EXHIBIT 10.2
RESTRICTED STOCK UNIT
AGREEMENT
THIS AGREEMENT, dated as of April 4, 2003, by and between X.
X. XXXXXXX CORPORATION, a Delaware corporation (the "Company"), and
_____________________________ (the "Grantee").
W I T N E S S E T H:
WHEREAS, the Grantee is an employee of the Company or
subsidiary thereof (an "Employee"), and the Company wishes to grant the Grantee
a notional interest in shares of the Company's common stock, par value $0.20 per
share (the "Stock"), subject to certain restrictions (the "Restricted Stock
Units"), on the terms and conditions set forth herein; and
WHEREAS, through the grant of these Restricted Stock Units,
the Company hopes to incentivise and retain the services of Grantee and
encourage stock ownership by Grantee in order to give Grantee a proprietary
interest in the Company's success and align Grantee's interest with those of the
stockholders of the Company.
NOW, THEREFORE, in consideration of the covenants and
agreements herein contained, the parties hereto hereby agree as follows:
SECTION 1. GRANT OF RESTRICTED STOCK UNITS. As of the date hereof, the
Company hereby grants to the Grantee ________ Restricted Stock Units. Each
Restricted Stock Unit shall represent the right to receive one share of Stock
subject to the terms and conditions set forth herein.
SECTION 2. NON-TRANSFERABILITY. Except as specifically consented to by
the Compensation and Stock Option Committee (the "Committee") of the Board of
Directors of the Company (the "Board"), the Grantee may not sell, transfer,
pledge, or otherwise encumber or dispose of the Restricted Stock Units other
than by will or the laws of descent and distribution.
SECTION 3. VESTING; FORFEITURE.
(a) The Restricted Stock Units granted hereunder shall
vest (subject to forfeiture, as set forth in Section 3(d) below) on the fifth
anniversary of the date hereof, provided the Grantee has remained an Employee
from the date hereof through such fifth anniversary. In the event that Grantee's
employment with the Company is terminated on account of death, Disability or
Retirement (each, as defined below), a pro-rata portion of the Restricted Stock
Units shall vest (subject to forfeiture, as set forth in Section 3(d) below)
immediately upon such termination. The number of Restricted Stock Units that
will vest upon termination on account of death, Disability or Retirement shall
be the total number of Restricted Stock Units granted hereunder multiplied by a
fraction, the numerator of which is the number of days the Grantee served as an
Employee from the date of this Agreement to the date of such termination and the
denominator of which is one thousand eight hundred twenty five (1,825).
Notwithstanding the vesting schedule set forth above, the Committee shall have
absolute discretion to accelerate the vesting (subject to forfeiture, as set
forth in Section 3(d) below) of the Restricted Stock Units at any time and for
any reason.
(b) In the event that Grantee's employment with the
Company is terminated for any reason, all unvested Restricted Stock Units
(except for those that vest immediately upon death, Disability or Retirement)
shall be forfeited, and the Grantee shall have no further rights with respect to
such Restricted Stock Units.
(c) For purposes of this Agreement, the Grantee's
employment will be deemed to have terminated on account of a Disability if such
employment has terminated on account of the total and permanent disability of
the Grantee, as determined by the Committee in its sole discretion. For purposes
of this Agreement, the Grantee's employment will be deemed to have terminated on
account of Grantee's Retirement if such employment is terminated and thereafter
Grantee either retires from gainful employment or becomes employed outside of
the property/casualty insurance or reinsurance industry.
(d) The Grantee agrees not to engage in a Competitive
Action (as defined below) from the date hereof through the first anniversary of
the date of Grantee's termination of employment with the Company. If on or prior
to the Settlement Date (as defined below), the Grantee engages in a Competitive
Action or enters into, or has entered into, an agreement (written, oral or
otherwise) to engage in Competitive Action, all of the Restricted Stock Units
shall be immediately forfeited, and the Grantee shall have no further rights
with respect to such Restricted Stock Units. In the event that the Grantee
engages in a Competitive Action or enters into, or has entered into, an
agreement (written, oral or otherwise) to engage in Competitive Action after the
Settlement Date but on or prior to the first anniversary of the Grantee's
termination of employment with the Company, the Grantee shall pay to the
Company, upon demand by the Company, an amount equal to (i) the value, as of the
Settlement Date, of the number of shares of Stock delivered to the Grantee in
respect of Restricted Stock Units, (ii) the amount paid to the Grantee on the
Settlement Date in respect of Dividend Equivalents (as defined below) and
interest thereon and (iii) the value of all dividends paid to the Grantee in
respect of the shares of Stock delivered to the Grantee on the Settlement Date.
The Grantee may satisfy the payment obligation to the Company under (i) above by
returning the shares delivered to the Grantee on the Settlement Date.
(e) For purposes of this Agreement, the Grantee will be
deemed to engage in a "Competitive Action" if, either directly or indirectly,
and whether as an employee, consultant, independent contractor, partner, joint
venturer or otherwise, the Grantee (i) in any geographical area where the
Company is engaged in business, engages in any business activities which are
competitive, to any material extent, with any type or kind of business
activities conducted by the Company in such area, (ii) on behalf of any person
or entity engaged in business activities competitive with the business
activities of the Company, solicits or induces, or in any manner attempts to
solicit or induce, any person employed by, or as an agent of, the Company to
terminate such person's employment or agency relationship, as the case may be,
with the Company, (iii) diverts, or attempts to divert, any person, concern or
entity from doing business with the Company or attempts to induce any such
person, concern or entity to cease being a customer of the Company or (iv) makes
use of, or attempts to make use of, the Company's property or proprietary
information, other than in the course of the performance of services to the
Company or at the direction of the Company. The determination as to whether the
Grantee has engaged in a Competitive Action (as defined herein) shall be made by
the Committee in its sole and absolute discretion. The Committee's exercise or
nonexercise of such discretion with respect to any particular event or
occurrence by or with respect to the Grantee or any other recipient of
restricted stock units shall not in any way reduce or eliminate the authority of
the Committee to (i) determine that any event or occurrence by or with respect
to the Grantee constitutes engaging in a Competitive Action or (ii) determine
the related Competitive Action date.
SECTION 4. DELIVERY AND POSSESSION OF SHARE CERTIFICATES. Ninety (90)
days following the Grantee's termination of employment for any reason, or such
earlier date as determined by the Committee in its sole discretion (the
"Settlement Date"), provided the Grantee has not engaged in, or entered into an
agreement (written, oral or otherwise) to engage in, Competitive Action, the
Company shall deliver to the Grantee (or the Grantee's estate in the event of
death) a certificate or certificates representing the number of shares of Stock
equal to the number of vested Restricted
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Stock Units (if any) as of the date of such termination and Grantee shall take
possession thereof. Settlement of the Restricted Stock Units shall be made
exclusively from treasury shares held by the Company. Notwithstanding anything
herein to the contrary, in the event of a Change of Control (as defined below),
the Restricted Stock Units shall immediately become fully vested and no longer
subject to forfeiture and the Company shall immediately deliver to the Grantee
(or the Grantee's estate in the event of death) a certificate or certificates
representing the number of shares of Stock equal to the number of vested
Restricted Stock Units.
SECTION 5. DIVIDENDS AND DIVIDEND EQUIVALENTS. No dividends or dividend
equivalents shall accrue or be paid with respect to any outstanding unvested
Restricted Stock Units. With respect to each vested Restricted Stock Unit, an
amount equal to any cash dividends paid by the Company in respect of a share of
Stock shall be accrued for the account of the Grantee at the time any such
dividends are paid to stockholders (the "Dividend Equivalents"). The Dividend
Equivalents shall be subject to forfeiture to the same extent that the
corresponding Restricted Stock Units are subject to forfeiture. On the
Settlement Date, an amount equal to the Dividend Equivalents accrued for the
account of the Grantee (plus any interest accrued with respect to such Dividend
Equivalents) shall be paid to the Grantee in cash. Accrued Dividend Equivalents
shall be credited with interest, compounded quarterly. The interest rate will be
the prime rate in effect from time to time as reported in the Wall Street
Journal or as established by the Committee prior to the beginning of each year.
SECTION 6. COMPANY; GRANTEE.
(a) The term "Company" as used in Section 3 or otherwise
in this Agreement with reference to the Grantee's employment shall include the
Company and its subsidiaries. The term "subsidiary" as used in this Agreement
shall mean any subsidiary of the Company as defined in Section 424(f) of the
Internal Revenue Code of 1986, as amended.
(b) Whenever the word "Grantee" is used in any provision
of this Agreement under circumstances where the provision should logically be
construed to apply to the executors, the administrators, or the person or
persons to whom the Restricted Stock Units may be transferred by will or by the
laws of descent and distribution, the word "Grantee" shall be deemed to include
such person or persons.
SECTION 7. COMPLIANCE WITH LAW. The securities granted hereunder have
not been registered under the Securities Act of 1933 (as now in effect or as
hereafter amended) (the "Securities Act"). The Grantee hereby confirms that the
Grantee has been informed that any shares of Stock acquired hereunder are
restricted securities under the Securities Act and may not be resold or
transferred unless the Stock is first registered under the Federal securities
laws or unless an exemption from registration is available. The Company shall in
no event be obliged to register any securities pursuant to the Securities Act or
to take any other affirmative action in order to cause the issuance or transfer
of shares acquired pursuant to this Agreement to comply with any law or
regulation of any governmental authority.
SECTION 8. NOTICE. Every notice or other communication relating to this
Agreement shall be in writing, and shall be mailed to or delivered to the party
for whom it is intended at such address as may from time to time be designated
by it in a notice mailed or delivered to the other party as herein provided,
provided that, unless and until some other address be so designated, all notices
or communications by the Grantee to the Company shall be mailed or delivered to
the Company at its principal executive office, and all notices or communications
by the Company to the Grantee may be given to the Grantee personally or may be
mailed to Grantee at the Grantee's last known address, as reflected in the
Company's records.
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SECTION 9. CHANGES IN CAPITAL STRUCTURE.
(a) The aggregate number of Restricted Stock Units
granted hereunder shall be automatically appropriately adjusted for any increase
or decrease in the number of outstanding shares of stock resulting from a stock
split or other subdivision or consolidation of shares of Stock or for other
capital adjustments or payments of stock dividends or stock distributions or
other increases or decreases in the outstanding shares of Stock without receipt
of consideration by the Company. Any such adjustment shall be conclusively
determined by the Board.
(b) In the event of any change in the outstanding shares
of Stock by reason of any recapitalization, merger, consolidation, spin-off,
combination or exchange of shares or other corporate change, or any
distributions to common stockholders other than cash dividends, the Board shall
make such substitution or adjustment, if any, as it deems to be equitable, as to
the number or kind of shares of Stock or other securities issued pursuant to
this Agreement.
(c) The existence of this Agreement will not affect in
any way the right or power of the Company or its stockholders to make or
authorize any of the following:
(i) any adjustments, recapitalization,
reorganizations or other changes in the Company's capital structure or
its business;
(ii) any merger or consolidation of the Company;
(iii) any issue of stock or of options, warrants
or rights to purchase stock or of bonds, debentures, preferred to prior
preference stocks ahead of or affecting the Stock or the rights thereof
or convertible into or exchangeable for Stock;
(iv) the dissolution or liquidation of the
Company;
(v) any sale or transfer of all or any part of
its assets or business; or
(vi) any other corporate act or proceeding.
SECTION 10. CHANGE OF CONTROL. For purposes of this Agreement, a
"Change of Control" shall mean:
(a) 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 20% or more of either (i) the then outstanding shares of Stock (the
"Outstanding Company Stock") or (ii) the combined voting power of the then
outstanding voting securities of the Company entitled to vote generally in the
election of directors (the "Outstanding Company Voting Securities"); provided,
however, that for purposes of this subsection (a), the following acquisitions
shall not constitute a Change of Control: (i) any acquisition directly from the
Company, (ii) any acquisition by the Company, (iii) any acquisition by any
employee benefit plan (or related trust) sponsored or maintained by the Company,
(iv) any acquisition by Xxxxxxx X. Xxxxxxx or any entity directly or indirectly
controlled by Xxxxxxx X. Xxxxxxx, (v) any acquisition by any corporation
pursuant to a transaction which complies with clauses (i), (ii), and (iii) of
subsection (c) of this Section 10 or (vi) any acquisition that is approved in
advance by the Board at a time when the Incumbent Board (as hereinafter defined)
constitutes at least a majority of the Board (an "Approved Acquisition"); or
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(b) 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 subsequent to the date hereof whose election, or nomination for
election by the Company's stockholders, was approved by a vote of at least a
majority of the directors then comprising the Incumbent Board shall be
considered as though such individual were 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 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; or
(c) Consummation of the sale or reorganization of the
Company or the consolidation or merger of the Company with another corporation,
or the sale or exchange of all or substantially all of the assets of the Company
(a "Corporate Event"), unless following such Corporate Event, (i) all or
substantially all of the individuals and entities who were the beneficial
owners, respectively, of the Outstanding Company Stock and Outstanding Company
Voting Securities immediately prior to such Corporate Event beneficially own,
directly or indirectly, more than 50% of, respectively, the then outstanding
shares of common stock and the combined voting power of the then outstanding
voting securities entitled to vote generally in the election of directors, as
the case may be, of the corporation resulting from such Corporate Event
(including, without limitation, a corporation 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) in substantially the same
proportions as their ownership, immediately prior to such Corporate Event, of
the Outstanding Company Stock and Outstanding Company Voting Securities, as the
case may be, (ii) no Person other than (1) Xxxxxxx X. Xxxxxxx or any entity
directly or indirectly controlled by Xxxxxxx X. Xxxxxxx, (2) any corporation
resulting from such Corporate Event, or (3) any employee benefit plan (or
related trust) of the Company or such corporation resulting from such Corporate
Event, beneficially owns, directly or indirectly, 20% or more of, respectively,
the then outstanding shares of common stock of the corporation resulting from
such Corporate Event or the combined voting power of the then outstanding voting
securities of such corporation except to the extent that such ownership existed
prior to the Corporate Event, or was acquired pursuant to an Approved
Acquisition and (iii) at least a majority of the members of the board of
directors of the corporation resulting from such Corporate Event 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 such Corporate Event; or
(d) Approval by the stockholders of the Company of a
complete liquidation or dissolution of the Company.
SECTION 11. WITHHOLDING. At the time of vesting and/or settlement of
the Restricted Stock Units, as appropriate, the Committee shall require the
Grantee to pay to the Company an amount sufficient to pay all federal, state and
local withholding taxes applicable, in the Committee's judgment, to the
settlement of the Restricted Stock Units, and the Grantee's right to vesting
and/or settlement, as appropriate, shall be contingent upon such payment. Such
payment to the Company may be effected through (a) payment by the recipient to
the Company of the aggregate withholding taxes in cash or cash equivalents; (b)
at the discretion of the Committee, the Company's withholding from the number of
shares of Stock that would otherwise be delivered to the Grantee upon settlement
of the Restricted Stock Units, a number of shares of Stock with an aggregate
fair market value on the date of settlement (as determined by the Committee)
equal to the aggregate amount of withholding taxes; or (c) at the discretion of
the Committee, any combination of these two methods.
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SECTION 12. AGREEMENT TO ARBITRATE. Any controversy or claims between
the parties arising out of or related to this Agreement shall be submitted to
binding arbitration before the American Arbitration Association in the greater
New York metropolitan area and judgment upon the award rendered as a result of
such arbitration shall be final and binding and may be entered in any court
having competent jurisdiction. Any such arbitration shall be conducted by a
panel of three arbitrators under the "baseball arbitration" methodology. As
such, each party shall submit to the arbitrator and exchange with each other in
advance of the arbitration hearing their last best offers for settlement of the
controversy or claim under the Agreement. The arbitrators shall be limited to
ruling in favor of one or the other parties.
SECTION 13. NO RIGHT TO CONTINUED SERVICE. This Agreement does not
confer upon the Grantee any right to continue as an Employee of the Company, nor
shall it interfere in any way with the right of the Company to terminate
Grantee's employment at any time for any reason.
SECTION 14. BINDING EFFECT. This Agreement shall be binding upon the
heirs, executors, administrators and successors of the parties hereto.
SECTION 15. GOVERNING LAW. This Agreement shall be construed and
interpreted in accordance with the laws of the State of Delaware, without regard
to the principles of conflicts of law thereof.
SECTION 16. SIGNATURE IN COUNTERPARTS. This Agreement may be signed in
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
* * *
THIS AGREEMENT CONTAINS AN ARBITRATION CLAUSE IN SECTION 12.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the day and year first above written.
X. X. XXXXXXX CORPORATION
By: ___________________________
Name:
Title:
__________________________________
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