Exhibit 10 (xxxiii)
AMERICAN GREETINGS CORPORATION
DEFERRED SHARES GRANT AGREEMENT
American Greetings Corporation, an Ohio corporation (the "Company"),
pursuant to the terms and conditions hereof, hereby agrees to issue ____________
Class ___ Common Shares, $1 par value (the "Deferred Shares"), on the first
anniversary of the date hereof (the "Issuance Date"), to ___________________ or
his estate (the "Grantee").
1. The Deferred Shares are in all respects subject to the terms,
conditions and provisions of this Agreement and the Company's 1997 Equity and
Performance Incentive Plan (the "Plan").
2. Except as otherwise provided herein if the Grantee voluntarily
terminates his employment with the Company, unless such termination is deemed to
be a termination by the Company "without cause," the Company will no longer be
obligated to issue the Deferred Shares to the Grantee and the Deferred Shares
shall be forfeited.
3. Except as otherwise provided herein, the Grantee will not have the
rights of a shareholder of the Company with respect to the Deferred Shares until
issued; provided, however, the Company shall pay the Grantee the equivalent of
the per share dividend paid on each Class ____ Common Share for each Deferred
Share.
4. Notwithstanding anything to the contrary in this Agreement, the
Deferred Shares awarded to the Grantee hereunder shall be immediately issued to
the Grantee and a certificate or certificates representing the Deferred Shares
shall be delivered to the Grantee or the Grantee's estate, as the case may be,
upon (i) the Grantee's death or disability (as defined below), (ii) a Change in
Control of the Company (as defined in the Plan), or (iii) the termination
"without cause" of the Grantee's employment by the Company. Termination by the
Company shall be deemed to be "without cause" unless the Board of Directors of
the Company, or its designee, in good faith determines that termination is
because of any one or more of the following:
The Grantee's:
(a) fraud;
(b) misappropriation of funds;
(c) commission of a felony or of an act or series of acts which result
in material injury to the business reputation of the Company;
(d) commission of a crime or act or series of acts involving moral
turpitude;
(e) commission of an act or series of repeated acts of dishonesty that
are materially inimical to the best interests of the Company;
(f) willful and repeated failure to perform his duties, which failure
has not been cured in all substantial respects within fifteen (15)
days after the Company gives written notice thereof to the Grantee;
or
(g) material breach of any material provision of any employment
agreement with the Company, which breach has not been cured in all
substantial respects within ten (10) days after the Company gives
written notice thereof to the Grantee.
In addition, the Grantee may terminate his employment with the Company, and such
termination shall be deemed a termination by the Company "without cause" if:
(a) the Company reduces the Grantee's title, responsibilities, power or
authority in comparison with his title, responsibilities, power or
authority on the date hereof;
(b) the Company assigns the Grantee duties which are inconsistent with
the duties assigned to the Grantee on the date hereof and which
duties the Company persists in assigning to the Grantee despite the
prior written objection of the Grantee; or
(c) the Company reduces the Grantee's annual base compensation (unless
such decrease is proportionate with a decrease in the base
compensation of the executive officers of the Company as a group),
or materially reduces his group health, life, disability or other
insurance programs (including any such benefits provided to the
Grantee's family), his pension, retirement or profit-sharing
benefits or any benefits provided by the Company, or excludes him
from any plan, program or arrangement, including but not limited to
bonus or incentive plans, in which the other executive officers of
the Company are included.
5. For purposes of this Agreement the Grantee shall be considered
"disabled" if the Grantee is unable to engage in any substantial gainful
activity by reason of any medically determinable physical or mental impairment,
which can be expected to result in death or can be expected to last for a
continuous period of not less than twelve (12) months. All determinations of
whether the Grantee is disabled shall be made in accordance with Internal
Revenue Code Section 409A ("Section 409A").
6. Unless specifically permitted by the Compensation and Management
Development Committee (the "Committee"), prior to the issuance of the Deferred
Shares pursuant to this Agreement the Grantee may not transfer, assign, pledge
or hypothecate the right to receive the Deferred Shares, and the right to
receive the Deferred Shares may not be transferred or assigned by operation of
law, or be subject to execution, attachment or similar process other than by
will or the laws of descent and distribution.
7. On any change in the number or kind of outstanding common shares of
the Company by reason of a recapitalization, merger, consolidation,
reorganization, separation, liquidation, share split, share dividend,
combination of shares or any other change in the corporate structure or common
shares of the Company, the Company, by action of the Committee, is empowered to
make such adjustment, if any, in the number and kind of Deferred Shares subject
to this agreement as it considers appropriate for the protection of the Company
and of the Grantee.
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8. No later than the date as of which an amount first becomes
includable in the gross income of the Grantee for federal income tax purposes
with respect to the Deferred Shares granted hereunder, the Grantee shall pay to
the Company, or make arrangements satisfactory to the Committee regarding the
payment of, any federal, state or local taxes of any kind required by law to be
withheld with respect to that amount. Unless otherwise determined by the
Committee, withholding obligations may be settled with previously owned common
shares or Deferred Shares. The making of that payment or those arrangements is a
condition to the obligations of the Company under the Plan, and the Company may,
to the extent permitted by law, deduct any taxes from any payment of any kind
otherwise payable to the Grantee or the Company may retain such number of the
Deferred Shares covered by the grant evidenced by this Agreement as shall be
equal in value to the amount of the remaining withholding obligation.
9. The obligations of the Company under this Agreement are unfunded and
unsecured. The Grantee shall have the status of a general creditor of the
Company with respect to amounts due, if any, under this Agreement.
10. Nothing in this Agreement shall affect in any manner any conflicting
or other provision of any other agreement between the Grantee and the Company.
Nothing contained in this Agreement shall limit whatever right the Company might
otherwise have to terminate the employment of the Grantee.
11. The laws of the State of Ohio govern this Agreement, the Plan and
the Deferred Shares granted hereunder. If any provision of this Agreement
conflicts with any provision in the Plan, the provisions of the Plan shall
govern.
12. The provisions set forth in this Agreement are subject to the
restrictions and other requirements of Section 409A and related regulations and
rulings. Without limiting the generality of the preceding sentence, such
provisions shall be modified and amended, as and where necessary, to bring such
provisions into compliance with the requirements set forth in Section 409A and
related regulations and rulings. This Agreement shall be interpreted to comply
with Section 409A and to the extent any provision of this Agreement is
inconsistent with Section 409A, said Section 409A shall control.
IN WITNESS WHEREOF, the Company has caused its corporate name to be
subscribed by its duly authorized officer as of the __ day of _____________,
20____.
AMERICAN GREETINGS CORPORATION
By ___________________________
The foregoing is hereby accepted.
_________________________________
(Signature)
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