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EXHIBIT 10.31
RESTRICTED PROPERTY AGREEMENT
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(Not Transferable)
This Agreement, by and between XXXX CORPORATION, a Delaware corporation (the
"Company"), pursuant to action of the Xxxx Corporation Compensation Committee
(the "Committee"), and Xxxxxx X. Xxxxxxxx (the "Employee"), is made and entered
into as a separate inducement in connection with the Employee's employment and
not in lieu of any salary or other compensation for the Employee's services,
awarding to the Employee the property listed in Schedule A hereto, which is
hereby incorporated by reference, (the "Restricted Property") pursuant to and
subject to the Terms and Conditions attached hereto, which constitute the
entire understanding between the Company and the Employee with respect to this
Restricted Property Agreement.
This Agreement executed as of December 17th, 1997 (the "Grant Date").
XXXX CORPORATION
/s/ Xxxxxx X. XxXxxxxx
By --------------------------------
Xxxxxx X. XxXxxxxx
Its: Secretary
and
/s/ Xxxxxx X. Xxxxxxxx
By --------------------------------
Xxxxxx X. Xxxxxxxx
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TERMS AND CONDITIONS OF RESTRICTED PROPERTY AGREEMENT
The term "Affiliate" shall mean any corporation (or partnership, joint
venture, or other enterprise), of which the Company owns or controls, directly
or indirectly, at least 50% of the outstanding shares of stock normally
entitled to vote for the election of directors (or comparable equity
participation and voting power).
1. The Employee hereby appoints the Secretary or any Assistant Secretary
of the Company, or their delegate (the "Agent"), as agent for the purpose of
receiving the property transferred pursuant to paragraph 2 and directs the
Agent to hold the property under the terms of and subject to the conditions of
this Agreement. The Employee agrees that the Agent shall be empowered to take
any action necessary to fulfill the Employee's obligations under the escrow
requirements of this Agreement, including, if necessary, the redelivery of
forfeited Restricted Property pursuant to paragraph 6 of this Agreement.
2. The Company shall transfer, or cause to be transferred the property
listed in Schedule A in the name of the Employee representing the Restricted
Property to the Agent in escrow as soon as practicable after execution by both
parties of this Agreement. The Company and the Employee agree that the
transfer of such property shall constitute the legal equivalent of delivery to
the Employee.
3. The Employee agrees that the Restricted Property may not be sold,
assigned, transferred, pledged, hypothecated, or otherwise disposed of until
the conditions set forth in paragraph 4 satisfied.
4. The restrictions on the Restricted Property set forth in paragraph 3
hereof shall lapse as to any portion of the Restricted Property on the first
business day after the Committee (or any successor to the Committee) from time
to time, in its sole discretion, approves the release of the restrictions set
forth in paragraph 3 with respect to such portion of the Restricted Property.
Subject to the discretion of the Committee, the restrictions with respect to a
portion of the Restricted Property with a value of $300,000 shall lapse during
each of May, 1998, May, 1999 and May, 2000. Notwithstanding the foregoing, if
prior to January 1, 2001 the restrictions set forth in paragraph 3 have not
been released as to a portion of the Restricted Property, such restrictions
shall not lapse with respect to such property and it shall be forfeited
pursuant to paragraph 6 hereof.
5. Upon the lapse of restrictions set forth in paragraph 3, the Agent
shall transfer, or cause to be transferred, the portion of the Restricted
Property representing the property released from restrictions to the Employee
or his legal representative as soon as practicable after the lapse of such
restrictions.
6. The Employee agrees that upon his termination from the Company and its
Affiliates for any reason (including retirement, death or disability) he shall
forfeit any rights he may have to the Restricted Property remaining subject to
the restrictions set forth in paragraph 3 when he terminates from the Company
and its Affiliates. Upon such a forfeiture of rights, the forfeited property
shall revert to the Company on the day following the event of
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forfeiture and the Employee directs the Agent to retransfer such Restricted
Property to the Company.
7. Until such time as the Employee may forfeit any rights he may have
under this Agreement in accordance with paragraph 6, the Employee shall be the
owner of record for all purposes with respect to the Restricted Property and
shall have all rights of an owner of such property, including the right to vote
the Restricted Property at any meeting of the owner of such property and the
right to receive all dividends declared and paid with respect to the Restricted
Property, subject only to the restrictions imposed by this Agreement. If the
Employee forfeits any rights he may have with respect to the Restricted
Property in accordance with paragraph 6, the Employee shall, on the day
following the event of forfeiture, no longer have any rights as an owner with
respect to the Restricted Property or any interest therein and the Employee
shall no longer be entitled to receive dividends on Restricted Property. In
the event that for any reason the Employee shall have received dividends upon
Restricted Property after such forfeiture, the Employee shall repay to the
Company an amount equal to such dividends.
8. If as a result of a stock dividend, stock split, recapitalization,
merger, consolidation, reorganization or other event, the Employee shall, as
the owner of the Restricted Property, be entitled to new or additional stock or
different stock or securities, such new or additional stock or different stock
or securities shall be deemed to be "Restricted Property" for all purposes of
this Agreement. The Agent shall hold such new or additional property or
different property pursuant to the terms and conditions of this Agreement.
9. Each of the parties hereto agrees to execute and deliver all consents
and other instruments and take all other actions deemed necessary or desirable
by counsel for the Company to carry out each provision of this Agreement.
10. This Agreement shall be administered by the Committee, which Committee
(unless otherwise determined by the Board) shall satisfy the "nonemployee
director" requirements of Rule 16b-3 under the Exchange Act and the regulations
of Rule 16b-3 under the Exchange Act and the "outside director" provisions of
Section 162(m) of the Internal Revenue Code of 1986, as amended, or any
successor regulations or provisions. All determinations and decisions made by
the Committee pursuant to the provisions of this Agreement shall be final,
conclusive and binding on all persons, including the Company, its Board of
Directors, its stockholders, all Affiliates, the Employee, and his estate and
beneficiaries.
11. The Committee may at any time and from time to time, alter, amend,
modify or terminate the Agreement in whole or in part. Notwithstanding the
foregoing, no modification of the Agreement shall, without the written consent
of the Employee, alter or impair his rights under this Agreement.
12. The Company shall have the power and the right to deduct or withhold,
or require the Employee to remit to the Company, an amount sufficient to
satisfy federal, state, and local taxes, domestic or foreign, required by law
or regulation to be withheld with
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respect to any taxable event arising as a result of this Agreement. The
Company and any Affiliate shall have the right to retain a portion of the
Restricted Property that is distributable to the Employee hereunder to the
extent necessary to satisfy any withholding taxes, whether federal or
state, triggered by the distribution of such property under this Agreement.
13. Each person who is or has been a member of the Committee, or of the
Board, shall be indemnified and held harmless by the Company against and from
any loss, cost, liability, or expense that may be imposed upon or reasonably
incurred by such person in connection with or resulting from any claim, action,
suit, or proceeding to which such person may be a party or in which such person
may be involved by reason of any action taken or failure to act under the
Agreement and against and from any and all amounts paid by such person in a
settlement approved by the Company, or paid by such person in satisfaction of
any judgment in any such action, suit, or proceeding against such person,
provided such person shall give the Company an opportunity, at its own expense,
to handle and defend the same before such person undertakes to handle and
defend it. The foregoing right of indemnification shall not be exclusive of
any other rights of indemnification to which such persons may be entitled under
the Company's Articles of Incorporation or By-Laws, as a matter of law, or
otherwise, or any power that the Company may have to indemnify them or hold
them harmless.
14. All obligations of the Company under the Agreement shall be binding on
any successor to the Company, whether the existence of such successor is the
result of a direct or indirect purchase of all or substantially all of the
business and/or assets of the Company, or a merger, consolidation, or
otherwise.
15. This Agreement is not a contract of employment, and no terms of
employment of the Employee shall be affected in any way by this Agreement or
related instruments except as specifically provided therein. This Agreement
shall not be construed as conferring any legal rights upon the Employee for a
continuation of employment, nor shall it interfere with the right of the
Company or any Affiliate to discharge the Employee and to treat him without
regard to the effect that such treatment might have upon him under this
Agreement.
16. Any notice or other communication required or permitted hereunder
shall be in writing and shall be delivered personally, or sent by certified,
registered or express mail, postage prepaid. Any such notice shall be deemed
given when so delivered personally or, if mailed, three days after the date of
deposit in the United States mail, in the case of the Company to 21557
Xxxxxxxxx Xxxx, X. X. Xxx 0000, Xxxxxxxxxx, Xxxxxxxx, 00000-0000, Attention:
Xxxxxx X. XxXxxxxx and, in the case of the Employee, to its address set forth
on the signature page hereto or, in each case, to such other address as may be
designated in a notice given in accordance with this Section.
17. This Agreement shall be construed and enforced in accordance with, and
governed by, the laws of the State of Delaware, determined without regard to
its conflict of law rules.
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SCHEDULE A
LIST OF RESTRICTED PROPERTY
1,500,000 Share of Xxxxx Xxxxxx Money Funds
Cash Portfolio Class - A
