Exhibit 10.2
AGREEMENT NO. [XXXXX]
▇▇▇▇▇ INTERNATIONAL, INC.
PERFORMANCE-BASED RESTRICTED STOCK UNIT AGREEMENT
THIS PERFORMANCE-BASED RESTRICTED STOCK UNIT AGREEMENT (this "AGREEMENT")
is made and entered into by and between ▇▇▇▇▇ International, Inc., a Delaware
corporation (the "COMPANY") and [EMPLOYEE NAME], an individual and employee of
the Company ("Grantee"), on the [____] day of ___________, 2005 (the "GRANT
DATE"), subject to the terms and provisions of the ▇▇▇▇▇ International, Inc.,
1989 Long-Term Incentive Compensation Plan, as amended and restated effective
January 1, 2005 (the "PLAN"). The Plan is hereby incorporated herein in its
entirety by this reference. Capitalized terms not otherwise defined in this
Agreement shall have the meaning given to such terms in the Plan.
WHEREAS, Grantee is an employee of the Company, and in connection
therewith, the Company desires to grant to Grantee performance-based restricted
stock units, subject to the terms and conditions of this Agreement and the Plan,
with a view to increasing Grantee's interest in the Company's success and
growth; and
WHEREAS, Grantee desires to be the holder of such units subject to the
terms and conditions of this Agreement;
NOW, THEREFORE, in consideration of the premises, mutual covenants and
agreements contained herein, and other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the parties hereto,
intending to be legally bound hereby, agree as follows:
1. GRANT OF TARGET UNITS. Subject to the terms and conditions of this
Agreement and the Plan, the Company hereby grants to Grantee
[___________________ (_____)] Target Units ("TARGET UNITS"). Subject to Section
3 hereof, each Target Unit shall initially represent one share of the Company's
Common Stock ("SHARE"), $1.00 par value. Each Target Unit represents an
unsecured promise of the Company to deliver Shares to the Grantee pursuant to
the terms and conditions of the Plan and this Agreement. As a holder of Target
Units, the Grantee has only the rights of a general unsecured creditor of the
Company.
2. TRANSFER RESTRICTIONS. Grantee shall not sell, assign, transfer,
exchange, pledge, encumber, gift, devise, hypothecate or otherwise dispose of
(collectively, "TRANSFER") any Target Units granted hereunder. Any purported
Transfer of Target Units in breach of this Agreement shall be void and
ineffective, and shall not operate to Transfer any interest or title in the
purported transferee.
3. PERFORMANCE CRITERIA AND STOCK AWARDS. Upon satisfaction of the
Performance Criteria as established by the Compensation and Benefits Committee
of the Company's Board of Directors (the "COMMITTEE"), the Company shall
determine the number of shares payable to Grantee as provided under this
Agreement, subject to certification by the Committee that the specified
Performance Criteria has been satisfied. The maximum number of Shares of the
Company's Common Stock that will be awarded under this Agreement is determined
as a percentage of Employee's Target Units, such percentage based on the
Company's fiscal year 2005 return on equity, as calculated by reference to the
Company's audited financial statements, in such manner as established by the
Committee.
4. VESTING AND PAYMENT OF TARGET UNITS.
(a) Subject to Section 5 hereof, the Target Units granted hereunder
shall vest and become payable to Grantee as of the applicable "VESTING DATE," as
set out below:
VESTING DATE PERCENTAGE OF TARGET UNITS VESTED
------------ ---------------------------------
December 31, 2005 33 1/3%
December 1, 2006 33 1/3%
December 1, 2007 33 1/3%
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TOTAL 100%
(b) Settlement of Target Units. Within two and one-half (2 1/2) months
after the end of the calendar year in which Target Units become vested pursuant
to Section 4(a) above, the Company shall award to Grantee the number of Shares
determined in accordance with Section 3, if any, provided Grantee has not
terminated employment prior to the applicable Vesting Date (unless otherwise
provided under Section 5 hereof). All Shares delivered to or on behalf of
Grantee in exchange for vested Target Units shall be subject to any further
vesting, transfer or other restrictions as may be required by securities law or
other applicable law as determined by the Company.
(c) Dividends, Splits and Voting Rights. If the Company (i) declares a
stock dividend or makes a distribution on Common Stock in Shares, (ii)
subdivides or reclassifies outstanding Shares into a greater number of Shares,
or (iii) combines or reclassifies outstanding Shares into a smaller number of
Shares, then the number of Target Units granted under this Agreement shall be
proportionately increased or reduced, as applicable, so as to prevent the
enlargement or dilution of Grantee's rights and duties hereunder. The
determination of the Committee regarding such adjustments shall be binding.
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5. FORFEITURE.
(a) Termination Due to Death or Disability. If Grantee's employment
with the Company is terminated due to death or Disability of the Grantee, then,
in either such event, Grantee shall not be considered to have incurred a
termination of employment for purposes of this Agreement, and the settlement of
vested Target Units shall be made in accordance with Section 4 hereof, but only
through the next Vesting Date.
For purposes of this Section 5(a), "Disability" means, as determined
by the Committee in its discretion exercised in good faith, a physical or mental
condition of the Grantee that would entitle Grantee to payment of disability
income payments under the Company's long-term disability insurance policy or
plan for employees, as then effective, if any; or in the event that the Grantee
is not covered, for whatever reason, under the Company's long-term disability
insurance policy or plan, "Disability" means a permanent and total disability as
defined in Section 22(e)(3) of the Internal Revenue Code of 1986, as amended. A
determination of Disability may be made by a physician selected or approved by
the Committee and, in this respect, the Grantee must submit to any reasonable
examination(s) required by such physician upon request in order to render an
opinion regarding whether there is a Disability.
(b) Termination Other than Death or Disability. If Grantee's
employment with the Company is voluntarily or involuntarily terminated by the
Company or Grantee for any reason other than due to death or Disability, then
Grantee shall immediately forfeit all Target Units which are not already vested
as of such date. Upon the forfeiture of any Target Units hereunder, the Grantee
shall cease to have any rights in connection with such Target Units as of the
date of such forfeiture. A transfer of employment by the Grantee, without an
interruption of employment service, between or among the Company and any parent
or subsidiary of the Company, shall not be considered a termination of
employment for purposes of this Agreement.
6. GRANTEE'S REPRESENTATIONS. Notwithstanding any provision hereof to the
contrary, the Grantee hereby agrees and represents that Grantee will not acquire
any Shares, and that the Company will not be obligated to issue any Shares to
the Grantee hereunder, if the issuance of such Shares constitutes a violation by
the Grantee or the Company of any law or regulation of any governmental
authority. Any determination in this regard that is made by the Committee, in
good faith, shall be final and binding. The rights and obligations of the
Company and the Grantee are subject to all applicable laws and regulations.
7. TAX WITHHOLDING. To the extent that the receipt of Shares hereunder
results in compensation income to Grantee for federal, state or local income tax
purposes, Grantee shall deliver to Company at such time the sum that the Company
requires to meet its tax withholding obligations under applicable law or
regulation, and, if Grantee fails to do so, Company is authorized to (a)
withhold from any cash or other remuneration (including any Shares), then or
thereafter payable to Grantee, any tax required to be withheld; or (b) sell such
number of Shares before their transfer to Grantee as is appropriate to satisfy
such tax withholding requirements, before transferring the resulting net number
of Shares to Grantee in satisfaction of its obligations under this Agreement.
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8. PAR VALUE PAID CONSIDERATION FOR SHARES. As purchase consideration for
the issuance of any Shares after they become vested, Grantee shall pay to
Company an amount equal to the par value ($1.00) of each vested Share, unless
otherwise determined at the discretion of the Company. If the Grantee fails to
do so, then the Company may withhold such amount due in the same manner as for
tax withholding pursuant to Section 7 before the Shares are transferred to
Grantee.
9. MISCELLANEOUS.
(a) No Fractional Shares. All provisions of this Agreement concern
whole Shares. If the application of any provision hereunder would yield a
fractional Share, such fractional Share shall be rounded down to the next whole
Share if it is less than 0.5 and rounded up to the next whole Share if it is 0.5
or more.
(b) Not an Employment Agreement. This Agreement is not an employment
agreement, and no provision of this Agreement shall be construed or interpreted
to create any employment relationship between Grantee and the Company for any
time period. The employment of Grantee with the Company shall be subject to
termination to the same extent as if this Agreement had not been executed.
(c) Dispute Resolution. Any dispute or controversy arising out of or
relating to this Agreement, or any breach hereof, shall be resolved by binding
arbitration in accordance with (i) the Commercial Arbitration Rules of the
American Arbitration Association before a single arbitrator unless otherwise
mutually agreed by the parties and (ii) the Federal Arbitration Act. Judgment on
any award rendered by the arbitrator may be entered in any court of competent
jurisdiction. The venue for any arbitration proceeding shall be in ▇▇▇▇▇▇ or
▇▇▇▇▇▇▇▇▇▇ County, Texas, except if otherwise mutually agreed by the parties.
All costs and expenses, including attorneys' fees, relating to the resolution of
any such dispute shall be borne by the party incurring such costs and expenses.
(d) Notices. Any notice, instruction, authorization, request or demand
required hereunder shall be in writing, and shall be delivered either by
personal delivery, by telegram, telex, telecopy or similar facsimile means, by
certified or registered mail, return receipt requested, or by courier or
delivery service, addressed to the Company at its then current main corporate
address, and to Grantee at his address indicated on the Company's records, or at
such other address and number as a party has previously designated by written
notice given to the other party in the manner hereinabove set forth. Notices
shall be deemed given when received, if sent by facsimile means (confirmation of
such receipt by confirmed facsimile transmission being deemed receipt of
communications sent by facsimile means); and when delivered and receipted for
(or upon the date of attempted delivery where delivery is refused), if
hand-delivered, sent by express courier or delivery service, or sent by
certified or registered mail, return receipt requested.
(e) Amendment, Termination and Waiver. This Agreement may be amended,
modified, terminated or superseded only by written instrument executed by or on
behalf of the Company and by Grantee. Any waiver of the terms or conditions
hereof shall be made only by a written instrument executed and delivered by the
party waiving compliance. Any waiver granted
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by the Company shall be effective only if executed and delivered by a duly
authorized executive officer of the Company other than Grantee. The failure of
any party at any time or times to require performance of any provisions hereof
shall in no manner affect the right to enforce the same. No waiver by any party
of any term or condition herein, or the breach thereof, in one or more instances
shall be deemed to be, or construed as, a further or continuing waiver of any
such condition or breach or a waiver of any other condition or the breach of any
other term or condition.
(f) Governing Law and Severability. This Agreement shall be governed
by the internal laws, and not the laws of conflict, of the State of Texas. The
invalidity of any provision of this Agreement shall not affect any other
provision of this Agreement, which shall remain in full force and effect.
(g) Successors and Assigns. This Agreement shall bind, be enforceable
by, and inure to the benefit of, the Company and its successors and assigns, and
Grantee and Grantee's permitted assigns under the Plan in the event of death or
Disability.
[Signature page follows.]
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IN WITNESS WHEREOF, this Restricted Stock Unit Agreement is granted and
executed as of the date first written above.
▇▇▇▇▇ INTERNATIONAL, INC.
By:
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Name:
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Title:
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GRANTEE:
[EMPLOYEE NAME]
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Signature
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Print Name
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