EXHIBIT 10.10
STOCK APPRECIATION RIGHTS GRANT AGREEMENT
STOCK APPRECIATION RIGHTS AGREEMENT (this "SAR AGREEMENT") made as of
the date specified on Annex A attached hereto (the "GRANT DATE"), between X.X.
Xxxxxxxxx Corporation, a Delaware corporation (the "COMPANY"), and the
undersigned individual (the "PARTICIPANT"), pursuant to the X.X. Xxxxxxxxx
Corporation 2005 Stock Award and Incentive Plan (as may be amended from time to
time, the "2005 PLAN"), a copy of which you may access electronically on the RHD
Intranet under "Human Resources". Unless otherwise defined herein, the terms
defined in the 2005 Plan shall have the same defined meanings in this SAR
Agreement.
The Company has entered into an Agreement and Plan of Merger as of
October 3, 2005 by and among Dex Media, Inc., the Company and Forward
Acquisition Corp., a wholly-owned subsidiary of the Company (the "MERGER Sub")
(the "MERGER AGREEMENT"), pursuant to which Dex Media, Inc. will be merged into
Merger Sub (the "MERGER") at the effective time as defined in Section 1.2 of the
Merger Agreement (the "EFFECTIVE TIME").
In consideration of the mutual covenants hereinafter set forth and for
other good and valuable consideration, the validity and sufficiency of which are
hereby acknowledged, the parties hereto, intending to be legally bound
hereunder, agree as follows:
1. GRANT OF SAR. The Company hereby grants to the Participant the right
to receive the aggregate dollar value of appreciation (collectively,
"APPRECIATION") in the Fair Market Value of the Company's Common Stock on the
number of shares (the "GRANTED SHARES") specified on Annex A, computed as the
difference between (a) the greater of Fair Market Value of the Granted Shares on
the Grant Date or $65.00 (the "XXXXX XXXXX") and (b) the aggregate Fair Market
Value of the Granted Shares on the Exercise Date (as defined below) (the
"APPRECIATION PRICE"). This grant shall be referred to as the SAR. Such
Appreciation shall be payable only in Paid Shares (as defined below) and subject
to tax withholding as specified in Paragraphs 4(b) and 10 below. This SAR is in
all respects limited and conditioned as hereinafter provided, and is subject to
the terms and conditions of the 2005 Plan (which terms and conditions are and
automatically shall be incorporated herein by reference and made a part hereof
and shall control in the event of any conflict with any terms of this SAR
Agreement, except as specified in Paragraph 8 below). This SAR is a Non-409A
Award for purposes of the 2005 Plan.
2. TERM. Unless earlier terminated pursuant to the 2005 Plan or this
SAR Agreement, this SAR shall expire on the expiration date specified on Annex A
(the "EXPIRATION DATE"), which is the seventh anniversary of the Grant Date.
This SAR shall not be exercisable on or after the Expiration Date.
3. EXERCISE OF SAR. Unless otherwise specified on Annex A, this SAR may
be exercised in three equal installments of the Shares on each of the first
three anniversaries of the Grant Date, so that this SAR shall be exercisable as
to all Shares on the last such anniversary; provided, however, that this SAR may
not be exercised and shall terminate automatically if (a) the Company does not
consummate the Merger; or (b) the Participant does not execute and return
to the Company by November 4, 2005 the Consent and Waiver in the exact form
attached hereto as Annex C. Any portion of this SAR that becomes exercisable in
accordance with the foregoing shall remain exercisable, subject to the 2005 Plan
or this SAR Agreement (including without limitation Paragraph 8), until the
Expiration Date or until other termination of this SAR in accordance with the
2005 Plan or Paragraph 7 below. Prior to the exercise of this SAR and delivery
of the resulting Shares, the Participant shall not have any rights of a
stockholder with respect to this SAR or the Shares subject to this SAR.
4. METHOD OF EXERCISING SAR.
(a) Subject to the terms and conditions of the 2005 Plan and this
SAR Agreement, this SAR may be exercised upon written notice to the Company at
its principal office, which is currently located at 0000 Xxxxxxxx Xxxxx, Xxxx,
XX, 00000. Such notice (a suggested form of which is attached as Annex B) shall
state the Participant's election to exercise this SAR and the number of Granted
Shares with respect to which it is being exercised, and shall be signed by the
Participant (or permitted assignee or legal representative).
(b) Upon receipt of such notice, the Company, as promptly as
practicable, shall deliver or cause to be delivered a certificate or
certificates representing (a) such number of Shares calculated by dividing (i)
the portion of the Appreciation (including all) applicable to the number of
Granted Shares to which this SAR is so exercised by (ii) the Fair Market Value
of X. X. Xxxxxxxxx Common Stock on the date such notice was received by the
Company (the "EXERCISE DATE"), less (b) any shares withheld to satisfy
obligations for the payment of withholding taxes and other tax obligations
relating to this SAR, as specified in Paragraph 10 (the sum of (a) less (b)
being referred to herein as the "PAID SHARES"). The certificate or certificates
for the number of Paid Shares so determined shall be registered in the name of
the person or persons so exercising this SAR (or, if this SAR shall be exercised
by the Participant and if the Participant shall so request in the notice
exercising this SAR, shall be registered in the name of the Participant and the
Participant's spouse, jointly, with right of survivorship or a trust established
by the Participant for estate planning purposes) and shall be delivered as
provided above to or upon the written order of the person or persons exercising
this SAR. In the event this SAR is exercised by any person or persons after the
legal disability or death of the Participant, such notice shall be accompanied
by appropriate proof of the right of such person or persons to exercise this
SAR. All Paid Shares that shall be delivered upon the exercise of this SAR as
provided herein shall be fully paid and non-assessable by the Company.
5. SHARES TO BE PURCHASED FOR INVESTMENT. In the event the offer and
sale of Shares subject to this SAR are not covered by a then effective
registration statement under the Securities Act of 1933, as amended (the
"SECURITIES ACT"), the Company may require as a condition to any exercise of
this SAR that the Participant (or other person entitled to exercise this SAR)
deliver to the Company an investment representation statement, as well as any
other documentation or information as the Committee shall reasonably request.
The Company shall be entitled to restrict the transferability of the Shares
issued upon any such exercise to the extent necessary to avoid a risk of
violation of the Securities Act or of any state laws or regulations. Such
restrictions may, at the discretion of the Company, be noted or set forth in
full on the Share certificates issued upon exercise of this SAR.
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6. NON-TRANSFERABILITY OF SAR; FORFEITURE.
(a) Neither this SAR nor the Granted Shares subject thereto shall be
pledged, hypothecated or otherwise encumbered or subject to any lien, obligation
or liability of the Participant to any party (other than the Company or its
subsidiary or affiliate), or assigned or transferred by the Participant, other
than by will or the laws of descent and distribution or to a Beneficiary upon
the death of the Participant, and during the lifetime of the Participant, this
SAR shall be exercisable only by the Participant or his or her guardian or legal
representative, except that this SAR may be transferred to one or more
transferees during the lifetime of the Participant and may be exercised by such
transferees in accordance with the terms of this SAR, but only if and to the
extent such transfers are permitted by the Committee, subject to any terms and
conditions which the Committee may impose thereon (including limitations the
Committee may deem appropriate in order that offers and sales of Shares will
meet applicable requirements of registration forms under the Securities Act
specified by the Securities and Exchange Commission). A Beneficiary, transferee
or other person claiming any rights under the 2005 Plan from or through the
Participant shall be subject to all terms and conditions of the 2005 Plan and
this SAR Agreement, except as otherwise determined by the Committee, and to any
additional terms and conditions deemed necessary or appropriate by the
Committee.
(b) This SAR, any Shares delivered hereunder and any gains realized
upon exercise of this SAR are subject to forfeiture under certain circumstances
in accordance with Section 11 of the 2005 Plan.
7. TERMINATION OF EMPLOYMENT.
(a) Exercisability Upon Termination by Death, Disability or
Retirement. If the Participant's employment by the Company or any subsidiary or
affiliate terminates by reason of death, Disability (as defined below) or
Retirement (as defined below), this SAR may be exercised until the earlier to
occur of one year after the date of such termination or the Expiration Date, to
the full extent of this SAR, regardless of the extent to which it was
exercisable at the time of such death, Disability or Retirement; provided,
however, that in the event of Early Retirement (as defined below), the entire
vested portion and 50% of any unvested portion of this SAR shall be exercisable
during such period. Upon expiration of any such post-termination exercise
period, this SAR shall terminate.
(b) Effect of Other Termination. Unless otherwise determined by the
Committee, if the Participant's employment by the Company or any subsidiary or
affiliate terminates for any reason, other than death, Disability or Retirement
or for Cause, this SAR shall be exercisable during the period of 90 days after
such termination or until the Expiration Date, whichever period is shorter, but
only to the extent to which this SAR was exercisable at the time of such
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termination. If such termination is for Cause, then this SAR shall terminate
upon such termination, unless otherwise determined by the Committee. Upon
expiration of any such post-termination exercise period, this SAR shall
terminate.
(c) Definitions. The term "DISABILITY" shall have the meaning
defined for such term in the long-term disability plan of the Company, as in
effect from time to time, and the term "RETIREMENT" shall mean your termination
after your attaining (i) age 50 years with 20 years of service with the Company
or any of its subsidiaries or affiliates ("EARLY RETIREMENT"), (ii) age 55 years
with 10 years of service with the Company or any of its subsidiaries or
affiliates or (iii) age 65 years without regard to years of such service.
8. CHANGE IN CONTROL. Subject to the Consent and Waiver attached hereto
as Annex C, notwithstanding Section 10 of the 2005 Plan, upon a Change in
Control, this SAR shall terminate automatically with respect to all unvested
Shares covered by this SAR at that time and the Participant shall be entitled to
an amount of cash equal to the excess of the Change in Control Price over the
Xxxxx Xxxxx, multiplied by the number of unvested Shares covered by this SAR,
and all vested Shares covered by this SAR shall remain subject to and governed
by Section 10 of the Plan. Notwithstanding anything in this SAR Agreement or the
2005 Plan to the contrary, for purposes of this SAR Agreement, the Merger and
transactions contemplated by the Merger Agreement, including any holdings of
Shares and changes in the composition of the Board of Directors of the Company
(the "BOARD") resulting from the Merger, shall not constitute a Change in
Control (under all parts of the definition of "Change in Control").
9. NO GUARANTEE OF CONTINUED EMPLOYMENT OR OTHER SERVICE. THE
PARTICIPANT ACKNOWLEDGES AND AGREES THAT THE VESTING OF SHARES PURSUANT TO
PARAGRAPH 3 IS EARNED ONLY BY CONTINUING AS AN EMPLOYEE AT THE WILL OF THE
COMPANY (NOT THROUGH THE ACT OF BEING HIRED, BEING GRANTED THIS SAR OR ACQUIRING
SHARES HEREUNDER). THE PARTICIPANT FURTHER ACKNOWLEDGES AND AGREES THAT THIS SAR
AGREEMENT AND THE VESTING PROVISIONS SET FORTH HEREIN DO NOT CONSTITUTE AN
EXPRESS OR IMPLIED PROMISE OF CONTINUED EMPLOYMENT FOR THE VESTING PERIOD, FOR
ANY PERIOD OR AT ALL, AND SHALL NOT INTERFERE IN ANY WAY WITH THE PARTICIPANT'S
RIGHT TO TERMINATE OR THE COMPANY'S RIGHT TO TERMINATE THE PARTICIPANT AT ANY
TIME, WITH OR WITHOUT CAUSE.
10. WITHHOLDING. The Company and any subsidiary or affiliate is
authorized to withhold from the distribution of Shares relating to this SAR,
amounts of withholding and other taxes due or potentially payable in connection
with any transaction involving this SAR, and to take such other action as the
Committee may deem advisable to enable the Company and the Participant to
satisfy obligations for the payment of withholding taxes and other tax
obligations relating to this SAR. This authority shall include authority to
withhold or receive Stock or other property and to make cash payments in respect
thereof in satisfaction of a Participant's withholding obligations, either on a
mandatory or elective basis in the discretion of the Committee. Notwithstanding
any provision in the 2005 Plan to the contrary, only the minimum amount of Stock
deliverable in connection with this SAR necessary to satisfy statutory
withholding requirements will be withheld.
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11. GOVERNING LAW; ENTIRE AGREEMENT; SAR SURRENDER.
(a) The validity, construction and effect of this SAR Agreement
shall be determined in accordance with the laws of the State of Delaware,
without giving effect to principles of conflicts of law, and applicable
provisions of federal law.
(b) The 2005 Plan, this SAR Agreement, Annex A, Annex B and the
Consent and Waiver constitute the entire agreement of the parties with respect
to the subject matter hereof and supersede in their entirety all prior
undertakings and agreements of the Company and the Participant with respect to
the subject matter hereof. Any modification of this SAR Agreement must be in
writing signed by the Company (oral statements by any person cannot modify this
SAR Agreement). Decisions of the Committee with respect to the administration
and interpretation of the 2005 Plan and this SAR Agreement shall be final,
conclusive and binding on all persons interested therein.
(c) As a condition to the right to exercise this SAR, the
Participant must not have theretofore delivered to the Company a written
document signed by the Participant surrendering the SAR to the Company.
IN WITNESS WHEREOF, the Company has caused this SAR Agreement to be
duly executed by its duly authorized officers and the Participant has executed
this SAR Agreement, each on Annex A, as of the Grant Date.
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ANNEX A
STOCK APPRECIATION RIGHT GRANT
ACKNOWLEDGEMENT AND AGREEMENT
NAME: <>
ADDRESS: <> <>, <> <>
SOCIAL SECURITY OR TAX ID NUMBER: <>
--------------------------------------------------------------------------------
GRANT DATE: October 3, 2005
EXPIRATION DATE: October 2, 2012
NUMBER OF GRANTED SHARES: <>
XXXXX XXXXX: $65.00
Vesting Schedule: One third equal installments on the first three
anniversaries of the Grant Date; provided, however, that
the SAR will not become exercisable unless and until the
Merger is consummated.
Number of Shares Vesting Vest Date
------------------------ ---------
<> October 3, 2006
<> October 3, 2007
<> October 3, 2008
X.X. Xxxxxxxxx Corporation
By:
---------------------------------------
Xxx X. Xxxxx
Assistant Vice President - Compensation
ACCEPTED AND AGREED TO:
---------------------------------------
Signature
ANNEX B
STOCK APPRECIATION RIGHT EXERCISE AUTHORIZATION FORM
I hereby exercise the following Stock Appreciation Rights granted to me by X.X.
Xxxxxxxxx Corporation. I understand that this will not be deemed a valid
exercise until the Company has received this letter and I have otherwise
complied with all of the applicable terms and conditions of the 2005 Plan and
the SAR Agreement.
GRANT DATE # SHARES EXERCISED XXXXX XXXXX
---------- ------------------ -----------
TAX WITHHOLDING ELECTION:
I understand that you will reduce the number of Shares I will receive through
this exercise by the amount necessary to satisfy my withholding tax obligation.
SHARES REGISTERED TO:
Name:
Address:
SHARE DELIVERY INSTRUCTIONS (CHECK ONE):
[ ] E*Trade Financial [ ] Other (please include name & mailing address)
0000 Xxxxx Xxxx Xxxx
Xxxxxx Xxxxxxx, XX 00000
----------------------------- ---------------------------
Print Name Social Security #
----------------------------- ---------------------------
Signature Phone #
-----------------------------
Date
FAX COMPLETED FORM TO:
(i) Compensation Department
XXXXXX XXXXXX, COMPENSATION ANALYST
FAX: 000-000-0000
ANNEX C
CONSENT AND WAIVER
In consideration of the payment to me of the sum of ten dollars
($10.00) and other good and valuable consideration, including the future
exercisability and non-termination of the stock appreciation rights award
granted to me under this SAR Agreement, the validity and sufficiency of which
are hereby acknowledged, I hereby irrevocably and unconditionally (i) consent
and agree that the transactions contemplated by the Merger Agreement (the
"Transactions"), including any holdings of Shares and changes in the composition
of the Board resulting from the Merger, shall not constitute a Change in Control
(under any subpart of the definition of "Change in Control"), as defined in each
of the following: Section 10(c) of the X.X. Xxxxxxxxx Corporation 2005 Stock
Award and Incentive Plan (effective as of April 26, 2005 the "2005 Plan"),
Section 10(c) of the 2001 Stock Award and Incentive Plan (as amended and
restated effective as of May 1, 2001), Section 9 of the X.X. Xxxxxxxxx
Corporation 1991 Key Employees' Stock Option Plan (as amended and restated
effective as of April 25, 2000), Section 6(b) of the X.X. Xxxxxxxxx Corporation
Key Employees' Performance Unit Plan (as amended and restated effective as of
June 17, 1998) or Section VII of the Pension Benefit Equalization Plan of X.X.
Xxxxxxxxx Corporation (effective as of July 1, 1998) (collectively, the "Plans"
and each a "Plan"), and awards currently outstanding under any Plan,
notwithstanding any provision contained in any such Plan or agreement under such
Plan to the contrary, and (ii) forever waive any and all rights that I may have
under each Plan and each award granted to me under any Plan arising out of, or
in connection with, the Transactions; provided, however, that the Company has
committed to me that if, at or within two (2) years at or after the Effective
Time, (i) the Company terminates my employment without Cause (as defined in my
Employment Agreement with the Company, dated as of __________, as amended to
date (the "Employment Agreement")) or (ii) I terminate my employment for Good
Reason (as defined in my Employment Agreement) notwithstanding the foregoing
provisions hereof, I shall be entitled to receive all of the benefits and
payments to which I would otherwise have been entitled under the Plans or with
respect to outstanding awards under the Plans following a Change in Control and
treating the Transactions as a Change in Control for that purpose. I understand
that anything in the Plans, the SAR Agreement or this Consent and Waiver to the
contrary notwithstanding, for purposes of this SAR Agreement and the Granted
Shares, the Merger shall not constitute a Change in Control.
EXECUTED on this _____ day of ___________________, 2005.
--------------------------------
[INSERT EMPLOYEE NAME]
