Exhibit 10.43
AMENDED AND RESTATED
STOCK MATCHING AGREEMENT
This Amended and Restated Stock Matching Agreement (this "Agreement")
is made and entered into this 3rd day of December, 2003, by and between Xxxxx
Xxxxxx Incorporated, a Delaware corporation (the "Company"), and Xxxxx Xxxxxxxx
Xxxxx (the "Employee"), regarding the award of Matched Shares (defined below) to
the Employee pursuant to the Long Term Incentive Plan of Xxxxx Xxxxxx
Incorporated (the "Plan"), and further subject to the terms and conditions set
forth below.
W I T N E S S E T H:
WHEREAS, the Company and the Employee previously entered into that
certain Stock Matching Agreement dated March 1, 2002, as amended on March 6,
2002 (the "Original Agreement");
WHEREAS, the Company and the Employee desire to make certain changes to
the Original Agreement in order to remove the administrative burden on the
Company associated with the reservation and subsequent issuance of shares of the
Company's common stock, $1.00 par value per share ("Common Stock"); and
WHEREAS, the Company and the Employee desire to amend and restate the
Original Agreement in its entirety and, unless otherwise set forth herein, all
terms and provisions hereof are effective as of the date first written above;
NOW, THEREFORE, in consideration of the premises and mutual covenants
and agreements contained herein, the parties hereto hereby agree to amend and
restate the Original Agreement and agree as follows:
1. AWARD OF MATCHED SHARES. The Company hereby issues,
subject to all the terms and conditions in this Agreement, 25,000
shares of restricted Common Stock ("Restricted Stock"), which
represents one share for each share of Common Stock up to, but not
exceeding, 25,000 shares of Common Stock owned, and held of record, (x)
by the Employee and (y) for the benefit of the Employee in an account
by (i) a tax-qualified plan maintained by the Company, a Subsidiary or
a former employer of the Employee, and/or (ii) an individual retirement
account or annuity under Code Section 408 or 408A (with such shares
under this clause (y) deemed to be owned by the Employee for purposes
of this Agreement) at the close of business on September 2, 2002. Such
shares of Restricted Stock shall be referred to herein as the "Matched
Shares."
2. VESTING PERIOD. Each Matched Share issued by the
Company pursuant to this Agreement shall either (x) if not earlier
forfeited, fully vest in accordance with Section 3(a) upon the
occurrence of an event described in Section 2(I) (a "Vesting Event") or
(y) be forfeited in accordance with Section 3(b) upon the occurrence of
an event described in Section 2(II) (a "Forfeiture Event").
(I) Vesting Events. For purposes of this Agreement, the
following are Vesting Events:
(a) The Retirement of the Employee;
(b) The termination of the Employee's employment
by the Company without Non-CIC Cause;
(c) The occurrence of a Change in Control;
(d) The termination of the Employee's
employment:
(i) by the Company without CIC Cause
prior to a Change in Control
(whether or not a Change in Control
ever occurs) if such termination
was at the request or direction of
a Person who has entered into an
agreement with the Company, the
consummation of which would
constitute a Change in Control;
(ii) by the Employee for Good Reason
prior to a Change in Control
(whether or not a Change in Control
ever occurs) if the circumstance or
event which constitutes Good Reason
occurs at the request or direction
of the Person described in
foregoing clause (i); or
(iii) by the Company without CIC Cause or
by the Employee for Good Reason if
such termination or the
circumstance or event which
constitutes Good Reason is
otherwise in connection with, or in
anticipation of, a Change in
Control (whether or not a Change in
Control ever occurs); or
(e) The Employee's death or permanent disability
(as determined by the Committee in its sole
discretion).
(II) Forfeiture Event: For purposes of this Agreement, a
Forfeiture Event means the termination of employment
of the Employee other than as set forth in Section
2(I) or due to Non-CIC Cause.
3. (a) VESTING OF MATCHED SHARES. If a Vesting Event
occurs prior to a Forfeiture Event with respect to the Employee,
subject to satisfaction of the certification requirement in Section 6,
the Matched Shares shall fully vest in an amount equal to the number of
shares of Common Stock owned by the Employee as of the date of the
Vesting Event that have been continuously owned by the Employee since
September 2, 2002 as determined pursuant to Sections 6 and 7. If
necessary, a new certificate representing such shares shall be issued
to and in the name of the Employee (or, in the case of death, in the
name of the estate of the Employee) as soon as administratively
practicable following the Vesting Event, and the original certificate
shall be cancelled. The Employee may replace shares of Common Stock
that the Employee owned on September 2, 2002 with other shares of
Common Stock, so long as the Employee continuously owns 25,000 shares
(which is the same number of shares for which the Company initially
issued Matched
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Shares) from September 2, 2002 until the date of the Vesting Event
(excluding the Matched Shares in making such determination).
(b) FORFEITURE OF MATCHED SHARES. If a Forfeiture Event
occurs prior to a Vesting Event with respect to the Employee, as of the
date of the Forfeiture Event all of the Matched Shares shall
automatically revert back to the Company for cancellation, and the
Employee shall forfeit, for all purposes of this Agreement and without
consideration, any and all rights and have no further claim against or
with respect to any Matched Shares or against the Company for any
Matched Shares.
4. STOCK CERTIFICATES. The Company will issue a stock
certificate for the Matched Shares in the name of the Employee;
provided that the Secretary of the Company will hold the stock
certificate(s) representing such shares and any additional shares
issued as a result of a stock dividend or stock split (as provided in
Section 8) until the occurrence of a Vesting Event or Forfeiture Event.
5. SHAREHOLDER STATUS. The Employee will have (i) the
right to receive all cash dividends on the Matched Shares, subject to
forfeiture of such shares under Sections 2 and 3(b), and (ii) the right
to vote such shares, subject to forfeiture of such shares under
Sections 2 and 3(b). If the Matched Shares are forfeited pursuant to
Sections 2 and 3(b), the Employee will at the same time forfeit the
Employee's right to vote such shares and to receive future cash
dividends and any other distributions made with respect to such shares.
Any distributions made with respect to the Matched Shares (other than
cash dividends) shall be deemed to be a portion of the Matched Shares
and held by the Secretary of the Company subject to the terms and
conditions of this Agreement.
6. CERTIFICATION OF SHARE OWNERSHIP BY THE EMPLOYEE.
Within 30 days after September 2, 2004, the Employee shall certify to
the Company the number of shares of Common Stock that the Employee owns
as of such date. The Employee's ownership shall be verified, in
addition to the certification, by the delivery of copies of any
certificates, brokerage or other account statements representing the
shares that the Employee owns reflecting that such shares are held of
record by the Employee or by the plan or individual retirement account
or annuity for the benefit of the Employee (or, if the Employee is
required to file ownership reports with the Securities and Exchange
Commission, by the filing of copies of such reports with such
certificate). Thereafter, subject to verification (as provided herein),
within 30 days after each subsequent September 2nd and within 15 days
after a Vesting Event, the Employee (or the representative of the
Employee' estate in the case of death) shall certify to the Company the
number of shares of Common Stock owned by the Employee as of such
September 2nd or Vesting Event date, and during the period commencing
immediately after the September 2nd immediately preceding such date.
The certificate and other evidence of stock ownership must be timely
presented to the Secretary of the Company for verification. Final
determination of sufficient evidence to verify ownership shall be made
in the sole discretion of the Committee.
7. LIMITATION OF AWARD. The award of shares of Common
Stock to the Employee pursuant to this Agreement is being made only
with respect to the shares
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owned on September 2, 2002. No future award of shares is being
authorized pursuant hereto and may only be made by the Committee in its
sole discretion at such time in the future. If the Employee should sell
any of the shares of Common Stock held by him on September 2, 2002 in
order that the number of shares owned by the Employee (excluding any
Matched Shares) is reduced to a number below the amount held on such
date, the number of Matched Shares to the Employee that shall vest
shall be reduced on a share-for-share basis. No increase in shares
subsequent to September 2, 2002 shall create a right to an increase in
the number of Matched Shares.
8. ADJUSTMENTS. If the Company should declare a stock
dividend or authorize a split of shares of the Common Stock of the
Company, the Matched Shares shall reflect and to take into account such
stock dividend or stock split, as the case may be. The additional
shares to be issued as a result of such stock dividend or stock split
shall be deemed to be a portion of the Matched Shares and subject to
the terms and conditions of this Agreement.
9. RELATIONSHIP TO THE PLAN; DEFINITIONS. This award of
Matched Shares is granted under the Plan and is subject to all of the
terms, conditions and provisions of the Plan and administrative
interpretations thereunder, if any, which have been adopted by the
Committee thereunder and are in effect on the date hereof. Capitalized
terms that are not defined in this Agreement shall have the same
meanings ascribed to them under the Plan. For purposes of this
Agreement:
(a) "CIC Cause" means Cause as defined in the
Plan.
(b) "Retirement" means the termination of
employment after attaining age 55 with not less than 5 years
of continuous employment since the Employment Date with the
Company; provided, however, that such termination is not due
to CIC Cause or Non-CIC Cause.
(c) "Non-CIC Cause" means fraud, theft,
embezzlement committed against the Company or an Affiliate or
a customer of the Company or an Affiliate, or conflict of
interest, unethical conduct, dishonesty affecting the assets,
properties or businesses of the Company or any of its
Affiliates, willful misconduct, or continued material
dereliction of duties.
10. WITHHOLDING. To the extent the issuance of the
Matched Shares under this Agreement results in taxable income to the
Employee, the Company is authorized to withhold from any remuneration
payable to the Employee any tax required to be withheld by reason of
such taxable income.
11. ENTIRE AGREEMENT. This Agreement is intended by the
parties hereto to be the final expression of their Agreement with
respect to the subject matter hereof and is the complete and exclusive
statement thereof notwithstanding any prior representation or
statements to the contrary. This Agreement hereby supercedes the
Original Agreement. This Agreement may be modified only by written
instrument signed by each of the parties hereto.
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12. HEADINGS AND SECTIONS. The headings contained in this
Agreement are for reference purposes only and do not affect in any way
the meaning or interpretation of this Agreement. All references to
sections in this Agreement shall be to sections of this Agreement
unless otherwise indicated.
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first above written.
XXXXX XXXXXX INCORPORATED
BY _________________________________
Xxxxxxx X. Xxxxx
Chairman, President and Chief
Executive Officer
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ACKNOWLEDGMENT, ACCEPTANCE AND CONSENT BY THE EMPLOYEE
The undersigned Employee, Xxxxx Xxxxxxxx Xxxxx, hereby agrees to, and
accepts, the terms and provisions of the foregoing Amended and Restated Stock
Matching Agreement, subject to the terms and provisions of the Plan and
administrative interpretations thereof referred to above. The undersigned
further hereby acknowledges that he has received a copy of the Long Term
Incentive Plan of Xxxxx Xxxxxx Incorporated and that he has been advised by the
Company to consult with and rely upon only his own tax, legal and financial
advisors regarding the consequences and risks of this award.
_______________________________ ____________________________________
Date Xxxxx Xxxxxxxx Xxxxx
00 Xxxxxxxxxx Xxxxx
Xxx Xxxxxxxxx, XX 00000
CONSENT OF SPOUSE OF THE EMPLOYEE
The undersigned spouse of the Employee has read and hereby approves the
terms and conditions of the foregoing Amended and Restated Stock Matching
Agreement and the Plan. In consideration of the Company's awarding the Employee
the Matched Shares, as set forth in the Agreement, the undersigned hereby agrees
and consents to be irrevocably bound by the terms and conditions of the
Agreement and the Plan and further agrees that any community property interest
shall be similarly bound. The undersigned hereby appoints the undersigned's
spouse as attorney-in-fact for the undersigned with respect to any amendment or
exercise of rights under the Agreement and the Plan.
____________________________________
Spouse of the Employee
