Exhibit 10.5
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EACH OF THE STOCK PLAN SUBCOMMITTEE OF THE COMPENSATION COMMITTEE AND THE
COMPENSATION COMMITTEE OF THE BOARD OF DIRECTORS OF THE XXXXX XXXXXX COMPANIES
INC. RESERVES THE RIGHT TO CHANGE PROVISIONS OF THIS AGREEMENT TO COMPLY WITH
THE AMERICAN JOBS CREATION ACT OF 2004.
RESTRICTED STOCK UNIT AGREEMENT UNDER
THE XXXXX XXXXXX COMPANIES INC.
AMENDED AND RESTATED FISCAL 2002 SHARE INCENTIVE PLAN (THE "PLAN")
This RESTRICTED STOCK UNIT AGREEMENT ("Agreement") provides for the granting by
The Xxxxx Xxxxxx Companies Inc., a Delaware corporation (the "Company"), to the
participant, an employee of the Company or one of its subsidiaries (the
"Participant"), of Stock Units under the Plan representing a notional account
equal to a corresponding number of shares of the Company's Class A Common Stock,
par value $0.01 (the "Shares"), on the terms and subject to the conditions
hereinafter provided (the "Restricted Stock Units"). The name of the
"Participant", the "Grant Date", the "Number of Restricted Stock Units", the
"Vesting Commencement Date", the "Vesting Schedule" and the "Vesting Period" are
stated in the attached "Notice of Grant", and incorporated herein by reference.
The other terms and conditions of this award are stated in this Agreement and in
the Plan. Terms not defined herein shall have the meaning set forth in the Plan
(including any amendments thereto).
1. AWARD GRANT. The Company hereby awards to the Participant an award of
Restricted Stock Units in respect of the number of Shares set forth in the
Notice of Grant.
2. VESTING. The Restricted Stock Units granted to the Participant shall vest and
become payable in accordance with the Vesting Schedule set forth in the Notice
of Grant. Such schedule indicates the vesting date upon which the Participant
shall be entitled to receive Shares, provided that as of such vesting date, the
Participant's employment with the Company has not been terminated, except as
otherwise provided herein.
3. PAYMENT OF AWARDS. Each Restricted Stock Unit granted hereunder shall
represent the right to receive one Share upon the vesting of such Restricted
Stock Unit. In addition, each Restricted Stock Unit shall carry a Dividend
Equivalent Right, payable in cash at the same time as payment of Restricted
Stock Units in Shares in accordance with this paragraph 3. Any Dividend
Equivalent Right shall be deemed part of the related Restricted Stock Units for
purposes of this Agreement.
Upon the occurrence of a Change in Control, each Restricted Stock Unit will
vest and become payable to the Participant. Payments upon the occurrence of a
Change in Control shall be made as soon as practicable following the Change of
Control, but in no event later than two weeks after the Change in Control. If
the Shares cease to be outstanding immediately after the Change in Control
(e.g., due to a merger with and into another entity), then the consideration to
be received per Share shall equal the consideration paid to each stockholder per
Share generally upon such Change in Control.
4. TERMINATION OF EMPLOYMENT. In the event the Participant's employment
terminates during the Vesting Period, all Restricted Stock Units shall be
forfeited except for such vesting and payment of Restricted Stock Units as
follows:
(a) Death. In the event of the Participant's death, the Restricted Stock
Units shall vest pro rata for the number of full months the
Participant was employed during the Vesting Period (i.e., the
proration shall equal a fraction the numerator of which is the number
of full months of service completed in the Vesting Period through the
Participant's death and the denominator of which is the number of full
months in the Vesting Period). Payment of such Restricted Stock Units
shall be made as soon as practicable following such Participant's
death and in accordance with any applicable laws or Company procedures
regarding such payments.
(b) Retirement. In the event of the Employee's formal retirement under the
terms of The Xxxxx Xxxxxx Companies Retirement Growth Account Plan (or
an affiliate or a successor plan or program of similar purpose), the
Restricted Stock Units shall vest and be paid out on the first day
after such retirement that shares may be sold by the Participant under
applicable Company policy, including, without limitation, the Code of
Corporate Conduct.
(c) Disability. In the event of the occurrence of the Participant's total
and permanent disability (as such status shall be determined under the
Company's long-term disability program), the Restricted Stock Units
shall vest pro rata for full months employed during the Vesting Period
(with such proration methodology set forth in paragraph 4(a)). Payment
of such Restricted Stock Units shall be made in accordance with the
Vesting Schedule.
(d) Termination of Employment Without Cause. In the event the
Participant's employment is terminated at the instance of the Company
or relevant subsidiary without Cause (as defined below), the
Restricted Stock Units hereunder shall vest pro rata for full months
employed during the Vesting Period (with such proration methodology
set forth in paragraph 4(a)). The date of vesting and payment of such
Restricted Stock Units shall be the first day after termination that
shares may be sold by the Participant under applicable Company policy,
including, without limitation, the Code of Conduct.
(e) Termination of Employment By Employee. In the event the Participant
terminates his or her employment (e.g., by voluntary resigning),
except in the case of retirement which is subject to paragraph 4(b)
above, all unvested Restricted Stock Units as of the effective date of
resignation shall be forfeited.
(f) Termination of Employment With Cause. In the event the Participant is
terminated for Cause, all unvested Restricted Stock Units as of the
effective date of termination shall be forfeited. For purposes hereof,
"Cause" shall have the meaning in any employment agreement as in
effect between the Participant and the Company or any subsidiary and,
in the absence of any such agreement, shall mean any breach by the
Participant of any of his or her material obligations under any
Company policy or procedure, including, without limiting the
generality, the Code of Corporate Conduct.
(g) Post Employment Conduct. Payment in respect of any Restricted Stock
Unit after termination of employment shall be subject to satisfaction
of the conditions precedent that the Participant neither (i) competes
with, or takes employment with or renders services to a competitor of,
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the Company, its subsidiaries or affiliates without the written
consent of the Company, nor (ii) conducts himself or herself in a
manner adversely affecting the Company.
5. NO RIGHTS OF STOCK OWNERSHIP. This grant of Restricted Stock Units will not
entitle the Participant to any interest in or to any voting or other rights
normally attributable to Share ownership other than the Dividend Equivalent
Rights granted in accordance with paragraph 3 above.
6. WITHHOLDING. All payments or distributions of Shares covered by Restricted
Stock Units shall be net of any amounts required to be withheld pursuant to
applicable federal, national, state and local tax withholding requirements
imposed by each taxing authority having jurisdiction. The Company (or relevant
subsidiary) may require the Participant to remit to it an amount sufficient to
satisfy such tax withholding requirements prior to the delivery of any
certificates for such Shares. The Company (or relevant subsidiary) may, in its
discretion and subject to such rules as it may adopt (including any as may be
required to satisfy applicable tax and/or non-tax regulatory requirements),
permit the Participant to pay all or a portion of the federal, national, state
and local withholding taxes arising in connection with any Restricted Stock Unit
by electing to have the Company (or relevant subsidiary) withhold whole Shares
equal in Fair Market Value to the amount to be withheld, such tax calculated at
minimum statutory rates applicable to the participant.
7. NONASSIGNABILITY. This award may not be assigned, pledged, or transferred
except, in the event of death, to a designated beneficiary or by will or by the
laws of descent and distribution. The foregoing restrictions shall not apply to
transfers pursuant to a court order, including, but not limited to, any domestic
relations order.
8. EFFECT UPON EMPLOYMENT. The Participant's right to continue to serve the
Company or any of its subsidiaries as an officer, employee, or otherwise, shall
not be enlarged or otherwise affected by the award hereunder.
9. NOTICES. Any notice required or permitted under this Agreement shall be
deemed to have been duly given if delivered, telecopied or mailed, certified or
registered mail, return receipt requested or by internationally-recognized
courier guaranteeing next day delivery (a) to the Participant at such address as
the Company (or relevant subsidiary) shall maintain for the Participant per its
personnel records or (b) to the Company, attention Stock Plan Administration at
its principal executive offices, which are currently located at 000 Xxxxx
Xxxxxx, Xxx Xxxx, XX 00000.
10. DISCLOSURE AND USE OF INFORMATION. By signing and returning the attached
Notice of Grant, the Participant hereby expressly: (i) authorizes the Company
and any subsidiary, and any agent of the Company and/or any subsidiary
administering the Plan or providing Plan recordkeeping services, to disclose to
the Company or any of its subsidiaries such information and data as the Company
or any such subsidiary shall request in order to facilitate the grant and
administration of the stock options and/or the administration of the Plan; (ii)
waives any data privacy rights he or she may have with respect to such
information; and (iii) authorizes the Company and any subsidiary to store and
transmit such information in electronic form.
11. FAILURE TO ENFORCE NOT A WAIVER. The failure of the Company to enforce at
any time any provision of this agreement shall in no manner be construed to be a
waiver of such provision or of any other provision hereof.
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12. GOVERNING LAW. This Agreement shall be governed by and construed according
to the laws of the State of New York, applicable to agreements made and
performed in that state, without regard to the choice of law provisions thereof
13. PARTIAL INVALIDITY. The invalidity or illegality of any provision herein
shall not be deemed to affect the validity of any other provision.
14. SECTION 409A COMPLIANCE. This Agreement is intended to comply with Section
409A of the Internal Revenue Code of 1986, as amended, and any regulations or
notices provided thereunder. The Company reserves the unilateral right to amend
this Agreement upon written notice to the Participant in order to comply with
such section.
The Xxxxx Xxxxxx Companies Inc.
By:
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Executive Vice President,
Global Human Resources
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NOTICE OF GRANT UNDER
THE XXXXX XXXXXX COMPANIES INC.
AMENDED AND RESTATED FISCAL 2002 SHARE INCENTIVE PLAN (THE "PLAN")
This is to confirm that you were awarded a grant of Restricted Stock Units at
the most recent meeting of the Stock Plan Subcommittee of the Compensation
Committee of the Board of Directors representing the right upon vesting of such
units to receive shares of Class A Common Stock of The Xxxxx Xxxxxx Companies
Inc. (the "Shares"), subject to the terms of the Plan and the Restricted Stock
Unit Agreement. This award was made in recognition of the significant
contributions you have made as a key employee of the Company, and to motivate
you to achieve future successes by aligning your interests more closely with
those of our stockholders. This Restricted Stock Unit award is granted under and
governed by the terms and conditions of the Plan and the Restricted Stock Unit
Agreement (the "Agreement") attached hereto and made part hereof. Please read
these documents and keep them for future reference. The specific terms of your
award are as follows:
Participant: ((FIRST_NAME)) ((LAST_NAME))
SSN or Global Identification Number:
Number of Restricted Stock Units: ______________________
Grant Date: ______________________
Vesting Commencement Date: ______________________
Vesting Schedule: Subject to Participant's continuous employment, this
Restricted Stock Unit grant shall vest as to the number of
Shares set forth below:
Shares Vesting Date
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Vesting Period: The Vesting Commencement Date through and including the
applicable date set forth in the Vesting Schedule
Questions regarding the award can be directed to Xxxxxx Xxxxx at (000) 000-0000
or Xxxxxxxx Xxxxxxxxxx at (000) 000-0000. If you wish to accept this grant,
PLEASE SIGN THIS NOTICE OF XXXXX AND RETURN IMMEDIATELY TO:
Compensation Department
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
ATTENTION: XXXXXX XXXXX
The undersigned hereby accepts, and agrees to, all terms and provisions of the
Agreement, including those contained in this Notice of Grant.
By_________________________ Date__________
Enclosure:
Restricted Stock Unit Agreement
Summary Plan Description
Restricted Stock Unit Q&A
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