THE TIMKEN COMPANY Restricted Shares Agreement
EXHIBIT 10.2
THE TIMKEN COMPANY
WHEREAS, (“Grantee”) is an employee of The Timken Company (the
“Company”); and
WHEREAS, the grant of restricted shares evidenced hereby was authorized by a resolution of the
Compensation Committee (the “Committee”) of the Board of Directors (the “Board”) of the Company
that was duly adopted on , and the execution of a restricted shares agreement in the form
hereof was authorized by a resolution of the Committee duly adopted on such date.
NOW, THEREFORE, pursuant to The Timken Company Long-Term Incentive Plan (as Amended and
Restated as of February 6, 2004) (the “Plan”) and subject to the terms and conditions thereof and
the terms and conditions hereinafter set forth, the Company hereby grants to Grantee, effective
(the “Date of Grant”), the right to receive shares of the Company’s common
stock without par value (the “Common Shares”).
| 1. | Rights of Grantee. The Common Shares subject to this grant shall be fully paid and nonassessable and shall be represented by a certificate or certificates registered in Grantee’s name and endorsed with an appropriate legend referring to the restrictions hereinafter set forth. Grantee shall have all the rights of a shareholder with respect to such shares, including the right to vote the shares and receive all dividends paid thereon, provided that such shares, and any additional shares that Grantee may become entitled to receive by virtue of a share dividend, a merger or reorganization in which the Company is the surviving corporation or any other change in the capital structure of the Company, shall be subject to the restrictions hereinafter set forth. | ||
| 2. | Restrictions on Transfer of Common Shares. The Common Shares subject to this grant may not be assigned, exchanged, pledged, sold, transferred or otherwise disposed of by Grantee, except to the Company, until the Common Shares have become nonforfeitable in accordance with Sections 3 and 4 hereof; provided, however, that Grantee’s rights with respect to such Common Shares may be transferred by will or pursuant to the laws of descent and distribution. Any purported transfer in violation of the provisions of this Section 2 shall be null and void, and the purported transferee shall obtain no rights with respect to such shares. | ||
| 3. | Four-Year Vesting of Common Shares. Subject to the terms and conditions of Sections 4 and 5 hereof, Grantee’s right to receive the Common Shares covered by this agreement shall become nonforfeitable to the extent of one-quarter (1/4) of the Common Shares covered by this agreement after Grantee shall have been in |
the continuous employ of the Company or a subsidiary for one full year from the Date
of Grant and to the extent of an additional one-quarter (1/4) thereof after each of
the next three successive years thereafter during which Grantee shall have been in
the continuous employ of the Company or a subsidiary. For purposes of this
agreement, “subsidiary” shall mean a corporation, partnership, joint venture,
unincorporated association or other entity in which the Company has a direct or
indirect ownership or other equity interest. For purposes of this agreement, the
continuous employment of Grantee with the Company or a subsidiary shall not be
deemed to have been interrupted, and Grantee shall not be deemed to have ceased to
be an employee of the Company or a subsidiary, by reason of the transfer of his
employment among the Company and its subsidiaries.
| 4. | Accelerated Vesting of Common Shares. Notwithstanding the provisions of Section 3 hereof, Grantee’s right to receive the Common Shares covered by this agreement may become nonforfeitable earlier than the time provided in such section if any of the following circumstances apply: |
| (a) | Death, Disability or Retirement: Grantee’s right to receive the Common Shares covered by this agreement shall become nonforfeitable if Grantee should die or become permanently disabled while in the employ of the Company or any subsidiary, or if Grantee should retire with the Company’s consent. For purposes of this agreement, retirement “with the Company’s consent” shall mean: (i) the retirement of Grantee prior to age 62 under a retirement plan of the Company or a subsidiary, if the Board or the Committee determines that his retirement is for the convenience of the Company or a subsidiary, or (ii) the retirement of Grantee at or after age 62 under a retirement plan of the Company or a subsidiary. For purposes of this agreement, “permanently disabled” shall mean that Grantee has qualified for long-term disability benefits under a disability plan or program of the Company or, in the absence of a disability plan or program of the Company, under a government-sponsored disability program. | ||
| (b) | Change in Control: Grantee’s right to receive the Common Shares covered by this agreement shall become nonforfeitable upon any change in control of the Company that shall occur while Grantee is an employee of the Company or a subsidiary. For the purposes of this agreement, the term “change in control” shall mean the occurrence of any of the following events: |
| (i) | 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) (a “Person”) of beneficial ownership (within the meaning of Rule 13d-3 promulgated under the Securities Exchange Act of 1934) of 30% or more of either: (A) the then-outstanding Common Shares or (B) the combined voting power of the then-outstanding voting securities of the Company entitled to vote |
2
generally in the election of directors (“Voting Shares”); provided,
however, that for purposes of this subsection (i), the following
acquisitions shall not constitute a change in control: (1) any
acquisition directly from the Company, (2) any acquisition by the
Company, (3) any acquisition by any employee benefit plan (or related
trust) sponsored or maintained by the Company or any subsidiary, or
(4) any acquisition by any Person pursuant to a transaction which
complies with clauses (A), (B) and (C) of subsection (i) of this
Section 4(b); or
| (ii) | Individuals who, as of the date hereof, constitute the Board (the “Incumbent Board”) cease for any reason (other than death or disability) 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 shareholders, was approved by a vote of at least a majority of the directors then comprising the Incumbent Board (either by a specific vote or by approval of the proxy statement of the Company in which such person is named as a nominee for director, without objection to such nomination) 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 (within the meaning of Rule 14a-11 of the Securities Exchange Act of 1934) 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 | ||
| (iii) | Consummation of a reorganization, merger or consolidation or sale or other disposition of all or substantially all of the assets of the Company (a “Business Combination”), in each case, unless, following such Business Combination, (A) all or substantially all of the individuals and entities who were the beneficial owners, respectively, of the Common Shares and Voting Shares immediately prior to such Business Combination beneficially own, directly or indirectly, more than 66-2/3% 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 entity resulting from such Business Combination (including, without limitation, an entity 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 relative to each other as their ownership, immediately prior to such Business Combination, of |
3
the Common Shares and Voting Shares of the Company, as the case may
be, (B) no Person (excluding any entity resulting from such Business
Combination or any employee benefit plan (or related trust) sponsored
or maintained by the Company or such entity resulting from such
Business Combination) beneficially owns, directly or indirectly, 30%
or more of, respectively, the then-outstanding shares of common stock
of the entity resulting from such Business Combination, 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 Business Combination, and (C) at least a majority of the
members of the board of directors of the corporation resulting from
such Business Combination 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 Business Combination; or
| (iv) | Approval by the shareholders of the Company of a complete liquidation or dissolution of the Company. |
| (c) | Divestiture: Grantee’s right to receive the Common Shares covered by this agreement shall become nonforfeitable if Grantee’s employment with the Company or a subsidiary terminates as the result of a divestiture. For the purposes of this agreement, the term “divestiture” shall mean a permanent disposition to a Person other than the Company or any subsidiary of a plant or other facility or property at which Grantee performs a majority of Grantee’s services whether such disposition is effected by means of a sale of assets, a sale of subsidiary stock or otherwise. | ||
| (d) | Layoff: If (i) Grantee’s employment with the Company or a subsidiary terminates as the result of a layoff and (ii) Grantee is entitled to receive severance pay pursuant to the terms of any severance pay plan of the Company in effect at the time of Grantee’s termination of employment which provides for severance pay calculated by multiplying Grantee’s base compensation by a specified severance period, then the Common Shares shall become nonforfeitable with respect to the total number of Common Shares that would have been exercisable under the provisions of Section 3 hereof if Grantee had remained in the employ of the Company through the end of the severance period. |
For purposes of this agreement, a “layoff” shall mean the involuntary
termination by the Company or any subsidiary of Grantee’s employment with the
Company or any subsidiary due to (i) a reduction in force leading to a permanent
downsizing of the salaried workforce, (ii) a permanent shutdown of the plant,
department or subdivision in which Grantee works, or (iii) an elimination of
position.
4
| 5. | Forfeiture of Awards. Grantee’s right to receive the Common Shares covered by this agreement that are then forfeitable shall be forfeited automatically and without further notice on the date that Grantee ceases to be an employee of the Company or a subsidiary prior to the fourth anniversary of the Date of Grant for any reason other than as described in Section 4. In the event that Grantee shall intentionally commit an act that the Committee determines to be materially adverse to the interests of the Company or a subsidiary, Grantee’s right to receive the Common Shares covered by this agreement shall be forfeited at the time of that determination notwithstanding any other provision of this agreement. | ||
| 6. | Retention of Certificates. During the period in which the restrictions on transfer and risk of forfeiture provided in Sections 2 and 5 above are in effect, the certificates representing the Common Shares covered by this grant shall be retained by the Company, together with the accompanying stock power signed by Grantee and endorsed in blank. | ||
| 7. | Compliance with Law. The Company shall make reasonable efforts to comply with all applicable federal and state securities laws; provided, however, notwithstanding any other provision of this agreement, the Company shall not be obligated to issue any of the Common Shares covered by this agreement if the issuance thereof would result in violation of any such law. To the extent that the Ohio Securities Act shall be applicable to this agreement, the Company shall not be obligated to issue any of the Common Shares or other securities covered by this agreement unless such Common Shares are (a) exempt from registration thereunder, (b) the subject of a transaction that is exempt from compliance therewith, (c) registered by description or qualification thereunder or (d) the subject of a transaction that shall have been registered by description thereunder. | ||
| 8. | Adjustments. The Committee shall make any adjustments in the number or kind of shares of stock or other securities covered by this agreement that the Committee may determine to be equitably required to prevent any dilution or expansion of Grantee’s rights under this agreement that otherwise would result from any (a) stock dividend, stock split, combination of shares, recapitalization or other change in the capital structure of the Company, (b) merger, consolidation, separation, reorganization or partial or complete liquidation involving the Company or (c) other transaction or event having an effect similar to any of those referred to in Section 8(a) or 8(b) hereof. Furthermore, in the event that any transaction or event described or referred to in the immediately preceding sentence shall occur, the Committee may provide in substitution of any or all of Grantee’s rights under this agreement such alternative consideration as the Committee may determine in good faith to be equitable under the circumstances. | ||
| 9. | Withholding Taxes. To the extent that the Company is required to withhold federal, state, local or foreign taxes in connection with any delivery of Common Shares to the Grantee, and the amounts available to the Company for such withholding are insufficient, it shall be a condition to the receipt of such delivery |
5
that the Grantee make arrangements satisfactory to the Company for payment of the
balance of such taxes required to be withheld. The Grantee may elect that all or
any part of such withholding requirement be satisfied by retention by the Company of
a portion of the Common Shares delivered to the Grantee. If such election is made,
the shares so retained shall be credited against such withholding requirement at the
Market Price per Common Share on the date of such delivery. In no event, however,
shall the Company accept Common Shares for payment of taxes in excess of required
tax withholding rates, except that, unless otherwise determined by the Committee at
any time, the Grantee may surrender Common Shares owned for more than 6 months to
satisfy any tax obligations resulting from any such transaction.
| 10. | Right to Terminate Employment. No provision of this agreement shall limit in any way whatsoever any right that the Company or a subsidiary may otherwise have to terminate the employment of Grantee at any time. | ||
| 11. | Relation to Other Benefits. Any economic or other benefit to Grantee under this agreement or the Plan shall not be taken into account in determining any benefits to which Grantee may be entitled under any profit-sharing, retirement or other benefit or compensation plan maintained by the Company or a subsidiary and shall not affect the amount of any life insurance coverage available to any beneficiary under any life insurance plan covering employees of the Company or a subsidiary. | ||
| 12. | Amendments. Any amendment to the Plan shall be deemed to be an amendment to this agreement to the extent that the amendment is applicable hereto; provided, however, that no amendment shall adversely affect the rights of Grantee with respect to the Common Shares or other securities covered by this agreement without Grantee’s consent. | ||
| 13. | Severability. In the event that one or more of the provisions of this agreement shall be invalidated for any reason by a court of competent jurisdiction, any provision so invalidated shall be deemed to be separable from the other provisions hereof, and the remaining provisions hereof shall continue to be valid and fully enforceable. | ||
| 14. | Governing Law. This agreement is made under, and shall be construed in accordance with, the internal substantive laws of the State of Ohio. |
[SIGNATURES ON FOLLOWING PAGE]
6
This agreement is executed by the Company on this day of , .
| The Timken Company |
||||
| By | ||||
| Xxxxxxx X. Xxxxxxxx | ||||
| Xx. Vice President and General Counsel | ||||
The undersigned Grantee hereby acknowledges receipt of an executed original of this agreement
and accepts the right to receive the Common Shares or other securities covered hereby, subject to
the terms and conditions of the Plan and the terms and conditions herein above set forth.
Grantee
| Date: |
7
