of Units | ||||||||
| Stated
Vesting
Date |
That
Vest at that
Date |
|||||||
| «Vestdate1» | «vest_shares1» | |||||||
| «Vestdate2» | «vest_shares2» | |||||||
| «Vestdate3» | «vest_shares3» | |||||||
| «Vestdate31» | «vest_shares4» (“the Final Vesting Date”) |
In addition, if not previously forfeited, the Restricted Stock Units will become immediately
vested in full upon a Change in Control, and will become vested upon the occurrence of certain
events relating to Termination of Employment to the extent provided in Section 3 hereof. The terms
“vest” and “vesting” mean that the Restricted Stock Unit has become non-forfeitable. If Employee
has a Termination of Employment prior to a Stated Vesting Date and Restricted Stock Units do not
become vested upon such Termination of Employment and are not otherwise deemed vested by that date
under the terms hereof, such Restricted Stock Units will be immediately forfeited. Forfeited
Restricted Stock Units cease to be binding on the Company and in no event will thereafter result in
delivery of shares of Common Stock to Employee. Upon the Final Vesting Date, the Company shall
issue to the Employee (the “Settlement”) that number of shares of the Company’s Common Stock equal
to the number of Restricted Stock Units that vested.
This Restricted Stock Unit Award is granted under Section 6(e) of the Plan to issue shares of
Common Stock to Employee at one or more future dates (“Settlement Dates”), and is subject to the
risk of forfeiture and other restrictions specified in the Plan and this Agreement, including the
Terms and Conditions of Restricted Stock Units attached hereto. The number of Restricted Stock
Units and other terms of the Restricted Stock Units are subject to adjustment in accordance with
Section 4(b) hereof and Section 11(c) of the Plan. The Restricted Stock Units subject to this
Agreement are not eligible for an elective deferral of the Settlement Date.
Employee acknowledges and agrees that (i) Restricted Stock Units are nontransferable, except
as provided in Section 2 hereof and Section 11(b) of the Plan, (ii) the Restricted Stock Units are
subject to forfeiture in the event of Employee’s termination of employment in certain circumstances
prior to vesting, as specified in the Plan and Section 3 hereof, (iii) the Restricted Stock Units
are subject to forfeiture in the event Employee fails to meet applicable requirements relating to
non-competition, confidentiality, non-solicitation of customers, suppliers, business associates,
employees, and service providers, non-disparagement and cooperation in litigation with respect to
the Company and its subsidiaries and affiliates, as set forth in Section 6 hereof and Section 10 of
the Plan, and (iv) sales of the Common Stock issued upon Settlement of the Restricted Stock Units
will be subject to the Company’s policies regulating trading by employees, including any applicable
“blackout” or other designated periods in which sales of Shares is not permitted.
IN WITNESS WHEREOF, XXXXX & CO., INC. has caused this Agreement to be executed by its officer
thereunto duly authorized, and Employee has duly executed this Agreement, by which each has agreed
to the terms of this Agreement.
| EMPLOYEE | XXXXX & CO., INC. | |||||
| By: | ||||||
| «Name» | Xxxxx X. Xxxxxxxxx | |||||
| Senior VP, Human Resources | ||||||
TERMS AND CONDITIONS OF RESTRICTED STOCK UNITS
The following Terms and Conditions apply to the Restricted Stock Unit granted to Employee by
XXXXX & CO., INC. (the “Company”), and additional Restricted Stock Units resulting from Dividend
Equivalents (if any), as specified in the Restricted Stock Unit Award Agreement (of which these
Terms and Conditions form a part). Certain terms of the Restricted Stock Unit, including the
number of shares granted and vesting date(s), are set forth on the preceding pages.
1. General. The Restricted Stock Unit is granted to Employee under the Company’s 1999
Incentive Compensation Plan, amended and restated as of December 31, 2008 (the “Plan”), a copy of
which is being delivered to Employee with this Agreement. All of the applicable terms, conditions
and other provisions of the Plan are incorporated by reference herein. Capitalized terms used in
this Agreement but not defined herein shall have the same meanings as in the Plan. If there is any
conflict between the provisions of this document and mandatory provisions of the Plan, the
provisions of the Plan govern. By accepting the grant of the Restricted Stock Unit, Employee
agrees to be bound by all of the terms and provisions of the Plan (as presently in effect or later
amended), the rules and regulations under the Plan adopted from time to time, and the decisions and
determinations of the Compensation and Management Development Committee of the Company’s Board of
Directors (the “Committee”) made from time to time.
2. Nontransferability. At no time may Employee transfer this Restricted Stock Unit or any
rights hereunder to any third party, other than by will or the laws of descent and distribution.
This restriction on transfer precludes any sale, assignment, pledge, or other encumbrance or
disposition of the shares of Restricted Stock Unit (except for forfeitures to the Company).
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3. Termination Provisions. The following provisions will govern the vesting and forfeiture of
that portion of the Restricted Stock Unit that is outstanding and not vested at the time of
Employee’s Termination of Employment, unless otherwise determined by the Committee (subject to
Section 9(a) hereof):
(a) Death or Disability. In the event of Employee’s Termination of Employment due to
death or Disability, all of the outstanding Restricted Stock Units will vest immediately.
(b) Other Terminations of Employment. In the event of Employee’s Termination of
Employment other than for death or Disability, those Restricted Stock Units that have not,
as of such date of Termination, become vested pursuant to the vesting schedule presented in
the preamble of this Agreement will be forfeited.
(c) Certain Definitions. The following definitions apply for purposes of this
Agreement:
(i) “Disability” means any condition that results in the Participant: (1) being
unable to engage in any substantial gainful activity by reason of any medically
determinable physical or mental impairment that can be expected to result in death
or can be expected to last for a continuous period of not less than 12 months; (2)
by reason of any medically determinable physical or mental impairment that can be
expected to result in death or can be expected to last for a continuous period of
not less than 12 months, receiving income replacement benefits for a period of not
less than three months under an accident and health plan covering employees of the
Company; or (3) being determined to be totally disabled by the Social Security
Administration or Railroad Retirement Board.
(ii) “Termination of Employment” means the event by which Employee ceases to be
employed by the Company or any affiliate of the Company and, immediately thereafter,
is not employed by or providing substantial services to any of the Company or an
affiliate of the Company.
4. Dividend Equivalents and Adjustments.
(a) Dividends. In the event of dividends or distributions on Common Stock, additional
Restricted Stock Units shall be issued to the Employee in an amount equal to such dividend
or distribution (the “Dividend Equivalent”) in a manner consistent with the terms of the
Plan. Restricted Stock Units granted under this Section 4(a) will become vested if and to
the same extent as the original Restricted Stock Units with respect to which the cash
dividend or distribution was made becomes vested and, to the greatest extent practicable,
shall be subject to all other terms and conditions as applied to the original Restricted
Stock Unit Award;
(b) Adjustments. The number of shares of Restricted Stock Units, the number of such
shares to be vested and other terms and conditions of Restricted Stock Units or otherwise
contained in this Agreement shall be appropriately adjusted, in order to prevent dilution or
enlargement of Employee’s rights hereunder, to reflect any changes in the number of
outstanding shares of Common Stock resulting from any event referred to in Section 11(c) of
the Plan, taking into account any Restricted Stock Unit or other amounts paid or credited to
Employee in connection with such event under Section 4(a) hereof, in the sole discretion of
the Committee. In addition, to the extent consistent with Section 409A of the Code, the
Committee may vary the treatment of any dividend or distribution as specified under Section
4(a), in its discretion, for administrative convenience or any other reason. The Committee
may determine how to treat or settle any fractional share resulting under this Agreement.
5. Other Terms of Restricted Stock Unit Award.
(a) Voting and Other Shareholder Rights. Employee shall not have any of the rights
of a shareholder of the Company in respect of the shares of Common Stock underlying this
Award
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until such Common Stock is delivered to the Employee in accordance with Section 6.
(b) Consideration for Grant of Restricted Stock Unit. Employee shall not be required
to pay any cash consideration for the grant of the Restricted Stock Unit Award, but
Employee’s performance of services to the Company prior to the vesting of the Restricted
Stock Units shall be deemed to be consideration for this grant of Restricted Stock Units.
Employee’s services performed from the Grant Date to the date of issuance of the shares of
Restricted Stock Unit is hereby determined to have a value at least equal to the aggregate
par value of the shares being newly issued in connection with the grant of Restricted Stock
Unit.
(c) Xxxxxxx Xxxxxxx Policy Applicable. Employee acknowledges that sales of shares
resulting from Restricted Stock Units that have become vested will be subject to the
Company’s policies regulating trading by executive officers and employees.
6. Settlement and Additional Forfeiture Provisions.
(a) Settlement. Subject to the terms of the Plan, if any portion of the Restricted
Stock Units awarded by this Agreement becomes vested, following the Final Vesting Date the
Company shall promptly distribute to the Employee the number of shares of Stock equal to the
number of Restricted Stock Units that so vested. In connection with the delivery of the
shares of Stock pursuant to this Agreement, the Employee agrees to execute any documents
reasonably requested by the Company. If the Employee should terminate employment prior to
the Final Vesting Date, then vested Units shall be settled upon such termination (six months
after termination of employment for any Participant who is a “key employee” as defined in a
resolution of the Board of Directors setting forth such rules in accordance with Section
409A of the Code).
(b) Additional Forfeiture Provisions. The Restricted Stock Unit Award is subject to
the additional forfeiture conditions imposed under Section 10 of the Plan in the event that
the Employee incurs a Forfeiture Event.
7. Employee Representations and Warranties and Release. As a condition to any non-forfeiture
of the Restricted Stock Units that vest upon termination of employment, the Company may require
Employee (i) to make any representation or warranty to the Company as may be required under any
applicable law or regulation, to make any representation and warranty that the Company deems
appropriate, including a representation and warranty that the requirements of Section 10 of the
Plan have been met, and (ii) to execute a release from claims against the Company arising at or
before the date of such release, in such form as may be specified by the Company.
8. Tax Withholding. Unless otherwise determined by the Committee, the Company may, at the
time any income or other tax withholding obligation arises with respect to this Restricted Stock
Unit Award, whether at vesting, Settlement, or other event, demand the appropriate amount of
withholding tax from Employee. At Settlement, the Company will withhold from any shares
deliverable with respect to the Restricted Stock Unit Award, in accordance with Section 11(d) of
the Plan, the number of shares having a value nearest to, but not exceeding, the minimum amount of
income and employment taxes required to be withheld under applicable local laws and regulations,
and pay the amount of such withholding taxes in cash to the appropriate taxing authorities;
provided, however, that the Company will not require such share withholding if and to the extent
that Employee has made arrangements, at least 90 days before the date any such withholding would
apply, to provide for payment of such taxes and such arrangements are satisfactory to the Company.
Employee will be responsible for any withholding taxes not satisfied by means of such mandatory
withholding and for all taxes in excess of such withholding taxes that may be due upon Settlement.
9. Miscellaneous.
(a) Binding Agreement; Written Amendments. This Agreement shall be binding upon the
heirs, executors, administrators and successors of the parties. This Agreement constitutes
the
entire agreement between the parties with respect to the Restricted Stock Units, and
supersedes any prior agreements or documents with respect thereto. No amendment or
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alteration of this Agreement which may impose any additional obligation upon the Company
shall be valid unless expressed in a written instrument duly executed in the name of the
Company, and no amendment, alteration, suspension or termination of this Agreement which may
materially impair the rights of Employee with respect to the Restricted Stock Units shall be
valid unless expressed in a written instrument executed by Employee.
(b) No Promise of Employment. The Restricted Stock Units and the granting thereof
shall not constitute or be evidence of any agreement or understanding, express or implied,
that Employee has a right to continue as an officer or employee of the Company for any
period of time, or at any particular rate of compensation.
(c) Governing Law. The governing law provision of Section 11(k) of the Plan applies to
this Agreement.
(d) Legal Compliance. The Company may postpone the time of issuance or delivery of
certificates of its Stock or payment of other benefits under this Restricted Stock Unit if
the Company reasonably anticipates that the delivery of such Stock or payment of other
benefits would violate any federal or state law, rule or regulation and may require any
Employee to make such representations, furnish such information and comply with or be
subject to such other conditions as it may consider appropriate in connection with the
issuance or delivery of Stock or payment of other benefits in compliance with applicable
laws, rules, and regulations , provided however that delivery of certificates of Stock or
payment of other benefits shall be made at the earliest date at which the Company reasonably
anticipates that such delivery of Stock or payment of other benefits will not cause a
violation of the applicable laws, rules and regulations.
If Employee fails to accept delivery of the shares of Stock upon tender of delivery thereof,
his or her right with respect to such undelivered shares of Stock may be terminated in the
Company’s discretion, or terminated in accordance with applicable law.
(e) Notices. Any notice to be given the Company under this Agreement shall be
addressed to the Company at its principal executive offices, in care of the General Counsel
or any other officer or agent (including any third-party administrator) as the Company may
designate, and any notice to the Employee shall be addressed to the Employee at Employee’s
address as then appearing in the records of the Company.
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IN WITNESS WHEREOF, XXXXX & CO., INC. has caused this Agreement to be executed on its behalf by an
officer of the Company thereunto duly authorized and Employee has accepted the terms of this
Agreement, both as of the date of grant.
| XXXXX & CO., INC. | ||||||
| By: | ||||||
| Xxxxx X. Xxxx | ||||||
| Participant: | ||||||
| Name: «Name» | ||||||
| Signature: | ||||||
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