LONG-TERM EQUITY INCENTIVE AWARD AGREEMENT LONG-TERM EQUITY INCENTIVE AWARD AGREEMENT pursuant to the BOWNE & CO., INC. AMENDED AND RESTATED 1999 INCENTIVE COMPENSATION PLAN
Exhibit 10.22
pursuant to the
XXXXX & CO., INC.
AMENDED AND RESTATED 1999 INCENTIVE COMPENSATION PLAN
AMENDED AND RESTATED 1999 INCENTIVE COMPENSATION PLAN
* * * * * * *
Participant:
Date of Grant:
Number of Restricted Stock Units granted:
This Long-Term Equity Incentive Award Agreement (this “Agreement”) is made as of the Date of Grant
set forth above by and between Xxxxx & Co., Inc., a Delaware corporation (the “Company”), and the
individual whose name is set forth above (“Participant”), whose address is in care of Xxxxx & Co.,
Inc., pursuant to the Company’s 1999 Incentive Compensation Plan as Amended and Restated May 25,
2006 (the “Plan”). The terms of the Plan are incorporated herein by reference, and terms defined
in the Plan have the same meanings in this Agreement unless the context otherwise requires. This
Agreement is subject in all respects to the terms and provisions of the Plan (including, without
limitation, any amendments thereto adopted at any time and from time to time unless such amendments
are expressly intended not to apply to the award provided hereunder). Participant hereby
acknowledges receipt of a true copy of the Plan that Participant has read the Plan carefully and
fully understands its content, and hereby agrees to be bound by all the terms and provisions
thereof. In the event of a conflict between the terms of this Agreement and the terms of the Plan,
the terms of the Plan shall control.
1. Grant of Restricted Stock Units. The Company hereby grants to the Participant, as of the Date
of Grant specified above, the number of Restricted Stock Units specified above (the “Target Award”)
with respect to the Common Stock of the Company (“Common Stock”). Subject to the terms and
conditions herein set forth, these Restricted Stock Units represent contingent commitments by the
Company to issue and deliver (hereafter referred to as “conversion”) to Participant, in recognition
of Participant’s continued service to the Company and at no cost to Participant, shares of Common
Stock at a future date. This Agreement does not entitle Participant to any payment of cash
compensation.
The Participant agrees and understands that nothing contained in this Agreement provides, or is
intended to provide, the Participant with any protection against potential future dilution of the
Participant’s interest in the Company for any reason. The Participant shall not have the rights of
a stockholder in respect of the shares of Common Stock underlying this Award until such Common
Stock is delivered to the Participant in accordance with paragraph 4 below.
2. Performance Conditions. The Restricted Stock Units are subject to the following performance
conditions:
(a) Performance Period. Subject to the provisions of paragraph (b), the Performance Period
shall be the three calendar year period 2006 through 2008.
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(b) Relative Performance. The number of shares of Common Stock to which Participant will
be entitled to receive from the Company upon conversion pursuant to this Agreement following the
completion of the Performance Period is directly related to the actual level of performance
achieved during such period, defined as Threshold, Target or Maximum. If the specified Maximum
level of performance is achieved during the two calendar year period of 2006 and 2007, then the
Performance Period shall be shortened to such two calendar year period.
(c) Performance Criteria. The Committee shall employ such criteria for evaluating the
performance of the Participant, the Company, or a division or operation of the Company, over the
Performance Period as the Committee shall in its discretion deem appropriate in determining whether
and to what extent the Threshold, Target or Maximum Award shall be deemed achieved (the
“Performance Criteria”). These criteria are communicated to Participant in a Performance Chart in
Appendix A, accompanying and made a part of this Agreement.
(d) Determination of Final Awards. Within ninety (90) days following the completion of the
Performance Period, the Committee shall assess the relative achievement of the Performance Criteria
and determine the percentage (not to exceed 200%), if any, of the Target Award to be awarded to
Participant (the number of full shares of Common Stock resulting from the application of such
percentage being hereinafter called the “Final Award”), provided that the Committee shall bear no
liability for any delay in such assessment. The Committee shall have no discretion to increase the
Final Award to be determined solely on the basis of the extent to which Performance Criteria were
achieved. Within thirty (30) days following the determination of the Final Award, the Committee
shall request the Company to notify Participant of the number of shares of Common Stock to be
issued (the “Notification Date”), provided that the Committee and the Company shall bear no
liability for any delay in such notification.
3. Dividend Equivalent Rights. The Company shall maintain a bookkeeping account for Participant
(the “Distribution Equivalent Account”) for the purpose of crediting additional shares of Common
Stock attributable to the reinvestment of dividends on the Common Stock into which the Restricted
Stock Units subject to this Agreement may be converted, as if such dividends had been reinvested in
such Common Stock on date of such dividend payment. On the date of payment of a cash dividend,
stock dividend, and other distributions made generally to the holders of shares of Common Stock,
from the first day through the last day of the Performance Period, the Company shall credit to
Participant’s Distribution Equivalent Account an amount equal to (a) x (b), where (a) equals the
Target Award, and (b) equals the dollar amount of such distribution.
The Final Award shall include the number of shares of Common Stock in the Distribution Equivalent
Account prorated to the extent to which Performance Criteria were achieved, as determined by the
Committee in paragraph 2(d) above.
The shares of Common Stock credited to Participant’s Distribution Equivalent Account shall also be
subject to the same forfeiture restrictions, restrictions on transferability, and elective deferral
opportunities as apply to the shares of Common Stock into which the Restricted Stock Units subject
to this Agreement may be converted.
4. Delivery of Common Stock. Subject to the terms of the Plan and any elective deferral pursuant
to paragraph 5 below, upon the determination of the Final Award in paragraph 3(d) above, the
Company shall distribute to Participant as soon as practicable following the Notification Date the
number of shares of Common Stock comprising the Final Award. In connection with the delivery of
the shares of Common Stock pursuant to this Agreement,
Participant agrees to execute any documents reasonably requested by the Company.
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5. Elective Deferral of Receipt of Common Stock. If permitted by the Company, Participant may
elect, in accordance with written plans or procedures adopted by the Company from time to time and
within thirty (30) days of the Date of Grant specified above, to defer the distribution of all or
any portion of the shares of Common Stock that would otherwise be distributed to Participant
hereunder (“Deferred Shares”). Such deferral election, if made, may be revoked or amended prior to
June 30, 2007. Following the Notification Date with respect to Common Stock that have been so
deferred, the applicable number of Deferred Shares shall be credited to a bookkeeping account
established on Participant’s behalf under Xxxxx’x Deferred Award Program.
6. Non-Transferability. The Restricted Stock Units created by this Agreement are not transferable
by Participant other than by will or the laws of descent and distribution. Any attempt to transfer
contrary to the provisions hereof shall be null and void.
7. Termination of Employment.
(a) Forfeiture of All Rights. If Participant’s employment with the Company terminates for
any reason other than Disability, Involuntary Dismissal, Retirement or death prior to the
Notification Date, the Restricted Stock Units subject to this Agreement shall immediately be
cancelled and this Agreement shall become null and void and Participant (and Participant’s estate,
designated beneficiary or other legal representative) shall forfeit all rights or interests in and
with respect to the Restricted Stock Units, or the Common Shares or Deferred Shares referred to in
this Agreement. The Board or the Committee, in its sole discretion, may determine, not later than
ninety (90) days after the date of any such termination, that all or a portion of any the
Participant’s unvested Restricted Stock Units shall not be so cancelled and forfeited, but shall
bear no liability for any delay in such determination.
(b) Forfeiture of Pro-Rated Rights. If the Participant’s employment with the Company
terminates due to the Participant’s Disability, Involuntary Dismissal, Retirement or death,
Participant or Participant’s beneficiary, as the case may be, will be entitled to receive a
pro-rata portion of the Final Award, issued to the Participant as soon as practicable following the
end of the calendar year in which such termination occurs. The pro-rata number of shares of Common
Stock to be delivered to Participant will be calculated as (a) x (b)/(c), where (a) equals the
number of shares that would have comprised the Final Award had the last day of the final year of
Participant’s employment been the last day of the Performance Period, (b) equals the number of days
from January 1, 2006 to Participant’s last date of common law employment with the Company prior to
such Disability, Involuntary Dismissal, Retirement or death, and (c) equals 1,095 (one thousand
ninety-five).
(c) Definitions. For purposes of this Agreement, “Disability” shall have the same meaning
set forth in any employment agreement between the Company and Participant; in the absence of such
an agreement, “Disability” means disability as determined by the Committee in accordance with the
standards and procedures similar to those under the Company’s long-term disability plan, if any.
Subject to the first sentence of this paragraph, at any time that the Company does not maintain a
long-term disability plan, “Disability” shall mean any physical or mental disability which is
determined to be total and permanent by a doctor selected in good faith by the Committee.
For purposes of this Agreement, “Involuntary Dismissal” shall mean the termination of Participant’s
employment with the Company (or any Subsidiary) through and directly attributable
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to an action
taken by the Board, the Committee, or the Company, other than
dismissal for Cause. For purposes of this Agreement, “Cause” shall have the same meaning set forth in any
employment agreement between the Company (or any Subsidiary) and Participant; in the absence of
such an agreement, “Cause” shall mean the commission by the Participant of any of the Events
Triggering Forfeiture as identified in Section 10(b) of the Plan.
For purposes of this Agreement, “Retirement” shall mean the Participant’s termination of employment
(other than for Cause) on a date which is after both (i) the Participant’s 55th birthday
and (ii) the completion of five (5) years of service with the Company.
8. Designation of Beneficiary. Participant may file with the Company a written designation of a
beneficiary or beneficiaries hereunder (the “Beneficiary”) and may from time to time revoke or
change any such designation. Any designation of Beneficiary shall be controlling over any other
disposition, testamentary or otherwise; provided, however, that if the Committee shall be in doubt
as to the entitlement of any such Beneficiary to any rights hereunder, the Committee may determine
to recognize only the legal representative of Participant, in which case the Company, the Committee
and the members thereof shall not be under any further liability to anyone.
9. Withholding of Income and Other Taxes. Participant hereby agrees to be wholly and solely liable
for the payment of any withholding taxes, FICA/Medicare contributions, or payroll or similar taxes
under any federal, state or local statute, ordinance, rule or regulation (collectively,
“Withholding Taxes”) applicable to compensation payable under this Agreement. As a condition
precedent to the issuance and delivery of certificates for shares of Common Stock hereunder,
appropriate arrangements to the satisfaction of the Company shall be made with respect to any
Withholding Taxes. The Company may, at its sole discretion, deduct the Withholding Taxes from
Participant’s other payments of compensation during or following the pay period on which any such
applicable tax liability arises. The Committee may, in its sole discretion, permit Participant,
subject to such conditions as the Committee may require, to elect to have the Company withhold the
issuance and delivery of that number of shares of Common Stock otherwise deliverable pursuant to
this Agreement having a Fair Market Value equal to all or a portion of such Withholding Taxes.
10. Adjustments in the Event of Change in Common Stock. In the event of any change in the Common
Stock by reason of any stock dividend, recapitalization, reorganization, merger, consolidation,
split-up, combination or exchange of shares, or rights offering to purchase shares of Common Stock
at a price substantially below fair market value, or of any similar change affecting the Common
Stock, the number and kind of shares of Common Stock to which this Agreement relates shall be
appropriately adjusted consistent with such change in such manner as the Committee may deem
equitable to prevent substantial dilution or enlargement of the value of the rights granted to
Participant hereunder. Any adjustment so made shall be final and binding upon Participant, any
Beneficiary, or any other party enforcing the rights of Participant.
11. Legal Compliance. The Company may postpone the time of delivery of certificates of its Stock
for such additional time as the Company shall deem necessary or desirable to enable it to comply
with the registration requirements of the Securities Act of 1933 or the Securities Exchange Act of
1934 or any rules or regulations of the Securities and Exchange Commission promulgated thereunder
or the requirements of other applicable laws, including state laws relating to authorization,
issuance or sale of securities.
If Participant fails to accept delivery of the shares of Common Stock upon tender of delivery
thereof, his or her right with respect to such undelivered shares of Common Stock may be
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terminated
in the Company’s discretion, or terminated in accordance with applicable law.
12. Miscellaneous Provisions.
(a) Effect on Other Employee Benefit Plans. The value of the Restricted Stock Units granted
pursuant to this Agreement and the value of shares of Common Stock issued and delivered hereunder
will not be included as compensation, earnings, salary or other similar terms used when calculating
Participant’s benefits under any employee benefit plan sponsored by the Company (or any
Subsidiary), except as such plan may otherwise expressly provide.
(b) No Employment Rights. The award of Restricted Stock Units granted pursuant to this
Agreement does not give Participant any right to remain employed by the Company (or any
subsidiary).
(c) Entire Agreement; Amendment. This Agreement contains the entire agreement between the
parties hereto with respect to the subject matter contained herein, and supersedes all prior
agreements or prior understandings, whether written or oral, between the parties relating to such
subject matter. This Agreement may only be modified or amended by a writing signed by both the
Company and Participant.
(d) Governing Law. This Agreement shall be governed by and construed in accordance with
the laws of the State of New York, without reference to the principles of conflict of laws thereof.
(e) Notices. Any notice which may be required or permitted under this Agreement shall be
in writing and shall be delivered in person, or via facsimile transmission, overnight courier
service or certified mail, return receipt requested, postage prepaid, properly addressed as
follows:
If such notice is to the Company, to the attention of the Corporate Secretary of Xxxxx & Co.,
Inc., 00 Xxxxx Xxxxxx, Xxx Xxxx, XX 00000, or at such other address as the Company, by notice to
the Participant, shall designate in writing from time to time.
If such notice is to Participant, at his or her address as shown on the Company’s records, or
at such other address as Participant, by notice to the Company, shall designate in writing from
time to time.
(f) Compliance with Laws. The issuance of the shares of Common Stock pursuant to this
Agreement shall be subject to, and shall comply with, any applicable requirements of any federal
and state securities laws, rules and regulations (including, without limitation, the provisions of
the Securities Act of 1933, or the Securities Exchange Act of 1934, and any rules and regulations
promulgated thereunder) and any other law or regulation applicable thereto. The Company shall not
be obligated to issue any of shares of Common Stock pursuant to this Agreement if such issuance
would violate any such requirements.
(g) Binding Agreement; Assignment. This Agreement shall inure to the benefit of, be
binding upon, and be enforceable by the Company and its successors and assigns. Participant shall
not assign any part of this Agreement without the prior express written consent of the Company in
it is discretion.
(h) Counterparts. This Agreement may be executed in one or more counterparts, each of
which shall be deemed to be an original, but all of which shall constitute one and the same
instrument.
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(i) Headings. The titles and headings of the various paragraphs of this Agreement have
been inserted for convenience of reference only and shall not be deemed to be a part of this
Agreement.
(j) Further Assurances. Each party hereto shall do and perform (or shall cause to be done
and performed) all such further acts and shall execute and deliver all such other agreements,
certificates, instruments and documents as any other party hereto reasonably may request in order
to carry out the intent and accomplish the purposes of this Agreement and the Plan and the
consummation of the transactions contemplated there under.
(k) Severability. The invalidity or unenforceability of any provisions of this Agreement
in any jurisdiction shall not affect the validity, legality or enforceability of the remainder of
this Agreement in such jurisdiction or the validity, legality or enforceability of any provision of
this Agreement in any other jurisdiction, it being intended that all rights and obligations of the
parties hereunder shall be enforceable to the fullest extent permitted by law.
IN WITNESS WHEREOF, XXXXX & CO., INC. has caused this Agreement to be executed on its behalf by an
officer of the Company thereunto duly authorized and Participant has accepted the terms of this
Agreement, both as of the date of grant.
| XXXXX & CO., INC. | ||||
| By: | ||||
| Xxxx X. Xxxxxx | ||||
| Participant: | ||||
| Name: | ||||
| Signature: | ||||
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Appendix A. Performance Chart
| • | For the 2006 to 2008 Performance Period*, performance for Plan purposes shall be evaluated with respect to the financial performance of Xxxxx & Co. for that 3-year period of time, as measured by the Company’s Return on Invested Capital (“ROIC”). | ||
| • | ROIC for the applicable 3-year period of time shall be calculated by the Company’s Chief Financial Officer and approved by the Audit Committee of the Board of Directors. ROIC above 15% will be reduced to 15%. The percent of RSUs to be issued to Participant as a Final Award will then be determined from the table below. ROIC below 9% will result in no payout to Participant. | ||
| • | If the calculated ROIC is other than 9%, 12% or 15%, the percent of RSU to be issued to Participant as a Final Award will be interpolated on a straight-line basis. |
| Applicable Percent Return on | Percent of RSUs to be Issued | |||
| Level of Performance | Invested Capital | as Final Award | ||
| Threshold | 9% | 50% of RSUs | ||
| Target | 12% | 100% of RSUs | ||
| Maximum | 15% | 200% of RSUs |
| * | If the Maximum level of performance is achieved during the two calendar year period 2006 and 2007, then the Performance Period will be shortened to those two years. |
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