EXHIBIT 10.191
THE XXXXXXX XXXXXX CORPORATION
1992 STOCK INCENTIVE PLAN
RESTRICTED SHARES AWARD AGREEMENT
THIS AGREEMENT is entered into between The Xxxxxxx Xxxxxx Corporation, a
Delaware corporation (the "Company") and __________ (the "Employee").
WITNESSETH:
WHEREAS, the Company has adopted The Xxxxxxx Xxxxxx Corporation 1992 Stock
Incentive Plan (the "Plan"), which provides for the granting of restricted
shares of Common Stock of the Company ("Restricted Shares") to key employees of
the Company and its Subsidiaries; and
WHEREAS, the Compensation Committee of the Board of Directors of the
Company (the "Committee"), which is responsible for the administration of the
Plan, has authorized the granting of an award of Restricted Shares to the
Employee, effective as of _____________________; and
WHEREAS, this Agreement is prepared in conjunction with and pursuant to the
terms of the Plan and, although all of the terms of the Plan and the definitions
used in this Plan have not been set forth herein, such terms and definitions are
incorporated herein and made a part hereof by reference, and, except as
otherwise expressly stated herein, the provisions of the Plan shall govern any
interpretation of this Agreement; and
WHEREAS, the Employee has accepted the grant of Restricted Shares and
agreed to the terms and conditions hereinafter stated;
NOW, THEREFORE, the Employee and the Company agree to the provisions set
forth in the Agreement. The Employee signifies agreement with all of the terms
and conditions of this Agreement by failing to provide written objection to the
Company to any of the terms hereunder within 30 days of receipt of this
Agreement, and in any event by accepting any dividends paid with respect to the
Restricted Shares granted hereunder.
1. GRANT OF RESTRICTED SHARES. The Company hereby grants to the
Employee, as a separate incentive in connection with his or her employment and
not in lieu of any salary or other cash
compensation for his or her services, an award of __________ Restricted
Shares, effective _____________, subject to all the terms and conditions in
this Agreement and the Plan.
2. RESTRICTION ON TRANSFER. The Restricted Shares awarded pursuant to
this Agreement shall be issued in the name of The Employee and held by the
Secretary of the Company as escrow agent (the "Escrow Agent"), and, except to
the extent specifically provided herein, shall not be sold, transferred,
otherwise disposed of, pledged or otherwise hypothecated until the date such
Restricted Shares become vested pursuant to paragraph 3 hereof (the
"Restriction on Transfer"). The Company may instruct the transfer agent for
its Common Stock to place a legend on the certificates representing the
Restricted Shares or otherwise note its records as to the restrictions on
transfer set forth in this Agreement and the Plan. The certificate or
certificates representing such shares shall be delivered by the Escrow Agent
to The Employee only after the shares become vested on the date specified in
paragraph 3 and after all other terms and conditions in this Agreement have
been satisfied. Notwithstanding the foregoing, to the extent specifically
permitted by the Plan, the Restricted Shares may be transferred by gift,
subject to the Restriction on Transfer and the vesting conditions set forth
herein.
3. VESTING OF SHARES. The Restricted Shares awarded by this Agreement
shall become vested as follows: Effective as of the date hereof (the "Grant
Date"), the Restricted Shares shall be 0% vested. If the Employee is
employed for a continuous period beginning on the date hereof and ending on
the third anniversary of the Grant Date, 50% of the Restricted Shares shall
become vested. If the Employee shall continue to be employed for a continuous
period ending on the fourth anniversary of the Grant Date, an additional 50%
of the Restricted Shares shall become vested, so that at such time all of the
Restricted Shares subject to this Agreement shall be then vested.
Notwithstanding the foregoing, in the event of the Employee's death or
Disability, 100% of the Restricted Shares shall be then vested, and in the
event of the Employee's Retirement after the second anniversary of the Grant
Date, 100% of the Restricted Shares shall be then vested. For purposes of
this Agreement, Retirement shall mean a termination of employment of the
Employee at any time after the Employee (i) has attained fifty (50) years of
age, and (ii) has completed seven (7) years of service, as determined
pursuant to the terms of the Xxxxxxx Xxxxxx Profit Sharing and Employee Stock
Ownership Plan. Notwithstanding the
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foregoing, however, the accrual of vesting pursuant to this paragraph is
contingent upon the Employee's satisfactory job performance, and the Company
may, in its sole discretion, upon notice to the Employee, suspend or delay
the vesting of the Restricted Shares hereunder for any period of time in the
event that the Company determines, within its sole discretion, that the
Employee's performance is unsatisfactory. Moreover, the continued accrual of
vesting pursuant to this paragraph shall be suspended during the period of
time in which the Optionee is on a leave of absence of more than six months
for any reason other than (i) medical reasons, (ii) pregnancy disability,
(iii) a leave qualifying under the Family and Medical Leave Act, or (iv)
workers' compensation. Upon the vesting of Restricted Shares hereunder, the
certificate or certificates representing such Restricted Shares shall be
delivered to the Employee.
4. CHANGE IN CONTROL. Upon the determination of the Committee that a
Change in Control of the Company has occurred, or in the event of the
liquidation or dissolution of the Company, the Restricted Shares shall become
fully vested and the Restriction on Transfer shall be lifted, notwithstanding
any other provision of this Agreement, and the certificate or certificates
representing such Restricted Shares shall be delivered to the Employee.
5. DISCRETION OF COMMITTEE. The Committee may decide, in its absolute
discretion, to lift at any time the Restriction on Transfer or to accelerate the
vesting of the Restricted Shares, and the certificate or certificates
representing such Restricted Shares shall be delivered to the Employee.
6. DELIVERY OF SHARES TO ESTATE OF DECEASED EMPLOYEE. Any distribution
or delivery to be made to the Employee under this Agreement shall, if the
Employee is then deceased, be made to the Employee's estate in accordance with
the terms of Section 7.5 of the Plan.
7. CONDITIONS TO ISSUANCE OF SHARES. The Restricted Shares deliverable
to the Employee may be either previously authorized but unissued shares or
issued shares which have been reacquired by the Company. The Company shall not
be required to issue any certificate or certificates for Restricted Shares
hereunder prior to fulfillment of all of the following conditions:
(a) The admission of such shares to listing on all stock exchanges on
which such class of stock is then listed;
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(b) The completion of any registration or other qualification of such
shares under any State or federal law or under the rulings or regulations of the
Securities and Exchange Commission or any other governmental regulatory body,
which the Committee shall, in its absolute discretion, deem necessary or
advisable;
(c) The obtaining of any approval or other clearance from any State
or federal governmental agency, which the Committee shall, in its absolute
discretion, determine to be necessary or advisable; and
(d) The lapse of such reasonable period of time following the date of
the grant of the Restricted Shares as the Committee may establish from time to
time for reasons of administrative convenience.
Neither the Employee nor any person claiming under or through the Employee
shall be, or have any of the rights or privileges of, a stockholder of the
Company in respect of any Restricted Shares deliverable hereunder unless and
until certificates representing such shares shall have been issued, recorded on
the records of the Company or its transfer agents or registrars, and delivered
to the Employee or the Escrow Agent. Except as provided in paragraph 8, after
such issuance, recordation and delivery, the Employee shall have all rights of a
stockholder of the Company with respect to voting such Restricted Shares and
receipt of dividends and distributions on such Restricted Shares.
8. CERTAIN ADJUSTMENTS TO SHARES. In the event that as a result of a
stock dividend, stock split, reclassification, recapitalization, combination of
shares or the adjustment in capital stock of the Company or otherwise, or as a
result of a merger, consolidation, spin-off or other reorganization, the
Company's Common Stock shall be increased, reduced or otherwise changed, and by
virtue of any such change the Employee shall in his or her capacity as owner of
Restricted Shares which have been awarded to him or her (the "Prior Shares") be
entitled to new or additional or different shares or securities (other than
rights or warrants to purchase securities), such new or additional or different
shares or securities shall thereupon be considered to be Restricted Shares and
shall be subject to all of the conditions and restrictions which were applicable
to the Prior Shares pursuant to the Plan. If the Employee receives rights or
warrants with respect to any Prior Shares, such rights or warrants may be held
or exercised by the Employee, provided that until such exercise any such rights
or warrants and
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after such exercise any shares or other securities acquired by the exercise
of such rights or warrants shall be considered to be Restricted Shares and
shall be subject to all of the conditions and restrictions which were
applicable to the Prior Shares pursuant to the Plan. The Committee in its
absolute discretion at any time may lift the Restriction on Transfer of all
or any portion of such new or additional shares of stock or securities,
rights or warrants to purchase securities or shares or other securities
acquired by the exercise of such rights or warrants.
9. CONTRIBUTION OF PAR VALUE TO CAPITAL OF THE COMPANY. Notwithstanding
the provisions of Section 7.2 of the Plan, the Company will contribute to the
capital of the Company on behalf of the Employee, as an Award recipient, an
amount equal to the par value of the Restricted Shares issued to the Employee
hereunder.
10. TAX WITHHOLDING. To the extent required by applicable federal, state,
local or foreign law, the Employee shall make arrangements satisfactory to the
Company for the satisfaction of any withholding tax obligations that arise by
reason of the awarding or vesting of the Restricted Shares hereunder, or by
reason of any election made by the Employee pursuant to Section 83(b) of the
Internal Revenue Code, and no Share certificates shall be issued to the Employee
unless such obligation is satisfied.
11. PLAN SHALL CONTROL. This Agreement is subject to all the terms and
provisions of the Plan. In the event of a conflict between any provisions of
this Agreement and any provisions of the Plan, the provisions of the Plan shall
govern. Terms used in this Agreement that are not defined in this Agreement
shall have the meaning set forth in the Plan.
12. POWERS OF THE COMMITTEE. The Committee shall have the power to
interpret and construe the Plan and this Agreement and to adopt such rules for
the administration, interpretation and application of the Plan as are consistent
therewith and to interpret or revoke any such rules. All actions taken and all
interpretations and determinations made by the Committee in good faith shall be
final and binding upon the Employee, the Employee's estate, the Company and all
other interested persons. No member of the Committee shall be personally liable
for any action, determination or interpretation made in good faith with respect
to the Plan or this Agreement.
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13. NO EFFECT ON OTHER BENEFIT PLANS. Nothing herein contained shall
affect the Employee's right to participate in and receive benefits under and in
accordance with the then current provisions of any pension, insurance or other
Employee welfare plan or program of the Company or any Subsidiary.
14. NONASSIGNABILITY. So long as the Restriction on Transfer is in
effect, except to the extent specifically permitted by this Agreement, the
Restricted Shares herein granted and the rights and privileges conferred hereby
shall not be transferred, assigned, pledged or hypothecated in any way (whether
by operation or law or otherwise) and shall not be subject to sale under
execution, attachment or similar process. Upon any attempt to transfer, assign,
pledge, hypothecate or otherwise dispose of such award or any right or privilege
conferred hereby, contrary to the provisions hereof, or upon any attempted sale
under any execution, attachment or similar process upon the rights and
privileges conferred hereby, such award and the rights and privileges conferred
hereby shall immediately become null and void.
15. SUCCESSORS AND ASSIGNS. Subject to the limitation on the
transferability of the Restricted Shares contained herein, this Agreement shall
be binding upon and inure to the benefit of the heirs, legatees, legal
representatives, successor and assigns of the Employee and the Company.
16. NOTICES. Any notice to be given to the Company under the terms of
this Agreement shall be addressed to the Company, in care of its Secretary, at
000 Xxxxxxxxxx Xxxxxx, Xxx Xxxxxxxxx, Xxxxxxxxxx 00000, or at such other address
as the Company may hereafter designate in writing. Any notice to be given to
the Employee shall be addressed to the Employee at the address set forth beneath
the Employee's signature hereto, or at such other address as the Employee may
hereafter designate in writing. Any such notice shall be deemed to have been
duly given if and when enclosed in a properly sealed envelope, addressed as
aforesaid, registered or certified and deposited, postage and registry fee
prepaid, in a United States post office.
17. SEVERABILITY. In the event that any provision of this Agreement shall
be held invalid or unenforceable, such provision shall be severable from, and
such invalidity or unenforceability shall not be construed to have any effect
on, the remaining provisions of this Agreement.
18. GOVERNING LAW. This Agreement shall be construed in accordance with
the laws of the State of California.
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