EXHIBIT 10(a)(xxxi)
RESTRICTED STOCK UNIT AWARD AND AGREEMENT
[DATE]
Dear _____________________:
X. X. Xxxxx Company is pleased to confirm that, effective as of ______, you have
been granted an award of Restricted Stock Units ("RSUs") for Fiscal Year ____ in
accordance with the terms and conditions of the X.X. Xxxxx Company Fiscal Year
2003 Stock Incentive Plan (the "Plan"). This Award is also made under and
governed by the terms and conditions of this letter agreement ("Agreement"),
which shall control in the event of a conflict with the terms and conditions of
the Plan. For purposes of this Agreement, the "Company" shall refer to X. X.
Xxxxx Company and its Subsidiaries. Unless otherwise defined in this Agreement,
all capitalized terms used in this Agreement shall have the same defined
meanings as in the Plan.
1. RSU Award. You have been awarded a total of ____________ RSUs for Fiscal
Year ____.
2. RSU Account. RSUs entitle you to receive a corresponding number of shares
of X. X. Xxxxx Company Common Stock ("Common Stock") in the future,
subject to the conditions and restrictions set forth in this Agreement,
including, without limitation, the vesting conditions set forth in
Paragraph 3 below. Your RSUs will be credited to a separate account
established and maintained by the Company on your behalf. Until the
Distribution Date (as defined herein), your RSUs are treated as deferred
compensation amounts, the value of which is subject to change based on
increases or decreases in the market price of the Common Stock. Because
the RSUs are not actual shares of Common Stock, you cannot exercise voting
rights on them until the Distribution Date.
3. Vesting. You will become vested in the RSUs credited to your account
according to the following schedule: _________.
4. Termination of Employment. The termination of your employment with the
Company will have the following effect on your RSUs:
(a) Retirement, Disability or Involuntary Termination without Cause. If
the termination of your employment with the Company is the result of
Retirement, Disability, or involuntary termination without Cause,
any RSUs granted hereunder that remain unvested as of your Date of
Termination shall continue to vest in accordance with the vesting
schedule set forth in Paragraphs 3(a) and 3(b) above, subject to the
requirements of Paragraph 5 of this Agreement.
(b) Death. In the event that you should die while you are continuing to
perform services for the Company or following Retirement, any RSUs
that remain unvested as of the date of your death shall continue to
vest in accordance with the vesting schedule set forth in Paragraphs
3(a) and 3(b) above.
(c) Other Termination. If your employment with the Company terminates
for any reason other than as set forth in subparagraphs (a), (b) and
(c) above, including without limitation any voluntary termination of
employment or an involuntary termination for Cause, no further
vesting will occur and you will immediately forfeit all of your
rights in any RSUs that remain unvested as of your Date of
Termination.
5. Non-Solicitation/Confidential Information. In partial consideration for
the RSUs granted to you hereunder, you agree that you shall not, during
the term of your employment by the Company and for 12 months after
termination of your employment, regardless of the reason for the
termination, either directly or indirectly, solicit, take away or attempt
to solicit or take away any other employee of the Company, either for your
own purpose or for any other person or entity. You further agree that you
shall not, during the term of your employment by the Company or at any
time thereafter, use or disclose the Confidential Information (as defined
below) except as directed by, and in furtherance of the business purposes
of, the Company. You acknowledge that the breach or threatened breach of
this Paragraph 5 will result in irreparable injury to the Company for
which there is no adequate remedy at law because, among other things, it
is not readily susceptible of proof as to the monetary damages that would
result to the Company. You consent to the issuance of any restraining
order or preliminary restraining order or injunction with respect to any
conduct by you that is directly or indirectly a breach or threatened
breach of this Paragraph 5. Any breach by you of the provisions of this
Paragraph 5 will, at the option of the Company and in addition to all
other rights and remedies available to the Company at law, in equity or
under this Agreement, result in the immediate forfeiture of all of your
rights in any RSUs that remain unvested as of the date of such breach.
"Confidential Information" as used herein shall mean technical or business
information not readily available to the public or generally known in the
trade, including but not limited to inventions; ideas; improvements;
discoveries;
developments; formulations; ingredients; recipes; specifications; designs;
standards; financial data; sales, marketing and distribution plans,
techniques and strategies; customer and supplier information; equipment;
mechanisms; manufacturing plans; processing and packaging techniques;
trade secrets and other confidential information, knowledge, data and
know-how of the Company, whether or not they originated with you, or
information which the Company received from third parties under an
obligation of confidentiality.
6. Dividends. An amount equal to the dividends payable on the shares of
Common Stock represented by the RSUs will be paid directly to you as soon
as practicable following the date on which a dividend is declared by the
Company. These payments will be calculated based upon the number of RSUs
credited to your account as of the date that a dividend is declared. These
payments will be reported as income to the applicable taxing authorities,
and federal, state, local and/or foreign income and/or employment taxes
will be withheld from such payments as and to the extent required by
applicable law.
7. Distribution. All RSU distributions will be made in the form of actual
shares of Common Stock and will be distributed to you on one of the
following dates (each, a "Distribution Date"):
(a) Default Distribution Date. Shares of Common Stock representing your
RSUs will be distributed to you when the RSUs vest, unless the
Distribution Date is automatically deferred as provided in
subparagraph (b) below.
(b) Executive Officer/Management Committee Member Exception. If you are
a named executive officer of the Company on the Distribution Date
(as listed in the proxy statement filed by the Company most recent
to the Distribution Date) or are a member of the Company's
Management Committee on the Distribution Date, the Distribution Date
will automatically be deferred to the close of business on the last
day of your employment with the Company.
Certificates representing the distributed shares of Common Stock will be
delivered to the firm maintaining your account as soon as practicable
after a Distribution Date occurs. Notwithstanding the foregoing, all
vested RSUs will be immediately distributed to you at the close of
business on the last day of your employment with the Company, or as soon
as practicable thereafter, if you terminate employment with the Company
for any reason including death, disability, retirement or Change of
Control of the Company.
8. Tax Withholding. On the Distribution Date, the Company will withhold a
number of shares of Common Stock that is equal, based on the Fair Market
Value of the Common Stock on the Distribution Date, to the amount of the
federal, state,
local, and/or foreign income and/or employment taxes required to be
collected or withheld with respect to the distribution.
9. Non-Transferability. Your RSUs may not be sold, transferred, pledged,
assigned or otherwise encumbered except by will or the laws of descent and
distribution. You may also designate a beneficiary(ies) in the event that
you die before a Distribution Date occurs, who shall succeed to all your
rights and obligations under this Agreement and the Plan. A beneficiary
election form is attached. If you do not designate a beneficiary, your
RSUs will pass to the person or persons entitled to receive them under
your will. If you shall have failed to make a testamentary disposition of
your RSUs in your will or shall have died intestate, your RSUs will pass
to the legal representative or representatives of your estate.
10. Employment Rights. You acknowledge and agree that nothing in this
Agreement or the Plan shall confer upon you any right with respect to
future awards or continuation of your employment, nor shall it constitute
an employment agreement or interfere in any way with your right or the
right of Company to terminate your employment at any time, with or without
cause, and with or without notice, subject to the terms of any written
employment contract that you may have with the Company that is signed by
both you and an authorized representative of the Company.
11. Collection and Use of Personal Data. You consent to the collection, use,
and processing of personal data (including name, home address and
telephone number, identification number and number of RSUs held) by the
Company or a third party engaged by the Company for the purpose of
implementing, administering and managing the Plan and any other stock
option or stock incentive plans of the Company (the "Plans"). You further
consent to the release of personal data (a) to such a third party
administrator, which, at the option of the Company, may be designated as
the exclusive broker in connection with the Plans, or (b) to any
affiliated company within the definition of the Company, wherever located.
You hereby waive any data privacy rights with respect to such data to the
extent that receipt, possession, use, retention, or transfer of the data
is authorized hereunder.
12. Future Awards. The Plan is discretionary in nature and the Company may
modify, cancel or terminate it at any time without prior notice in
accordance with the terms of the Plan. While RSUs or other awards may be
granted under the Plan on one or more occasions or even on a regular
schedule, each grant is a one time event, is not an entitlement to an
award of RSUs in the future, and does not create any contractual or other
right to receive an award of RSUs, compensation or benefits in lieu of
RSUs or any other compensation or benefits in the future.
13. Compliance with Stock Ownership Guidelines. All RSUs granted to you under
this Agreement shall be counted as shares of Common Stock that are owned
by you for purposes of satisfying the minimum share requirements under the
Company's Simplified Stock Ownership Guidelines ("SOG"). Notwithstanding
the foregoing, you acknowledge and agree that, with the exception of the
number of shares of Common Stock withheld to satisfy income tax
withholding requirements pursuant to Paragraph 10 above, the shares of
Common Stock represented by the RSUs granted to you hereunder cannot be
sold or otherwise transferred, even after the Distribution Date, unless
and until you have met SOG's minimum share ownership requirements. The
Management Development & Compensation Committee will not approve
additional RSU awards to you unless you are in compliance with the terms
of this Paragraph 15 and the SOG requirements.
14. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the Commonwealth of Pennsylvania, without
regard to its choice of law provisions.
THIS RSU AWARD IS SUBJECT TO YOUR ON-LINE ACCEPTANCE OF THE TERMS AND CONDITIONS
OF THIS AGREEMENT THROUGH THE FIDELITY WEBSITE.
X. X. XXXXX COMPANY
By: ________________________________
Xxxxxxx X. Xxxxxxx
Chairman of the Board,President and
Chief Executive Officer
Accepted: __________________________
Date: ______________________________
