EXHIBIT 10.4
XXXXXXXX & XXXXX, INC.
RESTRICTED STOCK AWARD AGREEMENT
THIS AGREEMENT is made and entered into as of the date set forth
on the signature page hereof by and between XXXXXXXX & XXXXX, INC., a
Wisconsin corporation with its principal offices at Fond du Lac, Wisconsin
(the "Company"), and the employee of the Company whose signature is set
forth on the signature page hereof (the "Key Employee").
W I T N E S S E T H :
WHEREAS, the Company has adopted the 1989 Restricted Stock Plan
(the "Plan") to permit shares of the Company's common stock, $.10 par
value per share (the "Stock"), to be awarded to certain key employees of
the Company and any subsidiary (collectively, "Participating Company");
and
WHEREAS, the Key Employee is a key employee of a Participating
Company, and the Company desires him to remain in such employ and to
further an opportunity for his stock ownership in the Company in order to
increase his proprietary interest in the success of the Company;
NOW, THEREFORE, in consideration of the premises and of the
covenants and agreements herein set forth, the parties hereby mutually
covenant and agree as follows:
1. Award of Restricted Stock. (a) Subject to the terms and
conditions set forth herein, the Company hereby awards the Key Employee
the number of shares of Stock set forth on the signature page hereof (the
"Restricted Stock") at the purchase price per share set forth on the
signature page hereof. The aggregate purchase price for the Restricted
Stock shall be paid to the Company at the time this Agreement is executed
by the Key Employee in cash, Stock registered in the name of the Key
Employee, or by a combination thereof, all as provided on the signature
page hereof.
(b) If the purchase price may be paid wholly or partly in Stock,
any Stock tendered in payment thereof shall be free of all adverse claims
and duly endorsed in blank by the Key Employee or accompanied by stock
powers duly endorsed in blank. Stock tendered shall be valued at Fair
Market Value on the Grant Date set forth on the signature page hereof. As
used herein, "Fair Market Value" means the per share closing price on the
date in question in the principal market in which the Stock is then traded
or, if no sales of Stock have taken place on such date, the closing price
on the most recent date on which selling prices were quoted; provided,
however, that the Committee (as defined herein) in its discretion, may
elect to determine Fair Market Value with respect to such Stock, based on
the average of the closing prices, as of the date of determination and a
period of up to nine trading days immediately preceding such date. If
such proviso is to be applicable, the signature page hereof sets forth the
number of trading days in such period.
2. Restrictions. Except as otherwise provided herein, the
Restricted Stock may not be sold, transferred or otherwise alienated or
hypothecated until the date set forth on the signature page hereof (the
"Release Date").
3. Escrow. Certificates for shares of Restricted Stock shall
be issued as soon as practicable in the name of the Key Employee but shall
be held in escrow by the Company, as escrow agent. Upon issuance of such
certificates, (i) the Company shall give the Key Employee a receipt for
the Restricted Stock held in escrow which will state that the Company
holds such Stock in escrow for the account of the Key Employee, subject to
the terms of this Agreement, and (ii) the Key Employee shall give the
Company a stock power for such Stock duly endorsed in blank which will be
held in escrow for use in the event such Stock is forfeited in whole or in
part. Unless theretofore forfeited as provided herein, Restricted Stock
shall cease to be held in escrow and certificates for such Stock shall be
delivered to the Key Employee, or in the case of his death, to his
Beneficiary (as hereinafter defined) on the Release Date or upon any other
termination of the restrictions imposed by Paragraph 2 hereof.
4. Transfer After Release Date; Securities Law Restrictions.
Except as otherwise provided herein, Restricted Stock shall become free of
the restrictions of Paragraph 2 and be freely transferable by the Key
Employee on the Release Date. Notwithstanding the foregoing or anything
to the contrary herein, the Key Employee agrees and acknowledges with
respect to any Restricted Stock that has not been registered under the
Securities Act of 1933, as amended (the "Act") (i) he will not sell or
otherwise dispose of such Stock except pursuant to an effective
registration statement under the Act and any applicable state securities
laws, or in a transaction which, in the opinion of counsel for the
Company, is exempt from such registration, and (ii) a legend will be
placed on the certificates for the Restricted Stock to such effect.
5. Termination of Employment Due to Death, Retirement or Total
Disability. (a) If the Key Employee's employment with all Participating
Companies is terminated because of death, Retirement or Total Disability
(as such terms are defined below) prior to the Release Date, the
restrictions of Paragraph 2 applicable to that portion of the Restricted
Stock determined below shall terminate on the date of death or the
effective date of the Retirement or Total Disability (such date herein
referred to as the "Effective Date") and such Restricted Stock shall be
free of such restrictions and, except as otherwise provided in Paragraph 4
hereof, freely transferable. The remaining Restricted Stock shall be
forfeited to the Company on the Effective Date unless, in the case of
death or Total Disability, the Committee determines, on such terms and
conditions, if any, as the Committee may impose, that all or a portion of
such remaining Restricted Stock shall be released to the Key Employee or
his Beneficiary and the restrictions of Paragraph 2 applicable thereto
shall terminate.
(b) The portion of the Restricted Stock for which such
restrictions terminate without action by the Committee is equal to the
number of shares of Restricted Stock awarded hereunder multiplied by a
fraction, the numerator of which is the number of years, including
fractions of a year, in the period from the Grant Date to the Effective
Date, and the denominator of which is the number of years, including
fractions of a year, if any, in the period from the Grant Date to the
Release Date. Fractions of a year shall be computed by the number of days
in the period divided by 365. No fractional share resulting from such
computation shall be issued and in lieu thereof, a cash payment shall be
made equal to such fractional share (computed to two decimal places)
multiplied by the Fair Market Value on the Effective Date.
(c) As used herein, (i) "Retirement" means termination of
employment with all Participating Companies on or after age 62 after
completion of an aggregate of ten years of service with the Company and/or
any Participating Company, except that if the Key Employee's employment is
terminated for Cause (as hereinafter defined) or because of death or Total
Disability, such termination shall not be "Retirement" for purposes
hereof, and (ii) "Total Disability" means the complete and permanent
inability of a Key Employee to perform all of his duties under the terms
of his employment with any Participating Company, as determined by the
Compensation Committee of the Company's Board of Directors or any
successor to such Committee which administers the Plan, or if no such
Committee has been appointed, by the Board of Directors of the Company
(collectively, the "Committee") upon the basis of such evidence, including
independent medical reports and data, as the Committee deems appropriate
or necessary.
6. Termination of Employment for Cause. If the Key Employee's
employment with any Participating Company is terminated for Cause (as
defined below) prior to the Release Date, all Restricted Stock shall be
forfeited to the Company on the date on which such termination of
employment occurs. As used herein, "Cause" means, as determined by the
Committee, the Key Employee's failure to perform his duties or intentional
dishonest or illegal conduct in connection with his performance of
services for any Participating Company.
7. Termination of Employment Other Than for Cause, Death,
Retirement or Total Disability. If the Key Employee's employment with the
Company is terminated prior to the Release Date for any reason other than
Cause, death, Retirement or Total Disability, all Restricted Stock shall
be forfeited to the Company on the date of such termination unless the
Committee determines, on such terms and conditions, if any, as the
Committee may impose, that all or a portion of the Restricted Stock shall
be released to the Key Employee and the restrictions of Paragraph 2
applicable thereto shall terminate. Absence of the Key Employee on leave
approved by a duly elected officer of the Company, other than the Key
Employee, shall not be considered a termination of employment during the
period of such leave.
8. Beneficiary. (a) The person whose name appears on the
signature page hereof after the caption "Beneficiary" or any successor
designated by the Key Employee in accordance herewith (the person who is
the Key Employee's Beneficiary at the time of his death herein referred to
as the "Beneficiary") shall be entitled to receive such portion, if any,
of the Restricted Stock to be released to the Beneficiary under Paragraphs
3 and 5 as a result of the death of the Key Employee. The Key Employee
may from time to time revoke or change his Beneficiary without the consent
of any prior Beneficiary by filing a new designation with the Committee.
The last such designation received by the Committee shall be controlling;
provided, however, that no designation, or change or revocation thereof,
shall be effective unless received by the Committee prior to the Key
Employee's death, and in no event shall any designation be effective as of
a date prior to such receipt.
(b) If no such Beneficiary designation is in effect at the time
of a Key Employee's death, or if no designated Beneficiary survives the
Key Employee or if such designation conflicts with law, the Key Employee's
estate shall be entitled to receive the portion, if any, of the Restricted
Stock to be released from the restrictions of Paragraph 2 upon the death
of the Key Employee. If the Committee is in doubt as to the right of any
person to receive such Restricted Stock, the Company may retain such
Stock, without liability for any interest thereon, until the Committee
determines the person entitled thereto, or the Company may deliver such
Restricted Stock to any court of appropriate jurisdiction and such
delivery shall be a complete discharge of the liability of the Company
therefor.
9. Certificate Legend. In addition to any legends placed on
certificates for Restricted Stock under Paragraph 4 hereof, each
certificate for shares of Restricted Stock shall bear the following
legend:
"The sale or other transfer of the shares of stock represented
by this certificate, whether voluntary, or by operation of law,
is subject to certain restrictions set forth in the Xxxxxxxx &
Xxxxx, Inc. 1989 Restricted Stock Plan and a Restricted Stock
Award Agreement between Xxxxxxxx & Xxxxx, Inc. and the
registered owner hereof. A copy of such Plan and such Agreement
may be obtained from the Secretary of Xxxxxxxx & Xxxxx, Inc."
When the restrictions imposed by Paragraph 2 hereof terminate, the Key
Employee shall be entitled to have the foregoing legend removed from the
certificates representing such Stock.
10. Voting Rights; Dividends and Other Distributions. (a) While
the Restricted Stock is subject to restrictions under Paragraph 2 and
prior to any forfeiture thereof, the Key Employee may exercise full voting
rights for the Restricted Stock registered in his name and held in escrow
hereunder.
(b) While the Restricted Stock is subject to the restrictions
under Paragraph 2 and prior to any forfeiture thereof, the Key Employee
shall be entitled to receive all dividends and other distributions paid
with respect to the Restricted Stock. If any such dividends or
distributions are paid in Stock, such shares shall be subject to the same
restrictions as the shares of Restricted Stock with respect to which they
were paid, including the requirement that Restricted Stock be held in
escrow pursuant to Paragraph 3 hereof.
(c) Subject to the provisions of this Agreement, the Key
Employee shall have, with respect to the Restricted Stock, all other
rights of holders of Stock.
11. Tax Withholding. (a) It shall be a condition of the
obligation of the Company to issue or release from escrow Restricted Stock
to the Key Employee or the Beneficiary, and the Key Employee agrees, that
the Key Employee shall pay to the Company upon its demand, such amount as
may be requested by the Company for the purpose of satisfying its
liability to withhold federal, state, or local income or other taxes
incurred by reason of the award of the Restricted Stock or as a result of
the termination of the restrictions on such Stock hereunder.
(b) If the Key Employee does not make an election under Section
83(b) of the Internal Revenue Code of 1986, as amended, with respect to
the Restricted Stock awarded hereunder, the Key Employee may satisfy the
Company's withholding tax requirements by electing to have the Company
withhold that number of shares of Restricted Stock otherwise deliverable
to the Key Employee from escrow hereunder or to deliver to the Company a
number of shares of Stock, in each case, having a Fair Market Value on the
Tax Date (as defined below) equal to the minimum amount required to be
withheld as a result of the termination of the restrictions on such
Restricted Stock. The election must be made in writing and, if the Key
Employee is an Insider (as defined below), (i) delivered to the Company
either six months or more prior to the Tax Date or during a ten day period
beginning on the third day following the release of the Company's
quarterly or annual summary statement of sales and earnings which occurs
prior to the Tax Date and (ii) shall not be effective until at least six
months after the Grant Date, provided, however, that the restriction in
clause (ii) shall not apply in the event death or Total Disability of the
Key Employee occurs prior to the expiration of such six month period. If
the Key Employee is not an Insider, the election must be delivered to the
Company prior to the Tax Date. If the Key Employee is an Insider, the
full number of shares of Restricted Stock deliverable may be released to
the Key Employee, and in such event the Key Employee shall be
unconditionally obligated to tender back to the Company, as soon as
practicable after the Tax Date, a number of shares of Stock having a Fair
Market Value on the Tax Date equal to the minimum amount required to be
withheld. If the number of shares so determined shall include a
fractional share, the Key Employee shall deliver cash in lieu of such
fractional share. All elections shall be made in a form approved by the
Committee and shall be subject to disapproval, in whole or in part, by the
Committee. As used herein, (i) "Tax Date" means the date on which the Key
Employee must include in his gross income for federal income tax purposes
the fair market value of the Restricted Stock over the purchase price
therefor and (ii) "Insider" means an officer or director of the Company or
a beneficial owner of more than 10% of the Stock.
12. Adjustments in Event of Change in Stock. In the event of
any reclassification, subdivision or combination of shares of Stock,
merger or consolidation of the Company or sale by the Company of all or a
portion of its assets, or other event which could, in the judgment of the
Committee, distort the implementation of the Plan or the realization of
its objectives, the Committee may make such adjustments in the shares of
Restricted Stock subject to this Agreement, or in the terms, conditions or
restrictions of this Agreement as the Committee deems equitable.
13. Powers of Company Not Affected. The existence of the
Restricted Stock shall not affect in any way the right or power of the
Company or its stockholders to make or authorize any combination,
subdivision or reclassification of the Stock or any reorganization,
merger, consolidation, business combination, exchange of shares, or other
change in the Company's capital structure or its business, or any issue of
bonds, debentures or stock having rights or preferences equal, superior or
affecting the Restricted Stock or the rights thereof, or dissolution or
liquidation of the Company, or any sale or transfer of all or any part of
its assets or business, or any other corporate act or proceeding, whether
of a similar character or otherwise. Nothing in this Agreement shall
confer upon the Key Employee any right to continue in the employment of
any Participating Company or interfere with or limit in any way the right
of any Participating Company to terminate the Key Employee's employment at
any time.
14. Interpretation by Committee. The Key Employee agrees that
any dispute or disagreement which may arise in connection with this
Agreement shall be resolved by the Committee, in its sole discretion, and
that any interpretation by the Committee of the terms of this Agreement or
the Plan and any determination made by the Committee under this Agreement
or the Plan may be made in the sole discretion of the Committee and shall
be final, binding, and conclusive. Any such determination need not be
uniform and may be made differently among Key Employees awarded Restricted
Stock.
15. Miscellaneous. (a) This Agreement shall be governed and
construed in accordance with the laws of the State of Wisconsin applicable
to contracts made and to be performed therein between residents thereof.
(b) This Agreement may not be amended or modified except by the
written consent of the parties hereto.
(c) The captions of this Agreement are inserted for convenience
of reference only and shall not be taken into account in construing this
Agreement.
(d) Any notice, filing or delivery hereunder or with respect to
Restricted Stock shall be given to the Key Employee at either his usual
work location or his home address as indicated in the records of the
Company, and shall be given to the Committee or the Company at 000 Xxxx
Xxxxxx, Xxxx du Lac, 54935, Attention: Secretary. All such notices shall
be given by first class mail, postage pre-paid, or by personal delivery.
(e) This Agreement shall be binding upon and inure to the
benefit of the Company and its successors and assigns and shall be binding
upon and inure to the benefit of the Key Employee, the Beneficiary and the
personal representative(s) and heirs of the Key Employee, except that the
Key Employee may not transfer any interest in any Restricted Stock prior
to the release of the restrictions imposed by Paragraph 2.
16. Change of Control. (a) Notwithstanding any other
provision to the contrary contained in this Agreement, effective upon a
Change in Control of the Company (as defined below), the restrictions
imposed upon the Restricted Stock (except for any such shares which were
previously forfeited to the Company) by Paragraph 2 of this Agreement
shall immediately be deemed to have lapsed and the Release Date shall be
deemed to have occurred as of the date of the Change in Control of the
Company with respect to such Restricted Stock.
(b) The following terms shall have the following meanings when
used in this Paragraph 16:
(i) The term "Exchange Act" shall mean the Securities
Exchange Act of 1934, as amended.
(ii) The terms "Affiliate" and "Associate" shall have the
respective meanings ascribed to such terms in Rule 12b-2 of the
General Rules and Regulations of the Exchange Act.
(iii) A Person (as defined herein) shall be deemed to
be the "Beneficial Owner" of any securities:
(A) which such Person or any of such Person's
Affiliates or Associates has the right to acquire (whether
such right is exercisable immediately or only after the
passage of time) pursuant to any agreement, arrangement or
understanding, or upon the exercise of conversion rights,
exchange rights, rights, warrants or options, or otherwise;
provided, however, that a Person shall not be deemed the
Beneficial Owner of, or to beneficially own, (x) securities
tendered pursuant to a tender or exchange offer made by or
on behalf of such Person or any of such Person's Affiliates
or Associates until such tendered securities are accepted
for purchase, or (y) securities issuable upon exercise of
Rights issued pursuant to the terms of the Company's Rights
Agreement with Firstar Trust Company, dated as of
August 23, 1995, as amended from time to time (the "Rights
Agreement") (or any successor to such Rights Agreement), at
any time before the issuance of such securities;
(B) which such Person or any of such Person's
Affiliates or Associates, directly or indirectly, has the
right to vote or dispose of or has "beneficial ownership"
of (as determined pursuant to Rule 13d-3 of the General
Rules and Regulations under the Exchange Act), including
pursuant to any agreement, arrangement or understanding;
provided, however, that a Person shall not be deemed the
Beneficial Owner of, or to beneficially own, any security
under this subparagraph (B) as a result of an agreement,
arrangement or understanding to vote such security if the
agreement, arrangement or understanding: (x) arises solely
from a revocable proxy or consent given to such Person in
response to a public proxy or consent solicitation made
pursuant to, and in accordance with, the applicable rules
and regulations under the Exchange Act and (y) is not also
then reportable on a Schedule 13D under the Exchange Act
(or any comparable or successor report); or
(C) which are beneficially owned, directly or
indirectly, by any other Person with which such Person or
any of such Person's Affiliates or Associates has any
agreement, arrangement or understanding for the purpose of
acquiring, holding, voting (except pursuant to a revocable
proxy as described in subparagraph (B) above) or disposing
of any voting securities of the Company.
(iv) A "Change in Control of the Company" shall mean a
change in control of a nature that would be required to be
reported in response to Item 6(e) of Schedule 14A of Regulation
14A promulgated under the Exchange Act. Without limiting the
inclusiveness of the definition in the preceding sentence, a
Change in Control of the Company shall be deemed to have
occurred if:
(A) any Person (other than any employee benefit plan
of the Company or any Participating Company, any entity
holding securities of the Company for or pursuant to the
terms of any such plan or any trustee, administrator or
fiduciary of such plan) is or becomes the Beneficial Owner
of securities of the Company representing at least 30% of
the combined voting power of the Company's then outstanding
securities;
(B) a Section 11(a)(ii) Event shall have occurred
under the Rights Agreement (or a similar event shall have
occurred under any successor to such Rights Agreement) at
any time any Rights are issued and outstanding thereunder;
(C) one-third or more of the members of the Company's
Board of Directors are not Continuing Directors (as
hereafter defined);
(D) there shall be consummated (x) any consolidation
or merger of the Company in which the Company is not the
continuing or surviving corporation or pursuant to which
shares of Stock would be converted into cash, securities or
other property, other than a merger of the Company in which
the holders of the Stock immediately prior to the merger
have the same proportionate ownership of common stock of
the surviving corporation immediately after the merger, or
(y) any sale, lease, exchange or other transfer (in one
transaction or a series of related transactions) of all, or
substantially all, of the assets of the Company; or
(E) the shareholders of the Company approve any bid
or proposal for the liquidation or dissolution of the
Company.
(v) The term "Continuing Director" shall mean any member
of the Board of Directors of the Company who was a member of
such Board on the Grant Date, and any successor of a Continuing
Director who is recommended to succeed a Continuing Director by
a majority of the Continuing Directors then on such Board.
(vi) The term "Person" shall mean any individual, firm,
partnership, corporation or other entity, including any
successor (by merger or otherwise) of such entity, or a group of
any of the foregoing acting in concert."
IN WITNESS WHEREOF, the Company has caused this instrument to be
executed by its duly authorized officer and its corporate seal hereunto
affixed, and the Key Employee has hereunto affixed his hand and seal, all
on the day and year set forth below.
XXXXXXXX & XXXXX, INC.
(CORPORATE SEAL) By:_________________________________________
Title:
_____________________________________ (Seal)
Key Employee:
No. of Shares of Restricted Stock:
Purchase Price per Share:
Payment of Purchase Price:
Number of Days to Determine Fair Market
Value:
Not Applicable
Date of Agreement:
Grant Date:
Release Date:
Beneficiary:______________________________
Address of Beneficiary:
__________________________________________
__________________________________________
Beneficiary Tax Identification
No. ______________________________________
