XXXXXXX INSTRUMENTS, INC.
RESTRICTED STOCK AWARD AGREEMENT
THIS RESTRICTED STOCK AWARD AGREEMENT (this "Agreement")
is dated as of the ____ day of _____________, between XXXXXXX
INSTRUMENTS, INC., a Delaware corporation (the "Company"), and
_________________________ (the "Director").
W I T N E S S E T H
WHEREAS, the Company has adopted and the shareholders of
the Company have approved the Xxxxxxx Instruments, Inc. Stock
Option Plan for Non-Employee Directors (the "Plan"); and
WHEREAS, the Plan has been amended to provide for the
automatic issuance of the Company's Common Stock to eligible
directors, subject to certain restrictions thereon; and
WHEREAS, the Director is not an employee of the Company,
or a parent corporation, or a subsidiary of either, nor has the
Director been an employee of any such entity for at least one
year prior to the Award Date; and
WHEREAS, pursuant to Section 12 of the Plan, the
Director has been granted an award of Restricted Stock ("Award")
upon the terms and conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the services rendered
and to be rendered by the Director, the Company and the Director
agree to the terms and conditions set forth herein (including the
terms and conditions incorporated by reference from the Plan).
1. DEFINED TERMS. Capitalized terms not otherwise
defined herein shall have the meaning assigned to such terms in
the Plan.
1.1 "AWARD DATE" shall mean the date set forth in
Section 2 upon which any shares are granted pursuant to this
Agreement.
1.2 "CHANGE IN CONTROL" shall have the meaning
stated herein and shall be deemed to occur if any of the
following events occur: (a) any "person," as such term is
used in Sections 13(d) and 14(d) of the Securities Exchange
Act of 1934, as amended (the "Exchange Act"), other than an
employee benefit plan of the Company, or a trustee or other
fiduciary holding securities under an employee benefit plan of
the Company, is or becomes the "beneficial owner" (as defined
in Rule 13d-3 under the Exchange Act), directly or indirectly,
of securities of the Company representing 20% or more of the
combined voting power of the Company's then outstanding voting
securities; (b) individuals who, as of the date of this
Agreement, constitute the Board of the Company (the "Incumbent
Board"), cease for any reason to constitute at least a
majority of the Board provided that any person becoming a
director subsequent to the date hereof whose election, or
nomination for election by the Company's stockholders, was
approved by a vote of at least a majority of the directors
then composing the Incumbent Board (other than an election or
nomination of an individual whose initial assumption of office
is in connection with an actual or threatened election contest
relating to the election of the directors of the Company, as
such terms are used in Rule 14A-11 of Regulation 14A
promulgated under the Exchange Act) shall be considered as
though such person was a member of the Incumbent Board of the
Company; (c) the stockholders of the Company approve a merger
or consolidation with any other corporation, other than (A) a
merger or consolidation which would result in the voting
securities of the Company outstanding immediately prior
thereto continuing to represent (either by remaining
outstanding or by being converted into voting securities of
another entity) more than 80% of the combined voting power of
the voting securities of the Company or such other entity
outstanding immediately after such merger or consolidation or
(B) a merger or consolidation effected to implement a
recapitalization of the Company (or similar transaction) in
which no person acquires 20% or more of the combined voting
power of the Company's then outstanding voting securities; or
(d) the stockholders of the Company approve a plan of complete
liquidation of the Company or an agreement for the sale or
disposition by the Company of all or substantially all of the
Company's assets. Notwithstanding the preceding sentence, a
Change in Control shall not be deemed to have occurred if the
"person" described in the preceding sentence is an
underwriting syndicate which has acquired the ownership of 20%
or more of the combined voting power of the Company's then
outstanding voting securities solely in connection with a
public offering of the Company's securities.
1.3 "COMMON STOCK" shall mean the common stock of
the Company, par value $.10 per share.
1.4 "RESTRICTED STOCK" shall mean shares of Common
Stock of the Company awarded under Section 2 of this Agreement
and subject to the restrictions set forth herein.
1.5 "RETIREMENT" shall mean the Director's
retirement pursuant to the Board's mandatory retirement policy
as set forth in the Company's By-laws.
1.6 "TOTAL DISABILITY" shall mean that the Director
(1) has terminated services as a member of the Board, and (2)
at the date of such termination, is disabled within the
meaning of Section 22(e)(3) of the Code or in accordance with
such other definition as may be established by the Board.
2. AWARD OF RESTRICTED STOCK. Subject to the terms of
this Agreement, the Company hereby grants to the Director an
award with respect to an aggregate of 100 shares of Restricted
Stock (subject to adjustment as required by Section 7 of the
Plan), effective as of ______________. Any additional shares
attributable to the shares of Common Stock awarded pursuant to
this Section 2 and received by the Director as a result of any
stock dividend, recapitalization, merger, reorganization or
similar event described in Section 7 of the Plan shall also be
deemed Restricted Stock subject to the terms and conditions of
this Agreement.
3. RESTRICTIONS ON TRANSFER. Restricted Stock may not
be sold, assigned, transferred, pledged or otherwise disposed of,
or encumbered, voluntarily or involuntarily, during the
Restricted Period (as defined below), except as permitted hereby.
Upon issuance of the Restricted Stock award, the Director shall,
upon the Company's request, provide further assurances and
documents as the Board, in its sole discretion, may require to
enforce such restrictions. The Restricted Period shall commence
as the Award Date and shall terminate as follows:
Date Shares Become Percentage of Shares
Free From Restrictions Free From Restrictions
Date of ____ Annual Shareholders Meeting 33%
Date of ____ Annual Shareholders Meeting 33%
Date of ____ Annual Shareholders Meeting 34%
4. FORFEITURE UPON TERMINATION OF SERVICE. If the
Director ceases to serve as a member of the Board of Directors of
the Company for any reason other than death, Total Disability or
Retirement, all shares of Restricted Stock, which are then
subject to any restrictions or transfer set forth in Section 3
above, shall upon such termination of service be forfeited and
returned to the Company. If the Director terminates from service
by reason of death, Total Disability or Retirement, all shares of
Restricted Stock which are then subject to any restrictions set
forth above shall automatically be made free from restrictions.
5. STOCK CERTIFICATE. Upon the award of the Restricted
Stock to the Director, a stock certificate issued in respect of
such shares of Restricted Stock shall be registered in the name
of the Director and shall be deposited by the Director with the
Company, or with a third party designated by the Board, together
with a stock power endorsed in blank. The Company shall provide
the Director with a receipt for such stock certificate
acknowledging that the Company is holding such certificate
pursuant to the terms of this Agreement.
All stock certificates for shares of Restricted Stock
during the Restricted Period shall bear the following legend:
"The transferability of this certificate and the shares of
stock represented hereby are subject to the terms and
conditions contained in an Agreement entered into between
the registered owner and Xxxxxxx Instruments, Inc. A copy
of such Agreement is on file in the office of the Secretary
of Xxxxxxx Instruments, Inc., 0000 Xxxxxx Xxxxxxxxx,
Xxxxxxxxx, Xxxxxxxxxx 00000."
With regard to any shares of Restricted Stock which cease
to be subject to restrictions pursuant to Section 3, the Company
shall, within a reasonable period after the date such shares
cease to be subject to restrictions, transfer such shares free of
all restrictions set forth in the Plan and this Agreement to the
Director or, in the event of the Director's death, to the
Director's legal representative, heir or legatee.
6. SHAREHOLDER'S RIGHTS. Subject to the terms of this
Agreement, during the Restricted Period, the Director shall be entitled
to cash dividend and voting rights for the Restricted Stock even though
the shares are not vested, provided that such rights shall terminate
immediately as to any shares which cease to be eligible for vesting.
7. CHANGE IN CONTROL. Notwithstanding anything else
contained herein to the contrary, in the event that a Change in
Control occurs while the Director is still serving upon the Board
and before any forfeiture of shares of Restricted Stock has
occurred, all shares of Restricted Stock which are then subject
to any restrictions set forth above shall automatically be made
free from restrictions as of the date of the Change in Control.
8. REGULATORY COMPLIANCE. The issue and sale of shares
of Restricted Stock shall be subject to full compliance with all
then applicable requirements of law and the requirements of any
stock exchange upon which the Common Stock of the Company may be
listed.
9. WITHHOLDING TAX. The Director agrees that, in the
event the award of the Restricted Stock or the expiration of
restrictions thereon results in the Director's realization of
income which for federal, state or local income tax purposes is,
in the opinion of counsel for the Company, subject to withholding
of tax at source by the Company, the Company may retain or sell
without notice sufficient shares of stock to cover the amount of
any such tax required, remitting any balance to the Director;
provided, however, the Director may pay to the Company an amount
equal to such withholding tax.
10. NOTICES. Any notice to be given to the Company
under the terms of this Agreement shall be in writing and
addressed to the Company at its principal office located at 0000
Xxxxxx Xxxxxxxxx, Xxxxxxxxx, Xxxxxxxxxx 00000, Attention:
Company Secretary, and any notice to be given to the Director
shall be addressed to him or her at the address given beneath the
Director's signature hereto, or at such other address as either
party may hereafter designate in writing to the other party.
11. ENTIRE AGREEMENT; MODIFICATION. This Agreement
constitutes the entire agreement between the parties hereto and
supersedes any and all other written or oral agreements,
understandings, representations or proposals made prior to or
concurrently with the execution of the Agreement. No
modification or amendment of this Agreement or any additional
agreement concerning Restricted Stock will take effect unless it
is approved by the Board and is in writing and signed by Director
and the Secretary of the Company. Any modification, amendment,
or additional agreement must expressly state the intention of the
parties to modify or supplement the terms of this Agreement.
12. CONDITIONS TO ISSUANCE OF STOCK CERTIFICATES. The
Company shall not be required to issue or deliver any certificate
or certificates for shares of Common Stock pursuant to this
Agreement prior to fulfillment of all of the following
conditions:
(a) The admission of such shares to listing on all stock
exchanges on which such class of stock is then listed; and
(b) The completion of any registration or other
qualification of such shares under any state or Federal law or
under rulings or regulations of the Securities and Exchange
Commission or of any other governmental regulatory body, which
the Board shall, in its absolute discretion, deem necessary or
advisable; and
(c) The obtaining of any approval or other clearance
from any state or federal governmental agency which the Board
shall, in its absolute discretion, determine to be necessary or
advisable; and
(d) The lapse of such reasonable period of time as the
Board may from time to time establish for reasons of
administrative convenience.
13. GENERAL TERMS. The award of Restricted Stock and
this Agreement are subject to, and the Company and the Director
agree to be bound by, the provisions of the Plan that apply to
the Restricted Stock. Such provisions are incorporated herein by
this reference. The Director acknowledges receiving a copy of
the Plan and reading its applicable provisions. Provisions of
the Plan that grant discretionary authority to the Company and
the Board of Directors shall not create any rights in the
Director, unless such rights are expressly set forth herein.
IN WITNESS WHEREOF, the parties have executed this
Agreement as of the date and year first written above.
"COMPANY"
XXXXXXX INSTRUMENTS, INC.,
a Delaware corporation
By:___________________________
Name: Xxxxxxx X. May
Title: Vice President, General Counsel
and Secretary
"DIRECTOR"
________________________________
(Signature)
_______________________________
(Print Name)
_______________________________
(Address)
_______________________________
(City, State, Zip Code)
_______________________________
(Social Security Number)
