2 - this Agreement. The Participant shall, simultaneously with the execution and delivery of this Agreement, execute and deliver to the Company a stock power in blank with respect to the Restricted Shares. If any Restricted Shares are forfeited, the...
XXXXXXXXX XXXXX INCORPORATED NON-EMPLOYEE DIRECTOR RESTRICTED STOCK AGREEMENT THIS RESTRICTED STOCK AGREEMENT (the “Agreement”) is made as of the __ day of __________, 20__ by and between ____________ (the “Participant”), who resides at __________________________, and Xxxxxxxxx Xxxxx Incorporated (the “Company”), a Kentucky corporation with its principal place of business at 000 Xxxxx Xxxxxxxxxxx Xxxxxxx, Xxxxx 000, Xxxxxxxxxx, XX 00000, pursuant to the provisions of the Xxxxxxxxx Xxxxx Incorporated 2016 Omnibus Stock Incentive Plan (the “Plan”). WITNESSETH: WHEREAS, the Compensation Committee of the Board of Directors of the Company (the “Board”) has determined that part of the annual retainer compensation for the service of non-employee members of the Board (“Director”) shall be paid in the form of restricted shares of the Company’s common stock, no par value per share (“Common Stock”); WHEREAS, on February 24, 2016, the Board adopted the Plan, which was approved by the shareholders of the Company at the 2016 Annual Meeting of Shareholders on April 27, 2016; WHEREAS, the Plan provides for the granting of restricted shares of the Common Stock in accordance with the terms and provisions thereof; and WHEREAS, Participant is a non-employee Director who the Compensation Committee of the Board considers to be a person eligible for grants of restricted shares of the Common Stock and has determined that it would be in the best interest of the Company to grant the Participant the restricted Shares of the Common Stock documented herein. NOW, THEREFORE, in consideration of the foregoing and the mutual undertakings herein contained, and for other good and valuable consideration, the mutuality, receipt and sufficiency of which are hereby acknowledged, the parties agree as follows: 1. Grant of Stock. In accordance with the terms of the Plan and subject to the further terms, conditions and restrictions contained in this Agreement, the Company hereby grants to the Participant ___ shares (the “Shares”) of the Company’s Common Stock on the date first above written, in consideration for services to be performed by the Participant as Director of the Company. As long as the Shares are subject to the Restrictions set forth in Section 4 of this Agreement, such shares shall be deemed to be, and are referred to in this Agreement as, the “Restricted Shares”. 2. Certificates for Shares/Book Entry. Certificates (or alternatively, where applicable and permitted by applicable law and the rules of an applicable stock exchange, book entries) evidencing Restricted Shares shall be deposited (or recorded) with the Company to be held in escrow until such Shares are released to the Participant or forfeited in accordance with
- 2 - this Agreement. The Participant shall, simultaneously with the execution and delivery of this Agreement, execute and deliver to the Company a stock power in blank with respect to the Restricted Shares. If any Restricted Shares are forfeited, the Company shall direct the transfer agent of the Common Stock to make the appropriate entries in its records showing the cancellation of the certificate or certificates (or, as applicable, the book entries) for such Restricted Shares. 3. Adjustments in Restricted Shares. (a) In the event of any change in the outstanding Common Stock by reason of a stock dividend or distribution (or distribution on Common Stock of any security convertible into securities of the Company), recapitalization, merger, consolidation, split-up, combination, subdivision, reclassification, exchange of shares or the like, the Compensation Committee shall make equitable adjustments in the Restricted Shares so that the shares represent the same percentage of the Company’s equity as was the case immediately prior to such change. Any new, additional or different securities to which the Participant shall be entitled in respect of Restricted Shares by reason of such adjustment shall be deemed to be Restricted Shares and shall be subject to the same terms, conditions and restrictions as the Restricted Shares so adjusted. (b) In the event Company merges, consolidates or effects a share exchange with another entity, or all or a substantial portion of Company’s assets or outstanding capital stock are acquired (whether by merger, purchase or otherwise) by another entity (any such entity being hereafter referred to as the “Successor”) each of the Restricted Shares shall automatically be converted into and replaced by shares of common stock, or such other class of securities having rights and preferences no less favorable than the Restricted Shares, of the Successor, and the number of Restricted Shares shall be correspondingly adjusted, so that the Participant shall have the right to that number of shares of common stock of the Successor that have a value equal, as of the date of the merger, conversion or acquisition, to the value, as of the date of the merger, conversion or acquisition, of the Restricted Shares. 4. Restrictions. During applicable period of restriction determined in accordance with Section 6 of this Agreement, Restricted Shares, and all rights with respect to such Shares, may not be sold, assigned, transferred, exchanged, pledged, hypothecated or otherwise encumbered or disposed of and shall be subject to the risk of forfeiture contained in Section 5 of this Agreement (such limitations on transferability and risk of forfeiture being herein referred to as the “Restrictions”), but the Participant shall have all other rights of a stockholder; provided, however, that, until such time as the Restrictions lapse, the Participant shall not have the right to vote the Restricted Shares; receive dividends thereon (dividends shall accrue and vest and be paid at the same time as the Restrictions lapse); or purchase any securities pursuant to that certain Rights Agreement dated as of March 19, 2008, between the Company and National City Bank, as amended, and as the same may be amended, modified or supplemented from time to time.
- 3 - 5. Forfeiture of Restricted Shares. Subject to Section 6 below, in the event that the Participant ceases to serve as a Director of the Company for any reason, such event shall constitute an “Event of Forfeiture” and all Shares which at that time are Restricted Shares shall thereupon be forfeited by the Participant to the Company without payment of any consideration by the Company, and neither the Participant nor any heir, personal representative, successor or assign of the Participant shall have any right, title or interest in or to such Restricted Shares or any certificates (or book entries) evidencing the same. 6. Lapse of Restrictions. The Restrictions on the Restricted Shares shall lapse upon the earlier of (i) the twelve (12) month anniversary of the date of this Agreement and (ii) the day immediately preceding the annual meeting of shareholders of the Company next occurring after the date of this Agreement, provided that Participant is a Director of the Company on such date, or upon an earlier Change in Control, death or Disability. Notwithstanding the foregoing, actions taken in compliance with that certain Stockholder’s Agreement dated as of September 8, 2000, among the Company, Duchossois Industries, Inc. and subsequent signatories thereto, as amended from time to time, shall not be deemed a Change in Control. For purposes of this Agreement, “Disability” means that Participant becomes “disabled” within the meaning of Section 409A(a)(2)(C) of the Code or any successor provision and the applicable regulations thereunder. Upon the lapse of the Restrictions in accordance with this Section, the Company shall, as soon as practicable thereafter, deliver to the Participant a certificate (or record as a book entry and deliver evidence of same to the Participant) (without any restrictive endorsement referring to such Restrictions) for the Shares that are no longer subject to such Restrictions. 7. Nature of Grant. In accepting the Restricted Shares, Participant acknowledges that: (i) the Plan is established voluntarily by the Company, is discretionary in nature and may be modified, amended, suspended or terminated at any time, unless otherwise provided in this Agreement; (ii) the grant of the Restricted Shares does not create any contractual or other right to receive future grants of Restricted Shares, or benefits in lieu of Restricted Shares; (iii) all decisions with respect to future Restricted Share grants, if any, will be at the sole discretion of the Board; (iv) Participant is voluntarily entering into this Agreement; and (v) the value of Restricted Shares may increase or decrease in value, and no claim or entitlement to compensation or damages shall arise from forfeiture of Restricted Shares or from any diminution in value of the Restricted Shares. 8. Withholding Requirements. Whenever Restrictions lapse with respect to Restricted Shares, the Company shall have the right to (i) withhold from sums due to the Participant; (ii) require the Participant to remit to the Company; or (iii) retain Shares otherwise deliverable to the Participant; in an amount sufficient to satisfy any Federal, state or local withholding tax requirements prior to making such payments or delivering any such Shares to the Participant. 9. Effect Upon Position as a Director. Nothing contained in this Agreement shall confer upon Participant the right to continue in his or her position as a Director of the Company or affect any right that the Company may have to remove Participant as a Director of the Company.
- 4 - 10. Captions. The captions and section headings used herein are for convenience only, shall not be deemed part of this Agreement and shall not in any way restrict or modify the context and substance of any section or paragraph of this Agreement. 11. Binding Effect. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their heirs, personal representatives, successors and assigns. The Participant accepts the award of Shares hereunder subject to all of the terms and conditions of this Agreement. The Participant hereby agrees to accept as binding, conclusive and final all reasonable decisions and interpretations of the Compensation Committee upon any questions arising under this Agreement, including without limitation, the interpretation of the Restrictions imposed upon the Shares. 12. Notices. Notices shall be deemed delivered if delivered personally or three days after being deposited in the United States mail to the Company in care of its Secretary at its executive offices at 000 Xxxxx Xxxxxxxxxxx Xxxxxxx, Xxxxx 000, Xxxxxxxxxx, XX 00000, and to Participant at the current address shown on the payroll records of the Company, or at such other address as either party may hereafter designate in writing to the other. 13. Investment Representation. If the Shares awarded to the Participant under this Agreement are not registered under the Securities Act of 1933, as amended, pursuant to an effective registration statements, the Participant, if the Compensation Committee shall reasonably deem it advisable, may be required to represent and agree in writing (i) that any Shares acquired by the Participant under this Agreement will not be sold except pursuant to an effective registration statement under the Securities Act of 1933, as amended, or pursuant to an exemption from registration under such Act, and (ii) that the Participant has acquired such Shares for his own account and not with a view to the distribution thereof. 14. Compliance with Section 16(b). This Agreement and the grant of Shares hereunder are intended to comply with all applicable conditions of Rule 16(b)-3 of the General Rules and Regulations under the Securities Exchange Act of 1934, as amended. All transactions involving the Company’s Directors and employees are subject to such conditions, regardless of whether the conditions are expressly set forth in this Agreement. Any provision of this Agreement that is contrary to a condition of Rule 16b-3 shall not apply. 15. Compliance With Other Laws And Regulations. The rights of the Participant and the obligations of Company under this Agreement shall be subject to all applicable federal and state laws, rules and regulations and to such approvals by any government or regulatory agency as may be required. Company shall not be required to issue or deliver certificates for shares of Common Stock before [i] the listing of such shares on any stock exchange or over-the-counter market, such as NASDAQ, on which the Common Stock may then be listed or traded, and [ii] the completion of any registration or qualification of any governmental body which Company shall, in its sole discretion, determines to be necessary or advisable. The Company agrees to use its best efforts to procure any such listing, registration or qualification. 16. Severability. The invalidity or unenforceability of any provision of the Agreement shall not affect the validity or enforceability of the remaining provisions of the
- 5 - Agreement, and such invalid or unenforceable provision shall be stricken to the extent necessary to preserve the validity and enforceability of the Agreement. 17. Incorporation of Plan. The Restricted Shares are granted pursuant to the terms of the Plan and this Agreement, and the Restricted Shares shall in all respects be interpreted in accordance with the Plan and this Agreement. 18. Governing Law; Jurisdiction. This Agreement shall be governed by, and construed in accordance with, the laws of the Commonwealth of Kentucky. Participant consents to the exclusive jurisdiction of the courts of the Commonwealth of Kentucky and of any federal court located in Jefferson County, Kentucky in connection with any action or proceeding arising out of or relating to this Agreement, any document or instrument delivered pursuant to or in connection with this Agreement, or any breach of this Agreement or any such document or instrument. 19. Entire Agreement. This Agreement and the Plan contain the entire agreement between the parties hereto with respect to the subject matter hereof. It supersedes all prior written or contemporaneous oral agreements related thereto. IN WITNESS WHEREOF, the Company and Participant have executed and delivered this Agreement as of the date first above written. XXXXXXXXX XXXXX INCORPORATED By: Title: PARTICIPANT: By: [INSERT NAME]
- 6 - EXHIBIT A IRREVOCABLE STOCK POWER FOR VALUE RECEIVED, the sufficiency of which is hereby acknowledged, the undersigned, does hereby sell, convey, assign and transfer unto XXXXXXXXX XXXXX INCORPORATED, a Kentucky corporation (the “Company”), shares of Common Stock of the Company registered in the undersigned’s name on the books of the Company as evidence by book entry position, which shares of Common Stock were issued to the undersigned by the Company under, and are subject to the terms and conditions of, the Xxxxxxxxx Xxxxx Incorporated 2016 Omnibus Stock Incentive Plan and that certain Restricted Stock Agreement by and between the Company and the undersigned. The undersigned does hereby irrevocably constitute and appoint the Secretary of the Company as the undersigned’s true and lawful attorney-in-fact to transfer the said capital stock on the books of the Company. Date:___________________ Signed:______________________________ Printed:______________________________
EXHIBIT B XXXXXXXXX XXXXX INCORPORATED PROXY With respect to all Restricted Shares issued to the undersigned (the “Shares”) under the Xxxxxxxxx Xxxxx Incorporation 2016 Omnibus Stock Incentive Plan (the “Plan”) and that certain Restricted Stock Agreement by and between the Company and the undersigned (the “Agreement”), the undersigned hereby appoints Xxxxxxxxx Xxxxx Incorporated, a Kentucky corporation, as the undersigned’s true and lawful agent and proxy, with full power of substitution, to represent the undersigned in all matters submitted to a vote of the shareholders of Xxxxxxxxx Xxxxx Incorporated at any time after the date hereof and to vote all Shares in the proxy’s sole and absolute discretion. This proxy is coupled with an interest and may not be revoked. This proxy shall continue until the lapse of the restrictions set forth in Section 6 of the Agreement. Date:___________________ Signed:______________________________ Printed:______________________________
