EXHIBIT 10.15
THIS DOCUMENT CONSTITUTES PART OF A
PROSPECTUS COVERING SECURITIES THAT
HAVE BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933.
XXXXXXX INSTRUMENTS, INC.
RESTRICTED STOCK AGREEMENT AND ELECTION
(CYCLE THREE - ECONOMIC VALUED ADDED INCENTIVE PLAN)
This Restricted Stock Agreement and Election ("Agreement")
is entered into between Xxxxxxx Instruments, Inc., a Delaware
corporation (the "Company"), and ___________________________
____________________________________, an employee of
the Company or a Subsidiary of the Company ("Employee").
RECITALS
A. The Company has established the Xxxxxxx Instruments,
Inc. Incentive Compensation Plan of 1990 as amended (the "Plan"),
the terms of which are hereby incorporated by reference and made
a part of this Agreement, which provides for the issuance of
shares of the Company's Common Stock, $.10 par value, subject to
certain restrictions thereon;
B. The Company has established the Xxxxxxx Instruments,
Inc. Economic Value Added Incentive Plan Cycle Three Beginning
FY95 ("Cycle Three Incentive"), with the Committee administering
the Plan approving a Restricted Stock Award Alternative to any
cash payment of the Cycle Three Incentive.
C. Employee has requested that any award determined
pursuant to the Cycle Three Incentive, and the additional premium
amount determined pursuant to the Restricted Stock Award
Alternative, be made in the form of the Company's Common Stock
issued under the Plan subject to certain restrictions; and
D. The Committee administering the Plan has determined that
it would be to the advantage and best interest of the Company and
its stockholders to issue the Restricted Stock under the Plan and
the terms and conditions provided for herein to Employee in
consideration of past services to the Company or its
Subsidiaries, has accepted Employee's request, has advised the
Company thereof, and has instructed the undersigned officer to
cause said Restricted Stock to be issued;
THEREFORE, in consideration of the mutual covenants herein
contained and other good and valuable consideration, receipt of
which is hereby acknowledged, the parties hereto agree as
follows:
ARTICLE I
DEFINITIONS
Section 1.1 - Definitions.
Whenever the following terms are used in this Agreement they
shall have the meaning specified below unless the context clearly
indicates to the contrary.
"Board" means the Board of Directors of the Company.
"Change of Control" 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 hereof, 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 comprising 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 were 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 (1) 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 (2) 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 of 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.
"Code" means the Internal Revenue Code of 1986, as amended.
"Committee" means the Organization and Compensation
Committee of the Company's Board of Directors.
"Restricted Stock" shall mean Common Stock of the Company,
$.10 par value, issued under the Plan and the terms of this
Agreement and subject to the Restrictions imposed hereunder.
"Restriction Period" means the twenty-four (24) month period
beginning on the date of issuance of Restricted Stock hereunder
and ending on the date that is twenty-four (24) months from the
date the Restricted Stock is issued.
"Restrictions" shall mean the restrictions on sale, transfer
or other disposition and the exposure to forfeiture imposed upon
the Restricted Stock under this Agreement.
"Retirement" means Termination of Employment of Employee due
to "Early Retirement", "Normal Retirement" or "Late Retirement"
as such terms are defined under the provisions of the Xxxxxxx
Instruments, Inc. Pension Plan, or if such plan is not applicable
to Employee, then under the applicable retirement policy or plan
or as determined by the Committee in its discretion.
"Secretary" shall mean the Secretary of the Company.
"Subsidiary" shall mean any corporation in an unbroken chain
of corporations beginning with the Company if each of the
corporations other than the last corporation in the unbroken
chain then owns stock possessing 50% or more of the total
combined voting power of all classes of stock in one of the other
corporations in such chain.
"Termination of Employment" shall mean that the employee-
employer relationship between Employee and the Company or a
Subsidiary has ended for any reason, but excluding any
termination where there is a simultaneous reemployment by the
Company or a Subsidiary.
"Total Disability" shall mean that Employee has satisfied
the criteria for determination of disability (without regard to
any age requirement) for extended basic life insurance under the
Company's life insurance program; provided, however, that such
determination shall in no way be construed to mean or imply that
Employee is otherwise eligible for extended basic life insurance.
"Treasurer" shall mean the Treasurer of the Company.
ARTICLE II
ELECTION FOR RESTRICTED STOCK IN LIEU OF CASH
Section 2.1 - Election
Employee hereby irrevocably elects to receive the award, if
any, determined pursuant to the Cycle Three Incentive and the
premium described in Section 2.2(b) below, in the form of whole
shares of Restricted Stock under a grant from the Plan subject to
the provisions of the Plan and the terms and conditions herein,
in lieu of a cash payment.
Section 2.2 - Acknowledgements
With regard to the election in Section 2.1 above, Employee
acknowledges and agrees as follows:
(a) This election to receive Restricted Stock, the
amount of which is determined under subparagraph (b) below,
is effective only if received by the Company on or before
August 1, 1996 and no Termination of Employment has occurred
between the date of this election and the date of issuance
of the Restricted Stock;
(b) This election to receive Restricted Stock in lieu
of cash payment is made for the full amount of any award
under the Cycle Three Incentive and such amount will be
increased by and shall include a thirty-three and one-third
percent (33-1/3%) premium. Such sum shall then be converted
into whole shares of Restricted Stock based on the closing
price of Xxxxxxx stock on the last trading day of the two-
year Cycle Three Incentive cycle; and
(c) Amounts which would otherwise result in fractional
shares will be paid in cash on the regular Cycle Three
Incentive payment date.
ARTICLE III
ISSUANCE OF RESTRICTED STOCK
Section 3.1 - Issuance of Restricted Stock
In consideration of Employee's agreement to remain in the
employ of the Company or a Subsidiary and for other good and
valuable consideration, the Company agrees to issue to Employee
the number of shares of Restricted Stock, determined pursuant to
Section 2.2(b) above and set forth in Schedule A, upon the terms
and conditions set forth in this Agreement. Schedule A shall be
distributed to Employee on or about the regular payment date for
the Cycle Three Incentive. The date of issuance of the
Restricted Stock shall be the date shown on Schedule A.
Section 3.2 - Consideration to Company
As partial consideration for the issuance of Restricted
Stock by the Company, Employee agrees to render faithful and
efficient services to the Company or a Subsidiary with such
duties and responsibilities as the Company shall from time to
time prescribe. Nothing in this Agreement or in the Plan shall
confer upon Employee any right to continue in the employ of the
Company or any Subsidiary or shall interfere with or restrict in
any way the rights of the Company and its Subsidiaries, which are
hereby expressly reserved, to terminate employment of Employee at
any time for any reason, with or without cause.
ARTICLE IV
RESTRICTIONS
Section 4.1 - Forfeiture of Restricted Stock
(a) All shares of Restricted Stock shall be forfeited to the
Company immediately upon a voluntary Termination of Employment or
an Early Retirement occurring within twenty-four (24) months from
the date of issuance; provided, however, that where Employee
terminates employment due to Early Retirement and has made a
prior Code Section 83(b) election, no forfeiture shall occur but
Restrictions on sale, transfer or other disposition pursuant to
Sections 4.2 and 5.2 will remain in effect for any remainder of
the Restriction Period.
(b) Notwithstanding Section 4.1(a) above, no shares shall be
forfeited to the Company in the event of a Termination of
Employment due to Normal or Late Retirement, Total Disability, or
death. In the event of an involuntary Termination of Employment,
for cause or otherwise, no shares shall be forfeited but the
restrictions on sale, transfer or other disposition pursuant to
Sections 4.2 and 5.2 shall remain in effect for any remainder of
the Restriction Period.
Section 4.2 - Legend
Certificates representing shares of Restricted Stock issued
pursuant to this Agreement shall, until all restrictions lapse
and new certificates are issued pursuant to Section 4.3, bear the
following legend:
"The shares represented by this certificate are
subject to reacquisition by Xxxxxxx Instruments,
Inc., and such shares may not be sold or otherwise
transferred except pursuant to the provisions of
the Restricted Stock Agreement by and between
Xxxxxxx Instruments, Inc. and the registered
owner of such shares."
Section 4.3 - Lapse of Restrictions
(a) If no forfeiture pursuant to Section 4.1(a) has
occurred, the Restrictions shall lapse with respect to 100% of
the shares of Restricted Stock on the date which is twenty-four
(24) months from the date the Restricted Stock is issued.
(b) Notwithstanding subsection 4.3(a) above, all
Restrictions will lapse with respect to 100% of the shares of
Restricted Stock in the following events: (i) A Termination of
Employment by death, Normal or Late Retirement (but not Early
Retirement) or Total Disability; (ii) Death or Total Disability
of Employee during the the Restriction Period where during the
Restriction Period Employee had terminated employment due to
Early Retirement and had made a prior Code Section 83(b) election or
where an involuntary Termination of Employment had previously
occurred during the Restriction Period; or (iii) A Change of
Control of the Company or other occurrence of events as described
in Sections 4.4 or 4.5 below if the Committee deems the lapse of
Restrictions appropriate.
(c) As soon as practicable, the Company shall, upon the
lapse of the Restrictions, cause new certificates to be issued
and delivered to Employee or his or her legal representative,
free from the legend provided for in Section 4.2.
Notwithstanding the foregoing, no such new certificate shall be
delivered to Employee or his or her legal representative unless
and until Employee or such legal representative shall have paid
to the Company (or other employer corporation), in cash, the full
amount of all federal, state or local income tax withholdings and
other employment taxes applicable to the taxable income of
Employee resulting from the lapse of Restrictions.
Section 4.4 - Merger, Consolidation, Exchange, Acquisition,
Liquidation or Dissolution
In the event that the Company is succeeded by another
corporation in a reorganization, merger, consolidation,
acquisition of property or stock, separation or liquidation, the
Board or the Committee may, in its absolute discretion and on
such terms and conditions as it deems appropriate, provide, by a
resolution adopted prior to the occurrence of the reorganization,
merger, consolidation, acquisition of property or stock,
separation, or liquidation, that (i) for some period of time
prior to such event, all Restrictions on such shares of
Restricted Stock shall lapse or expire, (ii) obligations of the
Company in relation to such shares of Restricted Stock shall be
assumed by such successor corporation, (iii) such shares of
Restricted Stock shall be cancelled and replaced by substitute
shares of Restricted Stock of the successor corporation, or (iv)
such shares of Restricted Stock shall be forfeited to the Company
in consideration for a cash payment in an amount to be determined
by the Committee.
Section 4.5 - Restrictions on New Shares
In the event that the outstanding shares of the Company's
Common Stock are changed into or exchanged for a different number
or kind of shares or other securities of the Company or of
another corporation pursuant to a merger of the Company into
another corporation, or the exchange of all or substantially all
of the assets of the Company for the securities of another
corporation, or the acquisition by another corporation of 80% or
more of the Company's then outstanding voting stock, or the
liquidation or dissolution of the Company, or a stock split-up or
stock dividend, such new or additional or different shares or
securities which are attributable to Employee in his or her
capacity as the owner of the Restricted Stock, shall be
considered to be Restricted Stock and shall be subject to all of
the Restrictions, unless the Committee provides, pursuant to
Section 4.4 or Section 4.3(b), for the expiration of the
Restrictions on the shares of Restricted Stock underlying the
distribution of the new or additional shares or securities.
ARTICLE V
MISCELLANEOUS
Section 5.1 - Administration
The Committee shall have the power to interpret the Plan and
this Agreement and to adopt such rules for the administration,
interpretation and application of the Plan as are consistent
therewith and to interpret or revoke any such rules. Any dispute
or disagreement which shall arise under or as a result of or
pursuant to this Agreement or the grant or issuance of Restricted
Stock shall be determined by the Committee in its sole
discretion. All actions taken and all interpretations and
determinations made by the Committee in good faith shall be
final, binding and conclusive upon Employee, the Company and all
other interested persons. No member of the Committee shall be
personally liable for any action, determination, or
interpretation made in good faith with respect to the Plan or the
Restricted Stock.
Section 5.2 - Restricted Stock Not Transferable
Neither the Restricted Stock nor any interest or right
therein or part thereof shall be liable for the debts, contracts,
or engagements of Employee or his or her successors in interest
or shall be subject to disposition by transfer, alienation,
anticipation, pledge, encumbrance, assignment or any other means
whether such disposition be voluntary or involuntary or by
operation of law by judgment, levy, attachment, garnishment or
any other legal or equitable proceedings (including bankruptcy)
and any attempted disposition of such Restricted Stock, interest
or right therein or part thereof, shall be null and void and of
no effect; provided, however, that this Section 5.2 shall not
prevent transfers by will or by the applicable laws of descent
and distribution.
Section 5.3 - Conditions to Issuance of Stock Certificates
The Company shall not be required to issue or deliver any
certificate or certificates for shares of 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;
(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 Committee shall, in its absolute discretion, deem necessary
or advisable;
(c) The obtaining of any approval or other clearance from
any state or federal governmental agency which the Committee
shall, in its absolute discretion, determine to be necessary or
advisable; and
(d) The compliance with all other requirements, including
but not limited to the payment or withholding of income,
employment or other taxes, as legally required or which the
Committee shall, in its absolute discretion, determine to be
necessary or advisable.
(e) The lapse of such reasonable period of time as the
Committee may from time to time establish for reasons of
administrative convenience.
Section 5.4 - Escrow
The Treasurer or such other escrow holder as the Committee
may appoint shall retain physical custody of the certificates
representing the Restricted Stock, including shares of Restricted
Stock issued pursuant to Section 4.5, until all of the
Restrictions expire or shall have been removed; provided,
however, that in no event shall Employee retain physical custody
of any certificates representing Restricted Stock issued to him
or her.
Section 5.5 - Notices
Any notice required or permitted hereunder shall be
effective when addressed to the Company in care of its Secretary
at 0000 Xxxxxx Xxxxxxxxx, Xxxxxxxxx, XX. 00000-0000, or to the
Employee at the Employee's last known address shown on Company
records, as the case may be, and deposited, postage prepaid and
registered or certified, in the United States mail. Either party
may, by notice to the other given in the above-described manner,
change such party's address for future notices. Any notice which
is required to be given to Employee shall, if Employee is then
deceased, be given to Employee's personal representative if such
representative has previously informed the Company of his or her
status and address by written notice in the manner described in
this Section.
Section 5.6 - Rights as Stockholder
Except as otherwise provided herein, Employee shall have all
the rights of a stockholder with respect to the Restricted Stock,
including the right to vote the Restricted Stock and the right to
receive all dividends or other distributions paid or made with
respect to the Restricted Stock.
Section 5.7 - 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 which
may have been 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 Committee and is in writing
and signed by Employee and the Vice President of Human Resources.
Any modification, amendment, or additional agreement must
expressly state the intention of the parties to modify or
supplement the terms of this Agreement.
Section 5.8 - Receipt of Documents
Employee acknowledges the receipt of the Cycle Three
Incentive Plan with restriced stock award alternative, the
Incentive Compensation Plan of 1990 as amended and restated May
6, 1992, the 1996 prospectus appendix for the Incentive
Compensation Plan of 1990, and tax information. Employee
acknowledges that he has been encouraged to seek tax and
securities counsel before making the election herein.
Section 5.9 - Titles
Titles are provided herein for convenience only and are not
to serve as a basis for interpretation or construction of this
Agreement.
IN WITNESS WHEREOF, this Agreement has been executed and
delivered by the parties hereto.
EMPLOYEE XXXXXXX INSTRUMENTS, INC.
_________________________ By________________________________
Vice President - Human Resources
Date:____________________
