EXHIBIT 10.23
RESTRICTED STOCK EXCHANGE AGREEMENT
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This Restricted Stock Exchange Agreement is entered into as of July 16,
1995 among Xxxxx Paper Company, a Pennsylvania corporation (the "Company"),
Xxxxxxxx-Xxxxx Corporation, a Delaware corporation ("Xxxxxxxx-Xxxxx"), and X.
Xxxxxx White (the "Grantee").
WHEREAS, pursuant to restricted stock agreements, the Company has granted
to the Grantee shares of restricted stock of the Company ("Restricted Stock");
WHEREAS, pursuant to an Amendment to Restricted Stock Agreement dated
January 17, 1995 (the "Restricted Stock Amendment"), shares of Restricted Stock
which are not vested become immediately vested in the event of a change in
control of the Company;
WHEREAS, concurrently herewith, Xxxxxxxx-Xxxxx, Rifle Merger Co. and the
Company are entering into an Agreement and Plan of Merger (the "Merger
Agreement"), pursuant to which Rifle Merger Co. is merging (the "Merger") with
and into the Company and the Company is becoming a wholly-owned subsidiary of
Xxxxxxxx-Xxxxx;
WHEREAS, pursuant to the terms of the Restricted Stock Amendment, the
shares of Restricted Stock designated on Schedule A as unvested (the "Unvested
Restricted Stock"), giving effect to the two for one stock split of the Company
Common Shares declared on April 18, 1995, are to become vested at the Effective
Time (as such term is defined in the Merger Agreement);
WHEREAS, in order for the Merger to be accounted for as a pooling of
interests, the Company and the Grantee desire to rescind the Restricted Stock
Amendment prior to the Effective Time so that the shares of Unvested Restricted
Stock remain unvested at the Effective Time; and
WHEREAS, the Company, the Grantee and Xxxxxxxx-Xxxxx desire to enter into
this Agreement to provide that at the Effective Time the shares of Unvested
Restricted Stock shall be cancelled and exchanged for shares of common stock of
Xxxxxxxx-Xxxxx ("Xxxxxxxx-Xxxxx Common Stock") having a market value at the
Effective Time equal to the value (the "Unvested Restricted Stock Value") of the
Unvested Restricted Stock, as shall be determined by Xxxxxx Associates in the
manner set forth on Schedule B hereto as of the Effective Time.
NOW, THEREFORE, in consideration of the mutual promises and agreements
contained herein, the adequacy and sufficiency of which are hereby acknowledged,
the Company, Xxxxxxxx-Xxxxx and the Optionee hereby agree as follows:
1. Rescission of Restricted Stock Amendment. At the Effective Time, the
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Restricted Stock Amendment shall be rescinded and shall be of no further force
or effect whatsoever.
2. Exchange of Unvested Restricted Stock. At the Effective Time, the
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shares of Unvested Restricted Stock which are outstanding immediately prior to
the Effective Time shall be cancelled and exchanged for the number of shares of
Xxxxxxxx-Xxxxx Common Stock, decreased to the nearest whole share, having an
aggregate market value at the Effective Time equal to the Unvested Restricted
Stock Value. Xxxxxxxx-Xxxxx shall pay cash to the Grantee in lieu of issuing
fractional shares of Xxxxxxxx-Xxxxx Common Stock, unless in the reasonable
judgment of Xxxxxxxx-Xxxxx, based on the advice of its independent accountants,
such payment would adversely affect the ability to account for the Merger as a
pooling of interests in accordance with generally accepted accounting
principles. For purposes of this Section 2, the market value of a share of
Xxxxxxxx-Xxxxx Common Stock at the Effective Time shall be equal to the closing
price of the Xxxxxxxx-Xxxxx Common Stock on the business day next preceding the
Effective Time, as reported in The Wall Street Journal as New York Stock
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Exchange Composite Transactions. Xxxxxxxx-Xxxxx shall register under the
Securities Act of 1933, as amended (the "Securities Act"), on the appropriate
form all shares of Xxxxxxxx-Xxxxx Common Stock issuable pursuant to this
Section 2.
3. Termination of Agreement. This Agreement shall terminate and shall be
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of no further force or effect if the Merger Agreement shall be terminated and
the Merger shall not become effective pursuant to the terms thereof.
4. Successors; Binding Agreement. This Agreement shall inure to the
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benefit of and be enforceable by the Grantee and by his personal or legal
representatives, executors, administrators, heirs, distributees, devisees and
legatees and by the Company and Xxxxxxxx-Xxxxx and their respective successors
and assigns.
5. Notices. All notices and other communications required or permitted
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under this Agreement shall be in writing and shall be deemed to have been duly
given when personally delivered, when delivered by courier or overnight express
service or five days after having been sent by certified or registered mail,
postage prepaid, addressed (a) if to the Grantee, to the Grantee's address set
forth in the records of the Company, or if to the Company or Xxxxxxxx-Xxxxx, to
O. Xxxxxx Xxxxxxxx, Senior Vice President and General Counsel, Xxxxxxxx-Xxxxx
Corporation,
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000 Xxxxxx Xxxxx, Xxxxxx, Xxxxx 00000, with a copy to Xxxxxx X. Xxxx, Xxxxxx &
Xxxxxx, Xxx Xxxxx Xxxxxxxx Xxxxx, Xxxxxxx, Xxxxxxxx 00000, or (b) to such other
address as any party may have furnished to the other parties in writing in
accordance herewith, except that notices of change of address shall be effective
only upon receipt.
6. Governing Law; Validity. The interpretation, construction and
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performance of this Agreement shall be governed by and construed and enforced in
accordance with the internal laws of the State of Delaware without regard to the
applicable principles of conflicts of laws. The invalidity or unenforceability
of any provision of this Agreement shall not affect the validity or
enforceability of any of the other provisions of this Agreement, which other
provisions shall remain in full force and effect.
7. Counterparts. This Agreement may be executed in two or more
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counterparts, each of which shall be deemed to be an original and all of which
together shall constitute one and the same instrument.
8. Miscellaneous. No provision of this Agreement may be modified or
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waived unless such modification or waiver is agreed to in writing and executed
by the Grantee and by a duly authorized officer of the Company and of Xxxxxxxx-
Xxxxx. No waiver by any party hereto at any time of any breach by another party
hereto of, or failure to comply with, any condition or provision of this
Agreement to be performed or complied with by such other party shall be deemed a
waiver of any similar or dissimilar conditions or provisions at the same or at
any prior or subsequent time. Failure by the Grantee, the Company or Xxxxxxxx-
Xxxxx to insist upon strict compliance with any provision of this Agreement or
to assert any right which the Grantee, the Company or Xxxxxxxx-Xxxxx may have
hereunder shall not be deemed to be a waiver of such provision or right or any
other provision of or right under this Agreement.
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IN WITNESS WHEREOF, each of the Company and Xxxxxxxx-Xxxxx has caused this
Agreement to be executed by its duly authorized officer and the Grantee has
executed this Agreement as of the day and year first above written.
XXXXX PAPER COMPANY
By:
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XXXXXXXX-XXXXX CORPORATION
By:
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GRANTEE:
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X. Xxxxxx White
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SCHEDULE A
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Schedule of Unvested Restricted Stock
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Date of Grant Number of Shares Vesting Date
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2/16/93 10,000 2/16/96
2/15/94 20,000 2/15/97
SCHEDULE B
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Determination of Unvested Restricted Stock Value
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by Xxxxxx Associates
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Valuation Methodology
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Calculations will be based on the market price of the Xxxxx stock as of the
close of business on the day preceding the Effective Time. To this market price
will be applied an Annual Turnover discount as indicated below for the
probability that a holder of Restricted Stock will not complete the vesting
schedule as outlined, and thus not receive full ownership of the entire grant
share.
Valuation Assumptions
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Stock Price on Valuation Date $_________
Grant Date __________
Valuation Date Close of business on day preceding
the Effective Time
Annual Turnover 7.50%
Dividends Paid during restriction period on a
current basis.
Valuation Results
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Number of Unvested Shares __________
Vesting Date __________
Per Share Value __________
Total Unvested Value __________ (Number of Shares x Per
Share Value)
