Exhibit 10.23
XXXXXXXX CORPORATION
RESTRICTED STOCK AGREEMENT
This Restricted Stock Agreement (this "Agreement") is made and
entered into as of February 5, 2003 by and between Xxxxxxxx Corporation, a
Missouri corporation (the "Corporation") and Xxx X. Xxxxxx ("Executive").
WHEREAS, Executive has heretofore performed valuable services for
the Corporation and the Corporation desires to encourage Executive to
continue to perform such services in the future; and
WHEREAS, in consideration of the foregoing, the Board of Directors
of the Corporation desires to award shares of the Corporation's common
stock, $1.00 par value (the "Common Stock"), to Executive pursuant to
Section 2.3(c) of that certain employment agreement dated February 5, 2003
by and between the Corporation and Executive (the "Employment Agreement")
and Executive desires to receive such shares on the terms and conditions,
and subject to the restrictions, herein set forth; and
NOW, THEREFORE, in consideration of the terms and conditions herein
contained and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged by each of the parties hereto,
the parties hereby agree as follows:
Section 1. Definitions.
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As used in this Agreement, the following terms shall have the
following meanings:
A. "Award" means the award provided for in Section 2.
B. "Board of Directors" means the Board of Directors of
the Corporation.
C. "Cause" means (i) Executive's willful and continued
failure to substantially perform his duties and
responsibilities with Xxxxxxxx (other than as a
result of incapacity due to a physical or mental
condition), after a written demand for substantial
performance is delivered by Xxxxxxxx to Executive in
which there is a specific identification of the
manner in which Executive is not substantially
performing his duties and responsibilities; (ii)
Executive's commission of an act constituting a
criminal offense involving moral turpitude,
dishonesty or breach of trust; or (iii) Executive's
material breach of the terms of the Employment
Agreement.
D. "Date of Award" means February 5, 2003.
E. "Disability" means that Executive has been unable to
perform the duties and responsibilities
then-required of him under the terms of the
Employment Agreement on a full-time basis for a
period of 180 consecutive business days by reason of
physical or mental condition. Disability shall be
deemed to exist when certified by a physician or
physicians selected by the Corporation who are
acceptable to Executive or Executive's legal
representative, such agreement as to acceptability
not to be unreasonably withheld.
F. "Period of Restriction" means with respect to the
Restricted Shares, the period of time between the
Date of Award and the date that the Restrictions
lapse as set forth in Section 4 of this Agreement.
G. "Restricted Shares" means the number of shares of
the Corporation's Common Stock being granted
pursuant to Section 2 of this Agreement, as well as
any additional shares of Common Stock or other
securities that may be issued after the date of the
initial grant pursuant to Section 8 of this
Agreement.
H. "Restrictions" mean the restrictions on the Award as
provided for in Section 3.
Section 2. Award. Subject to the terms of this Agreement and the
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Corporation's 1999 Performance Plan, effective as of the Date of Award, the
Corporation awards to Executive an aggregate of 22,636 Restricted Shares,
subject to the Restrictions set forth in Section 3 and the limitations on
transfer set forth in Section 5.
Section 3. Forfeiture of Shares for Certain Terminations of
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Employment during Period of Restriction. If Executive shall cease to be
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employed by the Corporation during the Period of Restriction due to a
termination by the Corporation for Cause or termination by Executive for any
reason other than death or Disability, Executive shall immediately forfeit
to the Corporation all Restricted Shares that have not previously vested as
provided in Section 4, without any consideration paid to Executive, and,
thereafter, Executive shall have no further rights with respect to such
Restricted Shares (hereinafter referred to herein as the "Restrictions").
For purposes of this Section 3, any period during which Executive is
retained as a consultant by the Corporation shall be deemed to be a period
in which Executive is employed by the Corporation.
Section 4. Lapse in Period of Restriction. If Executive shall have
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been continuously employed by the Corporation from the Date of Award through
January 31, 2005, the Period of Restriction shall lapse and the Restrictions
shall no longer be applicable as to all Restricted Shares held by or on
behalf of Executive on January 31, 2005. The Period of Restriction will also
lapse with respect to all Restricted Shares then held by Executive upon the
termination of Executive's employment with the Corporation prior to January
31, 2005 if such termination: (i) occurred by reason of Executive's death or
Disability or (ii) was initiated by the Corporation for any reason other
than Cause. For purposes of this Section 4, any period during which
Executive
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is retained as a consultant by the Corporation shall be deemed to be a period
in which Executive is employed by the Corporation.
Section 5. Limitations on Transfer during Period of Restriction.
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Restricted Shares may not be sold, assigned, transferred, exchanged,
pledged, hypothecated, or otherwise encumbered during the Period of
Restriction, and no such sale, assignment, transfer, exchange, pledge,
hypothecation, or encumbrance, whether made or created by voluntary act of
Executive or of any agent of such Executive or by operation of law, shall be
recognized by, or be binding upon, or shall in any manner affect the rights
of, the Corporation or any agent or any custodian holding certificates for
such Restricted Shares during the Period of Restriction.
Section 6. Shareholder Rights during Period of Restriction. Unless
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and until such the Restricted Shares are forfeited as set forth in Section 3
hereof, Executive shall have all of the rights of a shareholder of the
Corporation with respect to Restricted Shares, including the right to vote
and to receive dividends on the Restricted Shares, during the Period of
Restriction.
Section 7. Legend. Each certificate evidencing the Restricted
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Shares shall bear a legend referring to this Agreement and the fact that
such Restricted Shares are subject to the Restrictions through the Period of
Restriction. Such legend referred to in this Section 7 shall read as
follows:
THE SALE OR OTHER TRANSFER OF THE SHARES OF STOCK REPRESENTED BY
THIS CERTIFICATE, WHETHER VOLUNTARY, INVOLUNTARY, OR BY OPERATION
OF LAW, IS SUBJECT TO CERTAIN RESTRICTIONS, INCLUDING LIMITATIONS
ON TRANSFER, AS SET FORTH IN A RESTRICTED STOCK AGREEMENT DATED
FEBRUARY 5, 2003. A COPY OF THE RESTRICTED STOCK AGREEMENT MAY BE
OBTAINED FROM THE SECRETARY OF XXXXXXXX CORPORATION.
The Corporation shall cause certificates without such legend to be
issued for any of the Restricted Shares as and when the Period of
Restriction lapses. Executive agrees upon request of the Corporation to
deliver to the Corporation for cancellation any certificate which represents
Restricted Shares that have been forfeited.
Section 8. Adjustment in Certain Events. If there is any change in
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the Common Stock by reason of stock dividends, split-ups, mergers,
consolidations, reorganizations, combinations or exchanges of shares or the
like, each Restricted Share under this Agreement shall be adjusted in the
same manner as any other share of the Corporation's Common Stock and the
provisions of this Agreement shall extend not only to the number of
Restricted Shares awarded hereunder, but also to all additional shares of
Common Stock or other securities received by Executive pursuant to any such
change with respect to the Restricted Shares granted hereunder, which
additional shares of Common Stock or other securities shall be deemed to be
Restricted Shares for purposes of this Agreement.
Section 9. Amendment. This Agreement may be amended by mutual
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consent of the parties hereto by written agreement.
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Section 10. Withholding. The Corporation shall have the right to
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withhold from or require Executive to pay to the Corporation any amounts
required to be withheld by the Corporation in respect of any Federal, estate
or local taxes in respect of the Restricted Shares or any compensation under
this Agreement.
Section 11. Governing Law. This Agreement shall be construed and
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administered in accordance with the laws of the State of Missouri.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed as of the day first written above.
XXXXXXXX CORPORATION
By: /s/ Xxxxxx X. Xxxx
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Xxxxxx X. Xxxx
Vice President, General Counsel and Secretary
EXECUTIVE
/s/ Xxx X. Xxxxxx
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Xxx X. Xxxxxx
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