AMERICAN GREETINGS CORPORATION 2007 OMNIBUS INCENTIVE COMPENSATION PLAN RESTRICTED STOCK UNIT GRANT AGREEMENT
Exhibit
10.58
AMERICAN GREETINGS CORPORATION 2007 OMNIBUS
INCENTIVE COMPENSATION PLAN
INCENTIVE COMPENSATION PLAN
Award:
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Restricted Class A Stock Units | |
Grant Date:
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___________, 20__ (“Date of Grant”) | |
Vesting Dates:
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The award of Restricted Stock Units shall vest in the manner set forth in your Notice of Grant, as such term is defined below. |
THIS AGREEMENT, dated as of the Grant Date stated above, is delivered by American Greetings
Corporation (the “Company” or “American Greetings”) to the individual director of
the Company (the “Grantee”) identified in the notice of restricted stock unit award grant
(the “Notice of Grant”) delivered to Grantee.
W I T N E S S E T H:
WHEREAS, the Company wishes to give Xxxxxxx an opportunity to acquire or enlarge his equity
ownership in the Company for the purpose of augmenting Xxxxxxx’s proprietary interest in the
success of American Greetings and thereby focusing Xxxxxxx’s efforts on increasing shareholder
value.
A G R E E M E N T
NOW, THEREFORE, Grantee has received or will receive a Notice of Grant, which, if not rejected in
accordance with the instructions in such notice, will constitute Grantee’s binding agreement with
the following terms:
1. Grant of Restricted Stock Units. Subject to the terms and conditions of this Agreement,
the Company hereby grants to Grantee the number of Restricted Stock Units (the “RSUs”)
relating to the class and number of common shares of the Company (the “Shares”), as
indicated on the Notice of Grant. The grant of RSUs shall represent the right to receive such
number of Shares, upon the satisfaction of certain vesting requirements set forth in Section 2,
with issuance of such Shares to be made in accordance with Section 2. The RSUs described in this
Agreement are in all respects subject to the terms, conditions and provisions of this Agreement,
the Notice of Grant and the Company’s 2007 Omnibus Incentive Compensation Plan (the
“Plan”).
2. Vesting or Forfeiture of RSUs; Payment of Award.
(a) Vesting. Except as otherwise provided in this Section 2, RSUs granted to Grantee
pursuant to Section 1 shall vest over the period as set forth in the Notice of Grant. If vesting
will result in a fractional Share, then the amount vested shall be rounded up to the nearest whole
Share; provided, however, the number of shares to vest as of the last vesting date shall be
rounded down to such number that will result in the total number of Shares vesting equaling the
total grant represented hereby.
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(b) Payment of Award. Within 90 days after any RSUs are deemed vested pursuant to
this Section 2, but in no event longer than the maximum time period permitted under Section 409A of
the Internal Revenue Code of 1986, as amended, and the regulations promulgated thereunder (the
“Code”) to qualify as a short-term deferral, such RSUs shall be issued to Grantee in the
form of Shares. At such time, Grantee shall enjoy full shareholder and ownership rights with
respect to such Shares. Shares shall be delivered to Grantee either through book-entry transfer of
beneficial ownership of the Shares or through delivery of a stock certificate representing all such
Shares and registered in his or her name. The method of delivery shall be selected by the Company,
in its sole discretion. In the case of Xxxxxxx’s death after vesting, payment of any Shares that
are vested on his date of death will be made to the beneficiary designated by Grantee in a writing
filed with the Company or, if none, to Xxxxxxx’s estate.
(c) Clawback; Accelerated Vesting; Forfeiture.
(i) This RSU, and the right to receive and retain any Shares covered by this RSU, shall be
subject to rescission, cancellation or recoupment, in whole or part, if and to the extent so
provided under any “clawback” or similar policy of the Company in effect on the Date of Grant or
that may be established thereafter, including, without limitation, any “clawback” or recoupment
policy of the Company as may be adopted by the Company from time to time as required by Section 304
of the Xxxxxxxx-Xxxxx Act of 2002, Section 954 of the Xxxx-Xxxxx Xxxx Street Reform and Consumer
Protection Act, or as otherwise required by applicable law.
(ii) Notwithstanding the foregoing, if any portion of RSUs granted hereby have not vested on
the date of Grantee’s death, Disability, or Retirement, provided Grantee is on the Board of
Directors on such date (the “Separation Date”), Grantee will vest in such number of RSU’s
obtained by subtracting (1) the number of RSUs that have vested as of the Separation Date
from (2) the quotient obtained by multiplying (x) the total number of RSUs represented
hereby by (y) a percentage equal to the period of time from the Date of Grant to the Separation
Date as a percentage of the total vesting period for the RSUs as set forth in the Notice of Grant.
(iii) If Grantee ceases to serve on the Board of Directors for any other reason than those
specified in the immediately preceding clause 2(ii), including, without limitation, if Grantee
resigns (other than as a result of Retirement, death or Disability), or any separation from service
initiated by the Company for Cause or otherwise, any RSUs not otherwise vested pursuant to this
Section 2 on the date Grantee ceases to provide services to the Company as a member of the Board of
Directors, are forfeited. In addition, if Xxxxxxx’s service as a director is terminated for
Cause, or if and to the extent required by applicable law, then any RSUs vested pursuant to this
Section 2, but not yet delivered to Grantee, shall also be forfeited and shall not be delivered.
(d) Certain Definitions. For purposes of this Agreement
(i) “Cause” has such meaning as may be defined in any agreement between Grantee and
the Company and, if none, will mean any one or more of the following: Grantee’s (1) fraud; (2)
misappropriation of funds; (3) commission of a felony or of an act or series of acts which results
in material injury to the business reputation of the Company; (4) commission of a crime or act or
series of acts involving moral turpitude; (5) commission of an act or series of repeated acts of
dishonesty that are materially inimical to the best interests of the Company; or (6) willful and
repeated failure to perform his or her duties, which failure has not been cured in all substantial
respects within fifteen (15) days after the Company gives written notice thereof to Grantee.
(ii) “Retirement” shall mean termination of Xxxxxxx’s service as a director after
completing ten (10) or more years of continuous service and attaining age sixty-five (65).
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(iii) “Disability” shall mean that Grantee is “disabled” as such term is defined in
Code Section 409A(a)(2).
3. Ownership Rights. Except as otherwise provided herein, Grantee will not have the rights
of a shareholder of the Company with respect to any Shares issuable upon the vesting of any RSUs.
Upon receipt of any portion of Shares issued pursuant to RSUs awarded under Section 1 and vested
pursuant to Section 2, Grantee shall be entitled to exercise all ownership rights (including,
without limitation, the right to vote and the right to receive dividends) with respect to such
Shares, provided that voting and dividend rights with respect to the Shares will be exercisable
only if the record date for determining shareholders entitled to vote and receive dividends, as the
case may be, falls on or after the date as of which Shares are issued to Grantee pursuant to this
Agreement.
4. Deferral of Delivery of Shares. Notwithstanding any provision in this Agreement to the
contrary, if any law or regulation of any governmental authority having jurisdiction in the matter
requires the Company, the Board, the Committee or Grantee to take any action or refrain from action
in connection with the award or delivery of Shares under this Agreement, or to delay such award or
delivery, then the award or delivery of such Shares shall be deferred until such action has been
taken or such restriction on action has been removed, subject to any applicable requirements under
Code Section 409A. If Grantee is eligible to participate in the Company’s Director’s Deferred
Compensation Plan and the class of common shares that are subject to the RSUs are otherwise
eligible for deferral thereunder, at Grantee’s election, Grantee may also defer receipt of any
Shares earned under the Agreement in accordance with the Plan, any such deferred Shares to be
credited with dividend equivalents. Any such deferred Shares, including dividend equivalents, if
any, to be paid at the end of any applicable deferral period shall be paid in shares of the same
class of common shares that are subject to the RSUs, rounded to the nearest whole share, with any
such deferral election to be made at a time and in a manner that complies with all applicable
requirements under Code Section 409A.
5. General Provisions. Xxxxxxx acknowledges that Xxxxxxx has read, understands and agrees
with all of the provisions in this Agreement and the Plan, including, but not limited to, the
following:
(a) Administration. The interpretation and construction by the Board and/or the
Committee of any provision of this Agreement, the Plan or any notification or document evidencing
the grant of RSUs and that any determination by the Board or such Committee pursuant to any
provision of this Agreement or the Plan or of any such agreement, notification or document shall be
final and conclusive.
(b) Notices. Any notice that is required or permitted under this Agreement shall be
in writing (unless otherwise specified in the Agreement or in a writing from the Company to
Grantee), and delivered personally or by mail, postage prepaid, addressed as follows: (i) if to the
Company, at Xxx Xxxxxxxx Xxxx, Xxxxxxxxx, Xxxx 00000, Attention: Human Resources Department, or at
such other address as the Company by notice to Grantee may have designated from time to time; (ii)
if to Grantee, at the address indicated in Grantee’s then-current personnel records, or at such
other address as Grantee by notice to the Company may have designated from time to time. Such
notice shall be deemed given upon receipt. From time to time, the Company may also authorize
communications and any notice that is required or permitted under this Agreement to be provided
electronically either through the Company’s email or other systems or through third parties,
including any administrator of the Company’s RSU or other equity programs, as designated from time
to time by the Company.
(c) Compliance With Securities Laws. Xxxxxxx acknowledges that the RSUs are intended
to conform to the extent necessary with all provisions of the Securities Act of 1933 and the
Securities Exchange Act of 1934 and any and all regulations and rules promulgated by the Securities
and
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Exchange Commission thereunder, including without limitation Rule 144 under the Securities Act
of 1933 and Rule 16b-3 under the Securities Exchange Act of 1934. Notwithstanding anything herein
to the contrary, the RSUs are granted only in such a manner as to conform to such laws, rules and
regulations. To the extent permitted by applicable law, this RSU Agreement will be deemed amended
to the extent necessary to conform to such laws, rules and regulations.
(d) Taxation. Grantee shall be responsible for all applicable income and withholding
taxes and the employee share of FICA taxes with respect to any compensation income generated upon
the vesting or issuance of any RSUs under this Agreement. No later than the date as of which an
amount first becomes subject to applicable federal, state, or local income, wage or employment tax
withholding (including employee share of FICA) with respect to the RSUs awarded hereunder, Grantee
shall pay to the Company, or make arrangements satisfactory to the Committee regarding the payment
of, any federal, state or local income, wage or employment taxes of any kind required by law to be
withheld with respect to that amount. Unless otherwise determined by the Committee, withholding
obligations may be settled (i) with previously owned common shares or (ii) Shares that have vested
and that are issuable hereunder (in the minimum amount necessary to satisfy any applicable
withholding requirements). The making of that payment or those arrangements is a condition to the
obligations of the Company under the Plan, and the Company may, to the extent permitted by law,
deduct any taxes from any payment of any kind otherwise payable to Grantee or the Company may
retain such number of the Shares issuable upon the vesting of RSUs covered by the grant evidenced
by this Agreement as shall be equal in value to the amount of the remaining withholding obligation.
(e) Nontransferability. This Agreement and the RSUs granted to Grantee shall be
nontransferable and shall not be sold, hypothecated or otherwise assigned or conveyed by Grantee to
any other person, except as specifically permitted in this Agreement. No assignment or transfer of
this Agreement or the rights represented thereby, whether voluntary or involuntary, or by operation
of law or otherwise, shall vest in the assignee or transferee any interest or right whatsoever,
except as specifically permitted in this Agreement. The Agreement shall terminate, and be of no
force or effect, immediately upon any attempt to assign or transfer the Agreement or any of the
RSUs to which the Agreement applies.
(f) No Continued Service Rights. This Agreement will not confer upon Grantee any
right to be retained by or in the service of the Company and will not interfere in any way with the
right of the Company to terminate Grantee’s service at any time. Subject to any obligations under
law or the Company’s Articles of Incorporation or Code of Regulations the right of the Company to
terminate at will Grantee’s service as a director at any time for any reason is specifically
reserved.
(g) Adjustments. On any change in the number or kind of outstanding common shares of
the Company by reason of a recapitalization, merger, consolidation, reorganization, separation,
liquidation, share split, share dividend, combination of shares or any other change in the
corporate structure or common shares of the Company, the Company, by action of the Board or the
Committee shall make such adjustment, if any, in the number and kind of RSUs subject to this
agreement as it considers appropriate in order that the rights of Grantee hereunder are neither
enlarged nor diminished.
(h) Unsecured Creditor Status. This grant of RSUs constitutes a mere promise by the
Company to pay Grantee the benefits described in this grant (to the extent credited and vested).
Grantee shall have the status of a general unsecured creditor of the Company with respect to the
benefits payable under this Agreement. Xxxxxxx’s right to receive credited and vested shares shall
not be subject to any assignment, pledge, levy, garnishment, attachment or other attempt to assign
or alienate such shares prior to their delivery to Grantee, including, without limitation, under
any
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domestic relations order, and any such attempted assignment or alienation shall be null, void
and of no effect.
(i) Fractional Shares. Except as otherwise contemplated by Section 2(a),
notwithstanding anything in this Agreement to the contrary, in the event that any adjustment to the
grant of RSUs or an award of Shares or the calculation of an award pursuant to this Agreement would
otherwise result in the creation of a fractional share interest, the affected award shall be
rounded to the nearest whole share.
(j) Amendment or Termination. This Agreement may be amended or terminated at any time
by the mutual agreement and written consent of Grantee and the Company, but only to the extent
permitted under the Plan. The provisions set forth in this Agreement are subject to the
restrictions and other requirements of Code Section 409A and related regulations and rulings.
Without limiting the generality of the preceding sentence, such provisions shall be modified and
amended, as and where necessary, to bring such provisions into compliance with the requirements set
forth in Code Section 409A and related regulations and rulings. This Agreement shall be
interpreted (and if necessary, amended) to comply with Code Section 409A and to the extent any
provision of this Agreement is inconsistent with Code Section 409A, said Code Section 409A shall
control even if such action may reduce or diminish the value of Grantee’s award.
(k) Severability. If any provision of this Agreement should be held illegal or
invalid for any reason, such determination shall not affect the other provisions of this Agreement,
and it shall be construed as if such provision had never been included herein.
(l) Headings/Gender. Headings in this Agreement are for convenience only and shall
not be construed to be part of this Agreement. Any reference to the masculine, feminine or neuter
gender shall be a reference to other genders as appropriate.
(m) Governing Law. This Agreement shall be construed, and its provisions enforced and
administered, in accordance with the laws of the State of Ohio and, where applicable, federal law.
(n) Definitions. Initial capitalized terms used in this Agreement that are not
otherwise defined herein shall have the meaning set forth in the Plan.
(o) Counterparts. This Agreement may be executed in counterparts, each of which shall
be deemed original, but all of which taken together shall constitute one and the same instrument.
Xxxxxxx’s acceptance of this agreement in accordance with the instructions in the Notice of Grant
will constitute Grantee’s binding agreement with the terms hereof.
[SIGNATURE PAGE TO FOLLOW]
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IN WITNESS WHEREOF, the Company has caused this Agreement to be executed by its duly authorized
officer, and unless Grantee otherwise rejects the Notice of Grant in accordance with the
instructions in such notice, Grantee will be deemed a party to, and legally bound by the terms of,
this Agreement.
| AMERICAN GREETINGS CORPORATION |
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| By: | ||||
| Xxxxx XxXxxxx, Senior Vice President, | ||||
| Human Resources | ||||
| GRANTEE Unless the Grantee rejects Notice of Grant in accordance with the instructions in such notice, Grantee will be deemed a party to, and legally bound by the terms of, this Agreement. |
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