R.R. DONNELLEY & SONS COMPANY DIRECTOR RESTRICTED STOCK UNIT AWARD
Exhibit 10.12
R.R. DONNELLEY & SONS COMPANY
DIRECTOR RESTRICTED STOCK UNIT AWARD
This Restricted Stock Unit Award (“Award”) is granted as of this ___th day of ______ (the “Grant Date”) by R.R. Donnelley & Sons Company, a Delaware corporation (the “Company”), to XXXXXX XXXXX (“Grantee”). This Award is made to Grantee pursuant to the provisions of the Company’s 2004 Performance Incentive Plan (the “2004 PIP”). Capitalized terms not defined herein shall have the meanings specified in the 2004 PIP.
1.Grant of Award. The Company hereby credits to Grantee XXXXX restricted stock units (the “RSUs”), subject to the restrictions and on the terms and conditions set forth herein. Grantee shall indicate acceptance of this Award by signing and returning a copy hereof.
2.Issuance of Common Stock in Satisfaction of Restricted Stock Units.
(a)On the earlier of (i) the third anniversary of the Grant Date and (ii) the date the Grantee ceases to be a member of the Board of Directors of the Company (the “Board”), the number of shares of Common Stock (or, in the Company’s discretion, cash based on the fair market value of the Common Stock on the date of distribution) equal to one‑third of the RSUs (the “First Tranche RSUs”) shall be delivered to the Grantee; provided, however, that the Grantee may elect to defer the delivery of the shares of Common Stock (or cash) underlying the First Tranche RSUs until the date such Grantee ceases to be a member of the Board by delivering the Deferral Election attached hereto as Exhibit A within one year of the Grant Date. THE RIGHT TO DEFER DELIVERY OF THE SHARES UNDERLYING THE FIRST TRANCHE RSUs SHALL LAPSE IF NOT EXERCISED BY THE ONE YEAR ANNIVERSARY OF THE GRANT DATE.
(b)On the date the Grantee ceases to be a member of the Board, shares of Common Stock (or, in the Company’s discretion, cash based on the fair market value of the Common Stock on the date of distribution) with respect to the remaining two‑thirds of the RSUs (the “Second Tranche RSUs”) or 100% of the RSUs if the Grantee so elects by delivery of Exhibit A, shall be delivered to the Grantee.
(c)Each RSU shall be cancelled upon the issuance of a share of Common Stock (or cash) with respect thereto.
3. Fractional Shares. Any fractional shares of Common Stock that would otherwise be deliverable on the date Grantee ceases to be a member of the Board or the third anniversary of the Grant Date, as applicable, shall be paid in cash based upon the fair market value of a share of Common Stock on the date of distribution.
4.Dividends. Dividends or other distributions that are payable (other than dividends or distributions for which the record date is prior to the date hereof) during the period commencing on the date hereof and ending on the date on which no RSUs shall remain outstanding (due to issuance of shares of Common Stock (or cash) in satisfaction of RSUs pursuant to paragraph 3) on a like number of shares of Common Stock as are equal to the number of RSUs then outstanding shall be credited to a book keeping account for the Grantee. Such accounts shall be credited quarterly (beginning on the last day of the calendar quarter in which the first credit to the account was made) with an amount of interest on the balance (including interest previously credited) at an annual rate equal to the then current yield obtainable on United States government bonds having a maturity date of approximately five years. The entire amount in such account shall be paid out on the date the Grantee ceases to be a member of the Board (the “Dividend Equivalents”).
5.Rights as a Shareholder. Prior to issuance, Grantee shall not have the right to vote, nor have any other rights of ownership in, the shares of Common Stock to be issued in satisfaction of the RSUs.
6.Withholding Taxes.
(a)As a condition precedent to the issuance to Grantee of any shares of Common Stock pursuant to this Award, the Grantee shall, upon request by the Company, pay to the Company such amount of cash as the Company may be required, under all applicable federal, state, local or other laws or regulations, to withhold and pay over as income or other withholding taxes (the “Required Tax Payments”) with respect to the Award and any Dividend Equivalents. If Grantee shall fail to advance the Required Tax Payments after request by the Company, the Company may, in its discretion, deduct any Required Tax Payments from any amount then or thereafter payable by the Company to Grantee.
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the average of the high and low transaction prices in trading of the Common Stock on such date as reported in the New York Stock Exchange-Composite Transactions, or, if no such trading in the Common Stock occurred on such date, then on the next preceding date when such trading occurred.
7.Miscellaneous
(a)The Company shall pay all original issue or transfer taxes with respect to the issuance or delivery of shares of Common Stock pursuant hereto and all other fees and expenses necessarily incurred by the Company in connection therewith, and will use reasonable efforts to comply with all laws and regulations which, in the opinion of counsel for the Company, shall be applicable thereto.
(b)This Award shall be governed in accordance with the laws of the State of Illinois.
(c)This Award shall be binding upon and inure to the benefit of any successor or successors to the Company.
(d)Neither this Award nor the RSUs nor any rights hereunder or thereunder may be transferred or assigned by Grantee other than:
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| (1)by will or the laws of descent and distribution; |
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| (2)in whole or in part to one or more transferees; provided that (i) any such transfer must be without consideration, (ii) each transferee must be a “family member” of Grantee, a trust established for the exclusive benefit of Grantee and/or one or more family member of Grantee or a partnership whose sole equity owners are Grantee and/or family members of Grantee, and (iii) such transfer is specifically approved by the Company’s Chief Administrative Officer or the Committee following the receipt of a completed Assignment of Restricted Stock Unit Award attached hereto as Exhibit B; or |
(3)as otherwise set forth in an amendment to this Agreement.
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In the event the RSUs are transferred as contemplated in this Section 7(d), such transfer shall become effective when approved by the Company’s Chief Administrative Officer or the Committee (as evidenced by counter execution of the Assignment of Restricted Stock Unit Award on behalf of the Company), and such RSUs may not be subsequently transferred by the transferee other than by will or the laws of descent and distribution. Any transferred RSU shall continue to be governed by and subject to the terms and conditions of the 2004 PIP and this Agreement and the transferee shall be entitled to the same rights as Grantee as if no transfer had taken place. Except as permitted by the foregoing, the RSUs and
this Award may not be sold, transferred, assigned, pledged, hypothecated, encumbered or otherwise disposed of (whether by operation of law or otherwise) or be subject to execution, attachment or similar process. Upon any attempt to so sell, transfer, assign, pledge, hypothecate, encumber or otherwise dispose of the RSUs, the RSUs and all rights hereunder shall immediately become null and void. As used in this Section, "family member" with respect to any person, includes any child, step-child, grandchild, parent, step-parent, grandparent, spouse, former spouse, sibling, niece, nephew, mother-in-law, father-in-law, son-in-law, daughter-in-law, brother-in-law and sister-in-law, including adoptive relationships, and any person sharing the transferor's household (other than a tenant or employee).
(e)The Committee, as from time to time constituted, shall have the right to determine any questions which arise in connection with this Agreement, the RSUs or the Dividend Equivalents. This Agreement and the RSUs are subject to the provisions of the 2004 PIP and shall be interpreted in accordance therewith.
IN WITNESS WHEREOF, the Company has caused this Award to be duly executed by its duly authorized officer.
R.R. Donnelley & Sons Company
By: __________________________
Name: Suzanne Bettman
Title: SVP and General Counsel
Accepted: ________________________
R.R. DONNELLEY & SONS COMPANY
AMENDMENT TO
DIRECTOR RESTRICTED STOCK UNIT AWARD
THIS AMENDMENT TO DIRECTOR RESTRICTED STOCK UNIT AWARD (this “Amendment”) is made as of May 21, 2009 by and between R.R. Donnelley & Sons Company, a Delaware corporation (the “Company”), and XXXXXXXX (the “Grantee”).
WHEREAS, the Company and Grantee are parties to a Director Restricted Stock Unit Award dated May 28, 2008 (the “Award Agreement”).
WHEREAS, the Company and Grantee have determined that it would be in the best interests of the Company and Grantee if the Award Agreement was amended to allow for deferral of payment of all or any portion of the award in accordance with the provisions of Section 409A of the Internal Revenue Code of 1986, as amended.
NOW THEREFORE, for good and valuable consideration the receipt and sufficiency of which hereby are acknowledged, the parties hereto hereby agree as follows:
1. Section 2 of the Award Agreement shall be deleted and replaced in its entirety by the following language:
“Issuance of Common Stock in Satisfaction of Restricted Stock Units.
(a) Except to the extent otherwise provided in paragraphs 2(b) or (c) below, on each of the first, second and third anniversary of the Grant Date (the “Vesting Dates”) the number of shares of Common Stock equal to one-third of the RSUs (the “Vesting RSUs”) and cash in the amount of Dividend Equivalents (as defined below) earned with respect to such Vesting RSUs pursuant to paragraph 4 below shall be delivered to the Grantee; provided, however, that the Grantee may elect to defer the delivery of the shares of Common Stock underlying any of the Vesting RSUs until the date such Grantee ceases to be a member of the Board of Directors of the Company (the “Board”) or such other date as required by Section 409A of the Internal Revenue Code of 1986, as amended (“Section 409A”), by delivering a Deferral Election to the Company in accordance with Section 409A.
(b) On the date the Grantee ceases to be a member of the Board, shares of Common Stock with respect to any remaining RSUs (including any Vesting RSUs deferred by the Grantee) and cash in the amount of Dividend Equivalents earned with respect to such RSUs pursuant to paragraph 4 below shall be delivered to the Grantee.
(c) Upon the Acceleration Date associated with a Change in Control, shares of Common Stock with respect to any remaining RSUs (including any Vesting RSUs deferred by the Grantee) and cash in the amount of Dividend Equivalents earned with respect to such RSUs pursuant to paragraph 4 below shall be delivered to the Grantee in accordance with the terms of the 2004 PIP.
(d) Each RSU shall be cancelled upon the issuance of a share of Common Stock (or cash with respect to fractional shares) with respect thereto.”
2. This Amendment shall be binding upon and inure to the benefit of the parties hereto and their respective successors, assigns, personal representatives and heirs.
3. All other terms and conditions of the Award Agreement shall remain in full force effect
4. This Amendment and the rights and obligations of the parties hereunder shall be governed by and interpreted, construed and enforced in accordance with, the laws of the State of Illinois.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of the date set forth above.
| R.R. Donnelley & Sons Company: |
| Grantee: |
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| By : |
| Thomas Carroll |
| Accepted: |
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| Title: |
| EVP, Human Resources |
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| [Grantee Signature] |
