Exhibit 10.23
AMERICAN HOME PRODUCTS CORPORATION
RESTRICTED STOCK PERFORMANCE AWARD AGREEMENT
UNDER THE 1996 STOCK INCENTIVE PLAN
DATE:
NUMBER OF SHARES SUBJECT
TO TARGET AWARD:
[Name]
[Address]
Under the terms and conditions of this Agreement and of the Company's
1996 Stock Incentive Plan (the "Plan"), a copy of which has been delivered to
you and is made a part hereof, the Company hereby awards to you units (the
"Units") representing shares of the Company's Common Stock (the "Common Stock")
subject to the restrictions set forth in this Agreement in the amount set forth
above (the "Target Award"). Upon the satisfaction by the Company of certain
performance criteria as described in Paragraph 3 of this Agreement, the Units
will be converted into shares of the Company's Common Stock entitling the holder
to all of the rights of a stockholder as described herein but subject to the
restrictions set forth in this Agreement (the "Restricted Stock"). Except as
provided herein, the terms used in this Agreement shall have the same meanings
as in the Plan.
1. Rights as Stockholders. During the period from the date of this
Agreement through the Conversion Date (as defined herein), no shares of the
Company's Common Stock represented by the Units will be earmarked for you or
your account nor shall you have any of the rights of a stockholder with respect
to such shares. Upon issuance of the Restricted Stock as of the Conversion Date
you will be the owner of record of the shares of Common Stock represented by the
Restricted Stock and shall receive either (through book-entry form) a credit to
an account maintained on your behalf or a stock certificate representing such
shares of Common Stock and you shall be entitled to all of the rights of a
stockholder of the Company, including the right to vote and the right to receive
dividends, subject to the restrictions stated in this Agreement and referred to
in the legend described in Paragraph 7 below and subject to the additional
provisions of Paragraph 4. If you receive any additional shares by reason of
being the holder of Restricted Stock under this Agreement, all the additional
shares shall be subject to the provisions of this Agreement and all certificates
evidencing ownership of the additional shares shall bear the legend.
2. Restricted Period. During the period from the date of this Agreement
through the date which is three years after such date (the "Restricted Period"),
you may not sell, transfer, assign, pledge, or otherwise encumber or dispose of
any Units or Restricted Stock granted hereunder.
3. Conversion to Restricted Stock. (a) At a meeting of the Committee to
be held within 60 days after the end of 2000 or at such other time or times as
the Committee in its discretion deems appropriate, the Committee shall compare
the EPS (as defined below) with the EPS Target (as defined below). If, on the
date of such meeting (the "Conversion Date"), the Committee determines that:
(i) EPS is less than 90% of the EPS Target, then all rights with
respect to the Target Award shall thereupon be forfeited;
(ii) EPS is greater than or equal to 90% of the EPS Target and less
than or equal to 95% of the EPS Target, then Units
representing 75% of the Target Award shall be converted into
Restricted Stock and all rights with respect to the remaining
portion of such Target Award shall thereupon be forfeited;
(iii) EPS is greater than 95% of the EPS Target and less than or
equal to 105% of the EPS Target, then Units representing the
entire Target Award shall be converted into Restricted Stock;
and
(iv) EPS is greater than 105% of the EPS Target, then Units
representing the entire Target Award shall be converted into
Restricted Stock and you shall be entitled to receive an
additional grant of Restricted Stock representing 25% of the
Target Award (a "Bonus Award"); such additional grant to be
made by the Committee at such meeting.
(b) Notwithstanding anything to the contrary contained in this
Agreement, Units shall be converted into Restricted Stock in whole numbers of
shares only and, if necessary, the calculations based upon such amounts in
subparagraphs 3(a)(ii) and 3(a)(iv) above shall be rounded up or down to the
nearest whole number.
(c) As used in this Agreement, the term:
(i) "EPS" means the earnings or net income per share of common
stock of the Company for 2000, adjusted to exclude the effect
of extraordinary or unusual items of income or expense, all as
determined in good faith by the Committee acting in its sole
discretion.
(ii) "EPS Target" shall be the amount established by the Committee
at a meeting to be held no later than March 1, 2000; provided,
however, that if for any reason the Committee shall determine
that the EPS Target is no longer a practicable or appropriate
measure of financial performance, the Committee may take
action to substitute another financial measure as it deems
appropriate under the circumstances.
4. Restricted Stock Trust. (a) Subject to Paragraph 4(b) below, you are
eligible to make a one-time irrevocable election to cause the Company to
contribute as of the Conversion Date the shares of Restricted Stock, issuable
hereunder, to the Restricted Stock Trust (as defined below) by completing the
form set forth on Schedule A attached hereto wherein such shares of stock shall
be held, subject to claims of the Company's creditors, until delivery to you
under the terms of Paragraph 5 herein. Subject to Paragraph 4(b), below, if you
do not make such election, such shares shall be delivered to you as provided in
Paragraph 5(a)(i) of this Agreement.
(b) Notwithstanding anything to the contrary contained in this
Agreement, if you are or, in the judgment of the Committee, are expected to be a
Named Executive Officer with respect to the year in which the Conversion Date
occurs, then you will be deemed to have made the election under Paragraph 4(a)
above to have the Restricted Stock issuable hereunder contributed to the
Restricted Stock Trust.
(c) For purposes of this Agreement:
(i) "Named Executive Officer" shall mean the Chief Executive
Officer of the Company or any of the four highest compensated
officers (other than the Chief Executive Officer of the
Company) whose total compensation payable is required to be
reported to shareholders under the Securities Exchange Act of
1934, as amended (the "1934 Act"); and
(ii) "Restricted Stock Trust" means the trust fund established
under the Restricted Stock Trust Agreement dated as of April
20, 1994 (the "Trust Agreement") to accommodate the deferral
of delivery of shares of Common Stock represented by Units
and/or Restricted Stock (and dividends paid thereon) as
provided in Paragraph 5(a)(ii) of this agreement, which trust
fund is subject to the claims of the Company's general
creditors under federal and state law in the event of
insolvency of the Company as described in the Trust Agreement.
5. Delivery of Shares of Common Stock. (a) Subject to Paragraphs 4 and
9 of this Agreement, as soon as practicable after the Restricted Period (or six
months after the Conversion Date with respect to a Bonus Award) all shares of
Restricted Stock granted hereunder shall be cancelled and in replacement thereof
you shall receive either (through book-entry form) a credit to an account
maintained on your behalf or a certificate representing the Common Stock free of
any restrictive legend other than as may be required by applicable state or
federal securities law, such Common Stock to be either (i) so delivered to you
promptly or (ii) if you have made or are deemed to have made the election under
Paragraph 4 above, contributed to the Restricted Stock Trust, in which case such
shares shall be maintained in the Restricted Stock Trust and delivery shall be
deferred until after your Retirement in accordance with the election set forth
on Schedule A attached hereto, or if either (1) no such election is made or (2)
your employment with the Company is terminated prior to Retirement for any
reason (including death), delivery shall be made on the first business day of
the calendar year following your termination of employment or as otherwise
provided in the Trust Agreement.
(b) Notwithstanding any other provisions hereof, the number of shares
of Common Stock which shall be delivered to you pursuant to Paragraph 5(a)
either directly or from the Restricted Stock Trust shall be (i) the number of
such shares which would have been delivered in the absence of this Paragraph
5(b) minus (ii) the number of whole shares of Common Stock necessary to satisfy
the minimum federal, state and/or local income tax withholding obligations which
are imposed on the Company by applicable law in respect of the delivery of such
award as well as other withholding obligations (e.g. Social Security and
Medicare) which may be due and payable under applicable law as of the lapse of
the Restricted Period as defined in Paragraph 2, whether or not delivery of such
shares is deferred under Paragraph 4 (and which may be satisfied by the
reduction effected hereby in the number of deliverable shares), it being
understood that the value of the shares referred to in clause (ii) above shall
be determined, for the purposes of satisfying such withholding obligations, on
the basis of the average of the high and low per share prices for the Common
Stock as reported on the Consolidated Transaction Reporting System on the
designated date of delivery, or on such other reasonable basis for determining
fair market value as the Committee may from time to time adopt.
6. Termination of Employment. (a) Subject to Section 7(f) of the Plan,
in the event of your termination of employment during the Restricted Period for
any reason other than death, Disability or Retirement, you shall forfeit all
rights to all Units and Restricted Stock granted hereunder and you agree (i) to
assign, transfer, and deliver the Restricted Stock to the Company and (ii) that
you shall cease to be a shareholder of the Company with respect to such shares,
provided, the Committee may provide for a partial or complete exception to this
requirement as it deems equitable in its sole discretion.
(b) In the event that your employment is terminated due to Disability
or Retirement, or in the event of your death, vesting of all shares of
Restricted Stock covered by the Target Award and any related Bonus Award and
delivery of the shares of Common Stock of the Company represented thereby will
be made to you or your designated beneficiary or your legal representative,
legatee or such other person designated by an appropriate court as entitled to
receive the same, as the case may be, on the terms and, subject to the
conditions of this Agreement, including Paragraph 3 above.
7. Legend. Each book-entry or certificate evidencing ownership of
Restricted Stock issued during the Restricted Period shall bear the following
legend:
"These shares have been issued or transferred subject to a Restricted
Stock Performance Award and are subject to substantial restrictions,
including a prohibition against transfer and a provision requiring
transfer of these shares to the Company without payment in the event of
termination of the employment of the registered owner under certain
circumstances all as more particularly set forth in a Restricted Stock
Performance Award Agreement dated May 21, 1998, a copy of which is on
file with the Company."
8. Miscellaneous. This Agreement may not be amended except in writing
and neither the existence of the Plan and this Agreement nor the Target Award
granted hereby shall create any right to continue to be employed by the
Corporation or its subsidiaries and your employment will continue to be at will
and terminable at will by the Corporation. In the event of a conflict between
this Agreement and the Plan, the Plan shall govern.
9. Compliance With Laws. (a) This Agreement shall be governed by the
laws of the state of Delaware and any applicable laws of the United States.
Notwithstanding anything herein to the contrary, the Corporation shall not be
obligated to cause to be delivered any Restricted Stock or shares of Common
Stock of the Company represented thereby pursuant to this Agreement unless and
until the Company is advised by its counsel that the issuance of such shares
either (through book-entry form) by a credit to an account maintained on your
behalf or by delivery of certificates representing such shares is in compliance
with all applicable laws and regulations of governmental authority. The
Corporation shall in no event be obliged to register any securities pursuant to
the Securities Act of 1933 (as now in effect or as hereafter amended) or to take
any other action in order to cause the issuance of such shares either (through
book-entry form) by a credit to an account maintained on your behalf or by
delivery of certificates representing such shares to comply with any such law or
regulation.
(b) If you are subject to Section 16 of the 1934 Act, transactions
under the Plan and this Agreement are intended to comply with all applicable
conditions of Rule 16b-3 or its successors under the 1934 Act. To the extent any
provision of the Plan, this Agreement or action by the Committee involving you
is deemed not to comply with an applicable condition of Rule 16b-3, such
provision or action shall be deemed null and void as to you, to the extent
permitted by law and deemed advisable by the Committee. Moreover, in the event
the Plan and/or this Agreement does not include a provision required by Rule
16b-3 to be stated therein, such provision (other than one relating to
eligibility requirements or the price and amount of awards as applicable) shall
be deemed automatically to be incorporated by reference into the Plan and/or
this Agreement insofar as you are concerned, with such incorporation to be
deemed effective as of the effective date of such Rule 16b-3 provision. In
addition, the Committee in its discretion may cause the Company to retain
custody of the certificates representing the Common Stock to be delivered under
Paragraph 5 above so long as necessary or appropriate to ensure that any minimum
holding period under Rule 16b-3 is satisfied.
10. No Change of Control. Notwithstanding Section 9 of the Plan, upon a
Change in Control (as defined in the Plan), (A) the date upon and after which
the Units will be converted to shares of Restricted Stock (or Common Stock free
from restriction) will not be accelerated and (B) the Units (or shares of
Restricted Stock) will not be cashed out, in each case unless and until the
Compensation and Benefits Committee provides otherwise. Furthermore, you hereby
waive all rights under the Severance Agreement entered into by and between you
and the Company and approved by the Board on January 29, 1998 (the "Severance
Agreement") to receive an amount in respect of the Units (or shares of
Restricted Stock) in the event that this Agreement is terminated or such Units
(or shares of Restricted Stock) are forfeited upon termination of your
employment following a Change in Control (as defined in the Severance Agreement)
to which you would otherwise be entitled thereunder.
AMERICAN HOME PRODUCTS CORPORATION
By:
Corporate Treasurer
Accepted and agreed to:
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Name (Please Print) Social Security Number
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Signature Date of Birth
SCHEDULE A
ELECTION FORM
(To Be Completed in Conjunction with Your
Restricted Stock Performance Award Agreement)
I, ___________________, hereby make an election to defer distribution of all
shares of Common Stock less those shares necessary to satisfy any applicable
withholding obligation under Paragraph 5(b) of the Restricted Stock
Performance Award Agreement (the "Agreement") and to cause the Company to
contribute such shares to the Restricted Stock Trust (with any dividends
thereon to be reinvested under the AHPC Master Investment Plan).
See Note Below
I, ______________________, hereby make an election to receive, after
Retirement, a distribution of such number of shares in the Restricted Stock
Trust to which I am entitled in substantially equal annual installments over a
period not to exceed ten years as follows, subject to the provisions of the
Agreement, including Paragraph 5, thereof (provided, however, that in the
event of my death all remaining installments shall be accelerated and
distributed promptly):
Circle the number of annual installments:
2 3 4 5 6 7 8 9 10
These elections shall be irrevocable upon execution of the Agreement.
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Signature of Executive
Dated: ______________________________________________________
Witnessed: __________________________________________________
NOTE: 1. If you are or are expected to be a Named Executive Officer with
respect to any year in which an Anniversary Date occurs, you will be deemed to
have elected deferred distribution hereunder.
Beneficiary Designation
In the event of my death, I designate the following beneficiary (ies) to
receive any shares of the Company's Common Stock to be distributed to me or
which have been deferred on my behalf to the Restricted Stock Trust under this
Agreement together with any dividends thereon.
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Beneficiary (ies)
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Contingent Beneficiary (ies)
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Signature of Executive
Dated: ______________________________________________________
Witnessed: ___________________________________________________