EXHIBIT 10.2
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EXHIBIT B
XXXXXXXX, INC.
RESTRICTED STOCK AWARD AGREEMENT
Xxxxxxxx, Inc., a Delaware corporation (the "Company"), hereby
grants to Xxxxxxx X. Xxxxxxx (the "Holder") as of September 28, 2005 (the
"Grant Date"), pursuant to the provisions of the Xxxxxxxx, Inc. 2005 Long-
Term Incentive Plan (the "Plan"), a restricted stock award (the "Award") of
3,500 shares of the Company's Common Stock, $.10 par value ("Shares"), upon
and subject to the restrictions, terms and conditions set forth below.
Capitalized terms not defined herein shall have the meanings specified in
the Plan.
1. AWARD SUBJECT TO ACCEPTANCE OF AGREEMENT. The Award
shall be null and void unless the Holder shall (a) accept this Agreement by
executing it in the space provided below and returning it to the Company
and (b) if requested by the Company, execute and return one or more
irrevocable stock powers to facilitate the transfer to the Company (or its
assignee or nominee) of the Shares subject to the Award if Shares are
forfeited pursuant to Section 4 hereof or if required under applicable laws
or regulations. As soon as practicable after the Holder has executed this
Agreement and, if requested by the Company, such stock power or powers, and
returned the same to the Company, the Company shall cause to be issued in
the Holder's name the total number of Shares subject to the Award.
2. RIGHTS AS A STOCKHOLDER. The Holder shall have the right
to vote the Shares subject to the Award and to receive dividends and other
distributions thereon unless and until such Shares are forfeited pursuant
to Section 4(c) hereof; provided, however, that a dividend or other
distribution with respect to such Shares (including, without limitation, a
stock dividend or stock split), other than a regular cash dividend, shall
be subject to the same restrictions as the Shares with respect to which
such dividend or other distribution was made (and if the Holder shall have
received such dividend or other distribution, the Holder shall deliver the
same to the Company and shall, if requested by the Company, execute and
return one or more irrevocable stock powers related thereto).
3. CUSTODY AND DELIVERY OF CERTIFICATES REPRESENTING SHARES.
The Shares subject to the Award shall be held by the Company or by a
custodian in book entry form, with restrictions on the Shares duly noted,
until such Award shall have vested pursuant to Section 4 hereof, and as
soon thereafter as practicable, the vested Shares shall be delivered to the
Holder as the Holder shall direct. Alternatively, in the sole discretion
of the Company, the Company shall hold a certificate or certificates
representing the Shares subject to the Award until such Award shall have
vested, in whole or in part, pursuant to Section 4 hereof, and the Company
shall as soon thereafter as practicable, deliver the certificate or
certificates for the vested Shares to the Holder and destroy the stock
power or powers relating to the vested Shares delivered by the Holder
pursuant to Section 1 hereof. If such stock power or powers also relate to
unvested Shares, the Company may require, as a condition precedent to
delivery of any certificate pursuant to this Section 3, the execution and
delivery to the Company of one or more stock powers relating to such
unvested Shares.
4. VESTING.
(a) Subject to earlier vesting pursuant to Section 4(b)
hereof or in accordance with Section 6.8 of the Plan, the Award shall vest
with respect to 1,167 Shares on each of the first and second anniversaries
of the Grant Date and with respect to 1,166 Shares on the third anniversary
of the Grant Date.
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(b) If the Holder ceases to be employed by the Company by
reason of Disability, by reason of retirement on or after age 65 (or prior
to age 65 with the consent of the Committee), or by reason of the Holder's
death, each Share subject to the Award shall vest in full as of the date
that the Holder ceases to be employed by the Company or the date of death,
as the case may be.
(c) If the Holder ceases to be employed by the Company for
any reason other than Disability, retirement on or after age 65 (or prior
to age 65 with the consent of the Committee), or death, termination by the
Company without "Cause", or by the Holder for "Good Reason" (as such terms
are defined in the Holder's Employment Agreement with the Company) or
termination following a "Change in Control" (as defined in the Xxxxxxxx,
Inc. Executive Special Severance Plan) each Share subject to the Award
which has not vested prior thereto shall be forfeited by the Holder and
shall be transferred, without payment of any consideration to the Holder,
to the Company (or its assignee or nominee) and all rights of the Holder to
or with respect to such Share shall terminate; provided, however, that the
Committee may, in its discretion, accelerate the vesting thereof.
5. ADDITIONAL TERMS AND CONDITIONS OF AWARD.
5.1. NONTRANSFERABILITY OF AWARD. Prior to the vesting of the
Shares subject to the Award, such Shares may not be transferred by the
Holder other than by will, the laws of descent and distribution or pursuant
to beneficiary designation procedures approved by the Company. Except to
the extent permitted by the foregoing, such unvested Shares may not be
sold, transferred, assigned, pledged, hypothecated, encumbered or otherwise
disposed of (whether by operation of law or otherwise) or be subject to
execution, attachment or similar process. Upon any attempt to so sell,
transfer, assign, pledge, hypothecate or encumber or otherwise dispose of
such Shares, the Award and all rights thereunder shall immediately become
null and void.
5.2. INVESTMENT REPRESENTATION. The Holder hereby represents
and covenants that (a) any Shares acquired upon the vesting of the Award
will be acquired for investment and not with a view to the distribution
thereof within the meaning of the Securities Act of 1933, as amended (the
"Securities Act"), unless such acquisition has been registered under the
Securities Act and any applicable state securities law; (b) any subsequent
sale of any such Shares shall be made either pursuant to an effective
registration statement under the Securities Act and any applicable state
securities laws, or pursuant to an exemption from registration under the
Securities Act and such state securities laws; and (c) if requested by the
Company, the Holder shall submit a written statement, in form satisfactory
to the Company, to the effect that such representation (x) is true and
correct as of the date of acquisition of any Shares hereunder or (y) is
true and correct as of the date of any sale of any such Shares, as
applicable. As a further condition precedent to the delivery to the Holder
of any Shares subject to the Award, the Holder shall comply with all
regulations and requirements of any regulatory authority having control of
or supervision over the issuance of the Shares and, in connection
therewith, shall execute any documents which the Board or the Committee
shall in its sole discretion deem necessary or advisable.
5.3. COMPLIANCE WITH APPLICABLE LAW. The Award is subject to
the condition that if the listing, registration or qualification of the
Shares subject to the Award upon any securities exchange or under any law,
or the consent or approval of any governmental body, or the taking of any
other action is necessary or desirable as a condition of, or in connection
with, the vesting or delivery of such Shares, the Shares subject to the
Award shall not vest or be delivered, in whole or in part, unless such
listing, registration, qualification, consent, approval or other action
shall have been effected or obtained, free of any conditions not acceptable
to the Company. The Company agrees to use reasonable efforts to effect or
obtain any such listing, registration, qualification, consent, approval or
other action.
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5.4. DELIVERY OF CERTIFICATES. Upon the vesting of the Award,
in whole or in part, the Company shall deliver or cause to be delivered one
or more certificates representing the number of vested Shares. The Company
shall pay all original issue or transfer taxes and all fees and expenses
incident to such delivery.
5.5. AWARD CONFERS NO RIGHTS TO CONTINUED BOARD MEMBERSHIP.
In no event shall the granting of the Award or its acceptance by the Holder
give or be deemed to give the Holder any right to continue as a member of
the Board.
5.6. DECISIONS OF BOARD OR COMMITTEE. The Board or the
Committee shall have the right to resolve all questions which may arise in
connection with the Award. Any interpretation, determination or other
action made or taken by the Board or the Committee regarding the Plan or
this Agreement shall be final, binding and conclusive.
5.7. AGREEMENT SUBJECT TO THE PLAN. This Agreement is subject
to the provisions of the Plan and shall be interpreted in accordance
therewith. The Holder hereby acknowledges receipt of a copy of the Plan.
6. Miscellaneous Provisions.
6.1. SUCCESSORS. This Agreement shall be binding upon and
inure to the benefit of any successor or successors of the Company and any
person or persons who shall, upon the death of the Holder, acquire any
rights hereunder in accordance with this Agreement or the Plan.
6.2. NOTICES. All notices, requests or other communications
provided for in this Agreement shall be made, if to the Company, to
Xxxxxxxx, Inc., 0 Xxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxx 00000, Attention: Vice
President, Treasurer, Secretary and Chief Financial Officer, and if to the
Holder, to the last known mailing address of the Holder contained in the
records of the Company. All notices, requests or other communications
provided for in this Agreement shall be made in writing either (a) by
personal delivery, (b) by facsimile with confirmation of receipt, (c) by
mailing in the United States mails or (d) by express courier service. The
notice, request or other communication shall be deemed to be received upon
personal delivery, upon confirmation of receipt of facsimile transmission,
or upon receipt by the party entitled thereto if by United States mail or
express courier service; provided, however, that if a notice, request or
other communication is not received during regular business hours, it shall
be deemed to be received on the next succeeding business day of the
Company.
6.3. GOVERNING LAW. This Agreement, the Award and all
determinations made and actions taken pursuant hereto and thereto, to the
extent not otherwise governed by the laws of the United States, shall be
governed by the laws of the State of Delaware and construed in accordance
therewith without giving effect to conflicts of laws principles.
6.4. COUNTERPARTS. This Agreement may be executed in two
counterparts each of which shall be deemed an original and both of which
together shall constitute one and the same instrument.
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XXXXXXXX, INC.
By:
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Name:
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Title:
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ACKNOWLEDGMENT, ACCEPTANCE AND AGREEMENT:
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By signing below and returning this Agreement to Xxxxxxxx, Inc., Inc. at
the address stated herein, I hereby acknowledge receipt of the Agreement
and the Plan, accept the Award granted to me and agree to be bound by the
terms and conditions of this Agreement and the Plan.
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Holder
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