EXHIBIT 10.31
XXXXX CORPORATION
RESTRICTED STOCK AGREEMENT
(JUNE 18, 2003)
Xxxxx Corporation (the "Corporation"), a Wisconsin corporation, hereby
grants to Xxxxxxx X. Xxxxxx (the "Employee") a Restricted Stock Award (the
"Award") with respect to 10,000 shares (the "Shares") of the authorized, but
unissued, Class A Common Stock, $.01 par value, of the Corporation (the "Common
Stock"), all in accordance with and subject to the following terms and
conditions:
1. Restrictions. The restrictions on the Shares shall lapse, and the
Shares shall vest, on June 18, 2005 (the "Vesting Date"), provided that the
Employee remains an employee of the Corporation (or a subsidiary or affiliate)
during the entire period (the "Restriction Period).
2. Termination of Employment, etc., During Restriction Period. A. In the
event of the termination of the Employee's employment with the Corporation (and
any subsidiary or affiliate) prior to the end of the Restriction Period due to
death or disability, the Shares shall become unrestricted and fully vested.
For purposes of this Agreement, "Disability" means that the Employee
is disabled as a result of sickness or injury, such that he is unable to
satisfactorily perform the material duties of his job, as determined by the
Board of Directors, on the basis of medical evidence satisfactory to it.
B. In the event of the termination of the Employee's employment with
the Corporation (and any subsidiary or affiliate) prior to the end of the
Restriction Period due to a change in control, the shares shall become
unrestricted and fully vested.
For purposes of this Agreement, a "Change of Control" shall occur if
any person or group of persons (as defined in Section 13(d)(3) of the Securities
and Exchange Act of 1934) other than the members of the family of Xxxxxxx X.
Xxxxx, Xx. and their descendants, or trusts for their benefit, collectively,
directly or indirectly controls in excess of 50% of the voting common stock of
the Corporation.
For purposes of this Agreement, a termination due to Change of
Control shall occur if within the 12 month period beginning with the date a
Change of Control occurs (i) the Employee's employment with the Corporation is
involuntarily terminated (other than by reason of death, disability or cause) or
(ii) the Employee's employment with the Corporation is voluntarily terminated by
the Employee subsequent to (A) a 10% or more diminution in the total of the
Employee's annual base salary (exclusive of fringe benefits) and the Employee's
target bonus in comparison with the Employee's total of annual base salary and
target bonus immediately prior to the date the Change of Control occurs, (B) a
significant diminution in the responsibilities or authority of the Employee in
comparison with the Employee's responsibility and authority immediately prior to
the date the Change of Control occurs or (C) the imposition of a requirement by
the Corporation that the Employee relocate to a principal work location
more than 50 miles from the Employee's principal work location immediately prior
to the date the Change of Control occurs.
For purposes of this Agreement, Cause means (i) the Employee's
willful and continued failure to substantially perform the Employee's duties
with the Corporation (other than any such failure resulting from physical or
mental incapacity) after written demand for performance is given to the Employee
by the Corporation which specifically identifies the manner in which the
Corporation believes the Employee has not substantially performed and a
reasonable time to cure has transpired, (ii) the Employee's conviction of or
plea of nolo contendere for the commission of a felony, or (iii) the Employee's
commission of an act of dishonesty or of any willful act of misconduct which
results in or could reasonably be expected to result in significant injury
(monetarily or otherwise) to the Corporation, as determined in good faith by the
Board of Directors of the Corporation.
C. In the event of (a) the merger or consolidation of the
Corporation with or into another corporation or corporations in which the
Corporation is not the surviving corporation, (b) the adoption of any plan for
the dissolution of the Corporation, or (c) the sale or exchange of all or
substantially all the assets of the Corporation for cash or for shares of stock
or other securities of another corporation, all restrictions imposed on any
then-Restricted Stock shall terminate (such that any Restricted Stock shall
become fully transferable) immediately prior to any such event in which the
Corporation is not the surviving corporation.
D. If the lapsing of the restrictions, other than under paragraph
2.C., would result in disallowance of any portion of the Corporation's deduction
therefore under Section 162(m) of the Internal Revenue Code, the restrictions
shall lapse only as to those shares for which the amount is deductible, with the
balance to lapse as soon as deductible by the Corporation. However, in such
event, the Corporation shall pay the Employee on a quarterly basis an amount of
interest based on the prime rate recomputed each quarter and the value as of
each quarter of the shares as to which such restriction has not lapsed.
E. If the lapsing of the restrictions would result in any excise tax
to the Employee as a result of Section 280(G) of the Code, the Corporation shall
pay the Employee an amount equal to such excise tax.
3. Dividend Rights. The Employee shall have the right to receive any cash
dividends otherwise payable with respect to the Shares, as paid, and the
Employee shall have all other rights as holder of such Shares, provided,
however, the Corporation shall retain custody of all stock certificates
representing shares as to which such restriction has not lapsed.
4. Transfer Restrictions. This Award and the Shares (until they become
unrestricted pursuant to the terms hereof) are non-transferable and may not be
assigned, pledged or hypothecated and shall not be subject to execution,
attachment or similar process. Upon any attempt to effect any such disposition,
or upon the levy of any such process, the Award shall immediately become null
and void and the Shares shall be forfeited.
5. Withholding Taxes. The Corporation may require payment of or withhold
any tax which it believes is payable as a result of the Shares becoming
unrestricted and fully vested, and the Corporation may defer making delivery
with respect to Shares until arrangements satisfactory to the Corporation have
been made with regard to any such withholding obligations. In lieu of part or
all of any such payment, the Employee, in satisfaction of all withholding taxes
(including, without limitation, Federal income, FICA (Social Security and
Medicare) and any state and local income taxes) payable as a result of such
vesting, may elect, subject to such rules and regulations as the Corporation may
adopt from time to time, to have
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the Corporation withhold that number of Shares (valued at Fair Market Value on
the date of vesting and rounded upward) required to settle such withholding
taxes.
6. Death of Employee. If any of the Shares shall vest upon the death of
the Employee, they shall be registered in the name of the estate of the Employee
unless the Corporation shall have theretofore received in writing a beneficiary
designation, in which event they shall be registered in the name of the
designated beneficiary.
7. Adjustment of Shares. The terms and provisions of this Award
(including, without limitation, the terms and provisions relating to the number
and class of shares subject to this Award) shall be subject to appropriate
adjustment in the event of any recapitalization, merger, consolidation,
disposition of property or stock, separation, reorganization, stock dividend,
issuance of rights, combination or split-up or exchange of shares, or the like.
IN WITNESS WHEREOF, this Restricted Stock Agreement has been duly executed
as of June 18, 2003.
XXXXX CORPORATION
By: /s/ Xxxxx Xxxxxxxx
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Xxxxx Xxxxxxxx, President
Attest: /s/ Xxxxxx X. Xxxxxxxx
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Xxxxxx X. Xxxxxxxx, Secretary
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