EXHIBIT 10(W)
XXXXXXX, INC.
2005 RESTRICTED STOCK GRANT AGREEMENT
SECTION X. XXXXX
1.1 This Grant of Restricted Stock is made pursuant to and is subject to the
terms of the Xxxxxxx, Inc. Restricted Stock Plan which is effective June 1, 2004
(the "Plan"). All capitalized terms used herein and not defined in this document
have the meaning given such terms in the Plan. Each Grant made pursuant to the
Plan is an Award and shall be subject to all the terms and conditions of the
Plan, which are incorporated herein by reference.
1.2 EFFECTIVE DATE. This Grant is effective on January 1, 2005 (the "Effective
Date").
SECTION II. CERTAIN DEFINITIONS
2.1 ACCOUNTS PAYABLE are the Accounts Payable reported on the balance sheet for
the applicable period in the Company's Public Filings
2.2 ACCRUED LIABILITIES are the Accrued Liabilities reported on the balance
sheet for the applicable period in the Company's Public Filings
2.3 ADJUSTED EBITDA is the Gross Profit less SG&A Expense plus D&A. This means
other items such as restructuring, DOJ legal costs and CDO rebates are excluded.
2.4 AVERAGE NET ASSETS are the Net Assets for December 31st of the previous
fiscal year plus the Net Assets at the end of each fiscal period in the current
year divided by thirteen.
2.5 CASH is the cash reported on the balance sheet for the applicable period in
the Company's Public Filings.
2.6 CAUSE means, when used with respect to the termination of the employment of
the Executive by the Company, termination due to (a) an act or acts of personal
dishonesty taken by the Executive and intended to result in substantial personal
enrichment of the Executive at the expense of the Company; (b) the Executive's
continued failure to substantially perform his employment duties (other than any
such failure resulting from the Executive's incapacity due to physical or mental
illness) which are demonstrably willful and deliberate on the Executive's part
and which are not remedied in a reasonable period of time after receipt of
written notice from the Company; or (c) conviction of, or a
plea of guilty or no contest by, the Executive to a crime that constitutes a
felony involving moral turpitude. No act or failure to act on the part of the
Executive shall be considered "willful" unless it is done, or omitted to be
done, by the Executive in bad faith or without reasonable belief that the
Executive's action or omission was in the best interests of the Company.
2.7 CIP is construction in progress reported on the balance sheet for the
applicable period in the Company's Public Filings.
2.8 CURRENT ASSETS are the current assets reported on the balance sheet for the
applicable period in the Company's Public Filings.
2.9 D&A is the depreciation and amortization reported on the statement of cash
flows for the applicable period in the Company's public filings but only to the
extent it reduces Gross Profit or increases SG&A Expense.
2.10 DISABILITY means that the Executive has been unable, for the period
specified in the Company's disability plan for senior executives, but not less
than a period of 180 consecutive business days, to perform the Executive's
duties under this Agreement, as a result of physical or mental illness or
injury.
2.11 EBITDA RETURN is a percentage which is calculated by dividing Adjusted
EBITDA for a fiscal year divided by the Average Net Assets.
2.12 ENVIRONMENTAL RESERVES are the estimated future liabilities that are
recorded on the balance sheet for the applicable period in the Company's Pubic
Filings.
2.13 GROSS PROFIT is the Gross Profit reported on the income statement for the
applicable period in the Company's Public Filings.
2.14 IDLE ASSETS are any property plant and equipment that has not been utilized
for 28 consecutive days on the last day of each Fiscal Period
2.15 INITIAL RESTRICTED PERIOD means the period commencing on January 1, 2005
and ending on January 1, 2010.
2.16 LONG TERM RECEIVABLES are any amounts due from either current or former
customers that are included in Other Assets as reported in the Company's Public
Filings.
2.17 NET ASSETS are the Current Assets less Cash plus Net PP&E less CIP less
Idle Assets plus the Prepaid Raw Material Contract plus Long Term Receivables
less Accounts Payable less Accrued Liabilities less Environmental Reserves.
2.18 NET PP&E is the Property Plant and Equipment less the related accumulated
depreciation reported on the balance sheet for the applicable period in the
Company's Public Filings.
2.19 PREPAID RAW MATERIAL CONTRACT is the amount related to a prepayment for a
raw material contract that are included in Other Current Asset and Other Assets
reduced by the related amortization, all as reported in the Company's Public
Filings.
2.20 PUBLIC FILINGS are the applicable Form 10-K or 10-Q that is initially filed
with the SEC.
2.21 RESTRICTED STOCK AWARD is the number of shares awarded to the individual in
this grant as provided in Section 3.1.
2.22 RESTRICTED PERIOD means either the Initial Restricted Period or a
Subsequent Restricted Period, as applicable.
2.23 RESTRICTED STOCK means shares of Common Shares which are issued by the
Company pursuant to this Grant Agreement and which are subject to forfeiture,
restrictions on transfer and other restrictions as are set forth in Section IV
hereof.
2.24 SG&A EXPENSE is the selling, general and administrative expense reported on
the income statement for the applicable period in the Company's Public Filings.
2.25 SUBSIDIARY means a corporation of which more than 50% of the total combined
voting power of all classes of stock entitled to vote is owned, directly or
indirectly, by Xxxxxxx, Inc.
2.26 UNVESTED RESTRICTED STOCK is Restricted Stock subject to the restrictions
set forth in subsection 4.1.
Unless the context clearly requires otherwise, the masculine pronoun whenever
used shall include the feminine and neuter pronouns, the singular shall include
the plural and the plural shall include the singular.
SECTION III. AWARD
3.1 AWARD. The Committee has designated the person executing this Grant
Agreement as a Participant eligible to receive 20,000 shares of Restricted Stock
and this Grant is made subject to the terms and conditions in this Grant
Agreement and the Plan. No payment for such shares is required except pursuant
to Section 5.2.
3.2 ACCEPTANCE. By accepting this Grant of Restricted Stock the Participant
acknowledges and agrees that the shares of Restricted Stock are subject to the
terms and conditions of this Grant Agreement and the Plan.
3.3 ADJUSTMENTS. In the event of any stock dividend, stock split, combination or
exchange of shares, merger, consolidation, spin-off or other distribution (other
than normal cash dividend) of the Company assets to stockholders, or any other
change affecting shares or the Company's capitalization, such adjustments as the
Committee in its discretion may deem appropriate to reflect such change or to
fairly preserve the intended benefits of the Plan shall be made. In addition,
any shares issued by the Company through the assumption or substitution of
outstanding stock awards or award commitments from an acquired company or other
entity shall not reduce the shares available for issuance under the Plan.
SECTION IV. TERMS OF RESTRICTED STOCK
4.1 TERMS OF RESTRICTED STOCK
(a) Prior to the expiration of the Restricted Period the Participant shall not
sell, transfer, pledge or otherwise encumber ("Transfer") the Restricted Stock
and any such Transfer shall be void. After the Restricted Period the Participant
shall not Transfer the Restricted Stock in any manner that could violate any
securities laws or result in short swing profits.
(b) The Participant shall not be entitled to delivery of a certificate
evidencing the shares of Restricted Stock until the expiration or termination of
the Restricted Period and the satisfaction of any and all other conditions
specified in this Grant Agreement.
(c) Any shares of Restricted Stock which are forfeited pursuant to this Grant
Agreement shall be cancelled and all rights of the Participant with respect to
such forfeited shares of Restricted Stock shall terminate without further
obligation on the part of the Company upon the occurrence of any of the events
set forth below in subsection 4.4.
4.2 CUSTODY OF SHARES OF RESTRICTED STOCK; RIGHTS WITH RESPECT TO STOCK.
(a) The Restricted Stock granted hereunder shall be issued and registered in the
Participant's name and shall be held by the Company during the Restricted
Period. The Company shall serve as attorney-in-fact for the Participant during
the Restricted Period with full power and authority in the Participant's name to
assign and convey to the Company any shares of Restricted Stock held by the
Company for such Participant if the Participant forfeits the shares under the
terms of this Grant Agreement. Each certificate representing shares of
Restricted Stock may bear a legend referring to this Grant Agreement and the
Plan and the risk of forfeiture of the shares of Restricted Stock and stating
that such shares of Restricted Stock are nontransferable until all restrictions
have been satisfied and the legend has been removed.
(b) During the Restricted Period, the Participant shall be a stockholder and
have all the rights of a stockholder with respect to such shares, including the
right to vote and receive
all dividends or other distributions made or paid with respect to such shares;
provided, however, that such Restricted Stock and any new, additional or
different securities the Participant may become entitled to receive with respect
to such Restricted Stock by virtue of a stock split, dividend or other change in
the corporate or capital structure of the Company, shall be subject to the
restrictions described in this Grant Agreement.
4.3 DISTRIBUTION OF RESTRICTED STOCK.
If the Participant remains in the continuous employment or service of the
Company or any Subsidiary during the entire Restricted Period and otherwise does
not forfeit such shares of Restricted Stock pursuant to subsection 4.4 or any
other terms of the Grant Agreement, all restrictions applicable to the shares of
Restricted Stock shall lapse upon expiration or termination of the Restricted
Period, and a certificate or certificates of unrestricted Common Shares
representing the shares of Restricted Stock shall be delivered to the
Participant.
4.4 FORFEITURE.
(a) If a Participant's service or employment is terminated before the expiration
of the Restricted Period due to Disability or death of the Participant the
restrictions in subsection 4.1 (a) and (b) shall lapse. The certificate or
certificates representing the shares of Restricted Stock upon which the
restrictions have lapsed pursuant to this subsection 4.4(a) shall be delivered
to the Participant (or in the event of the Participant's death, to his estate)
after the Participant or his legal representative complies with the terms of
Section 5.2.
(b) On January 1st of each year that the Participant remains employed by the
Company, and the participant has Unvested Restricted Stock, the restrictions set
forth in subsection 4.1 (a) and (b) shall lapse with respect to the lesser of
20% of the Restricted Stock Award or the remaining Unvested Restricted Stock.
(c) In addition to the provisions of Section 4.4(b), if the Participant is an
employee of the Company on January 1st of any year when the Company files its
10-K for the prior year the participant has Unvested Restricted Stock, then the
restrictions set forth in subsection 4.1 (a) and (b) shall lapse with respect to
the lesser of the Additional Vesting Amount set forth in the table below or the
remaining Unvested Restricted Stock.
EBITDA Return Additional Vesting Amount
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17% or more 20%
16.75% or more but less than 17% 15%
16.5% or more but less than 16.75% 10%
16.25% or more but less than 16.5% 5%
Less than 16.25% 0%
(d) If a Participant's service or employment is terminated by the Company or any
Subsidiary without Cause (other than as a result of death or Disability) in any
year and the Participant has Unvested Restricted Stock then the restrictions set
forth in subsection 4.1 (a) and (b) shall lapse with respect to the lesser of
the Unvested Restricted Stock or 20% of the Restricted Stock multiplied by a
fraction, the numerator of which shall be the number of months the Participant
has remained an employee (or in the service of) of the Company or a Subsidiary
since January 1st of the applicable year and the denominator of which shall be
12. Any remaining Unvested Restricted Stock will be forfeited.
(e) If a Participant's service or employment is terminated before the expiration
of the Restricted Period by the Company or any Subsidiary for Cause or by the
Participant (other than as a result of death or Disability), the Participant
shall forfeit all Restricted Stock.
4.5 CHANGE OF CONTROL. Upon any Change of Control all restrictions and
forfeiture provisions applicable to shares of Restricted Stock granted to the
Participant hereunder and not previously forfeited shall immediately lapse and
the certificate or certificates representing the Restricted Stock that were
granted to the Participants shall be delivered to the Participants as
unrestricted Common Shares, subject to the provisions of Section 5.2.
4.6 WAIVER OF RESTRICTIONS. The Committee, in its sole discretion, may at any
time waive any or all restrictions with respect to any shares of Restricted
Stock.
SECTION V. MISCELLANEOUS
5.1 TERMINATION. The provisions relating to the Restricted Stock granted
hereunder shall continue to apply with respect to all shares of Restricted Stock
until the restrictions lapse and/or the shares are forfeited.
5.2 WITHHOLDING. The Participant shall promptly pay to the Company any amount
necessary to satisfy applicable federal, state or local tax withholding
requirements attributable to the grant of Restricted Stock, the issuance of
Restricted Stock hereunder, or upon the vesting of or lapse of restrictions on
such Restricted Stock. If these amounts are not paid when requested, then at the
election of the Committee, shares of Restricted Stock with a value equal to the
amount of tax to be withheld shall be forfeited.
5.3 LEGAL AND OTHER REQUIREMENTS. The grant of Restricted Stock and the
distribution of shares of Restricted Stock provided by this Grant Agreement
shall be subject to the condition that if at any time the Company determines in
its discretion that the satisfaction of withholding tax or other tax
liabilities, or the listing, registration or qualification of any shares of
Restricted Stock upon any securities exchange or under any federal or state law,
or the consent or approval of any regulatory body, is necessary or desirable as
a condition of, or in connection with such grant or distribution, then in any
such event, such grant or distribution shall not be effective unless such
liabilities have
been satisfied or such listing, registration, qualification, consent or approval
shall have been effected or obtained free of any conditions not acceptable to
the Company.
5.4 CHOICE OF LAW. This Grant Agreement and the Plan, their validity,
interpretation and administration and the rights and obligations of all Persons
having an interest therein shall be governed by and construed in accordance with
the laws of the State of Delaware, except to the extent that such laws may be
preempted by federal law.
5.5 FRACTIONAL SHARES. The Company shall not be required to issue or deliver any
fractional share of Restricted Stock issuable under this Grant Agreement.
Fractional shares will be paid in cash.
5.6 NO EMPLOYMENT CONTRACT. Neither this Grant Agreement nor the Plan shall not
confer upon the Participant any right to continued employment by the Company or
in any way interfere with the right of the Company to terminate the employment
of any Participant at any time.
5.7 SECTION 83(B) ELECTIONS. If a Participant files an election with the
Internal Revenue Service to include the fair market value of any shares of
Restricted Stock in gross income then the Participant shall promptly furnish the
Company with a copy of such election together with the amount of any federal,
state, local or other taxes required to be withheld (if any) to enable the
Company to claim an income tax deduction with respect to such election.
Xxxxxxx, Inc.
By: /s/ Xxxxx X. Xxxxxxxx
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Name: Xxxxx X. Xxxxxxxx
Title: Vice President & Chief Financial
Officer
Agreed to by:
Participant's Signature: /s/ Xxxxxx X. Xxxxxxx
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Name (Please Print): Xxxxxx X. Xxxxxxx
Social Security Number: XXX-XX-XXXX
