FORM OF RESTRICTED STOCK UNIT AGREEMENT
EXHIBIT 4.6
FORM OF RESTRICTED STOCK UNIT AGREEMENT
TO: |
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FROM:
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Xxxxxx X. Xxxxxxx | |||
SUBJECT:
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2007 Restricted Stock Unit Award |
You have been selected to receive a restricted stock unit award. This award, which is subject to
adjustment under the 2007 Restricted Stock Unit Agreement (the “Agreement”), is granted to you in
recognition of your role as a key employee whose responsibilities and performance are critical to
the attainment of long-term goals. This award and similar awards are made on a selective basis and
are, therefore, to be kept confidential. It is granted and subject to the terms and conditions of
The Xxxxxxxx Companies, Inc. 2007 Incentive Plan, as amended from time to time, and the Agreement.
Subject to all of the terms of the Agreement, you will become entitled to payment of this award if
you are an active employee of the Company three years after the date on which this award is made.
If you have any questions about this award, you may contact a dedicated Fidelity Stock Plan
Representative at 0-000-000-0000.
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THIS RESTRICTED STOCK UNIT AGREEMENT (this “Agreement”), which contains the terms and
conditions for the Restricted Stock Units (“Restricted Stock Units” or “RSUs”) referred to in the
2007 Restricted Stock Unit Award Letter delivered in hard copy or electronically to Participant
(“2007 Award Letter”), is by and between THE XXXXXXXX COMPANIES, INC., a Delaware corporation (the
“Company”) and the individual identified on the last page hereof (the “Participant”).
1. Grant of RSUs. Subject to the terms and conditions of The Xxxxxxxx Companies, Inc. 2007
Incentive Plan, as amended from time to time (the “Plan”), this Agreement and the 2007 Award
Letter, the Company hereby grants an award (the “Award”) to the Participant of RSUs
effective (the “Effective Date”). The Award gives the Participant the
opportunity to earn the right to receive the number of shares of the Common Stock of the Company
equal to the number of RSUs shown in the prior sentence, subject to adjustment under the terms of
this Agreement. These shares are referred to in this Agreement as the “Shares.” Until the
Participant both becomes entitled to payment of the Shares under the terms of Paragraph 4 and is
paid such Shares under the terms of Paragraph 5, the Participant shall have no rights as a
stockholder of the Company with respect to the Shares.
2. Incorporation of Plan. The Plan is hereby incorporated herein by reference and all
capitalized terms used herein which are not defined in this Agreement shall have the respective
meanings set forth in the Plan. The Participant acknowledges that he or she has received a copy of,
or has online access to, the Plan and hereby accepts the RSUs subject to all the terms and
provisions of the Plan and this Agreement.
3. Committee Decisions and Interpretations. The Participant hereby agrees to accept as
binding, conclusive and final all actions, decisions and/or interpretations of the Committee, its
delegates, or agents, upon any questions or other matters arising under the Plan or this Agreement.
4. Entitlement to Payment of Shares.
(a) Except as otherwise provided in Subparagraphs 4(b) – 4(g) below, the Participant shall
become entitled to payment of all Shares on the date that is three years after the Effective
Date (not including the Effective Date) (the “Maturity Date”), but only if the Participant
remains an active employee of the Company or any of its parents, subsidiaries or affiliates
through the Maturity Date. For example, if the Effective Date of Participant’s award under
this Agreement is , 2007, the Maturity Date will be
, 2010.
(b) If a Participant dies prior to the Maturity Date while an active employee of the Company
or any of its parents, subsidiaries or affiliates, the Participant shall become entitled to
payment of all Shares at the time of such death.
(c) If a Participant becomes Disabled (as defined below) prior to the Maturity Date while an
active employee of the Company or any of its parents, subsidiaries or affiliates, the
Participant shall become entitled to payment of all Shares at the time the Participant
becomes Disabled. For purposes of this Subparagraph 4(c), the Participant shall be
considered Disabled if he or she (A) 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, or (B) is, by reason of any medically
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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, receiving
income replacement benefits for a period of not less than three (3) months under an accident
and health plan covering employees of the Participant’s employer. Notwithstanding the
forgoing, all determinations of whether a Participant is Disabled shall be made in accordance
with Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”) and the
guidance thereunder.
(d) If the Participant qualifies for Retirement (as defined below) and terminates employment
with the Company or any of its parents, subsidiaries or affiliates prior to the Maturity Date
due to such Retirement, at the time of such termination, the Participant shall become
entitled to payment of a pro rata number of the Shares as determined in accordance with this
Subparagraph 4(d). For purposes of this Subparagraph 4(d), a Participant qualifies for
Retirement only if such Participant separates from service, within the meaning of Section
409A(a)(2)(A)(i) of the Code, after attaining age fifty-five (55) and completing at least
five (5) years of service with the Company or any of its parents, subsidiaries or affiliates.
The pro rata number referred to above shall be determined by multiplying the number of
Shares subject to the Award by a fraction, the numerator of which is the number of full and
partial months in the period that begins the month following the month that contains the
Effective Date and ends on (and includes) the date of the Participant’s separation from
service, and the denominator of which is the total number of full and partial months in the
period that begins the month following the month that contains the Effective Date and ends
on (and includes) the Maturity Date.
(e) If a Participant’s employment with the Company or any of its parents, subsidiaries
or affiliates terminates prior to the Maturity Date within two (2) years following a Change
in Control (as defined below), either voluntarily for Good Reason or involuntarily (other
than due to Cause), the Participant shall become entitled to payment of all of the Shares
upon such termination. For purposes of this Agreement, Change in Control means an event that
qualifies as a Change in Control Event as defined in Section 409A of the Code and guidance
thereunder.
(f) If the Participant’s employment with the Company or any of its parents, subsidiaries or
affiliates is terminated by the respective employing entity prior to the Maturity Date and
the Participant either receives benefits under a severance pay plan or program maintained by
the Company or receives benefits under a separation agreement with the Company, the
Participant shall become entitled to payment of all Shares upon such termination.
(g) If the Participant’s employment with the Company or any of its parents, subsidiaries or
affiliates is terminated by the respective employing entity prior to the Maturity Date due to
a sale of a business or the outsourcing of any portion of a business, the Participant shall
become entitled to payment of all Shares upon such termination, but only if the Company or
any of its parents, subsidiaries or affiliates failed to make an offer of comparable
employment, as defined by a severance pay plan or program maintained by the Company, to the
Participant. For purposes of this Subparagraph 4(g), a Termination of Affiliation shall
constitute a termination of employment.
5. Payment of Shares.
(a) All Shares that become payable pursuant to Paragraph 4, above shall be paid immediately
to the Participant following occurrence of the event giving rise to the right to payment or,
in the case
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of Participant’s death, to the beneficiary of the Participant under the Plan or,
if no beneficiary
has been designated, to the Participant’s estate, but in any event not later than March 15 of
the year immediately following the year in which the Participant became entitled to payment
of such Shares, provided that if the Participant was a “key employee” within the meaning of
Section 409A(a)(B)(i) of the Code, and such Participant became entitled to payment of Shares
under Subparagraph 4(d), 4(e), 4(f) or 4(g) above, payment shall not be made sooner than six
(6) months following the date such Participant experienced a “separation from service” as
defined in Section 409A of the Code and guidance thereunder. Upon conversion of RSUs into
Shares under this Agreement, such RSUs shall be cancelled.
(b) Shares that become payable under this Agreement will be paid by the Company by the
delivery to the Participant, or the Participant’s beneficiary or legal representative, as
soon as practicable, after the Participant is entitled to the payment of Shares, of one or
more certificates (or other indicia of ownership) representing shares of Xxxxxxxx Common
Stock equal in number to the number of Shares otherwise payable under this Agreement less the
number of Shares having a Fair Market Value, as of the date the withholding tax obligation
arises, equal to the minimum statutory withholding requirements. Notwithstanding the
foregoing, to the extent permitted by Section 409A of the Code and the guidance issued by the
Internal Revenue Service thereunder, if federal employment taxes become due upon the
Participant’s becoming entitled to payment of Shares, the number of Shares necessary to cover
minimum statutory withholding requirements may, in the discretion of the Company, be used to
satisfy such requirements upon such entitlement.
6. Other Provisions.
(a) The Participant understands and agrees that payments under this Agreement shall not be
used for, or in the determination of, any other payment or benefit under any continuing
agreement, plan, policy, practice or arrangement providing for the making of any payment or
the provision of any benefits to or for the Participant or the Participant’s beneficiaries or
representatives, including, without limitation, any employment agreement, any change of
control severance protection plan or any employee benefit plan as defined in Section 3(3) of
ERISA, including, but not limited to qualified and non-qualified retirement plans.
(b) The Participant agrees and understands that, upon payment of Shares under this Agreement,
stock certificates (or other indicia of ownership) issued may be held as collateral for
monies he/she owes to Company or any of its parents, affiliated or subsidiary companies or
their vendor(s) contracted to provide business tools or services for use by Participant in
his or her employment, including but not limited to personal loan(s), Company credit card
debt, relocation repayment obligations or benefits from any plan that provides for pre-paid
educational assistance.
(c) Except as provided in Subparagraphs 4(b) through 4(g) above, in the event that the
Participant’s employment with the Company or any of its parents, subsidiaries or affiliates
terminates prior to the Participant’s becoming entitled to payment of the Shares under this
Agreement, RSUs subject to this Agreement and any right to Shares issuable thereunder shall
be forfeited.
(d) The Participant acknowledges that this Award and similar awards are made on a selective
basis and are, therefore, to be kept confidential.
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(e) RSUs, Shares and the Participant’s interest in RSUs and Shares may not be sold, assigned,
transferred, pledged or otherwise disposed of or encumbered at any time prior to both (i) the
Participant’s becoming entitled to payment of Shares and (ii) payment of Shares under this
Agreement.
(f) If the Participant at any time forfeits any or all of the RSUs pursuant to this
Agreement, the Participant agrees that all of the Participant’s rights to and interest in
such RSUs and in Shares issuable thereunder shall terminate upon forfeiture without payment
of consideration.
(g) The Committee shall determine whether an event has occurred resulting in the forfeiture
of the Shares, in accordance with this Agreement, and all determinations of the Committee
shall be final and conclusive.
(h) With respect to the right to receive payment of the Shares under this Agreement, nothing
contained herein shall give the Participant any rights that are greater than those of a
general creditor of the Company.
(i) The obligations of the Company under this Agreement are unfunded and unsecured. Each
Participant shall have the status of a general creditor of the Company with respect to
amounts due, if any, under this Agreement.
(j) The parties to this Agreement intend that this Agreement meet the applicable requirements
of Section 409A of the Code and recognize that it may be necessary to modify this Agreement
and/or the Plan to reflect guidance under Section 409A of the Code issued by the Internal
Revenue Service. Participant agrees that the Committee shall have sole discretion in
determining (i) whether any such modification is desirable or appropriate and (ii) the terms
of any such modification.
(k) The Participant shall become a party to this Agreement by accepting the Award either
electronically or in writing in accordance with procedures of the Committee, its delegates or
agents.
(l) Nothing in this Agreement or the Plan shall interfere with or limit in any way the right
of the Company or an Affiliate to terminate the Participant’s employment or service at any
time, nor confer upon the Participant the right to continue in the employ of the Company
and/or Affiliate.
7. Notices. All notices to the Company required hereunder shall be in writing and delivered
by hand or by mail, addressed to The Xxxxxxxx Companies, Inc., Xxx Xxxxxxxx Xxxxxx, Xxxxx, Xxxxxxxx
00000, Attention: Stock Administration Department. Notices shall become effective upon their
receipt by the Company if delivered in the foregoing manner.
8. Tax Consultation. You understand you will incur tax consequences as a result of
acquisition or disposition of the Shares. You agree to consult with any tax consultants you think
advisable in connection with the acquisition of the Shares and acknowledge that you are not
relying, and will not rely, on the Company for any tax advice.
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| THE XXXXXXXX COMPANIES, INC. |
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| By: | /s/ Xxxxxx X. Xxxxxxx | |||
| Xxxxxx X. Xxxxxxx | ||||
| President and CEO | ||||
Participant:
SSN:
SSN:
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