STOCK APPRECIATION RIGHTS GRANT AGREEMENT
Exhibit (a)(1)(viii)
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.
In consideration of the tender by Participant of certain outstanding options and/or stock
appreciation rights in the Company’s Exchange Program, which tender has been accepted as of the
Grant Date, and 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 excess of (a) the aggregate Fair Market Value of the Granted Shares on the Exercise
Date (as defined below) (the “Appreciation Price”) over (b) the aggregate Fair Market Value of the
Granted Shares on the Grant Date (the “Xxxxx Xxxxx”). This grant shall be referred to as the SAR.
Such Appreciation shall not be payable in cash, but rather shall be payable only in Paid Shares (as
defined below) following the withholding of Shares to satisfy mandatory tax withholding
obligations. 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).
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. Vesting and Exercisability of SAR. As set forth on Annex A, this SAR will vest
in three equal installments of the Shares on each of the first three anniversaries of the Grant
Date, so that this SAR shall be vested as to all Shares on the last such anniversary. Any portion
of this SAR that becomes vested in accordance with the foregoing shall remain vested and shall be
exercisable, subject to the 2005 Plan or this SAR Agreement (including without limitation Paragraph
7), until the earlier of the Expiration Date or other termination of this SAR in accordance with
the 2005 Plan and this SAR Agreement. Prior to the exercise of this SAR and delivery of the
resulting Paid Shares (as defined below), the Participant shall not have any rights of a
stockholder with respect to this SAR or the Shares subject to this SAR.
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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 applicable to the number of Granted
Shares to which this SAR is appropriately 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 result 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 this SAR is deemed to
constitute an offer and sale of Shares under the Securities Act of 1933, as amended (the
“Securities Act”), and such offer and sale is not covered by a then effective registration
statement under 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.
6. Non-Transferability of SAR; Forfeiture; Adjustment.
(a) Neither this SAR nor the Granted Shares subject thereto shall be pledged,
hypothecated or otherwise encumbered or subjected to any lien, obligation or liability of the
Participant to any party (other than the Company or any of its subsidiaries or affiliates), 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
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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, the Granted Shares covered hereby, any Paid Shares delivered hereunder and
the proceeds of the subsequent sale of any such Paid Shares delivered hereunder are subject to
forfeiture under certain circumstances in accordance with Section 11 of the 2005 Plan.
(c) This SAR, including the number of Granted Shares and the Xxxxx Xxxxx, shall be adjusted
upon the occurrence of an event constituting an “equity restructuring” as defined under FAS 123R in
order to preserve (without enlarging) the rights of Participant, in accordance with Section 12(c)
of the 2005 Plan. In addition, each Target Price shall be subject to adjustment in any case in
which the SAR is subject to adjustment in order to preserve (without substantial alteration) the
economic terms of the SAR and the market-based performance conditions set forth in Paragraph 3(b).
If the Shares cease to be listed on the New York Stock Exchange, achievement of the Target Price
will be based on trading prices or quotations on such other principal trading market in which
Shares may then be listed or quoted, as reasonably determined by the Committee.
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 will immediately
become fully vested and 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. Upon expiration
of any such post-termination exercise period, this SAR shall terminate in its entirety and any
portion of the SAR remaining unexercised (even though fully vested) shall be immediately forfeited
and become immediately non-exercisable.
(b) Effect of Termination for Cause or Voluntary Resignation. If the Participant voluntarily
resigns his or her employment with the Company or any subsidiary or affiliate or the Participant’s
employment is terminated for Cause (as defined in any employment agreement to which the Company and
the Participant is party or in the severance plan then applicable to such Participant), the SAR
shall immediately terminate in its entirety and any portion of the SAR remaining unexercised
(regardless of the vesting status of such portion of the SAR) shall be immediately forfeited and
become immediately non-exercisable.
(c) Effect of Termination without Cause within Two Years Following a Change in Control. If
the Participant’s employment is terminated without Cause by the Company or any subsidiary or
affiliate within two years following a Change in Control, this SAR will immediately become fully
vested and 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 termination. Upon expiration of any such
post-termination exercise period, this SAR
shall terminate in its entirety and any portion of the SAR remaining unexercised (even though fully
vested) shall be immediately forfeited and become immediately non-exercisable.
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(d) Effect of Other Termination. If the Participant’s employment by the Company or any
subsidiary or affiliate terminates for any other reason, other than (a) death, Disability or
Retirement, (b) voluntary resignation or for Cause, or (c) without Cause within two years of a
Change in Control, then this SAR shall be exercisable during the period of one year after such
termination or until the Expiration Date, whichever period is shorter, but only to the extent to
which this SAR was vested and exercisable at the time of such termination. Following such
termination, all unvested Shares shall be immediately forfeited and will never become exercisable.
Upon expiration of any such post-termination exercise period, this SAR shall terminate in its
entirety and any portion of the SAR remaining unexercised (regardless of the vesting status of such
portion of the SAR) shall be immediately forfeited and become immediately non-exercisable.
(e) 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 55 years with 10 years of service with the
Company or any of its subsidiaries or affiliates or (ii) age 65 years without regard to years of
such service.
8. Change in Control. Notwithstanding Section 10 of the 2005 Plan, a Change in
Control (as defined in the 2005 Plan and/or any employment agreement to which the Company and the
Participant is party or in the severance plan then applicable to such Participant), in and of
itself shall have no impact upon the exercisability of this SAR or the Granted Shares subject to
this SAR.
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. Unless otherwise determined by the Committee, the Company, on
behalf of itself or any subsidiary or affiliate that employs Participant, will withhold from the
distribution of Shares upon the exercise of this SAR amounts of withholding and other taxes due or
potentially payable in connection with any transaction involving this SAR, and may 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.
Upon such withholding of Shares, the Company shall make cash payments in respect thereof in
satisfaction of Participant’s withholding obligations. Notwithstanding any provision in the 2005
Plan to the contrary, only the minimum amount of Shares 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 and this SAR Agreement 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) and, if the modification is both material and adverse to
Participant, must also be signed by Participant. 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 AGREEMENT AND ACKNOWLEDGEMENT
Name: «Name»
Address: «Address» «City», «State» «Zip»
Social Security or Tax ID Number: «SSN»
Grant Date: «Date1»
Expiration Date: «Date2»
Number of Granted Shares: «Shares»
Xxxxx Xxxxx: «Price»
Vesting Schedule:
|
One third equal installments on the first three anniversaries of the Grant Date. |
| Number of Shares Vesting | Vest Date | |||
| «Shares» | «Date» | |||
| «Shares» | «Date» | |||
| «Shares» | «Date» |
| X.X. Xxxxxxxxx Corporation | ||||
By: |
||||
| Senior Vice President – Human Resources | ||||
ACCEPTED AND AGREED TO:
«First» «Middle» «Last»
Signature
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ANNEX B
STOCK APPRECIATION RIGHT EXERCISE AUTHORIZATION FORM
I hereby exercise the following Stock Appreciation Rights granted to me by X.X. Xxxxxxxxx. 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 Stock
Award and Incentive 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 to be Registered to:
Name:
Address:
Share Delivery Instructions (check one):
o
|
E*Trade Financial | o | Other (please include name & mailing address) | |||||||
| 0000 Xxxxx Xxxx Xxxx | ||||||||||
| Xxxxxx Xxxxxxx, XX 00000 |
Signature
|
Phone # |
Date
Fax completed form to:
Compensation Department
Xxxxxx Xxxxxx, Compensation Analyst
Fax: 000-000-0000
Compensation Department
Xxxxxx Xxxxxx, Compensation Analyst
Fax: 000-000-0000
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