Exhibit (d)(10)
XXXXXXX & XXXX FINANCIAL, INC.
RESTRICTED STOCK AWARD AGREEMENT
XXXXXXX & XXXX FINANCIAL, INC., a corporation organized and existing
under the laws of the state of Delaware (or any successor corporation) (the
"Company"), does hereby grant and give unto ((Name)) (the "Awardee"), an award
of restricted shares of Stock (the "Restricted Stock") upon the terms and
conditions hereinafter set forth (the "Award").
AUTHORITY FOR GRANT
1. STOCK INCENTIVE PLAN. The Restricted Stock is granted under the
provisions of the Xxxxxxx & Xxxx Financial, Inc. 1998 Stock Incentive Plan, as
amended and restated (the "Plan"), and is subject to the terms and conditions
set forth in this Restricted Stock Award Agreement (the "Agreement") and not
inconsistent with the Plan. Capitalized terms used but not defined herein shall
have the meaning given them in the Plan, which is incorporated by reference
herein.
TERMS OF AWARD
2. NUMBER OF SHARES. In consideration of exchanging options for this
Award pursuant to the Company's Tender Offer dated February 12, 2003, the
Awardee is hereby granted ((Shares)) shares of Restricted StocK (the "Shares")
of the Company's Class A common stock, par value $.01 on March ___, 2003 (the
"Grant Date"), subject to repurchase of a portion thereof by the Company
pursuant to Section 12.
3. RESTRICTIONS. The Restricted Stock may not be sold, transferred,
pledged, assigned or otherwise alienated or hypothecated until its
restrictions are removed or expire as described in Sections 4, 5 and 6 of
this Agreement.
4. EXPIRATION OF RESTRICTIONS. The restrictions of the Restricted
Stock will expire as set forth in this Section 4, as of the expiration dates
set forth in this Section 4.
PERCENTAGE OF SHARES OF
WHICH RESTRICTIONS EXPIRE EXPIRATION DATE
------------------------- ---------------
33 1/3% March ___, 2005
33 1/3% March ___, 2006
33 1/3% March ___, 2007
TERMINATION OF AWARD
For purposes of the following Sections, all references to termination
of employment shall be construed to mean termination of all employment and
consultancy relationships with the Company and its Subsidiaries and Affiliates;
however, nothing in this Agreement or the Plan shall be construed to create or
continue a common law employment relationship with any individual characterized
by the Company, a Subsidiary or an Affiliate as an independent contractor or
consultant.
5. TERMINATION OF STATUS OF FINANCIAL ADVISOR.
(A) TERMINATION DUE TO DEATH, DISABILITY OR NORMAL RETIREMENT.
If an Awardee's employment with the Company or any of its Subsidiaries
or Affiliates terminates by reason of death, Disability or Normal
Retirement, the restrictions with respect to the Restricted Stock which
have not lapsed shall immediately expire and all shares of the
Restricted Stock shall become fully transferable.
(B) TERMINATION OTHER THAN DUE TO NORMAL RETIREMENT, DEATH OR
DISABILITY. If an Awardee's employment with the Company or any of its
Subsidiaries or Affiliates terminates for a reason other than death,
Disability or Normal Retirement, the shares of Restricted Stock for
which the restrictions have not expired as of the date of such
termination will continue to remain restricted and the restrictions
will expire pursuant to Sections 4 and 6.
6. CHANGE IN CONTROL OR POTENTIAL CHANGE IN CONTROL OF THE COMPANY. In
the event of a Change in Control, unless otherwise determined by the Committee
in writing after the Grant Date, but prior to the occurrence of such Change in
Control, or, in the event of a Potential Change in Control, if and to the extent
so determined by the Committee in writing after the Grant Date (subject to any
right of approval expressly reserved by the Committee at the time of such
determination): (a) the restrictions with respect to the Restricted Stock shall
expire and such shares shall be deemed fully transferable; and (b) the value of
the outstanding Stock previously subject to restrictions, shall, to the extent
determined by the Committee at or after the Grant Date, be settled on the basis
of the Change in Control Price as of the date the Change in Control occurs or
Potential Change in Control is determined to have occurred, or such other date
as the Committee may determine prior to the Change in Control or Potential
Change in Control. In the sole discretion of the Committee, such settlements may
be made in cash or in stock, as shall be necessary to effect the desired
accounting treatment for the transaction resulting in the Change in Control or
Potential Change of Control.
GENERAL TERMS AND PROVISIONS
7. ADMINISTRATION OF AWARD. The Restricted Stock shall be maintained in
a book-entry account (the "Account") by and at the Company's transfer agent
until the restrictions associated with such Restricted Stock expire pursuant to
Sections 4, 5 or 6. The Awardee shall execute and deliver to the transfer agent
one or more stock powers in blank for the Restricted Stock. The Awardee hereby
agrees that the transfer agent shall maintain such Account and the related stock
power(s) pursuant to the terms of this Agreement until such restrictions expire
pursuant to Sections 4, 5 or 6.
8. OWNERSHIP OF RESTRICTED STOCK. From and after the time that the
Account representing the Restricted Stock has been activated, the Awardee will
be entitled to all the rights of absolute ownership of the Restricted Stock,
including the right to vote those shares and to receive dividends thereon if,
as, and when declared by the Board, subject, however, to the terms, conditions
and restrictions set forth in this Agreement. Dividends paid in stock of the
Company or stock received in connection with a Stock split with respect to the
Restricted Stock shall be subject to the same restrictions as on such Restricted
Stock. The shares of Restricted Stock
2
subject to this Award are not eligible to be enrolled in any dividend
re-investment program until the restrictions thereon lapse or expire.
9. ADJUSTMENT OF SHARES FOR RECAPITALIZATION, ETC. In the event there
is any change in the outstanding Stock of the Company by reason of any
reorganization, recapitalization, stock split, stock dividend, combination of
shares or otherwise, there shall be substituted for or added to each share of
Stock theretofore appropriated or thereafter subject, or which may become
subject, to this Award, the number and kind of shares of stock or other
securities into which each outstanding share of Stock shall be so changed or for
which each such share shall be exchanged, or to which each such share shall be
entitled, as the case may be. Adjustment under the preceding provisions of this
Section 9 will occur automatically upon any such change in the outstanding Stock
of the Company. No fractional interest will be issued under the Plan on account
of any such adjustment.
10. CONDITIONS TO DELIVERY OF STOCK AND REGISTRATION. Nothing herein
shall require the Company to issue or the transfer agent to deliver any shares
with respect to the Award if that issuance would, in the opinion of counsel for
the Company, constitute a violation of the Securities Act of 1933, as amended,
or any similar or superseding statute or statutes, any other applicable statute
or regulation, or the rules of any applicable securities exchange or securities
association, as then in effects. From time to time, the Board and appropriate
officers of the Company are authorized to and shall take whatever actions are
necessary to file required documents with governmental authorities, stock
exchanges, and other appropriate persons to make shares of Stock available for
issuance.
11. NO LIMITATION ON EXCESS PARACHUTE PAYMENTS. The provisions of
Section 14 of the Plan regarding the payment of any "Excess Parachute
Payment" within the meaning of Section 280G(b)(1) of the Internal Revenue
Code of 1986, as amended, shall not apply to this Agreement.
12. PAYMENT OF TAXES. The Awardee will be responsible for payment of
all tax obligations arising in connection with the settlement of shares of
Restricted Stock pursuant to this Award. The Awardee may, upon election at the
time and in the manner prescribed by the Company, direct the Company to purchase
from the Awardee the number of shares of Restricted Stock issued pursuant to
this Award equal in value to the amount of the Awardee's applicable tax
obligation, based on the shares' Fair Market Value at the time such obligation
is incurred.
13. COMPANY RECORDS. Records of the Company or its Subsidiaries or
Affiliates regarding any period(s) of employment, termination of employment
and the reason therefor, leaves of absence, re-employment, and other matters
shall be conclusive for all purposes hereunder, unless determined by the
Company to be incorrect.
14. RIGHT OF THE COMPANY AND SUBSIDIARIES TO TERMINATE EMPLOYMENT.
Nothing contained in this Agreement shall confer upon the Awardee the right to
continue in the employ of the Company or any Subsidiary or Affiliate, or
interfere in any way with the rights of the Company or any Subsidiary or
Affiliate to terminate the Awardee's employment at any time.
15. NO LIABILITY FOR GOOD FAITH DETERMINATIONS. The members of the
Board and the Committee shall not be liable for any act, omission,
interpretation or determination taken or
3
made in good faith with respect to this Agreement or the Restricted Stock
granted hereunder and all members of the Board or the Committee and each and
any officer or employee of the Company acting on their behalf shall, to the
extent permitted by law, be fully indemnified and protected by the Company
with respect to any such action, determination or interpretation.
16. SEVERABILITY. If any provision of this Agreement is held to be
illegal or invalid for any reason, the illegality or invalidity shall not affect
the remaining provisions hereof, but such provision shall be fully severable and
this Agreement shall be construed and enforced as if the illegal or invalid
provision had never been included herein.
17. SUCCESSORS. This Agreement shall be binding upon the Awardee,
their legal representatives, heirs, legatees and distributees, and upon the
Company, its successors and assigns.
18. NOTICES. Any notices required by or permitted to be given to the
Company under this Agreement shall be made in writing and addressed to the
Secretary of the Company in care of the Company's Legal Department, 0000 Xxxxx
Xxxxxx, Xxxxxxxx Xxxx, Xxxxxx 00000. Any such notice shall be deemed to have
been given when received by the Company.
19. HEADINGS. The titles and headings herein are included for
convenience of reference only, do not constitute a part of this Agreement and
shall not be deemed to limit or affect any of the provisions hereof.
20. RULES OF CONSTRUCTION. This Agreement has been executed and
delivered by the Company in
Kansas and shall be construed and enforced in
accordance with the laws of said State, other than any choice of law rules
calling for the application of laws of another jurisdiction. Should there be any
inconsistency or discrepancy between the provisions of this Agreement and the
terms and conditions of the Plan under which this Award is granted, the
provisions in the Plan shall govern and prevail.
21. AMENDMENT. This Agreement may be amended by the Committee;
provided, however, that no amendment may decrease rights inherent in this Award
prior to such amendment without the express written consent of the parties
hereto. Notwithstanding the provisions of this Section 21, this Agreement may be
amended by the Committee to the extent necessary to comply with applicable laws
and regulations and to conform the provisions of this Agreement to any changes
thereto.
4
22. EFFECTIVE DATE. This Agreement has been executed this ____ day
of ___________, 2003, effective as of March ___, 2003.
XXXXXXX & XXXX FINANCIAL, INC.
By:
-----------------------------------
Xxxx X. Xxxxxxx, Xx., Senior Vice
President and Chief Financial Officer
"Company"
-----------------------------------
((Name))
"Awardee"
5
Exhibit (d)(10)
STOCK POWER
FOR VALUE RECEIVED, ((Name)) does hereby assign and transfer unto
XXXXXXX & XXXX FINANCIAL, INC. (00-0000000) ________ shares of Class A common
stock of Xxxxxxx & Xxxx Financial, Inc., a Delaware corporation, as granted on
March ___, 2003, as evidenced by the
Restricted Stock Award Agreement of even
date herewith and standing in the name of the undersigned on the books of
Xxxxxxx & Xxxx Financial, Inc. The undersigned does hereby appoint EquiServe
Trust Company, N.A. as attorney-in-fact to transfer the said stock on the books
of Xxxxxxx & Xxxx Financial, Inc. with full power of substitution in the
premises.
Dated as of this ____ day of ___________, 2003.
------------------------------------
((Name))
