Exhibit 10(a)(xxvii)
RESTRICTED STOCK UNIT AWARD AND AGREEMENT
[DATE]
Dear _______________:
▇. ▇. ▇▇▇▇▇ Company is pleased to confirm that, effective as of ____________
(the "Effective Date"), you have been granted an award of Restricted Stock Units
("RSUs") for Fiscal Year ____ in accordance with the terms and conditions of the
▇.▇. ▇▇▇▇▇ Company Fiscal Year 2003 Stock Incentive Plan (the "Plan"). This
Award is also made under and governed by the terms and conditions of this letter
agreement ("Agreement"), which shall control in the event of a conflict with the
terms and conditions of the Plan. For purposes of this Agreement, the "Company"
shall refer to ▇. ▇. ▇▇▇▇▇ Company and its Subsidiaries. Unless otherwise
defined in this Agreement, all capitalized terms used in this Agreement shall
have the same defined meanings as in the Plan.
1. RSU Award. You have been awarded a total of ____________ RSUs for Fiscal
Year ____.
2. RSU Account. RSUs entitle you to receive a corresponding number of shares
of ▇. ▇. ▇▇▇▇▇ Company Common Stock ("Common Stock") in the future, subject
to the conditions and restrictions set forth in this Agreement, including,
without limitation, the vesting conditions set forth in Paragraph 3 below.
Your RSUs will be credited to a separate account established and maintained
by the Company on your behalf. Until the Distribution Date (as defined
herein), your RSUs are treated as deferred compensation amounts, the value
of which is subject to change based on increases or decreases in the market
price of the Common Stock. Because the RSUs are not actual shares of Common
Stock, you cannot exercise voting rights on them until the Distribution
Date.
3. Vesting. You will become vested in the RSUs credited to your account
according to the following schedule:
You will become 100% vested in the RSUs upon the fifth anniversary of the
Effective Date. None of the RSUs will become vested prior to this date.
4. Termination of Employment. The termination of your employment with the
Company will have the following effect on your RSUs:
(a) Retirement, Disability or Involuntary Termination without Cause. If
the termination of your employment with the Company is the result of
Retirement, Disability, or involuntary termination without Cause, any
RSUs granted hereunder that remain unvested as of your Date of
Termination shall continue to vest in accordance with the vesting
schedule set forth in Paragraph 3 above, subject to the requirements
of Paragraph 5 of this Agreement.
(b) Death. In the event that you should die while you are
continuing to perform services for the Company, any RSUs that remain
unvested as of the date of your death shall continue to vest in
accordance with the vesting schedule set forth in Paragraph 3 above.
(c) Change in Control. In the event of a Change in Control, any RSUs that
remain unvested as of the date of the Change in Control shall
immediately become vested unless your RSU award is replaced by an
award of equivalent value provided by the Surviving Corporation, which
replacement award vests not later than the replaced award and, to the
extent not previously vested, vests in full in the event of any
involuntary termination of your employment with the Surviving
Corporation following the Change in Control (other than an involuntary
termination for Cause).
(d) Other Termination. If your employment with the Company terminates for
any reason other than as set forth in subparagraphs (a), (b) and (c)
above, including without limitation as a result of any voluntary
termination of employment or an involuntary termination for Cause, any
RSUs granted hereunder that remain unvested as of your Date of
Termination shall be immediately forfeited and cancelled.
5. Non-Solicitation/Confidential Information. In partial consideration for
the RSUs granted to you hereunder, you agree that you shall not, during the
term of your employment by the Company and for 12 months after termination
of your employment, regardless of the reason for the termination, either
directly or indirectly, solicit, take away or attempt to solicit or take
away any other employee of the Company, either for your own purpose or for
any other person or entity. You further agree that you shall not, during
the term of your employment by the Company or at any time thereafter, use
or disclose the Confidential Information (as defined below) except as
directed by, and in furtherance of the business purposes of, the Company.
You acknowledge that the breach or threatened breach of this Paragraph 5
will result in irreparable injury to the Company for which there is no
adequate remedy at law because, among other things, it is not readily
susceptible of proof as to the monetary damages that would result to the
Company. You consent to the issuance of any restraining order or
preliminary restraining order or injunction with respect to any conduct by
you that is directly or indirectly a breach or threatened breach of this
Paragraph 5. Any breach by you of the provisions of this Paragraph 5 will,
at the option of the Company and in addition to all other rights and
remedies available to the Company at law, in equity or under this
Agreement, result in the immediate forfeiture of all of your rights in any
RSUs that remain unvested as of the date of such breach.
"Confidential Information" as used herein shall mean technical or business
information not readily available to the public or generally known in the
trade,
including but not limited to inventions; ideas; improvements; discoveries;
developments; formulations; ingredients; recipes; specifications; designs;
standards; financial data; sales, marketing and distribution plans,
techniques and strategies; customer and supplier information; equipment;
mechanisms; manufacturing plans; processing and packaging techniques; trade
secrets and other confidential information, knowledge, data and know-how of
the Company, whether or not they originated with you, or information which
the Company received from third parties under an obligation of
confidentiality.
6. Dividends. An amount equal to the dividends payable on the shares of
Common Stock represented by the RSUs will be paid directly to you as soon
as practicable following the date on which a dividend is declared by the
Company. These payments will be calculated based upon the number of RSUs
credited to your account as of the date that a dividend is declared. These
payments will be reported as income to the applicable taxing authorities,
and federal, state, local and/or foreign income and/or employment taxes
will be withheld from such payments as and to the extent required by
applicable law.
7. Distribution. All RSU distributions will be made in the form of actual
shares of Common Stock and will be distributed to you on one of the
following dates (each, a "Distribution Date"):
(a) Default Distribution Date. Shares of Common Stock representing your
RSUs will be distributed to you when the RSUs vest, unless you make an
election to defer receipt to a later date, as provided in subparagraph
(b) below.
(b) Deferred Distribution Date. You may elect to defer distribution of
your RSUs to a date subsequent to the Default Distribution Date by
providing a written election form to the Company by no later than
________________. A copy of the election form is attached.
(c) Executive Officer/Management Committee Member Exception. If you are a
named executive officer of the Company on the Distribution Date (as
listed in the proxy statement filed by the Company most recent to the
Distribution Date) or are a member of the Company's Management
Committee on the Distribution Date, the Distribution Date will
automatically be deferred to the close of business on the last day of
your employment with the Company.
Certificates representing the distributed shares of Common Stock will be
delivered to the firm maintaining your account as soon as practicable after
a Distribution Date occurs. Notwithstanding the foregoing, all vested RSUs
will be immediately distributed to you at the close of business on the last
day of your employment with the Company, or as soon as practicable
thereafter, if you
terminate employment with the Company for any reason including death,
disability, retirement or Change of Control of the Company.
8. Impact on Benefits. None of the RSUs being credited to your account are
deemed to be a replacement for award opportunity under the Company's
Shareholder Success Plan (SSP), and no portion of your RSU Award will be
included as compensation for the year of the grant for purposes of the ▇.▇.
▇▇▇▇▇ Company Supplemental Executive Retirement Plan and the ▇.▇. ▇▇▇▇▇
Company Employees Retirement and Savings Excess Plan.
9. Tax Withholding. On the Distribution Date, the Company will withhold a
number of shares of Common Stock that is equal, based on the Fair Market
Value of the Common Stock on the Distribution Date, to the amount of the
federal, state, local, and/or foreign income and/or employment taxes
required to be collected or withheld with respect to the distribution.
10. Non-Transferability. Your RSUs may not be sold, transferred, pledged,
assigned or otherwise encumbered except by will or the laws of descent and
distribution. You may also designate a beneficiary(ies) in the event that
you die before a Distribution Date occurs, who shall succeed to all your
rights and obligations under this Agreement and the Plan. A beneficiary
election form is attached. If you do not designate a beneficiary, your RSUs
will pass to the person or persons entitled to receive them under your
will. If you shall have failed to make a testamentary disposition of your
RSUs in your will or shall have died intestate, your RSUs will pass to the
legal representative or representatives of your estate.
11. Employment At-Will. You acknowledge and agree that nothing in this
Agreement or the Plan shall confer upon you any right with respect to
future awards or continuation of your employment, nor shall it constitute
an employment agreement or interfere in any way with your right or the
right of Company to terminate your employment at any time, with or without
cause, and with or without notice.
12. Collection and Use of Personal Data. You consent to the collection, use,
and processing of personal data (including name, home address and telephone
number, identification number and number of RSUs held) by the Company or a
third party engaged by the Company for the purpose of implementing,
administering and managing the Plan and any other stock option or stock
incentive plans of the Company (the "Plans"). You further consent to the
release of personal data to such a third party administrator, which, at the
option of the Company, may be designated as the exclusive broker in
connection with the Plans. You hereby waive any data privacy rights with
respect to such data to the extent that receipt, possession, use,
retention, or transfer of the data is authorized hereunder.
13. Future Awards. The Plan is discretionary in nature and the Company may
modify, cancel or terminate it at any time without prior notice in
accordance with the terms of the Plan. While RSUs or other awards may be
granted under the Plan on one or more occasions or even on a regular
schedule, each grant is a one time event, is not an entitlement to an award
of RSUs in the future, and does not create any contractual or other right
to receive an award of RSUs, compensation or benefits in lieu of RSUs or
any other compensation or benefits in the future.
14. Compliance with Stock Ownership Guidelines. All RSUs granted to you under
this Agreement shall be counted as shares of Common Stock that are owned by
you for purposes of satisfying the minimum share requirements under the
Company's Simplified Stock Ownership Guidelines ("SOG"). Notwithstanding
the foregoing, you acknowledge and agree that, with the exception of the
number of shares of Common Stock withheld to satisfy income tax withholding
requirements pursuant to Paragraph 9 above, the shares of Common Stock
represented by the RSUs granted to you hereunder cannot be sold or
otherwise transferred, even after the Distribution Date, unless and until
you have met SOG's minimum share ownership requirements. The Management
Development & Compensation Committee will not approve additional RSU awards
to you unless you are in compliance with the terms of this Paragraph 14 and
the SOG requirements.
15. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the Commonwealth of Pennsylvania, without
regard to its choice of law provisions.
THIS RSU AWARD IS SUBJECT TO YOUR ON-LINE ACCEPTANCE OF THE TERMS AND CONDITIONS
OF THIS AGREEMENT.
▇. ▇. ▇▇▇▇▇ COMPANY
By:
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Accepted:
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Date:
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BENEFICIARY DESIGNATION
Upon my death, the vested Restricted Stock Units earned by me under all
Restricted Stock Unit Agreements shall be paid to the beneficiary(ies) I
designate below. This designation supercedes any prior beneficiary designation I
have made regarding my Restricted Stock Unit account balance, and shall remain
in effect unless and until I file a subsequent Beneficiary Designation Form with
the Company.
Primary Beneficiary Designation
The vested Restricted Stock Units distributable to me shall be paid, in equal
portions unless otherwise indicated, to the following Primary Beneficiary(ies)
then surviving:
Name Relationship Date of Birth Social Security Number
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Contingent Beneficiary Designation
If none of the above-named Primary Beneficiaries survives me, the vested
Restricted Stock Units distributable to me shall be paid, in equal portions
unless otherwise indicated, to the following Contingent Beneficiary(ies) then
surviving:
Name Relationship Date of Birth Social Security Number
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Signature Date