HARMAN INTERNATIONAL INDUSTRIES, INCORPORATED RESTRICTED SHARE UNIT AGREEMENT
Exhibit
10.12
▇▇▇▇▇▇
INTERNATIONAL INDUSTRIES, INCORPORATED
THIS
RESTRICTED SHARE UNIT AGREEMENT (this “Agreement”), dated as of
September 17, 2008,
is entered into between ▇▇▇▇▇▇ INTERNATIONAL INDUSTRIES, INCORPORATED a Delaware
corporation (the “Company”), and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ (“Grantee”).
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:
|
1.
|
Grant of Restricted Share
Units. The Restricted Share Units granted under this Agreement are
not granted under any stock incentive plan adopted by the Company.
Notwithstanding the foregoing, other than as provided herein, this
Agreement shall be construed as if such Restricted Share Units were
subject to the terms, conditions, and restrictions set forth in this
Agreement and in the Company’s Amended and Restated 2002 Stock Option and
Incentive Plan, as amended (the “Plan”). The Company hereby grants to the
Grantee 28,344 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”).
|
|
2.
|
Date of Grant. The
effective date of the Grant is September 17, 2008 (the “Date of
Grant”).
|
|
3.
|
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.
|
|
4.
|
Vesting of Restricted Share
Units.
|
|
|
(a)
|
Except
as otherwise provided in this Agreement, the Restricted Share Units shall
become nonforfeitable as follows (each applicable date, a “Vesting Date”),
unless earlier forfeited in accordance with Section
5:
|
|
|
(i)
|
23,595
Restricted Share Units shall become nonforfeitable on February 2,
2009; and
|
|
(ii)
|
4,749
Restricted Share Units shall become nonforfeitable on May 13,
2010.
|
|
|
(b)
|
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:
|
|
|
(i)
|
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;
|
|
(ii)
|
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;
|
|
(iii)
|
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
|
2
|
(iv)
|
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.
|
|
5.
|
Forfeiture of Restricted Share
Units.
|
|
|
(a)
|
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.
|
|
|
(b)
|
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.
|
|
6.
|
Payment of Restricted Share
Units. Subject to Section 10, the Grantee shall be paid in cash, on
the 30th day following the earlier of (i) the applicable Vesting Date or
(ii) a Change in Control, provided that such Change in Control
satisfies the requirements for a change in control under Section
409A(a)(2)(A)(v) of the Code and, if not, on the earlier of the date
specified in clause (i) above, or the date of his “separation from
service” (within the meaning of Section 409A of the Code), an amount
equal the fair market value of the shares of Common Stock underlying such
Restricted Share Units (with such fair market value determined in
accordance with the definition under the Plan as of the date the
applicable Restricted Share Units become nonforfeitable as specified in
this Agreement, subject to withholding as provided in Section
8).
|
3
|
7.
|
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. 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 pay to the Grantee whenever a normal cash dividend is
paid on shares of Common Stock, an amount of cash equal to the product of
the per-share amount of the dividend paid times the number of such
Restricted Share Units. Such payment shall be made within 30
days after the corresponding dividend payment is made to the stockholders
of the Company.
|
|
8.
|
Withholding. The cash
paid to Grantee pursuant to Section 6 above shall be reduced by any
required tax withholding or other required governmental
deduction.
|
|
9.
|
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.
|
|
10.
|
Compliance with Section 409A of
the Code. Notwithstanding any provision of this
Agreement to the contrary, 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 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.
|
|
11.
|
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.
|
|
12.
|
Relation to Plan.
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.
|
4
|
13.
|
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.
|
|
14.
|
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:
|
|
If
to the Company, at:
|
▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
|
▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
Attention:
General Counsel
|
|
If
to Grantee, at:
|
Grantee’s
most recent address on file with the
Company
|
Either
the Company or Grantee may change the above designated address by written notice
to the other specifying such new address.
|
15.
|
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.
|
|
16.
|
Amendment in Writing.
This Agreement may be amended as provided in the Plan; provided, however,
that all such amendments shall be in
writing.
|
|
17.
|
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.
|
|
18.
|
Governing Law. This
Agreement is made under, and shall be construed in accordance with, the
laws of the State of Delaware.
|
|
19.
|
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.
|
[REST
OF PAGE INTENTIONALLY LEFT BLANK]
5
IN
WITNESS WHEREOF, this Agreement is executed by a duly authorized representative
of the Company on the day and year first above written.
|
▇▇▇▇▇▇
INTERNATIONAL INDUSTRIES,
|
||
|
INCORPORATED
|
||
|
By:
|
/s/ ▇▇▇▇ ▇▇▇▇▇▇
|
|
|
Name:
|
▇▇▇▇ ▇▇▇▇▇▇
|
|
|
Title:
|
Chief Human Resources
Officer
|
|
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 hereinabove set forth.
| Date: |
12/22/2008
|
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
|
|
|
Grantee
|
6