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EXHIBIT 7
RESTRICTED STOCK UNIT AGREEMENT
THIS AGREEMENT, made as of the 9th day of June, 1999 (the "Grant
Date"), between the Xxxxxx Corporation, a Delaware corporation (the "Company"),
and Xxxxxx X. Xxxxxxx (the "Grantee").
WHEREAS, the Grantee is currently the Vice Chairman of the Company,
and the Board of Directors of the Company (the "Board") has determined that it
is in the best interest of the Company and its stockholders to secure the
continued services of the Grantee; and
WHEREAS, in consideration of the grant of Restricted Stock Units as
provided herein, the Grantee has agreed to continue to serve the Company as its
Vice Chairman;
NOW THEREFORE, the parties hereto agree as follows:
1. GRANT OF RIGHTS.
The Company hereby grants to the Grantee 150,000 Restricted Stock
Units ("RSUs")(as adjusted pursuant to Section 7) subject to, and in
accordance with, the terms and conditions set forth in this Agreement.
2. TIME OF PAYMENT.
2.1 The RSUs will vest equally in 25% installments on each
anniversary of the Grant Date, beginning June 9, 2000 and
continuing to June 9, 2003.
2.2 Payment in respect of all vested RSUs shall be deferred until
Grantee ceases to be an employee of the Company for any reason
and shall be made within thirty (30) days following such date.
Except as otherwise provided in Section 2.3, all unvested RSUs
shall be canceled upon Grantee's cessation of employment with the
Company.
2.3 Upon a Change of Control, or if Grantee ceases to be an employee
of the Company due to retirement (with the Board's consent) death
or disability, all unvested RSUs shall immediately vest.
3. FORM OF PAYMENT.
3.1 Except as provided in Sections 3.2 and 3.3, payment in respect of
all RSUs shall be made by delivery of shares of the Company's
common stock, par value $1.00 per share (the "Common Stock"),
with each RSU representing the right to receive one (1) share of
Common Stock as existing on the date hereof (and adjusted
pursuant to Section 7).
3.2 In the event that the Grantee dies prior to the payment date in
respect of the RSUs, the Company in its sole discretion may make
a cash payment to the Grantee's designated beneficiary (or, in
the absence of a designated beneficiary, his estate) in lieu of
all or any portion of the RSUs, such payment to be in an amount
for each such RSU equal to the Fair Market Value of shares of
Common Stock on the date that delivery of the shares of Common
Stock in respect of such RSUs was scheduled to be made.
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3.3 In the event of a Change of Control, payment in respect of each RSU
shall be made (i) in the same form and amount of consideration (cash,
securities or other property) paid to shareholders in the transaction
or series of transactions constituting the Change in Control, or (ii)
if the Change in Control occurs other than upon the consummation of a
transaction or series of transactions, in cash in the amount of the
Fair Market Value of the Common Stock on the date of the Change in
Control.
4. RIGHT OF FIRST REFUSAL.
The Company shall have a right of first refusal (as described below) to
repurchase any and all shares of Common Stock issued pursuant to this Agreement
from a "Holder" (as defined below) of such shares of Common Stock. If in any
calendar month a Holder of the Common Stock issued pursuant to this Agreement
wishes to sell or transfer shares of such Common Stock, whether privately or
publicly, such Holder must, prior to any such sale or transfer, give notice of
such proposed sale or transfer to the Company at its principal executive
offices, unless such sale or transfer (when added to any other sales or
transfers of such shares in such calendar month) would result in the sale or
transfer of ten thousand (10,000) or fewer of such shares in such calendar
month. The Holder's written notice to the Company must state (i) the name and
address of the proposed transferee, (ii) the number of such shares to be sold
or transferred, (iii) the price per share and (iv) the terms and conditions for
payment of the price; provided, however, that no disclosure of the name and
address of the proposed purchaser or transferee shall be required with respect
to any proposed sale or transfer that is to be effected through a public sale
in which the name of the purchaser or transferee is unknown. Upon receipt of
the Holder's written notice, the Company, or such other party as the Company
may designate, shall, within five (5) business days following such receipt,
thereupon have the right and option to purchase from the Holder such shares
which are (when added to any other sales or transfers of such shares in such
calendar month) in excess of ten thousand (10,000) shares, on the following
terms: (x) if the proposed sale or transfer is to be effected pursuant to a
bona fide offer received by the Holder, on the terms contained in such offer;
or (y) if otherwise, at a price per share in cash equal to the Fair Market
Value of the Common Stock on the day the Company receives the Holder's written
notice of the proposed sale or transfer. If the Company does not exercise its
right and option within five (5) business days following its receipt of the
Holder's written notice, the Holder may thereafter sell or transfer the shares
of Common Stock in accordance with the terms disclosed to the Company;
provided, however, that if such sale or transfer does not occur within five (5)
business days following the expiration of the Company's right and option, the
Holder's right to sell or transfer such shares shall expire and the Holder must
thereafter comply with this Section 4 as to any sale or transfer of any such
shares. For purposes of this Section 4, "Holder" shall mean that Grantee or his
designated beneficiary or estate.
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RE: RSU AGREEMENT JUNE 9, 1999
XXXXXX X. XXXXXXX PAGE 3 OF 5
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5. TRANSFERABILITY.
The RSUs may not be transferred, assigned, pledged or alienated by
the Grantee except under the following circumstances: (i) with the
express written consent of the Board or (ii) by will or pursuant to
the laws or descent and distribution. Any attempted transfer,
assignment, pledge or alienation not in accordance with this paragraph
shall be null and void and of no force and effect.
6. ADJUSTMENT.
If a "Change in Capitalization" (as defined in Section 7.1) occurs,
the RSUs shall be adjusted by the Board in good faith and in a manner
that preserves the economic value of the RSUs immediately prior to the
Change in Capitalization.
7. DEFINITIONS.
For purposes of this Agreement, the following terms shall have the
following definitions:
7.1 "Change in Capitalization" shall mean any increase or reduction
in the number of shares of the Common Stock, or any change
(including, in the case of a spin-off or extraordinary dividend,
a change in value) in such shares or exchange of such shares
for a different number or kind of shares of other securities of
the company or another corporation or other entity or other
property, by reason of a reclassification, recapitalization,
merger, consolidation, reorganization, spin-off, split-up,
issuance of warrants or rights or debt securities, stock
dividend, stock split or reverse stock split, extraordinary
dividend, combination or exchange of shares, repurchase of
shares, change in corporate structure or similar transaction.
7.2 "Change in Control" shall have the same meaning as in The Xxxxxx
Corporation 1997 Non-Qualified Stock Option Plan, as in effect on
the date hereof.
7.3 "Fair Market Value" shall mean the average of the high and low
prices at which the Common Stock is reported to have traded in
the principal market (whether consolidated trading on a stock
exchange, an interdealer quotation systems or another market) in
which the Common Stock is traded, or if there is no trade on a
particular date, "Fair Market Value" shall mean the average of
the low asked and high bid prices in that market on that date;
provided, however, that if the Common Stock is not traded on any
such market at the relevant time, Fair Market Value shall be as
determined (i) by the Board in good faith or (ii) upon the
election of the Grantee, by an investment banking firm or other
appraiser mutually acceptable to the Company and the Grantee.
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8. WITHHOLDING.
The Company shall have the right to deduct from any amounts payable
hereunder any taxes or other amounts required by law to be withheld and
shall not be required to issue or deliver any shares of Common Stock to the
Grantee until the Grantee has made satisfactory arrangements for the
payment of all applicable withholding requirements.
9. SECURITIES LAWS.
The obligation of the Company to issue or deliver shares of Common Stock
under this Agreement shall be subject to all applicable laws, rules and
regulations, including all applicable federal and state securities laws,
and the obtaining of all such approvals by governmental agencies as may be
deemed necessary or appropriate by the Company.
10. NOTICES.
Every notice relating to this Agreement shall be in writing and shall be
given by personal delivery or by registered or certified mail, postage
prepaid, return receipt requested to:
If to the Company: The Xxxxxx Corporation
000 Xxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Corporate Secretary
If to the Grantee: Xxxxxx X. Xxxxxxx
0000 Xxxxx Xxxxx Xxxx
Xxxxxxxx, XX 00000
11. CONTINUED EMPLOYMENT.
Nothing in this Agreement shall be interpreted or construed to confer upon
the Grantee any right with respect to continuance of employment by the
Company, nor shall this Agreement interfere in any way with the right of
the Company to terminate the Grantee's employment at any time.
12. GENERAL CREDITOR STATUS.
The rights of Grantee under this Agreement shall be solely those of an
unsecured creditor of the Company. Any asset acquired or held by the
Company or funds allocated by the Company in connection with the
liabilities assumed by the Company pursuant to this Agreement shall not be
deemed to be security for the performance of the Company's obligations
pursuant hereto, but shall be and remain general assets of the Company.
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13. SEVERABILITY.
Should any provision of this Agreement be held by a court of competent
jurisdiction to be unenforceable or invalid for any reason, the remaining
provisions of this Agreement shall not be affected by such holding and
shall continue in full force in accordance with their terms.
14. GOVERNING LAW.
Except as to matters of federal law, this Agreement and the rights of all
persons claiming hereunder shall be construed and determined in accordance
with the laws of the State of Delaware without giving effect to conflicts
of law principles.
15. SUCCESSORS IN INTEREST.
This Agreement shall inure to the benefit of and be binding upon any
successor to the Company. This Agreement shall inure to the benefit of the
Grantee's legal representatives. All obligations imposed upon the Grantee
and all rights granted to the Company under this Agreement shall be binding
upon the Grantee's heirs, executors, administrators and successors.
THE XXXXXX CORPORATION
Attest:
/s/ Xxxx X. Gozo By: /s/ E.T. Gravette, Jr.
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E.T. Gravette, Jr.
Chairman and Chief Executive Officer
Attest: AGREED AND ACCEPTED
/s/ Xxxxxxxx X. Xxxxxxx /s/ Xxxxxx X. Xxxxxxx
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Xxxxxx X. Xxxxxxx
