This excerpt taken from the DEL 8-K filed Oct 24, 2006.
Taxes; Tax Election
3.1 Withholding Taxes.
3.1.1 General. Notwithstanding Section 2.5 above, Participant acknowledges that Participant is responsible for payment of all federal, state, and local withholding taxes and
Participants portion of all applicable payroll taxes imposed in connection with (i) the grant of the Award and the Restricted Stock, (ii) the vesting of the Restricted Stock, (iii) an election by Participant under Code Section 83(b) with respect to this Award, and/or (iv) payment by Company of dividends with respect to the Restricted Stock during the Restriction Period (collectively, the Applicable Taxes). Companys obligation to issue unrestricted stock in settlement of the Award is expressly conditioned on Participants making arrangements satisfactory to Company, in its sole and absolute discretion, for the payment of all Applicable Taxes.
3.1.2 Method of Payment. Participant may pay to Company (in cash or by check) an amount equal to the Applicable Taxes. In the event that Participant does not submit payment of the entire amount of Applicable Taxes, Participant expressly authorizes Company, in its sole and absolute discretion, (a) to withhold all or a portion of the remaining balance of the Applicable Taxes from other amounts payable in cash (as compensation or otherwise) by Company or any Employer to Participant, and/or (b) to withhold a number of unrestricted shares (thus reducing the number of unrestricted shares to be issued to Participant) having a fair market value (as of the date the Award is settled) equal to the remaining balance of the Applicable Taxes.
3.2 Effect of Tax Election. In the event Participant makes a timely election under Code Section 83(b) with respect to this Award, the Restricted Stock will be deemed (for income tax purposes) to be transferred to Participant effective as of the Grant Date (and any obligation for withholding tax liability imposed by subsequent changes in tax laws would be due as of the Grant Date). However, such an election will not effect the Restrictions or terminate the Restriction Period for the Award.
4. Conditions Precedent
The Company will use its best efforts to obtain approval of the Plan and this Award by any state or federal agency or authority that the Company determines has jurisdiction. If the Company determines that any required approval cannot be obtained, this Award will terminate on notice to Participant to that effect. Without limiting the foregoing, the Company will not be required to issue any certificates for Restricted Stock, or any portion thereof, until it has taken all action required to comply with all applicable federal and state securities laws.
Subject to restrictions on transferability set forth in Section 2.1.1(a) and 2.6, this Award Agreement will be binding upon and benefit the parties, their successors and assigns.
Any notices under this Award Agreement must be in writing and will be effective when actually delivered personally or, if mailed, when deposited as registered or certified mail directed to the address of the Companys Secretary or to such other address as a party may certify by notice to the other party.
7. Defined Terms
When used in this Award Agreement, the following terms have the meaning specified below:
Change in Control of the Company shall have the same meaning as set forth in the Plan, which definition is incorporated herein by reference.
Committee means the Executive Compensation Committee of the Board of Directors of the Company.
Disability means the condition of being permanently unable to perform Participants duties for an Employer by reason of a medically determinable physical or mental impairment that can be expected to result in death or that has lasted or can be expected to last for a continuous period of at least 12 months.
Employee and Employment both refer to service by Participant as a full-time or part-time employee of an Employer, and include periods of illness or other leaves of absence authorized by an Employer. A transfer of Participants Employment from one Employer to another will not be treated as a termination of Employment.
Employer means the Company or a Subsidiary of the Company.
Grant Date shall mean the date of the Committees award as set forth in the Award Agreement and Stock Power.
Restricted Stock means the number of shares of Restricted Stock issuable to Participant pursuant to this Award as specified on the cover sheet to this Award Agreement.
Restriction Period means the period commencing on the Grant Date for the Award and ending on the first to occur of:
Restrictions mean the provisions of Section 2.1 that govern the forfeiture of the Award and the shares of Restricted Stock during the Restriction Period.
Termination Date means the date Participant ceases to be an Employee.
Vest or Vesting means, with respect to this Award, the time when the Participants Restricted Stock is no longer subject to forfeiture under Section 2.1.1(b).
Voting Securities means the Companys issued and outstanding securities ordinarily having the right to vote at elections of directors.
Capitalized terms not otherwise defined in this Award Agreement have the meanings given them in the Plan.
8. Except for action adverse to Participants economic interest, the Committee may in its discretion at any time modify, amend, or suspend their Award Agreement and Stock Power or any part hereof.