EXHIBIT 10.28
AMENDMENT TO PHANTOM STOCK AGREEMENT
THIS AMENDMENT TO PHANTOM STOCK AGREEMENT, dated as of June 22, 2001 is
made by and between Xxxxx-Illinois, Inc., a Delaware corporation (the "Company")
and [____________], an employee of the Company or a Parent Corporation or a
Subsidiary (the "Employee"):
WHEREAS, the Company has established the Amended and Restated
Xxxxx-Illinois 1997 Equity Participation Plan (the "Plan"); and
WHEREAS, the Plan provides for the issuance of phantom stock units,
subject to certain vesting conditions thereon; and
WHEREAS, by Phantom Stock Agreement dated as of May 17, 1999 between
the Company and the Employee (the "Agreement"), the Employee was granted certain
Units of Phantom Stock (as defined in the Agreement); and
WHEREAS, the Compensation Committee of the Board of Directors of the
Company has determined it would be to the advantage and best interest of the
Company and its stockholders to amend the Agreement as provided for herein; and
NOW, THEREFORE, in consideration of the mutual covenants herein
contained and other good and valuable consideration, receipt of which is hereby
acknowledged, the parties hereto do hereby agree as follows:
1. Sections 3.1 and 3.2 of the Agreement are hereby amended to read, in
their entirety, as follows:
"SECTION 3.1. TERMINATION OF UNITS
Until vested, all shares of Units issued to the Employee
pursuant to this Agreement are subject to termination by the Company
immediately upon a Termination of Employment other than from death
or total disability (as determined by the Committee in accordance
with Company plans and policies), in which event all Units shall
immediately fully vest.
SECTION 3.2 VESTING OF UNITS
The Units shall fully vest, and all Restrictions thereon shall
immediately expire upon the later to occur of (a) the third
anniversary of this Agreement, and (b) either (i) Employee's
retirement (whether normal or early, as determined in accordance
with Company plans and policies) from the Company, or (ii) a
Termination of Employment that is not initiated by, and not
voluntary on the part of the Employee, other than for Cause. Subject
to the terms of the Plan, the Employee may exercise his right to
receive payment on a vested Unit or Units by delivering written
notice to the Company. The notice should identify the Unit or Units
to be exercised. The Employee's right to
receive payment on a vested Unit shall permanently expire three (3)
months after the date on which the Unit vests. Payment by the
Company shall be made in shares of Common Stock. The Company shall
issue one share of Common Stock to the Employee for each vested Unit
exercised by the Employee."
2. Article IV of the Agreement is hereby amended to read, in its
entirety, as follows:
"ARTICLE IV.
NON-COMPETITION/NON-SOLICITATION
SECTION 4.1. COVENANT NOT TO COMPETE
Employee covenants and agrees that prior to Employee's
Termination of Employment and for a period of three (3) years
following the Employee's Termination of Employment, Employee shall
not, in the United States of America or in any other country in
which the Company manufactures or sells it products, engage,
directly or indirectly, whether as principal or as agent, officer,
director, employee, consultant, shareholder or otherwise, alone or
in association with any other person, corporation or other entity,
in any Competing Business.
SECTION 4.2. NON-SOLICITATION OF EMPLOYEES
Employee agrees that prior to his Termination of Employment and
for three (3) years following Employee's Termination of Employment,
including without limitation termination by the Company for Cause or
without Cause, Employee shall not, directly or indirectly, solicit
or induce, or attempt to solicit or induce, any employee of the
Company to leave the employment of the Company for any reason
whatsoever, or hire any employee of the Company except into the
employment of the Company.
SECTION 4.3. EXCEPTION
Notwithstanding anything contained in this Agreement to the
contrary, the restrictions set forth in Section 4.1 above shall
lapse and be of no further effect in the event of a Termination of
Employment that is not initiated by, and not voluntary on the part
of the Employee, other than for Cause."
3. Except as otherwise provided herein, the Agreement shall remain in
full force and effect.
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IN WITNESS WHEREOF, the Company and the Employee have caused this
Amendment to be executed as of the day and year first above written.
XXXXX-ILLINOIS, INC.
By:
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Its: Secretary
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Employee
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Address
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