EXHIBIT 10 (a)(5)
CONDITIONAL SHARE GRANT AGREEMENT
AGREEMENT made this 17th day of April, 2002, between UNIVERSAL FOREST
PRODUCTS, INC., a Michigan corporation (the "Company"), and XXXXXXX X. XXXXXX
(the "Employee").
RECITALS
The Universal Forest Products, Inc. Long-Term Incentive Plan authorizes
the award of shares of stock to key employees of the Company upon such terms and
conditions as may be determined by the Committee or the Board of Directors.
The Committee has approved the conditional grant of shares to the
Employee upon the terms and conditions set forth in this Agreement. The Company
and Employee desire to confirm in this Agreement the terms, conditions, and
restrictions applicable to the grant of restricted stock.
NOW, THEREFORE, intending to be bound, the parties agree as follows:
1. DEFINITIONS
1.1 "Board" means the Board of Directors of the Company.
1.2 "Change in Control" means an occurrence of a nature with
respect to the Company that would be required to be reported
in response to Item 6(e) of Schedule 14A of Regulation 14A
promulgated under the Exchange Act. Without limiting the
inclusiveness of the definition in the preceding sentence, a
Change in Control shall be deemed to have occurred as of the
first day that any one or more of the following conditions is
satisfied:
(a) Any Person is or becomes the Beneficial Owner,
directly or indirectly, of securities of the Company
representing twenty percent (20%) or more of the
combined voting power of the Company's then
outstanding securities; or
(b) At any time a majority of the Board of Directors of
the Company is comprised of other than Continuing
Directors (for purposes of this section, the term
Continuing Director means a director who was either
(i) first elected or appointed as a director prior to
the Effective Date of this Agreement; or (ii)
subsequently elected or appointed as a director if
such director was nominated or appointed by at least
a majority of the then Continuing Directors); or
(c) Any of the following occur:
(i) Any merger or consolidation of the Company,
other than a merger or consolidation in
which the voting securities of the Company
immediately prior to the merger or
consolidation continue to represent (either
by remaining outstanding or being converted
into securities of the surviving entity)
fifty percent (50%) or more of the combined
voting power of the Company or surviving
entity immediately after the merger of
consolidation with another entity;
(ii) Any sale, exchange, lease, mortgage, pledge,
transfer, or other disposition (in a single
transaction or a series of related
transactions) of assets or earning power
aggregating more than fifty percent (50%) of
the assets or earning power of the Company
on a consolidated basis;
(iii) Any liquidation or dissolution of the
Company;
(iv) Any reorganization, reverse stock split, or
recapitalization of the Company which would
result in a Change in Control; or
(v) Any transaction or series of related
transactions having, directly or indirectly,
the same effect as any of the foregoing; or
any agreement, contract, or other
arrangement providing for any of the
foregoing.
1.3 "Committee" means the Committee appointed by the Board to
administer the Plan.
1.4 "Common Stock" means the common stock of the Company.
1.5 "Company" means Universal Forest Products, Inc., a Michigan
corporation, its successors and assigns.
1.6 "Effective Date of this Agreement" means April 17, 2002.
1.7 "Plan" means the Universal Forest Products, Inc. Long-Term
Incentive Plan.
1.8 "Shares" means the shares of Common Stock awarded, issued and
delivered to Employee under this Agreement. If, as a result of a stock split,
stock dividend, combination of stock, or any other change or exchange of
securities, by reclassification, reorganization, recapitalization or otherwise,
the Shares shall be increased or decreased, or changed into or exchanged for a
different number or kind of shares of stock or other securities of the Company
or another corporation, the term "Shares" shall mean and include the shares of
stock or other securities issued with respect to the Shares.
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2. CONDITIONAL GRANT AWARD
2.1 Conditional Grant. The Company hereby agrees to grant ten thousand
(10,000) shares of Common Stock (the "Shares") to Employee immediately upon the
satisfaction of the terms and conditions set forth in Section 3 of this
Agreement. The award of Shares shall be effective as of the Grant Date, as
defined in Section 3 below. The Company agrees to issue and deliver to Employee
a certificate representing the Shares promptly upon the Grant Date.
2.2 Acceptance. Employee accepts this conditional award of Shares.
3. CONDITIONS TO GRANT. The Company shall grant the Shares to Employee
upon the first to occur of the following conditions (the effective date of which
shall be referred to in this Agreement as the Grant Date), provided that
Employee has been in the continuous employment of the Company from the Effective
Date of this Agreement until the Grant Date:
(a) Upon the 65th birthday of Employee;
(b) Upon a Change in Control; or
(c) Upon Employee's death.
4. ACQUISITION WARRANTIES. In order to induce the Company to issue and
deliver the Shares on the terms of this Agreement, Employee warrants to and
agrees with the Company as follows:
4.1 No Participating Interest. The Employee is acquiring the Shares for
Employee's own account, and has not made any arrangement to convey any interest
in the Shares to any person.
4.2 Ability to Evaluate. Because of Employee's knowledge and experience
in financial and business matters, Employee is capable of evaluating the merits
and risks of acquiring the Shares under the arrangements prescribed by this
Agreement.
4.3 Familiarity with Company. Employee is familiar with the business,
financial condition, earnings and prospects of the Company, and confirms that
the Company has not made any representation regarding the foregoing matters or
the merits of this Agreement.
4.4 All Questions Answered. Employee understands all of the terms of
this Agreement and the consequences to Employee of any actions which may be
taken under this Agreement. Employee confirms there are no questions relating to
any such matters which have not been answered to Employee's complete
satisfaction.
4.5 Rights as Shareholder. Employee shall have no rights as a
shareholder with respect to the Shares unless and until the Grant Date.
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5. GENERAL PROVISIONS
5.1 No Right to Employment. This Agreement is not an employment
contract. Neither the Plan nor this Agreement or anything else changes the at
will employment status of Employee.
5.2 Severability. Whenever possible, each provision of this Agreement
shall be interpreted in such manner as to be valid and enforceable, but if any
provision of this Agreement shall be held to be prohibited or unenforceable
under applicable law (a) such provision shall be deemed amended to accomplish
the objectives of the provision as originally written to the fullest extent
permitted by law, and (b) all other provisions of this Agreement shall remain in
full force and effect.
5.3 Captions. The captions used in this Agreement are for convenience
only, do not constitute a part of this Agreement and all of the provisions of
this Agreement shall be enforced and construed as if no captions had been used.
5.4 Complete Agreement. This Agreement contains the complete agreement
between the parties relating in any way to the subject matter of this Agreement
and supersedes any prior understandings, agreements or representations, written
or oral, which may have related to such subject matter in any way.
5.5 Notices.
(a) Procedures Required. Each communication given or delivered
under this Agreement must be in writing and may be given by personal
delivery or by certified mail. A written communication shall be deemed
to have been given on the date it shall be delivered to the address
required by this Agreement.
(b) Communications to the Company. Communications to the
Company shall be addressed to it at the principal corporate
headquarters and marked to the attention of the Company's president.
(c) Communications to Employee. Every communication to
Employee shall be addressed to Employee at the address given
immediately below the Employee's signature to this Agreement, or to
such other address as Employee shall specify to the Company.
5.6 Assignment. This Agreement is not assignable by Employee during
Employee's lifetime. This Agreement shall be binding upon and inure to the
benefit of (a) the successors and assigns of the Company, and (b) any person to
whom Employee's rights under this Agreement may pass by reason of Employee's
death.
5.7 Amendment. This Agreement may be amended, modified or terminated
only by written agreement between the Company and Employee.
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5.8 Waiver. No delay or omission in exercising any right hereunder
shall operate as a waiver of such right or of any other right hereunder. A
waiver upon any one occasion shall not be construed as a bar or waiver of any
right or remedy on any other occasion. All of the rights and remedies of the
parties hereto, whether evidenced hereby or granted by law, shall be cumulative.
5.9 Choice of Law. This Agreement shall be deemed to be a contract made
under the laws of the State of Michigan and for all purposes shall be construed
in accordance with and governed by the laws of the State of Michigan.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
EMPLOYEE UNIVERSAL FOREST PRODUCTS, INC.
_______________________________ BY: ____________________________________
Xxxxxxx X. Xxxxxx
ITS:____________________________________
ADDRESS:
0000 Xxxxx Xxxxx XX
Xxxxx Xxxxxx, XX 00000
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