Exhibit 10.2
THE X. X. XXXXXXX COMPANY
DEFERRED STOCK UNITS AGREEMENT
(For Non-U.S. Taxpayers)
WHEREAS, __________________ (the "Grantee") is an employee of The X. X.
Xxxxxxx Company, an Ohio corporation (the "Company"); and
WHEREAS, the execution of an agreement in the form hereof (this
"Agreement") has been authorized by a resolution of the Executive Compensation
Committee (the "Committee") of the Board of Directors of the Company, pursuant
to The X. X. Xxxxxxx Company 2006 Equity Compensation Plan (the "Plan"), as of
__________________ (the "Date of Grant");
NOW, THEREFORE, the Company hereby grants to the Grantee _________
Deferred Stock Units (as defined in the Plan) (the "Deferred Stock Units"),
effective as of the Date of Grant, subject to the terms and conditions of the
Plan and the following additional terms, conditions, limitations and
restrictions.
ARTICLE I
DEFINITIONS
All terms used herein with initial capital letters and not otherwise
defined herein that are defined in the Plan shall have the meanings assigned to
them in the Plan.
ARTICLE II
CERTAIN TERMS OF THE DEFERRED STOCK UNITS
1. Grant of Deferred Stock Units. The Deferred Stock Units
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covered by this Agreement are granted to the Grantee effective on the
Date of Grant and are subject to and granted upon the terms, conditions
and restrictions set forth in this Agreement and in the Plan. The
Deferred Stock Units shall become vested in accordance with Section 3
hereof. Each Deferred Stock Unit shall represent one hypothetical share
of Common Stock, without par value of the Company (the "Common Stock")
and shall at all times be equal in value to one share of Common Stock.
The Deferred Stock Units will be credited to the Grantee in an account
established for the Grantee until payment in accordance with Section 4
hereof.
2. Restrictions on Transfer of Deferred Stock Units. Neither the
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Deferred Stock Units granted hereby nor any interest therein or in the
Common Stock related thereto shall be transferable prior to payment
other than by will or pursuant to the laws of descent and distribution
(or to a designated beneficiary in the event of the Grantee's death).
3. Vesting of Deferred Stock Units.
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(a) The Deferred Stock Units shall become vested on the
fourth anniversary of the Date of Grant (the "Vesting Date")
if the Grantee shall have remained in the continuous employ of
the Company or a Subsidiary during that four (4) year period.
Any Deferred Stock Units not vested will be forfeited, except
as provided in Section 3(b) below, if the Grantee ceases to be
continuously employed by the Company prior to the Vesting
Date. Deferred Stock Units may also be forfeited in the event
the Board determines the Grantee has engaged in Detrimental
Activity as such term is defined in the Plan.
(b) Notwithstanding the provisions of Section 3(a), all
of the Deferred Stock Units shall immediately become
nonforfeitable (each, a "Vesting Event") (i) if the Grantee
dies or becomes permanently disabled while in the employ of
the Company or a Subsidiary during the four-year period from
the Date of Grant, (ii) if, at any time during the four-year
period from the Date of Grant, the Grantee is age 60 with at
least ten years of service with the Company, or (iii) if a
Change in Control occurs during the four-year period from the
Date of Grant while the Grantee is employed by the Company or
a Subsidiary.
4. Issuance of the Common Stock.
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(a) The Company will issue to the Grantee the Common
Stock underlying the vested Deferred Stock Units on the
Vesting Date or, if earlier, upon the occurrence of a Vesting
Event.
(b) Except to the extent permitted by the Company and the
Plan, no Common Stock may be issued to the Grantee at a time
earlier than otherwise expressly provided in this Agreement.
(c) The Company's obligations to the Grantee with respect
to the Deferred Stock Units will be satisfied in full upon the
issuance of shares of Common Stock corresponding to such
Deferred Stock Units.
5. Dividend, Voting and Other Rights.
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(a) The Grantee shall have no rights of ownership in the
Deferred Stock Units and shall have no right to dividends and
no right to vote Deferred Stock Units until the date on which
the Common Stock underlying the Deferred Stock Units is
transferred to the Grantee pursuant to Section 4 above.
(b) The obligations of the Company under this Agreement
will be merely that of an unfunded and unsecured promise of
the Company to deliver shares of Common Stock in the future,
and the rights of the Grantee will be no greater than that of
an unsecured general creditor. No assets of the Company will
be held or set aside as security for the obligations of the
Company under this Agreement.
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ARTICLE III
GENERAL PROVISIONS
1. Adjustments. The number of shares of Common Stock issuable
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pursuant to the Deferred Stock Units is subject to adjustment as
provided in Section 13 of the Plan.
2. Compliance with Law. The Company shall make reasonable efforts
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to comply with all applicable federal and state securities laws;
provided, however, notwithstanding any other provision of this
Agreement, the Company shall not be obligated to issue any shares of
Common Stock pursuant to this Agreement if the issuance thereof would
result in a violation of any such law.
3. Compliance with Section 409A of the Code. To the extent that
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the Grantee is or becomes subject to payment of U.S. tax, then
appropriate adjustments may be made if necessary to make the awards
comply with Section 409A of the Code. Reference to Section 409A of the
Code will also include any proposed, temporary or final regulations, or
any other guidance, promulgated with respect to such Section by the
U.S. Department of the Treasury or the Internal Revenue Service.
4. Withholding Taxes. To the extent that the Company or any
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Subsidiary is required to withhold any federal, state, local or foreign
tax in connection with the Deferred Stock Units or the issuance of
Common Shares pursuant to this Agreement, and the amounts available to
the Company or such Subsidiary are insufficient, it shall be a
condition to the issuance of such Common Shares that the Grantee make
arrangements satisfactory to the Company or such Subsidiary for payment
of the balance of such taxes required to be withheld. This tax
withholding obligation shall or may be satisfied by the Company
withholding Common Shares otherwise issuable pursuant to this award in
order to satisfy the minimum tax withholding amount permissible under
the method that results in the least amount withheld.
5. Continuous Employment. For purposes of this Agreement, the
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continuous employment of the Grantee with the Company or a Subsidiary
shall not be deemed to have been interrupted, and the Grantee shall not
be deemed to have ceased to be an employee of the Company or
Subsidiary, by reason of the (i) transfer of his employment among the
Company and its Subsidiaries or (ii) a leave of absence approved by an
officer of the Company or a Subsidiary.
6. Right to Terminate Employment. No provision of this Agreement
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shall limit in any way whatsoever any right that the Company or a
Subsidiary may otherwise have to terminate the employment of the
Grantee at any time. Nothing herein shall be deemed to create a
contract or a right to employment with respect to the Grantee.
7. Relation to Other Benefits. Any economic or other benefit to
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the Grantee under this Agreement or the Plan shall not be taken into
account in determining any benefits to which the Grantee may be
entitled under any profit-sharing, retirement, or other benefit or
compensation plan maintained by the Company or a Subsidiary and shall
not affect the amount of any life insurance coverage available to any
beneficiary under any life insurance plan covering employees of the
Company or a Subsidiary.
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8. Amendments. Any amendment to the Plan shall be deemed to be an
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amendment to this Agreement to the extent that the amendment is
applicable hereto; provided, however, that no amendment shall impair
the rights of the Grantee under this Agreement without the Grantee's
consent.
9. Severability. In the event that one or more of the provisions
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of this Agreement shall be invalidated for any reason by a court of
competent jurisdiction, any provision so invalidated shall be deemed to
be separable from the other provisions hereof, and the remaining
provisions hereof shall continue to be valid and fully enforceable.
10. Relation to Plan. This Agreement is subject to the terms and
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conditions of the Plan. In the event of any inconsistency between the
provisions of this Agreement and the Plan, the Plan shall govern. The
Board acting pursuant to the Plan, as constituted from time to time,
shall, except as expressly provided otherwise herein, have the right to
determine any questions which arise in connection with the grant of the
Deferred Stock Units.
11. Governing Law. This Agreement is made under, and shall be
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governed by and construed in accordance with the internal substantive
laws of the State of Ohio.
This Agreement is executed by the Company as of the _______
day of ______________.
THE X. X. XXXXXXX COMPANY
By:
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Name:
Title:
The undersigned hereby acknowledges receipt of an executed
original of this Deferred Stock Units Agreement, together with a copy of the
Plan Prospectus, dated September 28, 2006, summarizing key provisions of the
Plan, and accepts the award of Deferred Stock Units granted hereunder on the
terms and conditions set forth herein and in the Plan.
Date: ---------------------------
---------------------- Grantee
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