FORM] HARMAN INTERNATIONAL INDUSTRIES, INCORPORATED AMENDED AND RESTATED 2002 STOCK OPTION AND INCENTIVE PLAN RESTRICTED SHARE UNIT AGREEMENT FOR NON-OFFICER DIRECTORS
Exhibit
10.7
[FORM]
XXXXXX
INTERNATIONAL INDUSTRIES, INCORPORATED
AMENDED
AND RESTATED 2002 STOCK OPTION AND INCENTIVE PLAN
FOR
NON-OFFICER DIRECTORS
THIS
RESTRICTED SHARE UNIT AGREEMENT (this “Agreement”), dated as of __________, is
entered into between XXXXXX INTERNATIONAL INDUSTRIES, INCORPORATED a Delaware
corporation (the “Company”), and __________ (“Grantee”). Capitalized
terms used herein but not defined shall have the meanings assigned to those
terms in the Company’s Amended and Restated 2002 Stock Option and Incentive
Plan, as amended (the “Plan”)
A. The
Plan provides for an automatic grant of Restricted Share Units to each
Non-Officer director on the date of the annual meeting of the Company’s
stockholders or, with respect to a newly elected Non-Officer Director, upon the
date of such director’s election to the Board (such date, the “Date of
Grant”);
B.
Grantee is a Non-Officer Director of the Company;
and
C.
The execution of this Agreement in the form hereof has
been authorized by the Compensation and Option Committee of the Board (the
“Committee”).
1.
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Grant of Restricted Share
Units. Subject to and upon the terms, conditions, and
restrictions set forth in this Agreement and in the Plan, the Company
hereby grants to the Grantee __________ Restricted Share Units (the
“Grant”). This Agreement constitutes an “Evidence of Award”
under the Plan.
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2.
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Date of
Grant. The effective date of the Grant is ________ (the
“Date of Grant”).
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3.
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Restrictions on Transfer of
Restricted Share Units. Other than as provided herein,
neither the Restricted Share Units granted hereby nor any interest therein
shall be transferable other than by will or the laws of descent and
distribution.
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4.
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Vesting of Restricted Share
Units.
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(a)
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Except
as otherwise provided in this Agreement, one-third of the Restricted Share
Units shall become nonforfeitable on each of the first three anniversaries
of the Date of Grant (each applicable date, a “Vesting Date”), unless
earlier forfeited in accordance with
Section 5.
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(b)
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Notwithstanding
the provisions of Section 4(a) above, all Restricted Share Units shall
become immediately nonforfeitable upon the occurrence of a Change in
Control (as defined below). A “Change in Control” means the
occurrence, before this Agreement terminates, of any of the following
events:
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(i)
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the
acquisition by any individual, entity or group (within the meaning of
Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934,
as amended (the “Exchange Act”)) (a “Person”) of beneficial ownership
(within the meaning of Rule 13d-3 promulgated under the Exchange Act)
of 25% or more of the combined voting power of the then outstanding
securities of the Company entitled to vote generally in the election of
directors (the “Voting Shares”); provided, however, that for purposes of
this Section 4(b)(i), the following acquisitions shall not constitute
a Change in Control: (A) any issuance of Voting Shares directly
from the Company that is approved by the Incumbent Board (as defined in
Section 4(b)(ii) below), (B) any acquisition by the Company or a
Subsidiary of Voting Shares, (C) any acquisition of Voting Shares by any
employee benefit plan (or related trust) sponsored or maintained by the
Company or any Subsidiary or (D) any acquisition of Voting Shares by any
Person pursuant to a Business Combination that complies with clauses (A),
(B) and (C) of Section 4(b)(iii)
below;
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(ii)
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individuals
who, as of the date hereof, constitute the Board (the “Incumbent Board”)
cease for any reason to constitute at least a majority of the Board;
provided, however, that any individual becoming a Director after the date
hereof whose election, or nomination for election by the Company’s
stockholders, was approved by a vote of at least two-thirds of the
Directors then constituting the Incumbent Board (either by a specific vote
or by approval of the proxy statement of the Company in which such person
is named as a nominee for director, without objection to such nomination)
shall be deemed to have been a member of the Incumbent Board, but
excluding, for this purpose, any such individual whose initial assumption
of office occurs as a result of an actual or threatened election contest
(within the meaning of Rule 14a-12 of the Exchange Act) with respect to
the election or removal of Directors or other actual or threatened
solicitation of proxies or consents by or on behalf of a Person other than
the Board;
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(iii)
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consummation
of a reorganization, merger or consolidation, a sale or other disposition
of all or substantially all of the assets of the Company or other
transaction (each, a “Business Combination”), unless, in each case,
immediately following the Business Combination, (A) all or substantially
all of the individuals and entities who were the beneficial owners of
Voting Shares immediately prior to the Business Combination beneficially
own, directly or indirectly, more than 50% of the combined voting power of
the then outstanding Voting Shares of the entity resulting from the
Business Combination (including, without limitation, an entity which as a
result of such transaction owns the Company or all or substantially all of
the Company’s assets either directly or through one or more subsidiaries),
(B) no Person (other than the Company, such entity resulting from the
Business Combination, or any employee benefit plan (or related trust)
sponsored or maintained by the Company, any Subsidiary or such entity
resulting from the Business Combination) beneficially owns, directly or
indirectly, 25% or more of the combined voting power of the then
outstanding Voting Shares of the entity resulting from the Business
Combination and (C) at least a majority of the members of the board of
directors of the entity resulting from the Business Combination were
members of the Incumbent Board at the time of the execution of the initial
agreement or of the action of the Board providing for the Business
Combination; or
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(iv)
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approval
by the stockholders of the Company of a complete liquidation or
dissolution of the Company, except pursuant to a Business Combination that
complies with clauses (A), (B) and (C) of Section 4(b)(iii)
hereof.
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(c)
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Notwithstanding
the provisions of Section 4(a) above, all Restricted Share Units shall
immediately become nonforfeitable upon Grantee’s termination of service
from the Board (i) after Grantee has both attained age 65 and completed at
least five years of service as a Director, (ii) because of the
Grantee’s death, or (iii) because the Grantee has become permanently
disabled.
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5.
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Forfeiture of Restricted Share
Units.
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(a)
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Any
of the Restricted Share Units that remain forfeitable in accordance with
Section 4 hereof shall be forfeited if Grantee’s service as a
non-officer director ceases for any reason, other than subsequently
becoming an officer or employee of the Company or a Subsidiary while
remaining a director, prior to the applicable Vesting Date and prior to
such shares becoming nonforfeitable in accordance with Section 4
hereof.
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(b)
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Any
of the Restricted Share Units that remain forfeitable in accordance with
Section 4 shall be forfeited on the date that the Committee
determines that such Restricted Share Units shall be forfeited under the
circumstances described in Section 17(g) of the
Plan.
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6.
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Payment of Restricted Share
Units. The restrictions on transfer on the Restricted
Share Units imposed by Section 3 shall lapse and the shares of Common
Stock underlying the Restricted Share Units shall be transferred to the
Grantee (or to the Grantee’s estate as the case may be), except as
otherwise provided in Section 8 and Section 10, upon the first
to occur of the following events[; provided, however, that the Committee,
in its sole discretion, may settle the award of Restricted Share Units
wholly, or partly in cash]:
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(a)
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the
death of the Grantee;
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(b)
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the
disability of the Grantee, as the term “disability” is defined for
purposes of Section 409A of the
Code;
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(c)
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a
Change in Control, provided that such event constitutes a “change in the
ownership or effective control of the corporation, or in the ownership of
a substantial portion of the assets of the corporation,” as that term is
defined for purposes of Section 409A of the Code;
and
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(d)
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the
separation from service from the Company of the Grantee, as the term
“separation from service” is defined for purposes of Section 409A of the
Code.
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7.
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Dividend, Voting and Other
Rights. The Grantee shall have no rights of ownership in
the Restricted Share Units and shall have no voting rights with respect to
such Restricted Share Units until the date on which the shares of Common
Stock are transferred to the Grantee pursuant to Section 6
above. From and after the Date of Grant and until the earlier
of (a) the time when the Grantee receives the shares of Common Stock
underlying the Restricted Share Units in accordance with Section 6
hereof or (b) the time when the Grantee’s right to receive the Restricted
Share Units is forfeited in accordance with Section 5 hereof, the
Company shall pay to the Grantee whenever a normal cash dividend is paid
on shares of Common Stock, an amount of cash equal to the product of the
per-share amount of the dividend paid times the number of such Restricted
Share Units. Such payment shall be made within 30 days after
the corresponding dividend payment is made to the stockholders of the
Company.
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8.
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Retention of Common Stock by
the Company. At such time as the Restricted Share Units
become payable as specified in this Agreement, the Company shall direct
the transfer agent to forward all such payable shares of Common Stock to
the Grantee, except in the event that the Grantee has notified the Company
of his or her election to satisfy any tax obligations by surrender of a
portion of such shares, the transfer agent will be directed to forward the
remaining balance of shares after the amount necessary for such taxes has
been deducted.
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9.
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Compliance with
Law. The Company shall make reasonable efforts 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 or other securities
pursuant to this Agreement if the issuance thereof would, in the
reasonable opinion of the Company, result in a violation of any such
law. In such case, the Company shall comply with Treasury
Regulation section
1.409A-2(b)(7)(ii).
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10.
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Compliance with Section 409A of
the Code. Notwithstanding any provision of this
Agreement to the contrary, if the Grantee is a “specified employee”
(within the meaning of Section 409A of the Code (“Section 409A”) and
determined pursuant to procedures adopted by the Company from time to
time) at the time of his “separation from service” (within the meaning of
Section 409A) and if any payment to be received by the Grantee under
Section 6 or Section 8 upon his separation from service would be
considered deferred compensation (the “Delayed Payment”) under Section
409A, then the following provisions will apply to the Delayed
Payment. Each such payment of deferred compensation that would
otherwise be payable pursuant to Section 6 or Section 8 during the
six-month period immediately following the Grantee’s separation from
service will instead be paid or made available on the earlier of (i) the
first business day of the seventh month following the date the Grantee
incurs a separation from service and (ii) the Grantee’s
death. In the event this Section 10 applies, the fair
market value of the Restricted Share Units shall be the fair market value,
as determined in accordance with the Plan, on the earlier of the dates
specified in clauses (i) and (ii) above. To the extent
applicable, it is intended that this Agreement and the Plan comply with
the provisions of Section 409A and shall be interpreted consistent with
Section 409A.
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11.
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Communications. All
notices, demands and other communications required or permitted hereunder
or designated to be given with respect to the rights or interests covered
by this Agreement shall be deemed to have been properly given or delivered
when delivered personally or sent by certified or registered mail, return
receipt requested, U.S. mail or reputable overnight carrier, with full
postage prepaid and addressed to the parties as
follows:
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If
to the Company, at:
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000
Xxxxxxxx Xxxxxx, Xxxxx 0000
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Xxxxxxxx,
XX 00000
Attention: General
Counsel
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If
to Grantee, at:
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Grantee’s
address provided by Grantee on the last page
hereof
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Either
the Company or Grantee may change the above designated address by written notice
to the other specifying such new address.
12.
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Interpretation. The
interpretation and construction of this Agreement by the Committee shall
be final and conclusive. No member of the Committee shall be
liable for any such action or determination made in good
faith.
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13.
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Amendment in
Writing. This Agreement may be amended as provided in
the Plan; provided, however, that all such amendments shall be in
writing.
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14.
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Integration. The
Restricted Share Units are granted pursuant to the
Plan. Notwithstanding anything in this Agreement to the
contrary, this Agreement is subject to all of the terms and conditions of
the Plan, including but not limited to Section 10 of the
Plan. A copy of the Plan is available upon request and is
incorporated herein by reference. As such, this Agreement and
the Plan embody the entire agreement and understanding of the Company and
Grantee and supersede any prior understandings or agreements, whether
written or oral, with respect to the Restricted Share
Units.
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15.
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Severance. In
the event that one or more of the provisions 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.
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16.
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Governing
Law. This Agreement is made under, and shall be
construed in accordance with, the laws of the State of
Delaware.
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17.
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Counterparts. This
Agreement may be executed in one or more counterparts, each of which shall
be deemed an original and all of which together shall constitute one and
the same instrument.
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[REST
OF PAGE INTENTIONALLY LEFT BLANK]
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XXXXXX
INTERNATIONAL INDUSTRIES, INCORPORATED
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By:
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Name:
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Title:
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The
undersigned Grantee acknowledges receipt of an executed original of this
Agreement and accepts the Restricted Share Units subject to the applicable terms
and conditions of the Plan and the terms and conditions hereinabove set
forth.
Date:
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Grantee
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GRANTEE: Please
complete/update the following information.
Name:
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Home
Address:
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Social
Security Number:
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