XXXXXXXX'X INTERNATIONAL, INC
AMENDED AND RESTATED 1995 EQUITY INCENTIVE PLAN
RESTRICTED STOCK AWARD AGREEMENT
(Officer Participants in the Executive Retirement Plan)
(Performance Restricted Stock)
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This Restricted Stock Award Agreement (the "Agreement") is made this "Date"
with "Name" (the "Grantee") and evidences the grant by Xxxxxxxx'x International,
Inc. (the "Company") of a Restricted Stock Award (the "Award") to the Grantee on
the date hereof (the "Grant Date"). By executing this Agreement, the Grantee
agrees to be bound in accordance with the provisions of the Xxxxxxxx'x
International, Inc. Amended and Restated 1995 Equity Incentive Plan (the
"Plan"). Defined terms used but not defined herein shall have the same meaning
as used in the Plan.
1. Shares Awarded and Restrictions on Shares. The Grantee is hereby awarded
"Number of Shares" shares of the Company's common stock, $.01 par value
(the "Restricted Shares"), which are subject to forfeiture and to the
restriction on the rights of sale and transfer set forth in this Agreement
and further subject to the terms and conditions of the Plan, the provisions
of which are hereby incorporated in this Agreement by reference.
2. Performance Contingency.
(a) Performance Period. The "Performance Period" is the period beginning
on January 1 of the grant year and ending on the fourth December 31
thereafter.
(b) Performance Contingency. Except as provided in this Paragraph 2(b) or
in Paragraph 6 below, all Restricted Shares shall be held by the
Grantee without the rights of sale or transfer and subject to
forfeitures as provided herein (the "Performance Contingency"). If
Total Return to Shareholders of the Company (as defined below) at the
end of the Performance Period, when calculated by the Company and
approved by the Committee is (i) less than the 25th percentile of the
Total Return to Shareholders of the Peer Group (as defined below), all
Restricted Shares will be forfeited by the Grantee and become the
property of the Company; (ii) greater than or equal to the 25th
percentile of the Total Return to Shareholders of the Peer Group, the
restrictions on transfer shall lapse with
respect to 50% of the Restricted Shares; (iii) greater than or equal
to the 50th percentile of the Total Return to Shareholders of the Peer
Group, the restrictions on transfer will lapse as to 100% of the
Restricted Shares; and (iv) greater than or equal to the 75th
percentile of the Total Return to Shareholders of the Peer Group, the
Company shall grant to the Grantee additional shares of the Company's
common stock equal to 50% of the total Restricted Shares, with no
restrictions.
(c) Total Return to Shareholders. "Total Return to Shareholders" shall
mean the percentage by which the trading price of a company's common
stock, plus any common stock dividends paid during the Performance
Period, increases during the Performance Period. This change in
trading price shall be measured by using the average of the closing
price of the common stock for the 200 trading days prior to the
beginning of the Performance Period as the beginning trading price,
and the average of the closing price of the common stock for the 200
trading days prior to the end of the Performance Period as the ending
trading price.
(d) Peer Group. "Peer Group" shall mean the companies included in the Bear
Xxxxxxx Index. The Committee may remove companies from the Peer Group
as it deems appropriate to account for corporate structure changes in
these companies.
3. Employment Requirement. Except as provided in Paragraph 6 below, in the
event the Grantee's employment with the Company or any of its Affiliates
terminates prior to the end of the Performance Period, any portion of the
Restricted Shares which remains restricted will be forfeited by the Grantee
and become the property of the Company. For purposes of this document, an
authorized leave of absence (authorized by the Company to the Grantee in
writing) shall not be deemed a termination of employment hereunder.
4. Issuance of Restricted Shares. Restricted Shares will be issued in the name
of the Grantee and shall be held in escrow by the Company in accordance
with the terms of the Plan. When the prohibited sale and transfer
restrictions lapse under Paragraph 2, above, with respect to all or a
portion of the Restricted Shares, provided the Restricted Shares have not
been forfeited under Paragraph 3, above, the Company shall deliver to the
Grantee the stock certificate for the Restricted Shares or such portion
thereof. The Company is not acting as a fiduciary and has no obligations
other than as set forth in the Plan and this Award. The Company may cancel
the Restricted Shares if forfeited hereunder and the Grantee shall deliver
herewith any instrument requested by the Company to effect such
cancellation.
5. Voting and Other Rights of Restricted Shares. Upon the issuance of the
Restricted Shares, the Grantee shall have all of the rights of a
stockholder of the Company, including the right to receive dividends and to
vote the Restricted Shares until the date as of which such shares may have
been forfeited to the Company as provided in Paragraph 2 or 3 above.
Notwithstanding the foregoing, in the event of any stock dividend, stock
split, division of shares or other corporate structure change which results
in the issuance of additional shares with respect to Restricted Shares
prior to the date as of which the certificate for such Restricted Shares is
to be delivered to the Grantee, such shares shall be held by the Company
and shall become Restricted Shares.
6. Acceleration of Release of Restrictions; Retirement.
(a) The forfeiture and prohibited sale and transfer restrictions on the
Restricted Shares shall immediately lapse on the earliest of the
following:
(i) The Grantee's date of death; or
(ii) The Disability of the Grantee.
(b) Upon Retirement of the Grantee during the Performance Period, the
effect on the Restricted Shares shall be as set forth in the terms of
the Company's Executive Retirement Plan, and the Award will remain
subject to the Performance Contingency. "Retirement" shall mean the
satisfaction of all conditions necessary for the Grantee to become
entitled to receive benefits under the Company's Executive Retirement
Plan.
7. Taxes. The Grantee will be solely responsible for any federal, state or
local income taxes imposed in connection with the ------ granting of the
Restricted Shares or the delivery of such shares pursuant thereto, and the
Grantee authorizes the Company or any Affiliate to make any withholding for
taxes which the Company or any Affiliate deems necessary or proper in
connection therewith. Upon recognition of income by the Grantee with
respect to the Award hereunder, the Company shall withhold taxes pursuant
to Section 13 of the Plan. The Grantee may elect to satisfy any tax
withholding obligation of the Company by having a portion of the Restricted
Shares otherwise deliverable withheld in accordance with Section 13 of the
Plan. In the event the Grantee has not made appropriate elections or
otherwise followed the procedures required by the Company for satisfaction
of the tax withholding obligation, the Company shall withhold Restricted
Shares in accordance with Section 13 of the Plan.
8. Changes in Circumstances. It is expressly understood and agreed that the
Grantee assumes all risks incident to any change hereafter in the
applicable laws or regulations or incident to any change in the market
value of the Restricted Shares after the date hereof.
9. No Conflict. In the event of a conflict between this Award and the Plan,
the provisions of the Plan shall govern.
10. Governing Law. This award shall be governed under the laws of the State of
Kansas.
11. Change of Control. The effect of a Change in Control shall be as set forth
in either the Change in Control and Noncompete Agreement entered into
between Grantee and Company, or, in the event Grantee has not entered into
a Change in Control and Noncompete Agreement, the Grantee's employment
agreement with the Company. In the event the Grantee has not entered into
either a Change in Control and Noncompete Agreement or an employment
agreement with the Company (or Grantee has entered into an agreement but
such agreement does not address the effect of a Change in Control on this
Agreement), the effect of a Change in Control shall be as set forth in the
Plan. This Agreement shall be subject to any amendment to the definition of
Change in Control in the Plan that may be made after the date of this
Agreement.
XXXXXXXX'X INTERNATIONAL, INC
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By: ________________________
Title: _____________________
ACKNOWLEDGEMENT
The undersigned Grantee acknowledges that he or she understands and agrees
to be bound by each of the terms and conditions of this Agreement.
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Name of Grantee
