TO: FROM: Steven J. Malcolm SUBJECT: 2007 Restricted Stock Unit Award
EXHIBIT 4.9
FORM OF NON-MANAGEMENT DIRECTOR RESTRICTED STOCK UNIT
AGREEMENT
AGREEMENT
TO: |
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FROM:
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Xxxxxx X. Xxxxxxx | |||
SUBJECT:
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2007 Restricted Stock Unit Award |
You have been granted a restricted stock unit award. This award, which is subject to adjustment
under the 2007 Restricted Stock Unit Agreement (the “Agreement”), is granted to you in recognition
of your role as a non-management director for The Xxxxxxxx Companies, Inc. It is granted and
subject to the terms and conditions of The Xxxxxxxx Companies, Inc. 2007 Incentive Plan, as amended
from time to time, and the Agreement.
Subject to all of the terms of the Agreement, you will become entitled to payment of this award
three years after the date on which this award is made.
If you have any questions about this award, you may contact a dedicated Fidelity Stock Plan
Representative at 0-000-000-0000.
THIS RESTRICTED STOCK UNIT AGREEMENT (this “Agreement”), which contains the terms and
conditions for the Restricted Stock Units (“Restricted Stock Units” or “RSUs”) referred to in the
2007 Restricted Stock Unit Award Letter delivered in hard copy or electronically to Participant
(“2007 Award Letter”), is by and between THE XXXXXXXX COMPANIES, INC., a Delaware corporation (the
“Company”) and the individual identified on the last page hereof (the “Participant”).
1. Grant of RSUs. Subject to the terms and conditions of The Xxxxxxxx Companies, Inc. 2007
Incentive Plan, as amended from time to time (the “Plan”), this Agreement and the 2007 Award
Letter, the Company hereby grants an award (the “Award”) to the Participant of RSUs
effective (the “Effective Date”). The Award gives the Participant the right to
receive the number of shares of the Common Stock of the Company equal to the number of RSUs shown
in the prior sentence, subject to adjustment under the terms of this Agreement. These shares are
referred to in this Agreement as the “Shares.” Until the Participant both becomes entitled to
payment of the Shares under the terms of Paragraph 4 and is paid such Shares under the terms of
Paragraph 5, the Participant shall have no rights as a stockholder of the Company with respect to
the Shares.
2. Incorporation of Plan. The Plan is hereby incorporated herein by reference and all
capitalized terms used herein which are not defined in this Agreement shall have the respective
meanings set forth in the Plan. The Participant acknowledges that he or she has received a copy of,
or has online access to, the Plan and hereby accepts the RSUs subject to all the terms and
provisions of the Plan and this Agreement.
3. Board Decisions and Interpretations. The Participant hereby agrees to accept as binding,
conclusive and final all actions, decisions and/or interpretations of the Board, its delegates, or
agents, upon any questions or other matters arising under the Plan or this Agreement.
4. Entitlement to Payment of Shares.
(a) Except as otherwise provided in Subparagraph 4(b) below, the Participant shall become
entitled to payment of all Shares on the date that is three years after the Effective Date
(not including the Effective Date) (the “Maturity Date”). For example, if the Effective
Date of the Participant’s award under this Agreement is May 17, 2007, the Maturity Date will
be May 17, 2010.
(b) If the Participant dies prior to the Maturity Date while serving as a Non-Management
Director of the Company or his or her service as a Non-Management Director of the Company
terminates for any other reason prior to the Maturity Date, the
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Participant shall become
entitled to payment of all Shares at the time of such death or
other termination of service.
5. Payment of Shares.
(a) All Shares that become payable pursuant to Paragraph 4, above shall be paid immediately
to the Participant following occurrence of the event giving rise to the right to payment or,
in the case of Participant’s death, to the beneficiary of the Participant under the Plan or,
if no beneficiary has been designated, to the Participant’s estate, provided that if the
Participant is a “key employee” within the meaning of Section 409A(a)(B)(i) of the Code, and
such Participant becomes entitled to payment of Shares under Subparagraph 4(b) above as a
result of a “separation from service” as defined in guidance issued under Section 409A of
the Code other than due to the Participant’s death, payment shall not be made sooner than
six (6) months following the date such Participant experienced a “separation from service”
as defined in Section 409A of the Code and guidance thereunder, and provided further, that
all Shares that become payable pursuant to Subparagraph 4(b) above shall be paid not more
than 90 days following the occurrence of the event giving rise to the right to payment
unless otherwise required under applicable law. Upon conversion of RSUs into Shares under
this Agreement, such RSUs shall be cancelled.
(b) Shares that become payable under this Agreement will be paid by the Company by the
delivery to the Participant, or the Participant’s beneficiary or legal representative, as
soon as practicable, after the Participant is entitled to the payment of Shares, of one or
more certificates (or other indicia of ownership) representing shares of Xxxxxxxx Common
Stock equal in number to the number of Shares otherwise payable under this Agreement.
6. Other Provisions.
(a) The Participant understands and agrees that payments under this Agreement shall not be
used for, or in the determination of, any other payment or benefit under any continuing
agreement, plan, policy, practice or arrangement providing for the making of any payment or
the provision of any benefits to or for the Participant or the Participant’s beneficiaries
or representatives, including, without limitation, any employment agreement, any change of
control severance protection plan or any employee benefit plan as defined in Section 3(3) of
ERISA, including, but not limited to qualified and non-qualified retirement plans.
(b) The Participant agrees and understands that, upon payment of Shares under this
Agreement, stock certificates (or other indicia of ownership) issued may be held as
collateral for monies he/she owes to Company or any of its parents, affiliated or subsidiary
companies or their vendor(s) contracted to provide business tools or services for use by
Participant in his or her service as a member of the Board of Directors, including but not
limited to personal loan(s) or Company credit card debt.
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(c) RSUs, Shares and the Participant’s interest in RSUs and Shares may not be sold,
assigned, transferred, pledged or otherwise disposed of or encumbered at any time prior to
the Participant’s becoming entitled to payment of Shares under this Agreement.
(d) With respect to the right to receive payment of the Shares under this Agreement, nothing
contained herein shall give the Participant any rights that are greater than those of a
general creditor of the Company.
(e) The obligations of the Company under this Agreement are unfunded and unsecured. Each
Participant shall have the status of a general creditor of the Company with respect to
amounts due, if any, under this Agreement.
(f) The parties to this Agreement intend that this Agreement meet the applicable
requirements of Section 409A of the Code and recognize that it may be necessary to modify
this Agreement and/or the Plan to reflect guidance under Section 409A of the Code issued by
the Internal Revenue Service. Participant agrees that the Board shall have sole discretion
in determining (i) whether any such modification is desirable or appropriate and (ii) the
terms of any such modification.
(g) The Participant shall become a party to this Agreement by accepting the Award either
electronically or in writing in accordance with procedures of the Board, its delegates or
agents.
(h) Nothing in this Agreement or the Plan shall confer upon the Participant the right to
continue to serve as a director of the Company.
7. Notices. All notices to the Company required hereunder shall be in writing and delivered
by hand or by mail, addressed to The Xxxxxxxx Companies, Inc., Xxx Xxxxxxxx Xxxxxx, Xxxxx, Xxxxxxxx
00000, Attention: Stock Administration Department. Notices shall become effective upon their
receipt by the Company if delivered in the foregoing manner.
8. Tax Consultation. You understand you will incur tax consequences as a result of
acquisition or disposition of the Shares. You agree to consult with any tax consultants you think
advisable in connection with the acquisition of the Shares and acknowledge that you are not
relying, and will not rely, on the Company for any tax advice.
| THE XXXXXXXX COMPANIES, INC. |
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| By: | /s/ Xxxxxx X. Xxxxxxx | |||
| Xxxxxx X. Xxxxxxx | ||||
| President and CEO | ||||
Participant:
SSN:
SSN:
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