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EXHIBIT 10.29
EXHIBIT B
XXXX CORPORATION
LONG-TERM STOCK INCENTIVE PLAN
DEFERRAL AND RESTRICTED STOCK UNIT AGREEMENT
DEFERRAL AND RESTRICTED STOCK UNIT AGREEMENT (the "Agreement") dated as of
, 1997 (the "Effective Date"), between Xxxx Corporation
("Company") and the individual whose name appears on the signature page hereof
(the "Participant"), who is a key employee of the Company or an Affiliate. Any
term capitalized herein but not defined shall have the meaning set forth in the
Xxxx Corporation Long-Term Stock Incentive Plan (the "Plan").
1. Deferral Election.
a. In accordance with the terms of the Plan, the Participant
hereby elects to defer:
i. ____% (enter any percentage less than or equal to
100%), but not to exceed $_________, of the bonus payable to
the Participant under the Company's Senior Executive Incentive
Compensation Plan or Management Incentive Compensation Plan
paid in the first quarter of 1998; and
ii. ____% (enter any percentage less than or equal to
90%), but not to exceed $_________, of the base salary payable
to the Participant for the pay periods ending after December
31, 1997 and before January 1, 1999.
For purposes of this Agreement, "base salary" shall mean a Participant's annual
base salary rate on January 1, 1998 from the Company or an Affiliate, including
any elective contributions of the Participant that are not includable in his
gross income under Code Sections 125 or 401(k), but before taking into account
any deferral under this Agreement.
2. Restricted Stock Units. In consideration for the Participant's
deferral of the bonus under Section 1(a)(i), the Participant shall be credited
as of April 1, 1998 with a number of Restricted Stock Units ("Bonus Restricted
Stock Units") under the Plan equal to the amount deferred under Section 1(a)(i)
increased by twenty-five percent of such amount divided by the Fair Market
Value of a share of the Company's common stock, par value $.01 per share
("Common Stock"), on the date in 1998 that the incentive bonus checks are
issued (the "Bonus Date"). In consideration of the Participant's deferral of
base salary under Section 1(a)(ii), the Participant shall be credited as of
April 1, 1998 with a number of Restricted Stock Units ("Salary Restricted Stock
Units") under the Plan equal to the amount deferred under Section 1(a)(ii)
increased by twenty-five percent of such amount divided by the Fair Market
Value of a share of Common Stock on the Bonus Date. Bonus Restricted Stock
Units and Salary Restricted Stock Units shall collectively be referred to as
Restricted Stock Units.
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3. Restriction Period. The Restriction Period under this Agreement shall
be the three year period commencing on April 1, 1998 and ending on March 31,
2001.
4. Dividend Equivalents. If the Company declares a cash dividend on its
Common Stock, the Participant shall be credited with dividend equivalents under
this Agreement equal to the amount of the cash dividend per share multiplied by
the Restricted Stock Units credited to the Participant under Section 2 through
the record date for such dividend. Such dividend equivalents shall accrue as a
contingent cash obligation to the Participant as of the payment date for the
dividend and be credited to a notional account established for the Participant
("Dividend Equivalent Account"). Interest shall be credited to a Participant's
Dividend Equivalent Account until payment of such account to the Participant.
The rate of such interest shall be the prime rate of interest as reported by
the Midwest edition of the Wall Street Journal for the second business day of
each quarter plus one percent.
5. Timing and Form of Payout. Except as hereinafter provided in this
Section or Sections 6, 7 or 8, after the end of the Restriction Period, the
Participant shall be entitled to receive a number of shares of Common Stock
equal to the number of Restricted Stock Units credited to the Participant under
Section 2 and a cash payment equal to the amount of credited to the
Participant's Dividend Equivalents Account under Section 4. Delivery of such
shares of Common Stock shall be made as soon as administratively feasible after
the end of the Restriction Period or such later date as may have been elected
by the Participant. Delivery of the cash payment of any amount credited to the
Participant's Dividend Equivalent Account shall be made as soon as
administratively feasible after the end of the Restriction Period.
Notwithstanding anything herein to the contrary, the Committee may defer
delivery of any shares of Common Stock or any cash payment to the Participant
under this Section if the delivery of such shares of Common Stock or such cash
payment would constitute compensation to the Participant that is not deductible
by the Company or an Affiliate due to the application of Code Section 162(m);
provided, that any such shares of Common Stock or any such cash payment
deferred under this sentence shall in any event be delivered to the Participant
on or before the January 15 of the first year in which the Participant is no
longer a "covered employee" of the Company (within the meaning of Code Section
162(m)) following the end of the Restriction Period or, if later, the date
elected by the Participant.
6. Termination of Employment Due to Death, Retirement or Disability.
(a) BEFORE APRIL 1, 1998. If the Participant ceases to be an employee
prior to April 1, 1998 by reason of death, Retirement or Disability, the
Participant (or in the case of the Participant's death, the Participant's
beneficiary) shall be entitled to receive a number of shares of Common Stock
equal to the sum of:
i. the quotient of (I) the amount of base salary
deferred under Section 1(a)(ii) increased by twenty-five
percent of such amount multiplied by a fraction,
the numerator of which is the number of full pay periods in
the period beginning on January 1, 1998 and ending on the
date the Participant ceases to be an
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employee and the denominator of which is twenty-four,
divided by (II) the Fair Market Value of a share of Common
Stock on the Bonus Date; and
ii. the quotient of (i) the amount of bonus deferred
under Section 1(a)(i) increased by twenty-five percent of such
amount divided by (II) the Fair Market Value of a share of
Common Stock on the Bonus Date.
Such shares of Common Stock shall be distributed as soon as administratively
feasible after March 31, 1998.
(b) AFTER MARCH 31, 1998 BUT BEFORE JANUARY 1, 1999. If the Participant
ceases to be an employee after March 31, 1998 but prior to January 1, 1999 by
reason of death, Retirement or Disability, the Participant (or in the case of
the Participant's death, the Participant's beneficiary) shall be entitled to
receive a cash payment equal to the Participant's Dividend Equivalents Account
under Section 4 and a number of shares of Common Stock equal to the sum of:
i. the number of Salary Restricted Stock Units
credited to the Participant under Section 2 multiplied by a
fraction, the numerator of which is the number of full pay
periods in the period beginning on January 1, 1998 and ending
on the date the Participant ceases to be an employee and the
denominator of which is twenty-four; and
ii. the number of Bonus Restricted Stock Units
credited to the Participant under Section 2.
(c) AFTER DECEMBER 31, 1998. If the Participant ceases to be an employee
after December 31, 1998 but prior to the end of the Restriction Period by
reason of death, Retirement or Disability, the Participant (or in the case of
the Participant's death, the Participant's beneficiary) shall be entitled to
receive a number of shares of Common Stock equal to the number of Restricted
Stock Units credited to the Participant under Section 2 and a cash payment
equal to the Participant's Dividend Equivalent Account under Section 4.
(d) BENEFICIARY. Any distribution made with respect to a Participant who
has died shall be paid to the beneficiary designated by the Participant
pursuant to Article 11 of the Plan to receive the Participant's shares of
Common Stock and any cash payment under this Award. If the Participant's
beneficiary predeceases the Participant or no beneficiary has been designated,
distribution of the Participant's shares of Common Stock and any cash payment
shall be made to the Participant's surviving spouse and if none, to the
Participant's estate.
7. Involuntary Termination Other Than For Cause.
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(a) BEFORE APRIL 1, 1998. A Participant whose employment
involuntarily terminates other than for Cause or any reason described in
Section 6 prior to April 1, 1998 shall be entitled to receive a number of
shares of Common Stock equal to the sum of :
i. the lesser of:
A. the quotient of (I) the total amount
of base salary deferred under Section 1(a)(ii)
multiplied by a fraction, the numerator of which is the
number of full pay periods in the period beginning on
January 1, 1998 and ending on the date the Participant
ceases to be an employee and the denominator of which is
twenty-four divided by (II) the Fair Market Value of a
share of Common Stock on the date the Participant ceases
to be an employee, or
B. the quotient of (I) the total amount
of base salary deferred under Section 1(a)(ii)
multiplied by a fraction, the numerator of which is the
number of full pay periods in the period beginning on
January 1, 1998 and ending on the date the Participant
ceases to be an employee and the denominator of which is
twenty-four divided by (II) the Fair Market Value of a
share of Common Stock on the Bonus Date; and
ii. the lesser of:
A. the quotient of (I) the total amount
of bonus deferred under Section 1(a)(i) divided by (II)
the Fair Market Value of a share of Common Stock on the
date the Participant ceases to be an employee, or
B. the quotient of (I) the total amount
of bonus deferred under Section 1(a)(i) increased by
twenty-five percent divided by (II) the Fair Market
Value of a share of Common Stock on the Bonus Date.
Such shares of Common Stock shall be distributed as soon as administratively
feasible after March 31, 1998.
(b) AFTER MARCH 31, 1998 BUT BEFORE JANUARY 1, 1999. A Participant
whose employment involuntarily terminates other than for Cause or for any
reason described in Section 6 after March 31, 1998 but prior to January 1, 1999
shall be entitled to receive a number of shares of Common Stock equal to the
sum of i, ii, iii and iv as defined below.
i. the number of Salary Restricted Stock Units
credited to the Participant under Section 2 multiplied by a
fraction, the numerator of which is the number of full pay
periods in the period beginning on January 1, 1998 and ending
on the date the Participant ceases to be an employee and the
denominator of which
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is twenty-four, multiplied by a fraction, the numerator
of which is the number of full calendar months in the period
beginning on April 1, 1998 and ending on the date the
Participant ceases to be an employee and the denominator of
which is thirty-six; and
ii. the number of Bonus Restricted Stock Units
credited to the Participant under Section 2 multiplied by a
fraction, the numerator of which is the number of full
calendar months in the period beginning on April 1, 1998 and
ending on the date the Participant ceases to be an employee
and the denominator of which is thirty-six; and
iii. the lesser of:
A. the quotient of (I) the total amount
of base salary deferred under Section 1(a)(ii)
multiplied by a fraction, the numerator of which is the
number of full pay periods in the period beginning on
January 1, 1998 and ending on the date the Participant
ceases to be an employee and the denominator of which is
twenty-four, multiplied by a fraction, the numerator of
which is the number of full calendar months remaining in
the Restriction Period and the denominator of which is
thirty-six, divided by (II) the Fair Market Value of a
share of Common Stock on the date the Participant ceases
to be an employee, or
B. the number of Salary Restricted Units
determined under Section 2 multiplied by a fraction, the
numerator of which is the number of full pay periods in
the period beginning on January 1, 1998 and ending on
the date the Participant ceases to be an employee and
the denominator of which is twenty-four, multiplied by a
fraction, the numerator of which is the number of full
calendar months remaining in the Restriction Period and
the denominator of which is thirty-six; and
iv. the lesser of:
A. the quotient of (I) the total amount
of bonus deferred under Section 1(a)(i) multiplied by a
fraction, the numerator of which is the number of full
calendar months remaining in the Restriction Period and
the denominator of which is thirty-six, divided by (II)
the Fair Market Value of a share of Common Stock on the
date the Participant ceases to be an employee, or
B. the number of Bonus Restricted Stock
Units determined under Section 2 multiplied by a
fraction, the numerator of which is the
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number of full calendar months remaining in the
Restriction Period and the denominator of which is
thirty-six.
(c) AFTER DECEMBER 31, 1998. A Participant whose employment
involuntarily terminates, other than for Cause or for any reason described in
Section 6, after December 31, 1998 but prior to the end of the Restriction
Period shall be entitled to receive a number of shares of Common Stock equal to
the sum of:
i. the number of the Restricted Stock Units credited
to the Participant under Section 2 multiplied by a fraction,
the numerator of which is the number of full calendar months
in the period beginning on April 1, 1998 and ending on the
date the Participant ceases to be an employee and the
denominator of which is thirty-six, and
ii. the lesser of:
A. the quotient of (I) the total amount
deferred under Section 1 multiplied by a fraction, the
numerator of which is the number of full calendar months
remaining in the Restriction Period and the denominator
of which is thirty-six, divided by (II) the Fair Market
Value of a share of Common Stock on the date the
Participant ceases to be an employee, or
B. the number of his Restricted Stock
Units determined under Section 2 multiplied by a
fraction, the numerator of which is the number of full
calendar months remaining in the Restriction Period and
the denominator of which is thirty-six.
8. Termination of Employment for Any Other Reason.
(a) BEFORE APRIL 1, 1998. A Participant who terminates employment
for any reason other than those described in Sections 6 and 7 prior to
April 1, 1998 shall be entitled to receive a number of shares of Common Stock
equal to the sum of:
i. the quotient of (I) the total amount of base
salary deferred under Section 1(a)(ii) multiplied by a
fraction, the numerator of which is the number of full pay
periods in the period beginning on January 1, 1998 and ending
on the date the Participant ceases to be an employee and the
denominator of which is twenty-four, divided by (II) the Fair
Market Value of a share of Common Stock on Bonus Date; and
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ii. the quotient of (I) the total amount of bonus
deferred under Section 1(a)(i) divided by (II) the Fair Market
Value of a share of Common Stock on the Bonus Date.
Such shares of Common Stock shall be distributed as soon as administratively
feasible after March 31, 1998.
(b) AFTER MARCH 31, 1998 BUT BEFORE JANUARY 1, 1999. A
Participant who terminates employment for any reason other than those
described in Sections 6 and 7 after March 31, 1998 but prior to January 1, 1999
shall be entitled to receive a number of shares of Common Stock equal to the
sum of:
i. the lesser of:
A. the quotient of (I) the total amount
of base salary deferred under Section 1(a)(ii)
multiplied by a fraction, the numerator of which is the
number of full pay periods in the period from January 1,
1998 to the date the Participant ceases to be an
employee and the denominator of which is twenty-four,
divided by (II) the Fair Market Value of a share of
Common Stock on the date the Participant ceases to be an
employee, or
B. the number of Salary Restricted Stock
Units credited to the Participant multiplied by a
fraction, the numerator of which is the number of full
pay periods in the period from January 1, 1998 to the
date the Participant ceases to be an employee and the
denominator of which is twenty-four; and
ii. the lesser of:
A. the total amount of bonus deferred
under Section 1(a)(i) divided by the Fair Market Value
of a share of Common Stock on the date the Participant
ceases to be an employee, or
B. the number of Bonus Restricted Stock
Units credited to the Participant under Section 2.
(c) AFTER DECEMBER 31, 1998. A Participant who terminates
employment for any reason other than those described in Sections 6 and
7 after December 31, 1998 but prior to the end of the Restriction Period shall
be entitled to receive a number of shares of Common Stock equal to the lesser
of: (a) the total amount deferred under Section 1 divided by the Fair Market
Value of a share of Common Stock on the date the Participant ceases to be an
employee, or (b) the number of Restricted Stock Units credited to the
Participant under Section 2.
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9. Election to Defer Beyond Restriction Period. Pursuant to rules
established by the Committee, the Participant may defer delivery of shares of
Common Stock under this Agreement to a date after the Restriction Period
expires by making a timely election. In no event, however, may the Participant
defer delivery of shares of Common Stock under this Agreement beyond the date
the Participant terminates employment.
10. Assignment and Transfers. The rights and interests of the Participant
under this Award may not be assigned, encumbered or transferred except, in the
event of the death of the Participant, by will or the laws of descent and
distribution.
11. Withholding Tax. The Company and any Affiliate shall have the right
to retain shares of Common Stock that are distributable to the Participant
hereunder to the extent necessary to satisfy any withholding taxes, whether
federal or state, triggered by the distribution of shares of Common Stock under
this Award.
12. No Limitation on Rights of the Company. The grant of this Award shall
not in any way affect the right or power of the Company to make adjustments,
reclassification, or changes in its capital or business structure, or to merge,
consolidate, dissolve, liquidate, sell or transfer all or any part of its
business or assets.
13. Plan and Agreement Not a Contract of Employment. Neither the Plan nor
this Agreement is a contract of employment, and no terms of employment of the
Participant shall be affected in any way by the Plan, this Agreement or related
instruments except as specifically provided therein. Neither the establishment
of the Plan nor this Agreement shall be construed as conferring any legal
rights upon the Participant for a continuation of employment, nor shall it
interfere with the right of the Company or any Affiliate to discharge the
Participant and to treat him or her without regard to the effect that such
treatment might have upon him or her as a Participant.
14. Participant to Not Have Rights as a Stockholder. The Participant
shall not have rights as a stockholder with respect to any shares of Common
Stock subject to this Award prior to the date on which he or she is recorded as
the holder of such shares of Common Stock on the records of the Company.
15. Notice. Any notice or other communication required or permitted
hereunder shall be in writing and shall be delivered personally, or sent by
certified, registered or express mail, postage prepaid. Any such notice shall
be deemed given when so delivered personally or, if mailed, three days after
the date of deposit in the United States mail, in the case of the Company to
21557 Xxxxxxxxx Xxxx, X. X. Xxx 0000, Xxxxxxxxxx, Xxxxxxxx, 00000-0000,
Attention: Xxxxxx X. XxXxxxxx and, in the case of the Participant, to its
address set forth on the signature page hereto or, in each case, to such other
address as may be designated in a notice given in accordance with this Section.
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16. Governing Law. This Agreement shall be construed and enforced in
accordance with, and governed by, the laws of the State of Delaware, determined
without regard to its conflict of law rules.
17. Plan Document Controls. The rights herein granted are in all respects
subject to the provisions set forth in the Plan to the same extent and with the
same effect as if set forth fully herein. In the event that the terms of this
Agreement conflict with the terms of the Plan document, the Plan document shall
control.
[signature page follows]
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IN WITNESS WHEREOF, the Company and the Participant have duly executed
this Agreement as of the date first written above.
XXXX CORPORATION
By: _________________________________
Its: ________________________________
____________________________________
[Participant's Signature]
Participant's Name and Address for notices
hereunder:
____________________________________
____________________________________
____________________________________
DOCUMENT NUMBER: DOC1.W
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