MATTHEWS INTERNATIONAL CORPORATION Restricted Share Agreement For Employees
Exhibit
10.8
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INTERNATIONAL CORPORATION
1992
Stock Incentive Plan (as amended through April 25, 2006)
Restricted
Share Agreement For Employees
XXXXXXXX
INTERNATIONAL CORPORATION, a Pennsylvania corporation (the
"Corporation"), and __________________, an eligible employee of the Corporation
or one of its Subsidiaries (the "Awardee"), for good and valuable consideration
the receipt and adequacy of which are hereby acknowledged and intending to
be
legally bound hereby, agree as follows:
1. Stock
Award. The Corporation hereby confirms the award to the Awardee
of ______ shares of Class A Common Stock, par value $1.00 per share, of the
Corporation (the “Class A Common Stock”) under and subject to the terms and
conditions of the Corporation’s 1992 Stock Incentive Plan (as amended through
April 25, 2006) (the “Plan”) and this Agreement (the "Restricted
Stock"). The Plan is incorporated by reference and made a part of
this Agreement as though set forth in full herein. Terms which are
capitalized but not defined in this Agreement have the same meaning as in the
Plan unless the context otherwise requires. This Restricted Stock
award shall be effective as of November 12, 2007 (the "Effective Date"),
provided that this Agreement is executed by the Awardee and delivered to the
Corporation. As of the Effective Date, the Awardee shall be a
shareholder of the Corporation with respect to the Restricted Stock and shall
have all the rights of a shareholder with respect to the Restricted Stock,
including the right to vote the Restricted Stock and to receive all dividends
and other distributions paid with respect to the Restricted Stock, subject
to
the restrictions of the Plan and this Agreement.
2. Acceptance
of Restricted Share Award. The Awardee accepts the award
of the Restricted Stock confirmed hereby, subject to the restrictions
of the Plan and this Agreement.
3. Performance-Based
Restrictions. The restrictions set forth in this Section 3 shall
apply with respect to _____________ (_____) shares of the Restricted Stock
(the
“Performance Restricted Stock”).
A. General. If
(i) the Awardee remains continuously employed with the Corporation and its
Subsidiaries until the date(s) described in the following table (the
“Performance Vesting Date(s)”), (ii) the shares of Performance Restricted Stock
set forth in the table with respect to each respective Performance Vesting
Date
have not been previously forfeited to the Corporation pursuant to Section 5,
and
(iii) the restrictions imposed under this Agreement on such shares have not
previously lapsed pursuant to Section 6, the restrictions imposed on the
following respective numbers of shares of the Performance Restricted Stock
shall
lapse (except for the restriction set forth in Section 5 for the period set
forth in Section 5), such shares shall become vested, and the Corporation shall
instruct its transfer agent that such shares are no longer to be designated
as
restricted on the transfer agent’s book-entry records of the owners of the Class
A Common Stock, as of the following respective date(s):
|
Performance
Vesting Dates
|
Number
of Shares of Performance Restricted Stock on Which the Restrictions
Shall
Lapse
and
Which Shall Vest
|
|
|
(a)The
first date, if any, prior to November 12, 2012 on which the fair
market
value per share of the Class A Common Stock has equaled or exceeded
$48.09
for a period of ten (10) consecutive trading days;
|
[Insert
1/3 of the number of shares of the Performance Restricted
Stock]
|
|
|
(b)The
first date, if any, prior to November 12, 2012 on which the fair
market
value per share of the Class A Common Stock has equaled or exceeded
$54.65
for a period of ten (10) consecutive trading days; and
|
[Insert
1/3 of the number of shares of the Performance Restricted
Stock]
|
|
|
(c)The
first date, if any, prior to November 12, 2012 on which the fair
market
value per share of the Class A Common Stock has equaled or exceeded
$61.21
for a period of ten (10) consecutive trading days.
|
[Insert
1/3 of the number of shares of the Performance Restricted
Stock]
|
If
any
event described in Section 8 of the Plan occurs, the Committee shall make such
adjustments to the amounts set forth in (a) – (c) above as it deems appropriate
and equitable to prevent the dilution or enlargement of the rights of the
Awardee under this Agreement.
The
fair
market value per share of the Class A Common Stock for purposes of this
Agreement shall be determined under Section 5(H) of the Plan, and such fair
market value per share of the Class A Common Stock on the Effective Date is
$43.715. If the Awardee’s employment with the Corporation and its
Subsidiaries terminates prior to a Performance Vesting Date for any reason
other
than as a result of the Awardee’s death or permanent disability (as defined in
Section 3.B.), voluntary termination of the Awardee’s employment with the
consent of the Corporation (with such a voluntary termination by the Awardee
requiring the written consent of the Committee or, in the case of an awardee
other than the Chief Executive Officer of the Corporation, such Chief Executive
Officer) (a “Voluntary Termination With Consent”), or the Awardee’s retirement
under any retirement plan of the Corporation or one of its Subsidiaries, and
the
employment and stock performance restrictions with respect to such Performance
Vesting Date have not previously lapsed pursuant to Section 6, the shares of
the
Performance Restricted Stock set forth in the table above in this Section 3.A.
with respect to such Performance Vesting Date which have not been previously
forfeited to the Corporation pursuant to Section 5 shall, upon such termination
of employment and without any further action, be forfeited to the Corporation
by
the Awardee and cease to be issued and outstanding shares of the Class A Common
Stock of the Corporation. Any shares of the Performance Restricted
Stock (i) which have not been previously forfeited to the Corporation pursuant
to Section 5 or the immediately preceding sentence, (ii) for which the
employment and stock performance restrictions have not previously lapsed
pursuant to Section 6, and (iii) which have not vested prior to November 12,
2012 pursuant to the foregoing table shall, on November 12, 2012 and without
any
further action, be forfeited to the Corporation by the Awardee and cease to
be
issued and outstanding shares of the Class A Common Stock of the
Corporation.
B. Certain
Terminations of Employment. If the Awardee’s employment with the
Corporation and its Subsidiaries terminates as a result of the Awardee’s death
or permanent disability (within the meaning of Section 22(e)(3) of the Internal
Revenue Code of 1986 as amended (the “Code”) or any successor
section), a Voluntary Termination With Consent, or the Awardee’s retirement
under any retirement plan of the Corporation or one of its Subsidiaries, and
the
employment and stock performance restrictions have not previously lapsed with
respect to shares of the Performance Restricted Stock pursuant to Sections
3.A.
or 6, such shares of the Performance Restricted Stock which have not been
previously forfeited to the Corporation pursuant to Section 5 or the last
sentence of Section 3.A. shall continue to be eligible for vesting under the
stock performance conditions set forth in Section 3.A.(a), (b) and (c) and
shall
become vested pursuant to the table set forth in Section 3.A., if (and at the
time) the Performance Vesting Dates described in Section 3.A.(a), (b) and (c),
respectively, occur within two years after the date of termination of employment
of the Awardee. Sections 5 and 6 and the last sentence of Section
3.A. shall continue to apply to shares of Performance Restricted Stock during
such two-year period or, in the case of Section 6 and the last sentence of
Section 3.A, if earlier, until such shares of Performance Restricted Stock
become vested pursuant to the table set forth in Section 3.A. The
Corporation shall instruct its transfer agent to no longer designate as
restricted on the transfer agent’s book-entry records of the owners of the Class
A Common Stock any shares of the Performance Restricted Stock which become
vested pursuant to this Section 3.B, provided that Section 5 shall continue
to
apply to such shares to the extent set forth in Section 5 for the period set
forth in Section 5. Any such shares of the Performance Restricted
Stock on which the employment and stock performance restrictions under Section
3
of this Agreement have not previously lapsed, which have not been previously
forfeited, and which have not become vested as of the close of business on
the
two-year anniversary of the date of termination of employment of the Awardee
shall, without any further action, be forfeited to the Corporation by the
Awardee at such time and cease to be issued and outstanding shares of the Class
A Common Stock of the Corporation.
4. Time-Based Restrictions. The
restrictions set forth in this Section 4 shall apply to all of the shares of
the
Restricted Stock which are not Performance Restricted Stock (i.e., the
remaining ____ (___) shares of Restricted Stock) (the “Time-Based Restricted
Stock”).
A. General. If,
on or before November 12, 2010 (the “Vesting Date”), the Awardee’s employment
with the Corporation and its Subsidiaries terminates for any reason other than
as a result of (i) the Awardee’s death or permanent disability (as defined in
Section 3.B.), (ii) a Voluntary Termination With Consent, or (iii) the Awardee’s
retirement under any retirement plan of the Corporation or one of its
subsidiaries, and this restriction has not previously lapsed pursuant to Section
6, the shares of the Time-Based Restricted Stock which have not been previously
forfeited to the Corporation shall, upon such termination of employment and
without any further action, be forfeited to the Corporation by the Awardee
and
cease to be issued and outstanding shares of the Class A Common Stock of the
Corporation. If (i) the Awardee remains an employee of the
Corporation and its Subsidiaries until the Vesting Date, (ii) the shares of
the
Time-Based Restricted Stock have not been previously forfeited to the
Corporation pursuant to Section 5, and (iii) the employment restriction
described in the first sentence of this Section 4.A. (the “Section 4.A.
Restriction”) has not previously lapsed pursuant to Section 6, the Section 4.A.
Restriction on the Time-Based Restricted Stock shall lapse, such shares shall
become vested, and the Corporation shall instruct its transfer agent that such
shares are no longer to be designated as restricted on the transfer agent’s
book-entry records of the owners of the Class A Common Stock, provided that
Section 5 shall continue to apply to such shares to the extent set forth in
Section 5 for the period set forth in Section 5.
B. Certain
Terminations of Employment. If the Awardee terminates employment
with the Corporation and its Subsidiaries due to any of the reasons set forth
in
Section 4.A. (i)-(iii), upon such termination the Section 4.A. Restriction
on
the shares of the Time-Based Restricted Stock which have not been previously
forfeited to the Corporation pursuant to Section 5 and on which the Section
4.A.
Restriction has not previously lapsed pursuant to Section 6, shall lapse, such
shares shall become vested, and the Corporation shall instruct its transfer
agent that such shares are no longer to be designated as restricted on the
transfer agent’s book-entry records of the owners of the Class A Common Stock,
provided that Section 5 shall continue to apply to such shares to the extent
set
forth in Section 5 for the period set forth in Section 5.
5. Non-Competition/Non-Solicitation/Non-Disparagement. If
the Awardee (i) engages in the operation or management of a business (whether
as
owner, partner, officer, director, employee or otherwise and whether during
or
after termination of employment) which is in competition with the Corporation
or
any of its Subsidiaries, (ii) induces or attempts to induce any customer,
supplier, licensee or other individual, corporation or other business
organization having a business relationship with the Corporation or any of
its
Subsidiaries to cease doing business with the Corporation or any of its
Subsidiaries or in any way interferes with the relationship between any such
customer, supplier, licensee or other person and the Corporation or any of
its
Subsidiaries, (iii) solicits any employee of the Corporation or any of its
Subsidiaries to leave the employment thereof or in any way interferes with
the
relationship of such employee with the Corporation or any of its Subsidiaries,
or (iv) makes any statements or comments, orally or in writing, of a defamatory
or disparaging nature regarding the Corporation or any of its Subsidiaries
(including but not limited to regarding any of their respective businesses,
officers, directors, personnel, products or policies), the Committee may (a)
cause all shares of the Restricted Stock remaining subject to the employment
and
stock performance restrictions imposed by this Agreement to be immediately
forfeited to the Corporation and the Awardee shall have no further rights with
respect to such shares and/or (b) require the Awardee to promptly return and
transfer, and thereby forfeit, ownership to the Corporation of all or a portion
(at the discretion of the Committee) of the number of shares of the Restricted
Stock which were issued or transferred by the Corporation to the Awardee within
the three (3) years immediately preceding any such activity by the Awardee
(or,
at the discretion of the Committee, to pay to the Corporation in cash an amount
equal to the fair market value of such number of shares of the Class A Common
Stock as of the date of the determination by the Committee under this Section
5), provided, however, that this Section 5 shall not apply if a Section 9 Event
occurs prior to any such activity by the Awardee. Whether the Awardee
has engaged in any of the activities referred to in the immediately preceding
sentence shall be determined, in its discretion, by the Committee, and any
such
determination by the Committee shall be final and binding.
6. Section
9 Event. If (i) a Section 9 Event occurs, (ii) the employment and
stock performance restrictions (if any) imposed by this Agreement on the shares
of the Restricted Stock have not previously lapsed, and (iii) such shares of
the
Restricted Stock have not been previously forfeited to the Corporation, the
employment and stock performance restrictions (if any) and the restrictions
set
forth in Section 5 imposed by this Agreement on such shares of the Restricted
Stock remaining subject to such restrictions shall lapse upon the occurrence
of
such Section 9 Event, such shares shall become vested, and the Corporation
shall
instruct its transfer agent that such shares are no longer to be designated
as
restricted on the transfer agent’s book-entry records of the owners of the Class
A Common Stock.
7. Transfers. Except
for transfers to a trust that is revocable by the Awardee alone as permitted
by
Section 6 of the Plan and subject to the conditions set forth therein, the
Awardee shall not sell, exchange, assign, alienate, pledge, hypothecate,
encumber, charge, give, transfer or otherwise dispose of, either voluntarily
or
by operation of law, any shares of the Restricted Stock or any rights or
interests appertaining thereto, prior to the lapse of the employment and stock
performance restrictions (if any) imposed by this Agreement as to such shares,
except that the shares of the Restricted Stock may be transferred by the Awardee
by Xxxx or, if the Awardee dies intestate, by the laws of descent and
distribution of the state of domicile of the Awardee at the time of
death. Subsequent to the lapse of the employment and stock
performance restrictions imposed by this Agreement as to shares of the
Restricted Stock, Awardee agrees that such shares of the Restricted Stock cannot
be offered, sold, pledged or otherwise disposed of, and the Awardee will not
offer, sell, pledge or otherwise dispose of such shares of the Restricted Stock,
except pursuant to (i) an effective registration statement under the Securities
Act of 1933, as amended (the “1933 Act”) and qualification under applicable
state and foreign securities laws, or (ii) in accordance with Rule 144 under
the
1933 Act.
8. Book-Entry
Share Records. As of the Effective Date, the shares of the
Registered Stock shall be issued in book-entry form in the name of the Awardee
until any forfeiture of the shares of the Restricted Stock to the
Corporation. As of the Effective Date, the Corporation shall instruct
its transfer agent that the shares of the Restricted Stock (a) are to be
recorded as owned by the Awardee and designated as restricted on the transfer
agent’s book-entry records of the owners of the Class A Common Stock, and (b)
may not be transferred from the name of the Awardee until the earlier of (i)
when the Corporation instructs its transfer agent in writing pursuant to this
Agreement to record the shares as owned by the Corporation (rather than by
the
Awardee) or (ii) when requested in writing by the Awardee (or the Awardee’s
personal representative) after the Corporation has instructed its transfer
agent
in writing that such shares are no longer to be designated as
restricted on the transfer agent’s book-entry records. If the
employment and stock performance restrictions (if any) imposed by this Agreement
lapse with respect to such shares, the Corporation shall instruct its transfer
agent that such shares are no longer to be designated as restricted on the
transfer agent’s book-entry records of the owners of the Class A Common
Stock. If such shares are forfeited to the Corporation by the Awardee
under this Agreement, the Corporation shall instruct its transfer agent that
such shares are no longer to be recorded as owned by the Awardee but rather
shall be recorded as owned by the Corporation. The Awardee hereby
acknowledges that the transfer agent may take such action based solely on
instructions from the Corporation and shall hold the transfer agent harmless
from any liability for such action.
9. Section
83(b) Election/Foreign Taxes. If the Awardee is subject to
taxation in the United States of America (the “United States”) the Awardee
acknowledges that an election under Section 83(b) of the Code, may be available
to the Awardee for Federal income tax purposes and that such election,
if desired, must be made within thirty (30) days of the Effective
Date. The Awardee acknowledges that whether to make such
election (or any similar election in a country other than the United States)
is
the responsibility of the Awardee, not the Corporation. The Awardee
may make the election as to any or all of both the Performance Restricted Shares
and the Time-Based Restricted Shares. The Awardee acknowledges that
the Awardee and not the Corporation is responsible for all tax consequences,
including but not limited to all non-United States tax consequences, and that
the Awardee should consult the Awardee’s tax advisor with respect to any
applicable election and all other tax aspects associated with this
Agreement.
10. Withholding
of Taxes. If the Awardee is subject to taxation in the United
States, the Awardee shall be advised by the Corporation or a Subsidiary as
to
the amount of any United States Federal income or employment taxes required
to
be withheld by the Corporation or such Subsidiary on the compensation income
resulting from the award of the Restricted Stock. The timing of the
withholding will depend on whether the Awardee makes an election under Section
83(b) of the Code. State, local or foreign income or employment taxes
may also be required to be withheld by the Corporation or a Subsidiary on any
compensation income resulting from the award of the Restricted
Stock. The Awardee shall pay any taxes required to be withheld
directly to the Corporation or any Subsidiary in cash upon receipt, provided,
however, that taxes required to be withheld upon the vesting of the Restricted
Stock (as opposed to upon the Awardee’s making of an election under Section
83(b) of the Code), may be paid by one or more of the following methods, at
the
election of the Awardee:
(a)
in cash;
(b)
if in
compliance with any applicable securities laws, by having the Corporation
withhold from the shares of Restricted Stock which have then vested for the
Awardee, a number of such shares with a fair market value on the date of vesting
of the Restricted Stock equal to the amount of such taxes (rounded down to
the
next whole number of shares) and with payment in cash by the Awardee to the
Corporation or a Subsidiary of the difference between the amount of such taxes
and the fair market value of such whole number of shares on such date of
vesting; or
(c)
if in
compliance with any applicable securities laws, by delivery and transfer to
the
Corporation or a Subsidiary by the Awardee of a number of unencumbered shares
of
Class A Common Stock with a fair market value on the date of vesting of the
Restricted Stock equal to the amount of such taxes (rounded down to the next
whole number of shares) and with payment in cash by the Awardee to the
Corporation or a Subsidiary of the difference between the amount of such taxes
and the fair market value of such whole number of shares on such date of
vesting.
If
the
Awardee does not pay any taxes required to be withheld directly to the
Corporation or one of its Subsidiaries in the manner provided in this Section
10
within ten days after any such request, the Corporation or any of its
Subsidiaries may withhold such taxes from any other compensation to which the
Awardee is entitled from the Corporation or any of its
Subsidiaries. The Awardee shall hold the Corporation and its
Subsidiaries harmless in acting to satisfy the withholding obligation in this
matter if it becomes necessary to do so. Notwithstanding other
provisions of this Agreement, the Corporation shall not be required to instruct
its transfer agent that shares of the Restricted Stock are no longer to be
designated as restricted on the transfer agent’s book-entry records of the
owners of the Class A Common Stock until all taxes required to be withheld
with
respect to the Restricted Stock have been paid to the Corporation or a
Subsidiary.
11. Effect
of Agreement on Rights of Corporation and Awardee. This Agreement
does not confer any right on the Awardee to continue in the employ of the
Corporation or any of its Subsidiaries or interfere in any way with the rights
of the Corporation or any of its Subsidiaries to terminate the employment of
the
Awardee with the Corporation or any of its Subsidiaries at any
time.
12. Binding
Effect. This Agreement shall be binding upon the successors and
assigns of the Corporation and upon the legal representatives, estate, heirs
and
legatees of the Awardee.
13. Entire
Agreement. This Agreement constitutes the entire agreement
between the Corporation and the Awardee and supersedes all prior agreements
and
understandings, oral or written, between the Corporation and the Awardee with
respect to the subject matter of this Agreement.
14. Amendment. This
Agreement may be amended only by a written instrument signed by the Corporation
and the Awardee.
15. Section
Headings. The section headings contained in this Agreement are
for reference purposes only and shall not affect in any way the meaning or
interpretation of any of the provisions of this
Agreement.
16. Governing
Law. This Agreement shall be governed by, and construed and
enforced in accordance with, the laws of the Commonwealth of
Pennsylvania.
17. Interpretation
of Plan and Agreement; Dispute Resolution. This Agreement is the
restricted stock agreement referred to in Section 6 of the Plan. If
there is any conflict between the Plan and this Agreement, the provisions of
the
Plan shall control. Any dispute or disagreement which shall arise
under or in any way relate to the interpretation or construction of the Plan
or
this Agreement shall be resolved by the Committee and the decision of the
Committee shall be final, binding and conclusive for all
purposes. The Awardee and the Corporation irrevocably submit to the
exclusive and sole jurisdiction and venue of the state courts of Allegheny
County, Pennsylvania and the federal courts of the Western District of
Pennsylvania with respect to any and all disputes arising out of or relating
to
the Plan, this Agreement, and/or the Restricted Stock, and agree that (a) sole
and exclusive appropriate venue for any such action shall be such Pennsylvania
courts, and no other, (b) all claims with respect to any such action shall
be
heard and determined exclusively in such Pennsylvania courts, and no other,
(c)
such Pennsylvania courts shall have sole and exclusive jurisdiction over the
Awardee and the Corporation and over the subject matter of any dispute relating
hereto and (d) the Awardee and the Corporation waive any and all objections
and
defenses to bringing any such action before such Pennsylvania courts, including
but not limited to those relating to lack of personal jurisdiction, improper
venue or forum non conveniens.
IN
WITNESS WHEREOF, the Corporation and the Awardee have executed this Agreement
as
of this 12th
day of November, 2007.
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INTERNATIONAL CORPORATION
By:____________________________________
Chief
Executive Officer
WITNESS: AWARDEE:
_____________________________ _______________________________________
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