EXHIBIT 10.45
STOCK MATCHING AGREEMENT
This Stock Matching Agreement (this "Agreement") is made and
entered into this 1st day of March , 2001, by and between Xxxxx Xxxxxx
Incorporated, a Delaware corporation (the "Company"), and Xxxxx Xxxxxxxx Xxxxx
(the "Employee"), regarding the award of Matched Shares (defined below) to the
Employee pursuant to the Long Term Incentive Plan of Xxxxx Xxxxxx Incorporated
(the "Plan"), and further subject to the terms and conditions set forth below:
1. AWARD OF MATCHED SHARES. The Company will reserve for
issuance one share of the Company's Common Stock, $1.00 par value per
share ("Common Stock"), for each share of Common Stock, up to, but not
exceeding, 25,000 shares of Common Stock owned, and held of record, (x)
by the Employee and (y) for the benefit of the Employee in an account
by (i) a tax-qualified plan maintained by the Company, a Subsidiary or
a former employer of the Employee, and/or (ii) an individual retirement
account or annuity under Code Section 408 or 408A (with such shares
under this clause (y) deemed to be owned by the Employee for purposes
of this Agreement) at the close of business on the first anniversary of
the Employment Date. Such reserved shares of Common Stock shall be
referred to herein as the "Matched Shares."
2. RESERVATION PERIOD. Each Matched Share shall be reserved
for issuance by the Company pursuant to this Agreement until the
earlier of the date each such share is either (x) fully vested upon the
occurrence of an event described in Section 2(I) (a "Vesting Event") or
(y) forfeited upon the occurrence of an event described in Section
2(II) (a "Forfeiture Event").
(I) Vesting Events. For purposes of this Agreement, the
following are Vesting Events:
(a) The Retirement of the Employee;
(b) The termination of the Employee's employment by the
Company without Non-CIC Cause;
(c) The occurrence of a Change in Control;
(d) The termination of the Employee's employment:
(i) by the Company without CIC Cause prior to a
Change in Control (whether or not a Change
in Control ever occurs) if such termination
was at the request or direction of a Person
who has entered into an agreement with the
Company, the consummation of which would
constitute a Change in Control;
(ii) by the Employee for Good Reason prior to a
Change in Control (whether or not a Change
in Control ever occurs) if the circumstance
or event which constitutes Good Reason
occurs at the request or direction of the
Person described in foregoing clause (i); or
(iii) by the Company without CIC Cause or by the
Employee for Good Reason if such termination
or the circumstance or event which
constitutes Good Reason is otherwise in
connection with, or in anticipation of, a
Change in Control (whether or not a Change
in Control ever occurs); or
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(e) The Employee's death or permanent disability (as
determined by the Committee in its sole discretion).
(II) Forfeiture Event: For purposes of this Agreement, a
Forfeiture Event means the termination of employment
of the Employee other than as set forth in Section
2(I) or due to Non-CIC Cause.
3. ISSUANCE OR FORFEITURE OF MATCHED SHARES. If a Vesting
Event occurs prior to a Forfeiture Event with respect to the Employee,
subject to satisfaction of the certification requirement in Section 5,
the Company shall issue an amount of the Matched Shares in a
certificate in the name of the Employee (or, in the case of death, in
the name of the estate of the Employee) equal to the number of shares
of Common Stock owned by the Employee as of the date of the Vesting
Event that have been continuously owned by the Employee since the first
anniversary of the Employment Date. These certificates shall be issued
as soon as administratively practicable following the Vesting Event.
The Employee may replace shares of Common Stock that the Employee owned
on the first anniversary of the Employment Date with other shares of
Common Stock so long as the Employee continuously owns the same number
of shares for which the Company will issue Matched Shares from the
first anniversary of the Employment Date until the date of the Vesting
Event.
If a Forfeiture Event occurs prior to a Vesting Event with
respect to the Employee, as of the date of the Forfeiture Event all
obligations of the Company to issue any Matched Shares pursuant to this
Agreement shall cease and immediately terminate, and the Employee shall
forfeit any and all rights and have no further claim against or with
respect to any Matched Shares or against the Company for any Matched
Shares.
4. PAYMENT OF EQUIVALENT DIVIDENDS. The Company shall pay to
the Employee an amount of money on a quarterly basis equivalent to any
cash dividends that would have been payable on the Matched Shares
assuming such shares had been outstanding at the time of any cash
dividend payment made on the Common Stock of the Company.
5. CERTIFICATION OF SHARE OWNERSHIP BY THE EMPLOYEE. Within 30
days after the first anniversary of the Employment Date, the Employee
shall certify to the Company the number of shares of Common Stock that
the Employee owns as of such anniversary date. The Employee's ownership
shall be verified, in addition to the certification, by the delivery of
copies of any certificates, brokerage or other account statements
representing the shares that the Employee owns reflecting that such
shares are held of record by the Employee or by the plan or individual
retirement account or annuity for the benefit of the Employee (or, if
the Employee is required to file ownership reports with the Securities
and Exchange Commission, by the filing of copies of such reports with
such certificate). Thereafter, subject to verification (as provided
herein), within 30 days after each subsequent anniversary of the
Employment Date and within 15 days after a Vesting Event, the Employee
(or the representative of the Employee's estate in the case of death)
shall certify to the Company the number of shares of Common Stock owned
by the Employee as of such anniversary or Vesting Event date, and
during the period commencing immediately after the anniversary date
immediately preceding such date. The certificate and other evidence of
stock ownership must be timely presented to the Secretary of the
Company for verification. Final
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determination of sufficient evidence to verify ownership shall be made
in the sole discretion of the Committee.
6. LIMITATION OF AWARD. The award of shares of Common Stock to
the Employee pursuant to this Agreement is being made only with respect
to the shares owned on the first anniversary of the Employment Date. No
future award of shares is being authorized pursuant hereto and may only
be made by the Committee in its sole discretion at such time in the
future. If the Employee should sell any of the shares of Common Stock
held by him on the first anniversary of the Employment Date in order
that the number of shares owned by the Employee is reduced to a number
below the amount held on such date, the number of Matched Shares
reserved for the Employee shall be reduced on a share-for-share basis.
No increase in shares subsequent to the first anniversary of the
Employment Date shall create a right to an increase in the number of
Matched Shares
7. ADJUSTMENTS. If the Company should declare a stock dividend
or authorize a split of shares of the Common Stock of the Company, the
Matched Shares shall be adjusted to reflect and to take into such
account such stock dividend or stock split, as the case may be. The
additional shares to be reserved as a result of such stock dividend or
stock split shall be deemed to be a portion of the Matched Shares
reserved for issuance by the Company pursuant to this Agreement.
8. RELATIONSHIP TO THE PLAN; DEFINITIONS. This award of
Matched Shares is granted under the Plan and is subject to all of the
terms, conditions and provisions of the Plan and administrative
interpretations thereunder, if any, which have been adopted by the
Committee thereunder and are in effect on the date hereof. Capitalized
terms that are not defined in this Agreement shall have the same
meanings ascribed to them under the Plan. For purposes of this
Agreement:
(a) "CIC Cause" means Cause as defined in the Plan.
(b) "Employment Date" means March 1, 2001.
(c) "Retirement" means the termination of employment
after attaining age 55 with not less than 5 years of
continuous employment since the Employment Date with
the Company; provided, however, that such
termination is not due to CIC Cause or Non-CIC
Cause.
(d) "Non-CIC Cause" means fraud, theft, embezzlement
committed against the Company or an Affiliate or a
customer of the Company or an Affiliate, or conflict
of interest, unethical conduct, dishonesty affecting
the assets, properties or businesses of the Company
or any of its Affiliates, willful misconduct, or
continued material dereliction of duties.
9. WITHHOLDING. To the extent the issuance of the Matched
Shares under this Agreement results in taxable income to the Employee,
the Company is authorized to withhold from any remuneration payable to
the Employee any tax required to be withheld by reason of such taxable
income.
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IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first above written.
XXXXX XXXXXX INCORPORATED
By /s/ XXXXXX X. XXXXXXXX
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Name: Xxxxxx X. Xxxxxxxx
Title: Senior Vice President and
Chief Operating Officer
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ACKNOWLEDGMENT, ACCEPTANCE AND CONSENT BY THE EMPLOYEE
The undersigned Employee, Xxxxx Xxxxxxxx Xxxxx, hereby agrees
to, and accepts, the terms and provisions of the foregoing Agreement, subject to
the terms and provisions of the Plan and administrative interpretations thereof
referred to above. The undersigned further hereby acknowledges that he has
received a copy of the Long Term Incentive Plan of Xxxxx Xxxxxx Incorporated and
that he has been advised by the Company to consult with and rely upon only his
own tax, legal and financial advisors regarding the consequences and risks of
this award.
August 10, 2001 /s/ XXXXX XXXXXXXX XXXXX
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Date Name: Xxxxx Xxxxxxxx Xxxxx
Address: 00 Xxxxxxxxxx Xxxxx
Xxx Xxxxxxxxx, XX 00000
CONSENT OF SPOUSE OF THE EMPLOYEE
The undersigned spouse of the Employee has read and hereby
approves the terms and conditions of the foregoing Agreement and the Plan. In
consideration of the Company's awarding the Employee the Matched Shares, as set
forth in the Agreement, the undersigned hereby agrees and consents to be
irrevocably bound by the terms and conditions of the Agreement and the Plan and
further agrees that any community property interest shall be similarly bound.
The undersigned hereby appoints the undersigned's spouse as attorney-in-fact for
the undersigned with respect to any amendment or exercise of rights under the
Agreement and the Plan.
/s/ XXX X. XXXXX
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Spouse of the Employee
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AMENDMENT 1 TO STOCK MATCHING AGREEMENT
This Amendment 1 to Stock Matching Agreement ("Amendment 1") is made
and entered into effective March 6, 2002, by and between XXXXX XXXXXX
INCORPORATED, a Delaware corporation (the "Company") and XXXXX XXXXXXXX XXXXX
(the "Executive").
WHEREAS, the Board of Directors of the Company and the
Executive desire to make certain changes to that certain Stock Matching
Agreement dated as of March 1, 2001, by and between the Company and the
Executive (the "Stock Matching Agreement"), providing the Executive
with additional time to purchase the Company's Common Stock;
NOW, THEREFORE, in consideration of the premises and the
mutual agreements contained herein, the Company and the Executive
hereby agree as follows: the phrase "at the close of business on the
first anniversary of the Employment Date" be changed to read "at the
close of business on September 2, 2002" in Sections 1, 3,5 and 6 of the
Stock Matching Agreement.
All capitalized terms in this Amendment 1 shall have the definition
ascribed to those terms in the Stock Matching Agreement. The Stock Matching
Agreement continues in full force and effect, except as amended hereby. This
Amendment 1 may be executed in counterparts, each of which shall be deemed to be
an original but all of which together will constitute one and the same
instrument.
EXECUTED effective as of the day and year first written above.
Company: Executive:
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XXXXX XXXXXX INCORPORATED
By:
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Xxxxxx X. Szecila, , XXXXX XXXXXXXX XXXXX
Senior Vice President and Chief
Operating Officer
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