ROBBINS & MYERS, INC. AWARD AGREEMENT PERFORMANCE SHARE AWARD TO PETER C. WALLACE
Exhibit 10.4
XXXXXXX & XXXXX, INC.
AWARD AGREEMENT
PERFORMANCE SHARE AWARD TO XXXXX X. XXXXXXX
PERFORMANCE SHARE AWARD TO XXXXX X. XXXXXXX
This AWARD AGREEMENT (the “Agreement”) is entered into as of the Award Date set forth below
between XXXXXXX & XXXXX, INC., an Ohio corporation (the “Company”), and XXXXX X. XXXXXXX
(“Executive”).
A. The Company has established a 2011 Long-Term Incentive Plan (the “2011
LTIP”) as a sub-plan under its 2004 Stock Incentive Plan As Amended (the “2004
Plan”), copies of the 2011 LTIP and 2004 Plan have been delivered to Executive and are
incorporated herein by this reference;
B. For the purpose of encouraging Executive to have a proprietary interest in the Company
through stock ownership, to continue in the service of the Company and its Subsidiaries, and to
render superior performance during the Performance Period, the Compensation Committee (the
“Committee”) of the Board of Directors (the “Board”) of the Company has determined
that Performance Shares should be awarded under the 2011 LTIP to Executive; and
C. Any capitalized term used herein that is not defined herein shall have the meaning ascribed
to it in the 2004 Plan.
NOW, THEREFORE, THE COMPANY AND EXECUTIVE INTENDING TO BE LEGALLY BOUND HEREBY AGREE AS FOLLOWS:
SECTION 1. PERFORMANCE SHARE AWARD.
1.1 Grant of Performance Shares
(a) The Company hereby grants to Executive on October ___, 2010 (the “Award Date”), subject
to the terms and conditions of the 2011 LTIP, the 2004 Plan and this Agreement,
( ) Performance Shares (the “Performance Shares”) as a
Performance Share Award under the 2004 Plan. Each Performance Share represents the right to
receive one Common Share on August 31, 2013 if the Performance Goals for the Performance Period
which is the Company’s fiscal year ending August 31, 2011 (“Fiscal 2011”) are satisfied
provided Executive is employed by the Company on August 31, 2013 (the “Vesting Date”). The
number of Performance Shares actually delivered to Executive on the Vesting Date is subject to
adjustment based on Fiscal 2011 results as more fully set forth in the 2011 LTIP.
(b) For each Performance Share earned, Executive will be awarded dividend equivalents on the
Vesting Date (or such other date as the Performance Shares are paid pursuant to Section 1.6), with
the dividends being calculated as if Executive had owned the shares from the Award Date
through the Vesting Date (or such other date as the Performance Shares are paid pursuant to Section
1.6). The aggregate amount of dividend equivalents will be divided by the average closing price of
the Common Shares in August 2013 (or such other month ending immediately prior to the month in
which the Performance Shares are paid pursuant to Section 1.6) to arrive at the number of
additional Common Shares Executive will receive.
(c) If there shall occur any recapitalization, reclassification, stock dividend, stock split,
reverse stock split, or other distribution with respect to the Common Shares, or any merger,
reorganization, consolidation or other change in corporate structure affecting the Common Shares,
the Committee may, in the manner and to the extent that it deems appropriate and equitable to
Executive and consistent with the terms of the 2004 Plan, cause an adjustment to be made in (i) the
number and kind of Common Shares subject to the then outstanding Performance Shares, (ii) the
Performance Goals applicable to the Performance Shares, and (iii) any other terms of the
Performance Share Award that are affected by the event.
(d) Upon the date provided pursuant to Section 1.6, and upon the satisfaction of all other
applicable conditions with respect to the Performance Share Award, the Company shall deliver or
cause to be delivered to Executive the Common Shares underlying the Performance Shares that have
been earned through achievement of the Performance Goals and that have become vested in accordance
with Section 1.
1.2 Restrictions
(a) Performance Shares may not be sold, transferred, assigned or subject any encumbrance, pledge,
or charge or disposed of for any reason.
(b) Except as otherwise provided in Section 1.4 or Section 1.5, any Performance Shares for which
the applicable Performance Goals have not been met shall be cancelled and shall be of no further
force and effect.
(c) Any attempt to dispose of Performance Shares or any interest in such shares in a manner
contrary to the 2004 Plan or this Agreement shall be void and of no effect.
1.3 Performance Goals
Subject to the provisions contained in Section 1.4 and Section 1.5, the Performance Period shall be
Fiscal 2011 and the Performance Goals for the Performance Shares awarded herein shall be as set
forth in the 2011 LTIP.
1.4 Change of Control or Termination of Employment during Fiscal 2010
(a) Change of Control during Fiscal 2011. In the event of a Change of Control of the
Company during Fiscal 2011, provided that the Executive remains continuously employed by the
Company until such Change of Control, all Performance Shares shall automatically become fully
earned and vested on the date when the Change of Control is deemed to have occurred at the higher
of (i) the rate such Performance Shares would have been earned had the Company’s
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performance with regard to the applicable Performance Goals as of the end of the Company’s fiscal
quarter immediately preceding such Change of Control continued through the end of Fiscal 2011, or
(ii) the target number of Performance Shares determined in accordance with the 2011 LTIP.
(b) Change of Control after Fiscal 2011 but prior to the Vesting Date. In the event of a
Change of Control of the Company after the end of Fiscal 2011 but prior to the Vesting Date,
provided that the Executive remains continuously employed by the Company until such Change of
Control, all Performance Shares that were earned as of the end of Fiscal 2011 based on the actual
performance of the Company during Fiscal 2011 shall automatically become fully vested on the date
when the Change of Control is deemed to have occurred.
1.5 Termination of Employment and Forfeiture
In the event Executive is not employed by the Company on the Vesting Date (and a Change of Control
has not occurred at the time of termination of Executive’s employment), the Performance Shares
shall be forfeited unless the reason for Executive’s termination of employment was Disability,
death, Retirement, or, to the extent provided in the Employment Agreement, termination by the
Company without Cause or termination by the Executive for Good Reason, in which case the
Performance Shares shall vest as follows:
(i) Retirement, Termination without Cause or for Good Reason during Fiscal
2011. In the event of Executive’s termination of employment during Fiscal 2011 on
account of Retirement, or, to the extent provided in the Employment Agreement, termination
by the Company without Cause or termination by the Executive for Good Reason, then Executive
shall vest in a number of Performance Shares equal to the product of (A) the actual number
of Performance Shares that would have been earned and credited to Executive in accordance
with the 2011 LTIP had Executive continued in employment throughout Fiscal 2011, determined
based on the actual performance of the Company during such period, multiplied by (B) a
fraction, the numerator of which is the number of full and partial months of employment that
the Executive completed during Fiscal 2011, and the denominator of which is 12 months (and
rounded down to the next whole number).
(ii) Disability or Death during Fiscal 2011. In the event of Executive’s
termination of employment during Fiscal 2011 on account of Disability or death, all
Performance Shares shall automatically become fully earned and vested on the date of
termination due to Disability or death at the higher of (A) the rate such Performance Shares
would have been earned had the Company’s performance with regard to the applicable
Performance Goals as of the end of the Company’s fiscal quarter immediately preceding the
date of termination due to Disability or death continued through the end of Fiscal 2011, or
(B) the target number of Performance Shares determined in accordance with the 2011 LTIP.
(iii) Termination after Fiscal 2011, but Prior to Vesting Date. In the event
of Executive’s termination of employment after the end of Fiscal 2011 but on or prior to the
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Vesting Date on account of Disability, death, Retirement or, to the extent provided in the
Employment Agreement, termination by the Company without Cause or termination by the
Executive for Good Reason, then the Executive shall vest in the number of Performance Shares
that were earned and credited to Executive in accordance with the 2011 LTIP based on the
actual performance of the Company during Fiscal 2011.
1.6 Payment of Vested Performance Shares
The Company shall deliver to Executive (or Executive’s estate in the event of Executive’s death)
the Common Shares underlying the Performance Shares that have become vested in accordance with
Section 1 within ninety (90) days following the earlier of (A) the Vesting Date; (B) Executive’s
“separation from service” within the meaning of Section 409A of the Code; or (C) the occurrence of
a “change in the ownership,” “a change in the effective control” or a “change in the ownership of a
substantial portion of the assets” of the Company within the meaning of Section 409A of the Code.
Notwithstanding the foregoing, in the event that the earlier to occur of the events described in
(A), (B) and (C) of the preceding sentence is Executive’s “separation from service” for any reason
other than death, the Company shall deliver the Common Shares underlying the vested Performance
Shares on the first day of the seventh month following such “separation from service” (or, if
earlier, within ninety (90) days after Executive’s death); provided, however, that if such
“separation from service” occurs during Fiscal 2011, the Company shall deliver the Common Shares
underlying the vested Performance Shares within ninety (90) days following the end of Fiscal 2011,
but no earlier than the first day of the seventh month following Executive’s “separation from
service” for any reason other than Executive’s death.
1.7 Section 162(m) Award
The Performance Share Award made herein is intended to be a Section 162(m) Award as defined in the
2004 Plan and the provisions of the 2004 Plan applicable to such awards shall control the
interpretation and performance of this Agreement.
1.8 Payment of Applicable Taxes
No Common Shares shall be delivered to Executive hereunder until any taxes payable by Executive
with respect to the Common Shares have been withheld by the Company or paid by Executive.
Executive may use Common Shares to pay the Company all or any part of the mandatory federal, state
or local withholding tax payments. Payment of applicable taxes may be made as follows: (i) in
cash, (ii) payment in Common Shares owned by Executive, including those that have been earned under
the Plan, or (iii) by a combination of the methods described above.
SECTION 2. REPRESENTATIONS OF EXECUTIVE.
Executive hereby represents to the Company that Executive has read and understands the provisions
of this Agreement, the 2011 LTIP and the 2004 Plan, and Executive acknowledges that Executive is
relying solely on his or her own advisors with respect to the tax consequences of this Performance
Share Award.
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SECTION 3. NOTICES.
All notices or communications under this Agreement shall be in writing, addressed as follows:
To the Company:
|
Xxxxxxx & Xxxxx, Inc. | |
| 00 Xxxx Xxxxxx, Xxxxx 000 | ||
| Xxxxxx, Xxxx 00000 | ||
| Attention: Vice President, Human Resources | ||
To Executive:
|
At the last residence address of Executive on file with the Company. |
Any such notice or communication shall be (a) delivered by hand (with written confirmation of
receipt) or sent by a nationally recognized overnight delivery service (receipt requested), (b) be
sent certified or registered mail, return receipt requested, postage prepaid, addressed as above
(or to such other address as such party may designate in writing from time to time), or (c) be
given electronically, if receipt is confirmed electronically to the sender within 24 hours and the
actual date of receipt shall determine the time at which notice was given.
SECTION 4. PLAN CONTROLLING; CLAWBACK POLICY.
The Award is subject all of the terms conditions of the 2004 Plan. In the event of a conflict
between the 2004 Plan and the 2011 LTIP or this Agreement, the provisions of the 2004 Plan shall
control. The Xxxxxxx & Xxxxx, Inc. Compensation Clawback Policy dated October 5, 2010 is hereby
incorporated by reference.
SECTION 5. GOVERNING LAW.
This Agreement and its validity, interpretation, performance and enforcement shall be governed by
the laws of the State of Ohio other than the conflict of laws provisions of such laws.
SECTION 6. SEVERABILITY.
Whenever possible, each provision in this Agreement shall be interpreted in such manner as to be
effective and valid under applicable law, but if any provision of this Agreement shall be held to
be prohibited by or invalid under applicable law, then (a) such provision shall be deemed amended
to accomplish the objectives of the provision as originally written to the fullest extent permitted
by law and (b) all other provisions of this Agreement shall remain in full force and effect.
SECTION 7. STRICT CONSTRUCTION.
No rule of strict construction shall be implied against the Company, the Committee or any other
person in the interpretation of any of the terms of the Plan, this Agreement or any rule or
procedure established by the Committee.
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SECTION 8. DEFINITIONS.
(a) “Change of Control” means and shall be deemed to have occurred on (i) the date upon
which the Company is provided a copy of a Schedule 13D, filed pursuant to Section 13(d) of the
Securities Exchange Act of 1934 indicating that a group or person, as defined in Rule 13d-3 under
said Act, has become the beneficial owner of 20% or more of the outstanding Voting Shares or the
date upon which the Company first learns that a person or group has become the beneficial owner of
20% or more of the outstanding Voting Shares if a Schedule 13D is not filed; (ii) the date of a
change in the composition of the Board such that individuals who were members of the Board on the
date two years prior to such change (or who were subsequently elected to fill a vacancy in the
Board, or were subsequently nominated for election by the Company’s shareholders, by the
affirmative vote of at least two-thirds of the directors then still in office who were directors at
the beginning of such two year period) no longer constitute a majority of the Board; (iii) the date
of the consummation of a merger or consolidation of the Company with any other corporation, other
than a merger or consolidation which would result in the Voting Shares of the Company outstanding
immediately prior thereto continuing to represent (either by remaining outstanding or by being
converted into Voting Shares of the surviving entity) at least 50% of the total voting power
represented by the Voting Shares of the Company or such surviving entity outstanding immediately
after such merger or consolidation; or (iv) the date shareholders of the Company approve a plan of
complete liquidation of the Company or an agreement for the sale or disposition by the Company of
all or substantially all the Company’s assets.
(b) “Cause” shall have the meaning ascribed to it in the Employment Agreement.
(c) “Company” means Xxxxxxx & Xxxxx, Inc., an Ohio corporation, and when used with
reference to employment of Executive, Company includes any Subsidiary of the Company.
(d) “Employment Agreement” means that certain Employment Agreement as Amended, dated
October 9, 2008, between the Company and the Executive, as the same may be modified or amended.
(e) “Fair Market Value” means the closing price of a Common Share on the date when the
value of a Common Share is to be determined, as reported on the New York Stock Exchange-Composite
Transactions Tape; or, if no sale of Common Shares is reported on such date, then the next
preceding date on which a sale occurred; or if the Common Shares are no longer listed on such
exchange, the determination of such value shall be made by the Committee in accordance with
applicable provisions of the Code and related regulations promulgated under the Code.
(f) “Good Reason” shall have the meaning ascribed to it in the Employment Agreement.
(g) “Retirement” means the Executive’s Early Retirement or Normal Retirement as defined in
the 2004 Plan.
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IN WITNESS WHEREOF, the Company and Executive have duly executed this Agreement as of the Award
Date.
|
XXXXXXX & XXXXX, INC. |
||||
| By: | ||||
| Name: | Xxxxxx X. Xxxxxx | |||
| Chairman of the Board | ||||
EXECUTIVE
| Name: Xxxxx X. Xxxxxxx | ||||
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