Contract
Exhibit
(d)(14)
RESTRICTED STOCK AGREEMENT (this “Agreement”), dated as of [insert
date] (the “Grant Date”), between Xxxxxxx International Limited, a
Bahamian corporation (the “Company”), and [insert Grantee’s name] (the
“Grantee”).
WHEREAS the Grantee has been granted, effective as of the date of this Agreement, an award of
[insert number of shares] restricted Ordinary Shares, $.001 par value per share, of the Company
(the “Ordinary Shares”) pursuant to the Company’s 2005 Stock Incentive Plan (the “Plan”) on the
terms and subject to the conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the premises and of the mutual agreements contained in
this Agreement, the parties hereto agree as follows:
SECTION 1. Definitions. Capitalized terms used but not defined in this Agreement have the
meanings given such terms in the Plan. As used in this Agreement, the following terms have the
meanings set forth below:
“Cause” means:
(a) the Grantee’s willful and continued failure, following notice
from the Company, substantially to perform the Grantee’s duties as a director
of the Company or its Subsidiaries (other than as a result of incapacity due
to physical or mental illness);
(b) the Grantee’s negligence or misconduct (including making a
negative statement, written or oral, regarding the Company or its business)
in the course of the Grantee’s service as a director the Company or its
Subsidiaries that the Board in its sole discretion determines is detrimental
to the best interests of the Company;
(c) the Grantee’s indictment of, conviction of, or plea of guilty
or nolo contendere to (i) a misdemeanor involving moral turpitude or (ii) a
felony (or the equivalent of such a misdemeanor or felony in a jurisdiction
other than the United States);
(d) the Grantee’s material breach of this Agreement,
including without limitation the provisions of Section 7;
(e) the Grantee’s violation of Company policies that the Board
in its sole discretion determines is detrimental to the best interests of
the Company;
(f) the Grantee’s misappropriation, embezzlement or material
misuse of funds or property belonging to the Company; or
(g) the Grantee’s use of alcohol or drugs that either interferes with the
performance of the Grantee’s duties to the Company or adversely affects the
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integrity or reputation of the Company, its Subsidiaries or Affiliates, their
employees or their products, as determined by the Board in its sole discretion.
Any voluntary termination of service as a director of the Company or its Subsidiaries by the
Grantee in anticipation of an involuntary termination of the Grantee’s service for Cause shall be
deemed to be a termination for Cause.
“Vested Shares” means the Restricted Shares with respect to which the restrictions set
forth in this Agreement have lapsed.
“Vesting Date” means the date on which the Grantee’s rights with respect to all or a portion
of the Restricted Shares may become fully vested, as provided in Section 3(a).
SECTION 2. Grant. (a) In consideration of the Grantee’s services to Company, on the terms and
subject to the conditions of this Agreement, the Grantee is hereby awarded (the “Award”) [insert
number of shares] Ordinary Shares (the “Restricted Shares”) effective as of the Grant Date;
provided however, that the Award shall expire if this Agreement is not signed by The Grantee and
returned to the Company within 60 days from the date of receipt by The Grantee of this Agreement.
(b) Reasonably promptly after the date hereof, the Company shall cause to be issued a
certificate, registered in the name of the Grantee, evidencing the Restricted Shares, provided that
the Company shall not cause such a certificate to be issued unless it has received a power of
attorney duly endorsed in blank with respect to such Restricted Shares. Each such certificate shall
bear the following legend:
THE TRANSFERABILITY OF THIS CERTIFICATE AND THE ORDINARY SHARES REPRESENTED
HEREBY ARE SUBJECT TO THE RESTRICTIONS, TERMS AND CONDITIONS
(INCLUDING FORFEITURE PROVISIONS AND
RESTRICTIONS AGAINST TRANSFER) CONTAINED IN THE RESTRICTED STOCK AGREEMENT
ENTERED INTO BETWEEN THE REGISTERED OWNER OF SUCH STOCK AND XXXXXXX
INTERNATIONAL LIMITED. A COPY OF
THE RESTRICTED STOCK AGREEMENT IS ON FILE WITH THE SECRETARY OF THE
COMPANY.
Such legend shall not be removed until such Restricted Shares vest pursuant to the terms hereof.
Each certificate issued pursuant to this Agreement together with the powers relating to the
Restricted Shares evidenced by such certificate, shall be held by the Company unless the Committee
determines otherwise. Upon the vesting of any Restricted Shares pursuant to the terms hereof, the
restrictions of Section 4 of this Agreement shall lapse with respect to such Restricted Shares.
Reasonably promptly after any Restricted Shares vest, the Company shall cause to be delivered to
the Grantee a certificate evidencing such Vested Shares, free of the legend set forth above,
provided that such delivery may be delayed until the lapse of such reasonable period of time
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following the date of vesting as the Committee may from time to time establish for reasons
of administrative convenience.
SECTION 3. Vesting; Lapse of Restrictions. (a) Unless accelerated as otherwise provided in
Section 3(b) of this Agreement or Section 11(i) of the Plan, the Restricted Shares shall vest in
accordance with the following schedule, provided that the Grantee must be a director of the
Company or its Subsidiaries on the relevant Vesting Date, except as provided in Section 3(b) of
this Agreement or Section 11(i) of the Plan:
| Vesting Dates | Aggregate Percentage of | |||
| (Anniversaries of Grant Date) | Restricted Shares Vested | |||
Second |
33 | % | ||
Third |
66 | % | ||
Fourth |
100 | % | ||
(b) If the Grantee is a director of the Company or its Subsidiaries immediately prior to a
Change of Control, then the Restricted Shares shall immediately vest in full and become free of
all restrictions upon the consummation of the Change of Control.
SECTION 4. Restriction on Transfer. (a) Except as provided in Section 4(b), prior to the
vesting of any Restricted Shares, neither the Restricted Shares nor any of the Grantee’s rights
with respect thereto, may be transferred, pledged, assigned, hypothecated or otherwise disposed
of in any way by the Grantee. The Restricted Shares shall not be subject to execution,
attachment or similar process. Any attempted assignment, transfer, pledge, hypothecation or
other disposition of the Restricted Shares contrary to the provisions hereof, and the levy of
any execution, attachment or similar process upon the Restricted Shares, shall be null and void
and without effect.
(b) The Restricted Shares may be transferred or assigned to (i) a trust with respect to which
the Grantee or a member of his or her family is a beneficiary or (ii) a
corporation or other entity with respect to which the Grantee holds directly or indirectly
more than 50% of the outstanding common stock or other equity interests. All vesting and forfeiture
provisions shall continue to apply with respect to any Restricted Shares that are transferred in
accordance with this Section 4(b) to the same extent that such provisions would have been
applicable in the absence of any transfer.
SECTION 5. Withholding Taxes. The Company shall be entitled to require, as a condition of
delivery of the Vested Shares, that the Grantee remit an amount in cash sufficient to satisfy any
applicable withholding taxes relating thereto, and the Company and each of its Subsidiaries shall
have the right and are hereby authorized to withhold from delivery of the Vested Shares, or from
any compensation or other amount owing to the Grantee, the amount (in cash or, in the discretion
of the Committee, Vested
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Shares, other securities, or other property) of any applicable withholding taxes in respect of the
vesting of the Restricted Shares and to take such other action as may be necessary in the
discretion of the Committee to satisfy all obligations for the payment of such taxes.
Notwithstanding the foregoing, subject to the approval of the Committee, the Grantee may elect to
satisfy the obligation to pay any withholding tax, in whole or in part, by having the Company
retain Vested Shares or accept upon delivery thereof Ordinary Shares (other than Restricted
Shares) held by the Grantee for at least six months and one day sufficient in value to cover the
amount of such withholding tax.
SECTION 6. Termination of Service as a Director of the Company or its Subsidiaries. The
provisions of Section 11 of the Plan shall apply in the event of the Grantee’s termination of
service as a director of the Company or its Subsidiaries.
SECTION 7. Confidential Information. (a) The Grantee agrees that all Confidential Information
is a valuable, special and unique asset of the Company and the Grantee agrees that he or she will
not, directly or indirectly, except with the prior written consent of the Company, divulge or
disclose or communicate, or cause any other person or entity to divulge, disclose or communicate,
to any person, firm, corporation or entity, in any manner whatsoever, any Confidential Information.
The foregoing covenants shall apply to each bit of information for so long as it remains
Confidential Information. For purposes of this Agreement, “Confidential Information” means all
trade secrets, proprietary information and other confidential information of the Company,
including, without limitation, its methods, techniques, and processes, its development, costs and
pricing of its products and services, its business and marketing strategies and plans, the identity
and needs of its clients and potential clients, its survey analyses and reports prepared for its
clients, and any and all non-public information furnished to the Company pursuant to its contracts
with clients, financial data, personnel data, and all the other know-how, materials and things
pertaining in any respect to the Company or its clients and deemed to be a “trade secret” pursuant
to applicable law.
(b) The Grantee acknowledges and agrees that any violation of the provisions of Section 7(a)
would cause the Company irreparable damage and that if the Grantee breaches or threatens to breach
such provisions, (i) as of such time the Award
shall terminate, and (ii) the Company shall be entitled, in addition to any other rights and
remedies the Company and its Subsidiaries may have at law or in equity, to obtain specific
performance of such covenants through injunction or other equitable relief from a court of
competent jurisdiction, without proof of actual damages and without being required to post bond.
SECTION 8. Rights as a Shareholder. Subject to the provisions of the Plan and Section 4 of
this Agreement, the Grantee shall have all rights and privileges of a shareholder with respect to
the Restricted Shares for which a certificate has been issued to the Grantee, including the right
to vote the Restricted Shares, provided that the Company will retain custody of all distributions,
including regular cash dividends (“Retained Distributions”) made or declared with respect to the
Restricted Shares, if any (and such Retained Distributions will be subject to the same
restrictions, terms and vesting and other conditions as are applicable to the Restricted Shares),
until such time, if
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ever, as the Restricted Shares with respect to which such Retained Distributions shall have
been made, paid or declared shall have become vested, and such Retained Distributions shall
not bear interest or be segregated in a separate account.
SECTION 9. Compliance with Securities Laws. No Ordinary Shares shall be delivered unless and
until the Company and/or the Grantee shall have complied with all applicable Federal or state
registration, listing and/or qualification requirements and all other requirements of law or of
any regulatory agencies having jurisdiction. Notwithstanding anything to the contrary in this
Agreement, the Board may revoke this Agreement if it is contrary to law or modify this Agreement
to bring it into compliance with any applicable laws or regulations.
SECTION 10. No Right to Serve as a Director. Nothing in the Award shall confer upon the
Grantee any right to continue as a director of the Company or any of its Affiliates or interfere
in any way with the right of the Company or its Affiliates or shareholders, as the case may be,
to terminate the Grantee’s service as a director or to increase or decrease the Grantee’s
compensation at any time. The Award shall not be treated as compensation for purposes of
calculating the Grantee’s rights under any employee benefit plan, except to the extent expressly
provided in any such plan.
SECTION 11. Plan Controls. The Award hereby granted is subject to, and the Company and the
Grantee agree to be bound by, all of the terms and conditions of the Plan, as the same may be
amended from time to time in accordance with the terms thereof, but no such amendment shall be
effective as to the Award without the Grantee’s consent insofar as it may adversely affect the
Grantee’s rights under this Agreement. The Board shall have sole discretion to determine whether
the events or conditions described in this Agreement have been satisfied and to make all other
interpretations, constructions and determinations required under this Agreement and all such
determinations by the Board shall be final, binding and conclusive. In the event of any conflict
between any term or provision contained in this Agreement and a term or provision of the Plan, the
applicable terms and provisions of the Plan shall govern and prevail.
SECTION 12. Notices. All notices, claims, certificates, requests, demands and other
communications hereunder shall be in writing and shall be deemed to have been duly given and
delivered if personally delivered or if sent by nationally recognized overnight courier, by
telecopy or by registered or certified mail, return receipt requested and postage prepaid,
addressed as follows:
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(a) if to the Company:
Xxxxxxx International Limited
Stock Award Administration
0000 Xxxxx Xxxx Xxxxxx Xxxx
Xxxxxxxxxx, XX 00000
Telecopy: (000) 000-0000
Attention: Human Resources
Stock Award Administration
0000 Xxxxx Xxxx Xxxxxx Xxxx
Xxxxxxxxxx, XX 00000
Telecopy: (000) 000-0000
Attention: Human Resources
(b) if to the Grantee, to such Grantee’s address as most
recently supplied to the Company and set forth in the Company’s records;
or to such other address as the party to whom notice is to be given may have furnished to the other
party in writing in accordance herewith. Any such notice or communication shall be deemed to have
been received (i) in the case of personal delivery, on the date of such delivery (or if such date
is not a business day, on the next business day after the date sent), (ii) in the case of
nationally-recognized overnight courier, on the next business day after the date sent, (iii) in the
case of telecopy transmission, when received (or if not sent on a business day, on the next
business day after the date sent), and (iv) in the case of mailing, on the third business day
following the date on which the piece of mail containing such communication is posted.
SECTION 13. Waiver of Breach. The waiver by either party of a breach of any provision of
this Agreement must be in writing and shall not operate or be construed as a waiver of any other
or subsequent breach.
SECTION 14. Grantee’s Undertaking. The Grantee hereby agrees to take whatever additional
actions and execute whatever additional documents the Company may in its reasonable judgment deem
necessary or advisable in order to carry out or effect one or more of the obligations or
restrictions imposed on the Grantee pursuant to the provisions of this Agreement.
SECTION 15. Amendment. This Agreement may not be amended, terminated, suspended or
otherwise modified except in a written instrument, duly executed by both parties.
SECTION 16. Governing Law. This Agreement shall be governed by, and construed in
accordance with, the laws of the Commonwealth of the Bahamas (without giving effect to
principles of conflicts of laws).
SECTION 17. Exclusive Jurisdiction; Waiver of Jury Trial. (a) Except as otherwise
specifically provided herein, the Grantee and the Company each hereby irrevocably submit to the
exclusive jurisdiction of the Supreme Court of the Bahamas with respect to any disputes or
controversies arising out of or relating to this Agreement. The parties undertake not to commence
any suit, action or proceeding arising out of or relating to this Agreement in a forum other than
a forum described in this Section 17(a); provided, however, that nothing herein shall preclude
the Company from bringing any suit, action or proceeding in any other court for the purposes of
enforcing any judgment
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obtained by the Company and, in such event, the Grantee hereby irrevocably submits to the
jurisdiction of such other court.
(b) The agreement of the parties to the forum described in
Section 17(a) is independent of the law that may be applied in any suit,
action, or proceeding and the parties agree to such forum even if such forum
may under applicable law choose to apply non-forum law. The parties hereby
waive, to the fullest extent permitted by applicable law, any objection which
they now or hereafter have to personal jurisdiction or to the laying of venue
of any such suit, action or proceeding brought in an applicable court
described in Section 17(a), and each party agrees that it shall not attempt to
deny or defeat such personal jurisdiction by motion or other request for leave
from any such court. The parties agree that, to the fullest extent permitted
by applicable law, a final and non-appealable judgment in any suit, action or
proceeding brought in any applicable court described in Section 17(a) shall be
conclusive and binding upon the parties and may be enforced in any other
jurisdiction.
(c) Each party hereto irrevocably consents to the service of
any and all process in any suit, action or proceeding arising out of or
relating to this Agreement by the mailing of copies of such process to such
party at such party’s address specified in Section 12.
(d) Each party hereto hereby waives, to the fullest extent permitted by applicable law, any right it
may have to a trial by jury in respect of any suit, action or proceeding arising out of or
relating to this Agreement. Each party hereto (i) certifies that no representative, agent or
attorney of any other party has represented, expressly or otherwise, that such party would not,
in the event of any action, suit or proceeding, seek to enforce the foregoing waiver and (ii)
acknowledges that it and the other party hereto have been induced to enter into this Agreement
by, among other things, the mutual waiver and certifications in this Section 17(d).
SECTION 18. Counterparts. This Agreement may be executed in one or more counterparts, and
each such counterpart shall be deemed to be an original, but all such counterparts together shall
constitute but one agreement.
SECTION 19. Entire Agreement. This Agreement (and the other writings incorporated by reference
herein) constitute the entire agreement between the parties with respect to the subject matter
hereof and supersede all prior written or oral negotiations, commitments, representations and
agreements with respect thereto.
SECTION 20. Severability. The invalidity or unenforceability of any provisions of this
Agreement shall not affect the validity or enforceability of any other provisions of this
Agreement, which shall remain in full force and effect to the fullest extent permitted by law. The
Grantee agrees that in the event that any court of competent jurisdiction shall finally hold that
any provision of this Agreement (whether in whole or in part) is void or constitutes an
unreasonable restriction against the Grantee, such provision shall not be rendered void but shall
be deemed to be modified to the minimum extent necessary to make such provision enforceable for the
longest duration and the
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greatest scope as such court may determine constitutes a reasonable restriction under the
circumstances.
SECTION 21. Non-Uniformity of Treatment. There is no obligation for uniformity of treatment
of the Grantee and any other holders or beneficiaries of restricted Ordinary Shares, and the terms
and conditions of this Agreement and such other awards of restricted Ordinary Shares, and the
Board determinations and interpretations with respect to this Agreement and such other awards of
restricted Ordinary Shares need not be the same with respect to the Grantee and such other
grantees (whether or not they are similarly situated) or with respect to each award held by the
Grantee and any such other grantees.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date
first written above.
| XXXXXXX INTERNATIONAL LIMITED, | ||||||||
| by | ||||||||
| Name: | ||||||||
| Title: | ||||||||
| GRANTEE, | ||||||||
| by | ||||||||
| [insert Grantee’s name] | ||||||||
