FORM] HARMAN INTERNATIONAL INDUSTRIES, INCORPORATED AMENDED AND RESTATED 2002 STOCK OPTION AND INCENTIVE PLAN PERFORMANCE BASED RESTRICTED SHARE UNIT AGREEMENT FOR OFFICERS AND KEY EMPLOYEES
Exhibit
10.5
[FORM]
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INTERNATIONAL INDUSTRIES, INCORPORATED
AMENDED
AND RESTATED 2002 STOCK OPTION AND INCENTIVE PLAN
FOR
OFFICERS AND KEY EMPLOYEES
THIS
RESTRICTED SHARE UNIT AGREEMENT (this “Agreement”), dated as of ____________, is
entered into between ▇▇▇▇▇▇ INTERNATIONAL INDUSTRIES, INCORPORATED a Delaware
corporation (the “Company”), and ____________
(“Grantee”). Capitalized terms used herein but not defined shall have
the meanings assigned to those terms in the Company’s Amended and Restated 2002
Stock Option and Incentive Plan, as amended (the “Plan”)
W
I T N E S S E T H:
A.
Grantee is an employee of the Company or a Subsidiary of the
Company; and
B.
The execution of this Agreement in the form hereof has been
authorized by the Compensation and Option Committee of the Board (the
“Committee”);
NOW,
THEREFORE, in consideration of these premises and the covenants and agreements
set forth in this Agreement, the Company and Grantee agree as
follows:
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1.
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Grant of Restricted Share
Units. Subject to and upon the terms, conditions, and
restrictions set forth in this Agreement and the Plan, the Company hereby
grants to the Grantee, ____________ Restricted Share Units (the
“Grant”). Each Restricted Share Unit shall represent the right
to receive one share of the Company’s common stock, par value $0.01 per
share (“Common Stock”). This Agreement constitutes an “Evidence
of Award” under the Plan.
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2.
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Date of
Grant. The effective date of the grant of the Restricted
Share Units is ____________ (the “Date of
Grant”).
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3.
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Restrictions on Transfer of
Restricted Share Units. Neither the Restricted Share
Units granted hereby nor any interest therein shall be transferable other
than by will or the laws of descent and
distribution.
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4.
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Vesting of Restricted Share
Units.
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(a)
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Except
as otherwise provided in this Agreement, unless earlier forfeited in
accordance with Section 5, the number of Restricted Share Units that shall
become nonforfeitable (“Earned RSUs”) on the third anniversary of the Date
of Grant shall be the number of Restricted Share Units indicated in
Section 1 above, subject to adjustment based upon the Company’s
achievement of the performance goals as described on Exhibit A, over
the period beginning on _________ and ending on
_________.
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(b)
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Notwithstanding
the provisions of Section 4(a) above, all Restricted Share Units shall
become immediately nonforfeitable upon the occurrence of a Change in
Control (as defined below). A “Change in Control” means the
occurrence, before this Agreement terminates, of any of the following
events:
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(i)
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the
acquisition by any individual, entity or group (within the meaning of
Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934, as
amended (the “Exchange Act”)) (a “Person”) of beneficial ownership (within
the meaning of Rule 13d-3 promulgated under the Exchange Act) of 25% or
more of the combined voting power of the then outstanding securities of
the Company entitled to vote generally in the election of directors (the
“Voting Shares”); provided, however, that for purposes of this Section
4(b)(i), the following acquisitions shall not constitute a Change in
Control: (A) any issuance of Voting Shares directly from the
Company that is approved by the Incumbent Board (as defined in Section
4(b)(ii) below), (B) any acquisition by the Company or a Subsidiary of
Voting Shares, (C) any acquisition of Voting Shares by any employee
benefit plan (or related trust) sponsored or maintained by the Company or
any Subsidiary or (D) any acquisition of Voting Shares by any Person
pursuant to a Business Combination that complies with clauses (A), (B) and
(C) of Section 4(b)(iii) below;
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(ii)
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individuals
who, as of the date hereof, constitute the Board (the “Incumbent Board”)
cease for any reason to constitute at least a majority of the Board;
provided, however, that any individual becoming a Director after the date
hereof whose election, or nomination for election by the Company’s
stockholders, was approved by a vote of at least two-thirds of the
Directors then constituting the Incumbent Board (either by a specific vote
or by approval of the proxy statement of the Company in which such person
is named as a nominee for director, without objection to such nomination)
shall be deemed to have been a member of the Incumbent Board, but
excluding, for this purpose, any such individual whose initial assumption
of office occurs as a result of an actual or threatened election contest
(within the meaning of Rule 14a-12 of the Exchange Act) with respect to
the election or removal of Directors or other actual or threatened
solicitation of proxies or consents by or on behalf of a Person other than
the Board;
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(iii)
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consummation
of a reorganization, merger or consolidation, a sale or other disposition
of all or substantially all of the assets of the Company or other
transaction (each, a “Business Combination”), unless, in each case,
immediately following the Business Combination, (A) all or substantially
all of the individuals and entities who were the beneficial owners of
Voting Shares immediately prior to the Business Combination beneficially
own, directly or indirectly, more than 50% of the combined voting power of
the then outstanding Voting Shares of the entity resulting from the
Business Combination (including, without limitation, an entity which as a
result of such transaction owns the Company or all or substantially all of
the Company’s assets either directly or through one or more subsidiaries),
(B) no Person (other than the Company, such entity resulting from the
Business Combination, or any employee benefit plan (or related trust)
sponsored or maintained by the Company, any Subsidiary or such entity
resulting from the Business Combination) beneficially owns, directly or
indirectly, 25% or more of the combined voting power of the then
outstanding Voting Shares of the entity resulting from the Business
Combination and (C) at least a majority of the members of the board of
directors of the entity resulting from the Business Combination were
members of the Incumbent Board at the time of the execution of the initial
agreement or of the action of the Board providing for the Business
Combination; or
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2
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(iv)
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approval
by the stockholders of the Company of a complete liquidation or
dissolution of the Company, except pursuant to a Business Combination that
complies with clauses (A), (B) and (C) of Section 4(b)(iii)
hereof.
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5.
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Forfeiture of Restricted Share
Units.
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(a)
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Except
as otherwise described in this Section 5, any of the Restricted Share
Units that remain forfeitable in accordance with Section 4 hereof shall be
forfeited if Grantee ceases for any reason to be employed by the Company
or a Subsidiary at any time prior to such shares becoming nonforfeitable
in accordance with Section 4 hereof, unless the Committee determines to
provide otherwise at the time of the cessation of the Grantee’s
employment. For the purposes of this Agreement, the
Grantee’s employment with the Company or a Subsidiary shall not be deemed
to have been interrupted, and Grantee shall not be deemed to have ceased
to be an employee of the Company or a Subsidiary, by reason of (i) the
transfer of Grantee’s employment among the Company and its Subsidiaries,
(ii) an approved leave of absence of not more than 90 days, or (iii) the
period of any leave of absence required to be granted by the Company under
any law, rule, regulation or contract applicable to Grantee’s employment
with the Company or any Subsidiary.
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(b)
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Any
of the Restricted Share Units that remain forfeitable in accordance with
Section 4 shall be forfeited on the date that the Committee determines
that such Restricted Share Units shall be forfeited under the
circumstances described in Section 17(g) of the
Plan.
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6.
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Payment of Restricted Share
Units. Subject to Section 10, on the 70th
day after such time as the Restricted Share Units shall become
nonforfeitable as specified in this Agreement, shares of Common Stock
underlying such Restricted Share Units shall be transferred to the
Grantee, except as otherwise provided in Section 8[; provided, however,
that the Committee, in its sole discretion, may settle the award of
Restricted Share Units wholly or partly in
cash].
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3
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7.
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Dividend, Voting and Other
Rights. The Grantee shall have no rights of ownership in
the Restricted Share Units and shall have no voting rights with respect to
such Restricted Share Units until the date on which the shares of Common
Stock are transferred to the Grantee pursuant to Section 6 above and a
stock certificate representing such shares of Common Stock is issued to
the Grantee. From and after the Date of Grant and until the
earlier of (a) the time when the Grantee receives the shares of Common
Stock underlying the Restricted Share Units in accordance with Section 6
hereof or (b) the time when the Grantee’s right to receive the Restricted
Share Units is forfeited in accordance with Section 5 hereof, the Company
shall not pay to the Grantee any dividends with respect to the Restricted
Share Units.
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8.
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Retention of Common Stock by
the Company; Withholding. The shares of Common Stock
underlying the Restricted Share Units shall be released to the Grantee by
the Company’s transfer agent at the direction of the
Company. At such time as the Restricted Share Units become
nonforfeitable and payable as specified in this Agreement, the Company
shall direct the transfer agent to forward all such nonforfeitable shares
of Common Stock to the Grantee; provided, however, that if the Grantee has
notified the Company of his or her election to satisfy any tax obligations
by surrender of a portion of such shares, the transfer agent will be
directed to forward the remaining balance of shares after the amount
necessary for such taxes has been deducted. [The cash, if any,
paid to Grantee pursuant to Section 6 above shall be reduced by any
required tax withholding or other required governmental
deduction.] The foregoing provisions of this Section 8 are in
all events subject to Section 10.
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9.
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Compliance with
Law. The Company shall make reasonable efforts to comply
with all applicable federal and state securities laws; provided, however,
notwithstanding any other provision of this Agreement, the Company shall
not be obligated to issue any shares of Common Stock or other securities
pursuant to this Agreement if the issuance thereof would, in the
reasonable opinion of the Company, result in a violation of any such
law.
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10.
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Compliance with Section 409A of
the Code.
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(a)
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Notwithstanding
any provision of this Agreement to the contrary, including Exhibit A, if
the Grantee is a “specified employee” (within the meaning of Section 409A
of the Code (“Section 409A”) and determined pursuant to procedures adopted
by the Company from time to time) at the time of his “separation from
service” (within the meaning of Section 409A) and if any payment to be
received by the Grantee under Section 6 or Section 8 upon his separation
from service would be considered deferred compensation (the “Delayed
Payment”) under Section 409A, then the following provisions will apply to
the Delayed Payment. Each such payment of deferred compensation
that would otherwise be payable pursuant to Section 6 or Section 8 during
the six-month period immediately following the Grantee’s separation from
service will instead be paid or made available on the earlier of (i) the
first business day of the seventh month following the date the Grantee
incurs a separation from service and (ii) the Grantee’s
death. In the event this Section 10(a) applies, the fair market
value of the Restricted Share Units shall be the fair market value, as
determined in accordance with the Plan, on the earlier of the dates
specified in clauses (i) and (ii) above. To the extent
applicable, it is intended that this Agreement and the Plan comply with
the provisions of Section 409A and shall be interpreted consistent with
Section 409A.
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(b)
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Subject
to Section 10(a), if (i) Restricted Share Units become nonforfeitable due
to the application of Section 4(b), (ii) the Change in Control is not
described by Section 409A(a)(2)(A)(v) of the Code and (iii) any payment
that would otherwise be received by the Grantee would be considered
deferred compensation under Section 409A, then such payment will instead
be paid on the 30th
day after the earliest of (x) the applicable date set forth in Section
4(a) on which the Restricted Share Units would otherwise have become
nonforfeitable, (y) the Grantee’s separation from service, and (z) a
Change in Control that is described by Section 409A(a)(2)(A)(v) of the
Code. In the event this Section 10(b) applies, the fair market
value of the Restricted Share Units shall be the fair market value, as
determined in accordance with the Plan, on the 30th
day after the earliest of the dates specified in clauses (i), (ii) and
(iii) above.
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11.
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Relation to Other
Benefits. Any economic or other benefit to the Grantee
under this Agreement shall not be taken into account in determining any
benefits to which the Grantee may be
entitled.
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12.
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Relation to
Plan. This Agreement is subject to the terms and
conditions of the Plan. In the event of any inconsistent
provisions between this Agreement and the Plan, the Plan shall
govern. Capitalized terms used herein without definition shall
have the meanings assigned to them in the Plan. The Committee,
acting pursuant to the Plan shall, except as expressly provided otherwise
herein, have the right to determine any questions which arise in
connection with this grant.
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13.
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Employment
Rights. This Agreement shall not confer on Grantee any
right with respect to the continuance of employment or other services with
the Company or any Subsidiary. No provision of this Agreement
shall limit in any way whatsoever any right that the Company or a
Subsidiary may otherwise have to terminate the employment of Grantee at
any time.
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14.
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Communications. All
notices, demands and other communications required or permitted hereunder
or designated to be given with respect to the rights or interests covered
by this Agreement shall be deemed to have been properly given or delivered
when delivered personally or sent by certified or registered mail, return
receipt requested, U.S. mail or reputable overnight carrier, with full
postage prepaid and addressed to the parties as
follows:
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If
to the Company, at:
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▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
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▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
Attention: General
Counsel
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If
to Grantee, at:
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Grantee’s
address provided by Grantee on the last page
hereof
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Either
the Company or Grantee may change the above designated address by written notice
to the other specifying such new address.
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15.
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Interpretation. The
interpretation and construction of this Agreement by the Committee shall
be final and conclusive. No member of the Committee shall be
liable for any such action or determination made in good
faith.
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16.
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Amendment in
Writing. This Agreement may be amended as provided in
the Plan; provided, however, that all such amendments shall be in
writing.
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17.
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Integration. The
Restricted Share Units are granted pursuant to the
Plan. Notwithstanding anything in this Agreement to the
contrary, this Agreement is subject to all of the terms and conditions of
the Plan, a copy of which is available upon request and which is
incorporated herein by reference. As such, this Agreement and
the Plan embody the entire agreement and understanding of the Company and
Grantee and supersede any prior understandings or agreements, whether
written or oral, with respect to the Restricted Share
Units.
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18.
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Severance. 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.
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19.
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Governing
Law. This Agreement is made under, and shall be
construed in accordance with, the laws of the State of
Delaware.
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20.
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Counterparts. This
Agreement may be executed in one or more counterparts, each of which shall
be deemed an original and all of which together shall constitute one and
the same instrument.
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[REST
OF PAGE INTENTIONALLY LEFT BLANK]
6
IN
WITNESS WHEREOF, this Agreement is executed by a duly authorized representative
of the Company on the day and year first above written.
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▇▇▇▇▇▇
INTERNATIONAL INDUSTRIES,
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INCORPORATED
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By:
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Name:
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Title:
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The
undersigned Grantee acknowledges receipt of an executed original of this
Agreement and accepts the Restricted Share Units subject to the applicable terms
and conditions of the Plan and the terms and conditions hereinabove set
forth.
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Date:
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Grantee
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GRANTEE:
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Please
complete/update the following information.
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Name:
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Home
Address:
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Social
Security Number:
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Date
of Hire:
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Subsidiary
or Division:
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