Exhibit 10.3
XXXXXX CDT INC.
RESTRICTED STOCK UNIT AWARD AGREEMENT
THIS RESTRICTED STOCK UNIT AWARD AGREEMENT (this "Agreement") is effective
February 22, 2006 (the "GRANT DATE") by and between Xxxxxx CDT Inc., a Delaware
corporation (the "COMPANY") and _________________________ ("GRANTEE").
WHEREAS, the Grantee is an executive or management employee of the Company
and has been selected by the Compensation Committee (the "COMMITTEE") of the
Board of Directors of the Company (the "BOARD") to receive a grant of
____________ restricted stock units ("RSUs") representing ____________ shares
(the "SHARES") of the Company's common stock, $0.01 par value per share (the
"COMMON STOCK"), subject to certain restrictions, and to enter into a Restricted
Stock Unit Agreement in the form hereof;
NOW THEREFORE, the Company and the Grantee hereby agree as follows:
1. GRANT OF RSUs. The Company hereby grants to the Grantee on the Grant
Date ______________ RSUs. Each RSU represents the right to receive one (1)
Share. Each RSU shall vest and become nonforfeitable ("VEST") in accordance with
Section 2 below. The Company shall hold the RSUs in book-entry form. The Grantee
shall have no direct or secured claim in any specific assets of the Company or
the Shares of Common Stock to be issued to Grantee under Section 4(a) hereof and
will have the status of a general unsecured creditor of the Company. The RSUs
are granted under the Company's 2001 Long-Term Performance Incentive Plan (the
"PLAN") and shall be subject to the terms and conditions of the Plan.
Capitalized terms used in this Agreement without further definition shall have
the same meanings given to such terms in the Plan.
2. VESTING.
(a) Generally. Subject to the acceleration of the Vesting pursuant
to Section 2(b) or (d) below, or the forfeiture and termination of the RSUs
pursuant to Section 2(c) below, all of the RSUs shall Vest on February 22, 2009.
All Vested RSUs shall be paid to the Grantee as provided in Section 4 hereof.
(b) Death, Disability or Retirement. If while employed by the
Company the Grantee dies or becomes disabled (and leaves the Company) in
accordance with any Company disability policy then in effect or (if after one
year from the Grant Date) retires from employment with the Company under any
Company retirement plan then in effect, then any and all unvested RSUs shall
immediately Vest in full.
(c) Other Employment Termination. If the Grantee or the Company
otherwise terminates the Grantee's employment, any and all RSUs that are not
Vested at such time shall be forfeited, cancelled and terminated upon such
termination.
(d) Change of Control. Immediately preceding the occurrence of a
Change in Control of the Company (as defined in Section 6(f) below), any and all
unvested RSUs shall immediately Vest in full.
3. NO TRANSFER OR ASSIGNMENT OF RSUs; RESTRICTIONS ON SALE. Except as
otherwise provided in this Agreement, the RSUs and the rights and privileges
conferred thereby shall not be sold, pledged or otherwise transferred (whether
by operation of law or otherwise) and shall not be subject to sale under
execution, attachment, levy or similar process until the Shares underlying the
RSUs are delivered to the Grantee or his designated representative. The Grantee
agrees not to sell any Shares at any time when applicable laws or Company
policies prohibit a sale. This restriction shall apply as long as the Grantee is
an employee of the Company.
4. DELIVERY OF SHARES.
(a) Issuance of Shares. As of the date in which the RSUs Vest, the
Company shall issue to the Grantee a stock certificate (or register Shares of
Common Stock in book-entry form) representing a number of Shares of Common Stock
equal to the number of RSUs then vested.
(b) Withholding Taxes. At the time Shares of Common Stock are issued
to the Grantee, the Company shall satisfy the statutory Federal, state and local
withholding tax obligation (including the FICA and Medicare tax obligation)
required by law with respect to the distribution of Shares from one or more of
the following methods, as the Grantee elects: (i) the Company shall withhold
cash compensation then accrued and payable to the Grantee of such required
withholding amount, (ii) the Grantee may tender a check or other payment of cash
to the Company of such required withholding amount, or (iii) by withholding from
Shares issuable to the Grantee hereunder having an aggregate fair market value
equal to the amount of such required withholding.
5. LEGALITY OF INITIAL ISSUANCE. No Shares shall be issued unless and
until the Company has determined that:
(a) It and the Grantee, at Company's expense, have taken any actions
required to register the Shares under the Securities Act of 1933, as amended or
to perfect an exemption from the registration requirements thereof;
(b) Any applicable listing requirement of any stock exchange or
other securities market on which the Common Stock is listed has been satisfied;
and
(c) Any other applicable provision of state or federal law has been
satisfied.
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6. MISCELLANEOUS PROVISIONS.
(a) Rights as a Stockholder. Neither the Grantee nor the Grantee's
representative shall have any rights as a stockholder with respect to any Shares
underlying the RSUs until the date that the Company is obligated to deliver such
Shares to the Grantee or the Grantee's representative.
(b) Dividends. Between the Grant Date and the date of Vesting of the
RSUs (the "ACCRUAL PERIOD"), any dividends or distributions payable with respect
to the number of Shares equal to the number of RSUs held by the Grantee shall be
accumulated and deferred until the Vesting of the RSUs. After such Vesting of
the RSUs, the Company shall promptly distribute to the Grantee all such
dividends and distributions accrued during the Accrual Period.
(c) No Retention Rights. Nothing in this Agreement shall confer upon
the Grantee any right to continue in the employment or service of the Company
for any period of specific duration or interfere with or otherwise restrict in
any way the rights of the Company or of the Grantee, which rights are hereby
expressly reserved by each, to terminate his employment or service at any time
and for any reason, with or without cause.
(d) Employment by Subsidiary, etc.. For purposes of this Agreement,
employment by a parent or subsidiary of or a successor to the Company shall be
considered employment by the Company.
(e) Anti-Dilution. In the event that any change in the outstanding
Shares of Common Stock of the Company (including an exchange of Common Stock for
stock or other securities of another corporation) occurs by reason of a Common
Stock dividend or split, recapitalization, merger, consolidation, combination,
exchange of Shares or other similar corporate changes, other than for
consideration received by the Company therefor, the number of RSUs awarded
hereunder, and the number of Shares distributable pursuant to Vested RSUs, shall
be appropriately adjusted by the Committee whose determination shall be
conclusive, final and binding; provided, however that fractional Shares shall be
rounded to the nearest whole share. In the event of any other change in the
Common Stock, the Committee shall in its sole discretion determine whether such
change equitably requires a change in the number or type of Shares subject to
RSUs and any adjustment made by the Committee shall be conclusive, final and
binding.
(f) Change in Control. A "CHANGE IN CONTROL" of the Company shall be
deemed to have occurred if any of the events set forth in any one of the
following subparagraphs shall occur:
(i) The acquisition by any individual, entity or group (within
the meaning of Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act
of 1934, as amended (the "EXCHANGE ACT")) (a "PERSON") of beneficial
ownership (within the meaning of Rule 13d-3 promulgated under the Exchange
Act) of more than 50% of either (y) the then-outstanding shares of common
stock of the
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Company (the "OUTSTANDING COMPANY COMMON STOCK") or (z) the combined
voting power of the then-outstanding voting securities of the Company
entitled to vote generally in the election of directors (the "OUTSTANDING
COMPANY VOTING SECURITIES"); provided, however, that for purposes of this
subsection (i), the following acquisitions shall not constitute a Change
of Control: (1) any acquisition directly from the Company, (2) any
acquisition by the Company, (3) any acquisition by any employee benefit
plan (or related trust) sponsored or maintained by the Company or any
corporation controlled by the Company, or (4) any acquisition by any
corporation pursuant to a transaction which complies with clauses (1) and
(2) of subsection (iii) of this definition; 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 subsequent to the date hereof whose election, or nomination for
election by the Company's shareholders, was approved by a vote of at least
a majority of the directors then comprising the Incumbent Board shall be
considered as though such individual were a member of the Incumbent Board;
or
(iii) consummation of 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, (1) all or substantially all
of the individuals and entities who were the beneficial owners,
respectively, of the Outstanding Company Common Stock and Outstanding
Company Voting Securities immediately prior to such Business Combination
beneficially own, directly or indirectly, more than 50% of, respectively,
the then-outstanding shares of common stock and the combined voting power
of the then-outstanding voting securities entitled to vote generally in
the election of directors, as the case may be, of the corporation
resulting from such Business Combination (including, without limitation, a
corporation 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 Company Common Stock and Outstanding Company Voting
Securities, as the case may be, and (2) at least a majority of the members
of the board of directors of the corporation 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.
(g) Incorporation of Plan. The provisions of the Plan are
incorporated by reference into these terms and conditions.
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(h) Inconsistency. To the extent any terms and conditions herein
conflict with the terms and conditions of the Plan, the terms and conditions of
the Plan shall control.
(i) Notices. Any notice required by the terms of this Agreement
shall be given in writing and shall be deemed effective upon personal delivery,
upon deposit with the United States Postal Service, by registered or certified
mail, with postage and fees prepaid or upon deposit with a reputable overnight
courier. Notice shall be addressed to the Company at its principal executive
office and to the Grantee at the address that he most recently provided to the
Company.
(j) Entire Agreement; Amendments. This Agreement constitutes the
entire contract between the parties hereto with regard to the subject matter
hereof. This Agreement supersedes any other agreements, representations or
understandings (whether oral or written and whether express or implied) which
relate to the subject matter hereof. The Committee shall have authority, subject
to the express provisions of the Plan, to interpret this Agreement and the Plan,
to establish, amend and rescind any rules and regulations relating to the Plan,
to modify the terms and provisions of this Agreement, and to make all other
determinations in the judgment of the Committee necessary or desirable for the
administration of the Plan. The Committee may correct any defect or supply any
omission or reconcile any inconsistency in the Plan or in this Agreement in the
manner and to the extent it shall deem necessary or desirable to carry it into
effect. All action by the Committee under the provisions of this paragraph shall
be final, conclusive and binding for all purposes.
(k) Choice of Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of Delaware, as such laws
are applied to contracts entered into and performed in such State, without
giving effect to the choice of law provisions thereof.
(l) Successors.
(i) This Agreement is personal to the Grantee and, except as
otherwise provided in Section 3 above, shall not be assignable by the Grantee
otherwise than by will or the laws of descent and distribution, without the
written consent of the Company. This Agreement shall inure to the benefit of and
be enforceable by the Grantee's legal representatives.
(ii) This Agreement shall inure to the benefit of and be
binding upon the Company and its successors. It shall not be assignable except
in connection with the sale or other disposition of all or substantially all the
assets or business of the Company.
(m) Severability. If any provision of this Agreement for any reason
should be found by any court of competent jurisdiction to be invalid, illegal or
unenforceable, in whole or in part, such declaration shall not affect the
validity, legality or enforceability of any remaining provision or portion
hereof, which remaining provision or portion hereof shall remain in full force
and effect as if this Agreement had
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been adopted with the invalid, illegal or unenforceable provision or portion
hereof eliminated.
(n) Headings. The headings, captions and arrangements utilized in
this Agreement shall not be construed to limit or modify the terms or meaning of
this Agreement.
(o) Counterparts. This Agreement may be executed simultaneously in
one or more counterparts, each of which shall be deemed an original, but all of
which shall constitute but one and the same instrument.
This Agreement is executed by the Company as of the date and year first
written above.
XXXXXX CDT INC.
By:_____________________________________
Title:__________________________________
The undersigned Grantee hereby acknowledges receipt of an executed
original of this Agreement and accepts the RSUs granted hereunder, and further
agrees to the terms and conditions hereinabove set forth.
________________________________________
____________________, Grantee
Date:____________________, 2006
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