EXHIBIT 10.58
FORM OF
XXXXXXXXX'X, INC.
NON-EMPLOYEE DIRECTOR DEFERRED SHARE UNITS
These Deferred Share Units are granted pursuant to Section 9 of the
Xxxxxxxxx'x, Inc. 2004 Equity and Performance Incentive Plan (the "Plan") upon
the terms and conditions set forth in this grant agreement (this "Agreement")
and in the Plan. Except as expressly provided in this Agreement, capitalized
terms used herein will have the meaning ascribed to such terms in the Plan.
1. Xxxxxxxxx'x, Inc. (the "Company"), pursuant to the Plan, which is
incorporated herein by reference, hereby confirms the grant on ______, 200_
(the "Date of Grant"), to ____________, a non-employee member of the Board
of Directors of the Company (the "Director"), of ______ deferred share
units (the "Deferred Share Units"). Each Deferred Share Unit represents a
hypothetical share of the Company's common stock, $1.00 par value (the
"Stock").
2. The Deferred Share Units have been credited to the Deferred Share Unit
account of the Director and will be credited with "dividend equivalents"
each time that a dividend is paid by the Company with respect to the Stock.
Such "dividend equivalents" shall be reinvested into additional Deferred
Share Units using the closing price of the Stock on the payable date of the
dividend and held in the Deferred Share Unit account of the Director.
3. The Deferred Share Unit account of the Director will be distributed in a
lump sum to the Director in Stock upon the later of the first anniversary
of the Date of Grant and the time of the termination of the Director's
service as a member of the Board of Directors of the Company (six months
after the Director's termination of service, if the Director is a
"specified employee" within the meaning of Section 409A of the Internal
Revenue Code (the "Code")); provided, however, that if the Director has
elected a specified payout date in an election (an "Initial Election") or a
Deferral Election (as defined in Section 4 below) made in the form and
manner prescribed by the Company and in accordance with Section 409A of the
Code, the Director's Deferred Share Unit account will be distributed upon
the later of such payout date and the first anniversary of the Date of
Xxxxx.
4. The Director may elect, in the manner and form prescribed by the Company (a
"Deferral Election"), to defer the distribution date applicable to the
Director's Deferred Share Units. If permitted by Section 409A of the Code,
such Deferral Election may apply to less than all of the Director's
Deferred Share Units hereunder. However, unless otherwise permitted in
accordance with Section 409A of the Code, such Deferral Election will not
be effective unless (i) in the case of a distribution to be made by reason
of a specified time or a fixed schedule, the Deferral Election is made not
less than twelve months prior to the first date that distribution would
have been made absent such Deferral Election, (ii) distribution under such
Deferral Election will be made no less than five years from the date
payment would have been made absent such
Deferral Election, and (iii) such Deferral Election will not take effect
until twelve months after the date on which the Deferral Election is made.
5. Notwithstanding Sections 3 and 4, the Deferred Share Unit account of the
Director will be distributed in Stock to the estate or beneficiary of the
Director, as the case may be, upon the Director's death.
6. During the one-year period beginning on the Date of Grant, the Deferred
Share Units are nontransferable by the Director. On or after the first
anniversary of the Date of Grant, the Deferred Share Units are
nontransferable by the Director except by will or by the laws of descent or
distribution, pursuant to a domestic relations order (within the meaning of
Rule 16a-12 promulgated under the Securities Exchange Act of 1934, as
amended) or to an "Eligible Transferee" (as that term is defined in
Section 2 of the Plan) of the Director, and for purposes of these Deferred
Share Units, such transferee shall be deemed to be the Director.
7. The Deferred Share Units shall not be construed as giving the Director any
right to be retained as a Director of the Company.
8. The laws of the State of Delaware shall govern the interpretation, validity
and performance of the terms of the Deferred Share Units, regardless of the
law that might be applied under principles of conflicts of law.
9. The Director has been given a copy of this Agreement and the Memorandum
regarding the Plan, which together constitute the Prospectus. A copy of the
Registration Statement on Form S-8 which was filed with the Securities and
Exchange Commission, together with copies of the documents incorporated by
reference in Item 3 of Part II of the Registration Statement and which are
incorporated by reference into the Section 10(a) prospectus, are available,
without charge, upon written or oral request to the Corporate Secretary's
office.
10. The Company's obligations to the Director with respect to the Deferred
Share Units will be satisfied in full upon the distribution of shares of
Stock corresponding to such Deferred Share Units.
11. The Director will not have any rights as a stockholder with respect to any
shares of Stock issuable pursuant to the Deferred Share Units until the
date on which a stock certificate (or certificates) representing such Stock
is issued.
12. The obligations of the Company under this Agreement will be merely that of
an unfunded and unsecured promise of the Company to deliver shares of Stock
in the future, and the rights of the Director will be no greater than that
of an unsecured general creditor. No assets of the Company will be held or
set aside as security for the obligations of the Company under this
Agreement.
13. The number of shares of Stock issuable pursuant to the Deferred Share Units
is subject to adjustment as provided in Section 12 of the Plan.
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14. It is intended that:
a. this Agreement and its administration comply with the
provisions of Section 409A of the Code. Notwithstanding any
provision in this Agreement to the contrary, this Agreement will
be interpreted, applied and to the minimum extent necessary,
amended in the sole discretion of the Company, so that the
Agreement does not fail to meet, and is operated in accordance
with, the requirements of paragraphs (2), (3) and (4) of Section
409A(a) of the Code; and
b. to the extent applicable, all Director elections hereunder will
comply with Section 409A of the Code. The Company is authorized
to adopt rules or regulations deemed necessary or appropriate in
connection therewith to anticipate and/or comply with the
requirements thereof; and
c. any reference in this Agreement to Section 409A of the Code
will also include any proposed, temporary or final regulations,
or any other guidance, promulgated with respect to such Section
by the U.S. Department of the Treasury or the Internal Revenue
Service.
15. Notices hereunder will be mailed or delivered to the Company at
Compensation Department, Xxxxxxxxx'x, Inc., P.O. Box 20, Boise, Idaho
83726 and will be mailed to or delivered to the Director at the
Director's address set forth in the records of the Company, or in either
case, at such other address as one party may subsequently furnish to the
other party in writing.
16. 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.
17. This award is subject to the terms of the Plan. To the extent any
provision of this Agreement violates or is inconsistent with an express
provision of the Plan, the Plan provision will govern and any
inconsistent provision in this Agreement will have no force or effect.
18. Any amendment to the Plan will be deemed to be an amendment to this
Agreement. Except as provided in this Agreement, no amendment will
adversely affect the number or value of the Director's Deferred Share
Units without the Director's written consent. This Agreement cannot be
changed or terminated orally. The Agreement and the Plan contain the
entire agreement between the parties relating to the subject matter
hereof.
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