PERFORMANCE RESTRICTED STOCK AWARD AGREEMENT AGILYSYS, INC. 2006 STOCK INCENTIVE PLAN
Exhibit 10(qq)
THIS PERFORMANCE RESTRICTED STOCK AWARD AGREEMENT (the “Agreement”) is entered into as of the
22nd day of May, 2009 (the “Grant Date”) by and between Agilysys, Inc., an Ohio corporation (the
“Company”), and (the “Participant”).
W I T N E S S E T H:
WHEREAS, the Company has previously adopted, and the Shareholders of the Company have
approved, the Agilysys, Inc. 2006 Stock Incentive Plan (the “Plan”);
WHEREAS, the Compensation Committee desires to award Performance Restricted Stock to certain
key employees, including the Participant, under the Plan; and
WHEREAS, the Compensation Committee awarded Performance Restricted Stock to certain key
employees, including the Participant, at its meeting on May 22, 2009, subject to the terms and
conditions of Award Agreements;
NOW, THEREFORE, in consideration of the premises and the mutual promises and covenants herein
contained, the Participant and the Company agree as follows:
1. Definitions. Unless the context indicates otherwise, the following words shall
have the following meanings wherever used in this Agreement:
| a. | “Earned Shares” means the number of Performance
Restricted Shares earned as calculated in accordance with the formula set
forth in the Plan. Any shares that do not become Earned Shares shall be
forfeited and the Participant shall have no further interest therein of any
kind whatsoever. |
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| b. | “Performance Period” means the 2010 fiscal year
ending March 31, 2010. |
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| c. | “Restriction Period” means a period of two fiscal
years beyond the end of the Performance Period. |
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| d. | “Restricted Share” means an Earned Share subject to
forfeiture and restrictions on sale and transfer by the Participant, but
which will become vested and free of such restrictions upon, and to the
extent of, the satisfaction of the Restriction Period. |
All capitalized terms, unless otherwise defined, shall have the meanings ascribed to them under the
Plan.
2. Award. As of the Grant Date, upon the terms and conditions set forth in this
Agreement, the Company hereby grants to the Participant an award (the “Award”) of
( ) Restricted Shares (the “Performance Restricted Stock”). The Award is intended to be
“remuneration payable solely on account of the attainment of one or more performance goals” within
the meaning of Code Section 162(m)(4)(C) and shall be administered and interpreted accordingly.
Furthermore, the Award is made in accordance with, and subject to, all the terms, conditions and
restrictions of the Plan, which is hereby incorporated by reference in its entirety. The
Participant irrevocably agrees to, and accepts, the terms, conditions and restrictions of the Plan
and this Agreement on his own behalf and on behalf of any beneficiaries, heirs, legatees,
guardians, representatives, successors and assigns. In the event of a conflict between the Plan
and this Agreement, the Plan will control.
| 3. | Terms of Award. |
| a. | Escrow of Shares. A certificate representing the
Performance Restricted Stock subject to the Award shall be issued in the name
of the Participant and shall be escrowed with the transfer agent of the
Company (the “Escrow Agent”) subject to removal of the restrictions or
forfeiture pursuant to the terms of this Agreement. |
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| b. | Restrictions. The Participant shall not have the
right to sell, assign, transfer, convey, dispose, pledge, hypothecate, burden,
alienate, encumber or charge any Performance Restricted Stock (including any
Shares issued as the result of the investment of cash dividends attributable
to the Performance Restricted Stock) or any interest therein in any manner
whatsoever, and the Company shall not be required to transfer on its books any
such Performance Restricted Stock which shall have been sold, assigned,
transferred, conveyed, disposed of, pledged, hypothecated, burdened,
alienated, encumbered or charged in violation of this Agreement. |
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| c. | Vesting. Except as otherwise provided in Section
3(e)(1), the Earned Shares will vest in increments based on the Participant’s
continuous employment with the Company or any Affiliate through the dates set
forth below (“Vesting Date”). Once vested pursuant to the terms of this
Agreement, the Earned Shares shall be deemed Vested Shares. |
| Vesting Date | % of Earned Shares Vested | |||
Date of Form 10-K filing for the
fiscal year ended 3.31.2010 |
33 | % | ||
3.31.2011 |
33 | % | ||
3.31.2012 |
34 | % | ||
| d. | Vested Shares — Removal of Restrictions; Payment. As
soon as practicable after each vesting date noted in Section 3(c), the Company
shall cause to be delivered to the Participant (or, in the event of death, his
beneficiary, heir, legatee, successor or assign) certificates for any Vested
Shares, together with certificates representing any Shares issued as a result
of the investment of cash dividends attributable to such Shares pursuant to
Section 3(f), to which the Participant is entitled free and clear of any
restrictions (except any applicable securities law restrictions or
restrictions imposed on Shares generally). |
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| e. | Termination of Employment. |
| (1) | Death or Disability. If the
Participant’s employment with the Company and its Affiliates
terminates due to his death or Disability prior to the last day of
the Performance Period, the Participant, the Participant’s designated
beneficiary or beneficiaries (as the Participant provides on the form
attached as Exhibit B) or the Participant’s estate, as the Committee
deems appropriate, shall be entitled to a pro-rated number of Shares
calculated by multiplying (A) by (B) where: |
| (A) | is the number of Earned
Shares, if any, as calculated in accordance with the Plan had
he continued in employment through the end of the Performance
Period plus any Shares attributable to the investment of the
cash dividends of such Shares pursuant to Section 3(f); and |
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| (B) | is the number of months
that the Participant was employed by the Company and its
Affiliates during the Performance Period divided by the
number of months in the Performance Period (rounding up to
the nearest whole number). |
The Committee shall determine in its sole and exclusive discretion
whether the Participant’s employment has terminated because of his
Disability. The delivery of Shares reflecting the pro-rated award
shall occur (if at all) at the same time as the delivery specified
in Section 3(d). |
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| (2) | Reasons Other Than Death or
Disability. Except as otherwise provided in Section 4, if the
Committee determines in its sole and exclusive discretion that the
Participant’s employment terminated prior to the end of the
Performance Period for reasons other than those described in Section
3(e)(1), the Performance Restricted Stock, and any Shares issued as a
result of cash dividends attributable thereto, will be absolutely
forfeited and the Participant and all persons who might claim through
him will have no further interests under this Agreement of any kind
whatsoever. |
| f. | Voting Rights and Dividends. The Participant shall
have all of the voting rights attributable to the Performance Restricted Stock
issued pursuant to this Agreement. Cash dividends declared and paid by the
Company with respect to the Performance Restricted Stock shall not be paid to
the Participant. Rather, those cash dividends shall be invested in Shares
which shall be subject to the vesting provisions of Section 3(c). By
executing this Agreement, the Participant irrevocably consents to: (i) the
Company’s withholding of the payment of those dividends; and (ii) the
investment of those dividends in Shares issued in the name of the Participant
and held in escrow by the Escrow Agent subject to removal of the restrictions
or forfeiture pursuant to the terms of this Agreement. |
4. Change in Control. Upon a Change in Control prior to the end of the Performance
Period and while the Participant remains in active employment with the Company or its Affiliates:
| a. | shares awarded shall be deemed to have been Earned Shares in
an amount equal to the greater of: (i) the number of shares awarded; and (ii)
the number of shares that would have been Earned Shares assuming the
calculation set forth in Paragraph 5 of the Grant Agreement is made as of the
end of the month end prior to the occurrence of a Change in Control; and |
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| b. | notwithstanding Section 3, the Participant shall be fully
Vested in, and the restrictions imposed hereunder shall lapse with respect to,
the Performance Restricted Stock; and |
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| c. | certificates for the appropriate number of Shares determined
in accordance with Section 4(a) shall be delivered to the Participant without
any restrictive legends (except those required by applicable securities law or
reflecting restrictions applicable to Shares generally) not later than 30 days
after the date of the Change in Control. |
5. Effect of Corporate Reorganization or Other Changes Affecting Number or Kind of
Shares. The provisions of this Agreement will be applicable to the Performance Restricted
Stock, Shares or other securities, if any, which may be acquired by the Participant related to the
Performance Restricted Stock as a result of a liquidation, recapitalization, reorganization,
redesignation or reclassification, split-up, reverse split, merger, consolidation, dividend,
combination or exchange of Performance Restricted Stock or Shares, exchange for other securities, a
sale of all or substantially all assets or the like. The Committee may appropriately adjust the
number and kind of Performance Restricted Stock, Shares or other securities described in this
Agreement to reflect such a change.
6. Nontransferability of Shares. Upon the acquisition of any Shares pursuant to this
Agreement, if the Shares have not been registered under the Securities Act of 1933, as amended (the
“Act”), they may not be sold, transferred or otherwise disposed of unless a registration statement
under the Act with respect to the Shares has become effective or unless the Participant establishes
to the satisfaction of the Company that an exemption from such registration is available. In
addition, the Participant will make or enter into such written representations, warranties and
agreements as the Committee may reasonably request in order to comply with applicable securities
laws or this Agreement.
7. Stock Powers. The Participant hereby agrees to execute and deliver to the Escrow
Agent an irrevocable stock power or powers (endorsed in blank), in the form attached as Exhibit B,
covering the Performance Restricted Stock, Shares and any securities issued as a result of the
investment of cash dividends attributable to the Performance Restricted Stock, and authorizes the
deliverable under this Agreement.
8. Internal Revenue Code Section 409A. This Agreement, Award and the compensation and
benefits hereunder are intended to meet the requirements for exemption from coverage under Code
Section 409A for restricted property set forth in Treasury Regulation Section 1.409A-1(b)(6), as
well as
any other such applicable exemption, and shall be construed and administered accordingly. If
the Company determines that any compensation or benefits awarded or payable under this Agreement
may be subject to taxation under Code Section 409A, the Company shall, after consultation with the
Participant, have the authority to adopt, prospectively or retroactively, such amendments to this
Agreement or to take any other actions it determines necessary or appropriate to exempt the
compensation and benefits payable under this Agreement from Code Section 409A or meet the
requirements of Code Section 409A. In no event, however, shall this Section or any other
provisions of the Plan or this Agreement be construed to require the Company to provide any
gross-up for the tax consequences of any provisions of, or awards or payments under, this Agreement
and the Company shall have no responsibility for tax consequences of any kind to the Participant
(or any other person or entity), whether or not such consequences are contemplated at the time of
entry into this Agreement, resulting from the terms or operation of this Agreement.
9. No Right to Continued Employment. Neither the Plan nor this Agreement shall be
construed to grant or confer on the Participant any right to remain an employee of the Company or
its Affiliates, or to be employed in any particular position therewith. The Plan and this
Agreement do not constitute a contract of employment, and the Company and each Affiliate expressly
reserves the right, at any time, to terminate the Participant’s employment free from liability, or
any claim, under the Plan and this Agreement, except as may be specifically provided therein.
10. Notices. All notices or other communications relating to the Plan and this
Agreement as it relates to the Participant shall be in writing, shall be deemed to have been made
if personally delivered in return for a receipt or, if mailed, by regular U.S. mail, postage
prepaid, by the Company to the Participant at the address of the Participant then on file with the
Company. The Participant is responsible for notifying the Company of a change in his address.
11. Binding Effect. This Agreement shall be binding upon and inure to the benefit of
the parties hereto and their respective beneficiaries, heirs, legatees, successors and assigns,
except as may be limited by the Plan.
12. Governing Law. Except as may otherwise be provided in the Plan, this Agreement
will be governed by, construed and enforced in accordance with the internal laws of the State of
Ohio without giving effect to its conflict of laws principles.
13. Tax Withholding. Unless the participant at his or her election shall pay 10% of
the minimum withholding tax liability resulting from any distribution, the Committee shall cause
the Company to sell the fewest number of Shares for the proceeds of such sale to equal (or exceed
by not more than the actual sale price of a single Share) the Participant’s or other recipient’s
tax liability, the Company will deliver the proceeds of any sale to the appropriate taxing
authorities in satisfaction of such tax liability.
14. Amendment. The Committee may waive any conditions or rights under, amend any
terms of, or alter, suspend, discontinue, cancel or terminate this Agreement. However, no such
action may be inconsistent with the terms of the Plan or materially and adversely affect the rights
of the Participant without the Participant’s written consent. Notwithstanding the foregoing, the
Company may, after consulting with the Participant, unilaterally amend this Agreement to comply
with law, preserve favorable tax effects or avoid unfavorable tax effects for either of the
parties.
15. Further Action. The Participant and the Company agree to execute such further
instruments and to take such action as may reasonably be necessary to carry out the intent of this
Agreement.
16. Captions. The captions of specific provisions of this Agreement are for
convenience and reference only, and in no way define, describe, extend or limit the scope of this
Agreement or the intent of any provision.
17. Counterparts. This Agreement may be executed in any number of counterparts, each
of which shall be an original for all purposes.
18. Entire Agreement. This Agreement, together with the Plan, constitutes the entire
agreement of the parties with respect to its subject matter.
19. Successors and Legal Representatives. This Agreement will bind and inure to the
benefit of the Company and the Participant and their respective beneficiaries, heirs, legatees,
executors, administrators, estates, successors, assigns, legal representatives, guardians and
caretakers.
20. Effect of Waiver. Any waiver of any term, condition or breach thereof will not be
a waiver of any other term or condition or of the same term or condition for the future, or of any
subsequent breach.
21. Severability. In the event of the invalidity of any part or provision of this
Agreement, such invalidity will not affect the enforceability of any other part or provision of
this Agreement.
22. Incapacity. If the Committee determines that the Participant is incompetent by
reason of physical or mental disability or a person incapable of handling his or her property, the
Committee may deal directly with or direct any delivery of Vested Shares to the guardian, legal
representative or person having the care and custody of the incompetent or incapable person. The
Committee may require proof of incompetence, incapacity or guardianship, as it may deem appropriate
before the delivery of Vested Shares. In the event of such a delivery of Vested Shares, the
Committee will have no obligation thereafter to monitor or follow the recipient to determine
whether the Vested Shares are held or disposed of for the benefit of the Participant. The delivery
of Vested Shares pursuant to this Section shall completely discharge the Company’s obligations
under this Agreement.
23. No Further Liability. The liability of the Company, its Affiliates and the
Committee under or in connection with this Agreement is limited to the obligations set forth herein
and no terms or provisions of this Agreement shall be construed to impose any liability on the
Company, its Affiliates, the Committee or their directors and employees in favor of any person or
entity with respect to any loss, cost, tax or expense which the person or entity may incur in
connection with or arising from any transaction related to this Agreement. No third party
beneficiaries are intended.
24. Termination of Agreement. This Agreement will terminate on the earliest of: (a)
the last day of the Performance Period if Threshold EBITDA is not achieved; (b) the date of
termination of the Participant’s Employment for reasons referenced in Section 3(e)(2) prior to the
last day of the Performance Period; or (c) the date that Vested Shares are delivered to the
Participant (or his heir, legatee, successor or assign) pursuant to Sections 6 or 7 of this
Agreement. Any terms or conditions of this Agreement that the Company determines are reasonably
necessary to effectuate its purposes will survive the termination of this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year
written below.
| “Company” | ||||||
Date: |
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| Xxxxxx X. Xxxxx | ||||||
| President & CEO | ||||||
| “Participant” | ||||||
Date: |
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EXHIBIT A
IRREVOCABLE STOCK POWER
KNOW ALL MEN BY THESE PRESENTS that for value received, the undersigned, (the
“Transferor”), does hereby transfer to Agilysys, Inc., or its successor in interest (the
“Transferee”), common shares, without par value, of Agilysys, Inc., an Ohio
corporation (the “Corporation”), and does hereby appoint the Transferee his true and lawful
attorney, irrevocable for himself and in his name and xxxxx, to assign, transfer and set over, all
or any part of the shares of stock hereby transferred to the Transferee, and for that purpose, to
make and execute all necessary acts of assignment and transfer, and one or more persons to
substitute with like full power, hereby ratifying and confirming all that his said attorney, or
substitute or substitutes will lawfully do by virtue hereof.
IN WITNESS WHEREOF, I have hereunto set my hand as of the day of ,
2009.
EXHIBIT B
AGILYSYS, INC.
2006 STOCK INCENTIVE PLAN
2006 STOCK INCENTIVE PLAN
Designation of Beneficiary
To: Agilysys, Inc. (the “Company”)
I, , as a participant in the 2006 Stock Incentive Plan and signatory of the
accompanying Performance Restricted Stock Award Agreement (the “Agreement”), hereby designate as
beneficiary to receive Shares payable pursuant to the Agreement in the event of my death:
| Interest | ||||||
| (any partial | ||||||
| shares resulting | ||||||
| from a | ||||||
| designation will | ||||||
| Class | Name(s) | Relationship | be eliminated) | |||
Primary Beneficiary(ies) |
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1st Contingent Beneficiary(ies) |
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2nd Contingent Beneficiary(ies) |
This designation cancels and supersedes any Designation of Beneficiary previously made by me with
respect to the Agreement and the right to receive Shares thereunder. I further reserve the
privilege of changing the above designated Beneficiary(ies) at any time or times without the
consent of any such Beneficiary(ies).
ACKNOWLEDGEMENT
By execution of this Designation of Beneficiary, I acknowledge that this designation is made upon
the following terms and conditions:
| 1. | For purposes of this Designation of Beneficiary, no person shall be deemed to have survived
the Participant if that person dies within thirty (30) days of the Participant’s death. |
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| 2. | Beneficiary(ies) shall mean the Primary Beneficiary(ies) which survive the Participant by at
least thirty (30) days, and shall mean the 1st Contingent Beneficiary(ies) if no Primary
Beneficiary(ies) survive the Participant by at least thirty (30) days, and shall mean the 2nd
Contingent Beneficiary(ies) if no Primary Beneficiary(ies) or 1st Contingent Beneficiaries
survive the Participant by at least thirty (30) days. |
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| 3. | If more than one Beneficiary is named within the same class, payment shall be made equally to
such Beneficiaries unless otherwise provided above. If any such Beneficiary(ies) die prior to
payment, payment shall be made to the legal heirs of such deceased Beneficiary. |
Dated: |
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By: |
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