EXHIBIT 10.1
XXXXXXXXX FARMS, INC.
RESTRICTED STOCK AGREEMENT
(NON-EMPLOYEE DIRECTOR)
This RESTRICTED STOCK AGREEMENT (this "Agreement"), made and entered into
as of the _____ day of _______________, 20____ (the "Grant Date"), by and
between ___________________________ (the "Participant") and Xxxxxxxxx Farms,
Inc. (together with its subsidiaries and affiliates, the "Company"), sets forth
the terms and conditions of a Restricted Stock Award issued pursuant to the
Xxxxxxxxx Farms, Inc. and Affiliates Stock Incentive Plan, adopted on February
17, 2005 (the "Plan") and this Agreement. Any capitalized term used but not
defined herein shall have the meaning ascribed to such term in the Plan.
1. Grant and Vesting of Restricted Stock.
(a) As a reward for past service or in consideration of and as an
incentive to the Participant's continued service as a non-employee director on
the Company's Board, and for no additional consideration, the Company hereby
grants to the Participant, as of the Grant Date, ______________ shares of the
Company's common stock, par value $1.00 per share (the "Restricted Stock"),
subject to the terms and conditions set forth herein and in the Plan. The
Restricted Stock is subject to forfeiture as provided herein and may not be
sold, exchanged, transferred, pledged, hypothecated or otherwise disposed of by
the Participant, other than by will or by the laws of descent and distribution
of the state in which the Participant resides on the date of his death. The
period during which the Restricted Stock is not vested and is subject to
transfer restrictions is referred to herein as the "Restriction Period."
(b) Except as otherwise provided in this Agreement or the Plan, the
Restricted Stock shall vest and no longer be subject to forfeiture or any
transfer restrictions hereunder on the third anniversary of the Grant Date, so
long as the Participant has continued to serve as a director on the Company's
Board continuously from the Grant Date through such date.
(c) If the Participant ceases to serve as a director on the Company's
Board by reason of death or Disability, or if there is a Change of Control, the
Restricted Stock that has not vested shall immediately vest and no longer be
subject to forfeiture or any transfer restrictions hereunder. If the Participant
ceases to serve as a director for any other reason, voluntarily or
involuntarily, prior to the expiration of the Restriction Period, then the
Restricted Stock that has not vested as of the cessation date shall immediately
be forfeited, ownership shall be transferred back to the Company and the
Restricted Stock shall become authorized but unissued Shares.
2. Issuance of Shares.
Certificates representing the Restricted Stock shall be registered in the
Participant's name (or an appropriate book entry shall be made). Certificates,
if issued, may, at the Company's option, either be held by the Company in escrow
until the Restriction Period expires or until the
restrictions thereon otherwise lapse and/or be issued to the Participant and
registered in the name of the Participant, bearing an appropriate restrictive
legend that refers to this Agreement and remaining subject to appropriate
stop-transfer orders. The Participant agrees to deliver to the Board, upon
request, one or more stock powers endorsed in blank relating to the Restricted
Stock. If and when the Restricted Stock vests and is no longer subject to
forfeiture or transfer restrictions, unlegended certificates for such Restricted
Stock shall be delivered to the Participant (subject to Section 6 pertaining to
the withholding of taxes and Section 14 pertaining to the Securities Act of
1933, as amended (the "Securities Act")); provided, however, that the Board may
cause such legend or legends to be placed on any such certificates as it may
deem advisable under Applicable Law.
3. Rights as a Stockholder.
Except as otherwise provided in this Agreement or the Plan, during the
Restriction Period the Participant shall have, with respect to the Restricted
Stock, all of the rights of a stockholder of the Company, including the right to
vote the Restricted Stock and the right to receive any dividends or other
distributions with respect thereto.
4. Adjustments.
If any change in corporate capitalization, such as a stock split, reverse
stock split, stock dividend, or any corporate transaction such as a
reorganization, reclassification, merger or consolidation or separation,
including a spin-off of the Company or sale or other disposition by the Company
of all or a portion of its assets, any other change in the Company's corporate
structure, or any distribution to stockholders (other than a cash dividend)
results in the outstanding Shares, or any securities exchanged therefor or
received in their place, being exchanged for a different number or class of
shares or other securities of the Company, or for shares of stock or other
securities of any other corporation, or new, different or additional shares or
other securities of the Company or of any other corporation being received by
the holders of outstanding Shares, then the shares of Restricted Stock granted
pursuant to this Agreement shall be treated in the same manner as other
outstanding Shares of the Company.
5. Validity of Share Issuance.
The shares of Restricted Stock have been duly authorized by all necessary
corporate action of the Company and are validly issued, fully paid and
non-assessable.
6. Taxes and Withholding.
As soon as practicable on or after the date as of which an amount first
becomes includible in the gross income of the Participant for federal income tax
purposes with respect to this Award of Restricted Stock, the Participant shall
pay to the Company, or make arrangements satisfactory to
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the Company regarding the payment of, or the Company may deduct or withhold from
any cash or property payable to the Participant, an amount equal to all federal,
state, local and foreign taxes that are required by Applicable Law to be
withheld with respect to such includible amount. Notwithstanding anything to the
contrary contained herein, the Participant may, if the Company consents,
discharge this withholding obligation by directing the Company to withhold
shares of Restricted Stock having a Fair Market Value on the date that the
withholding obligation is incurred equal to the amount of tax required to be
withheld in connection with such vesting, as determined by the Board.
7. Notices.
Any notice to the Company provided for in this Agreement shall be in
writing and shall be addressed to it in care of its Secretary at its principal
executive offices, and any notice to the Participant shall be addressed to the
Participant at the current address shown on the payroll records of the Company.
Any notice shall be deemed to be duly given if and when properly addressed and
posted by registered or certified mail, postage prepaid.
8. Legal Construction.
(a) Severability. If any provision of this Agreement is or becomes or
is deemed invalid, illegal or unenforceable in any jurisdiction, or would
disqualify the Plan or this Agreement under any law with respect to which the
Plan or this Agreement is intended to qualify, or would cause compensation
deferred under the Plan to be includible in a Plan participant's gross income
pursuant to Section 409A(a)(1) of the Internal Revenue Code of 1986, as amended,
as determined by the Board, such provision shall be construed or deemed amended
to conform to Applicable Law or, if it cannot be construed or deemed amended
without, in the determination of the Board, materially altering the intent of
the Plan or the Agreement, it shall be stricken and the remainder of this
Agreement shall remain in full force and effect.
(b) Gender and Number. Where the context admits, words in any gender
shall include the other gender, words in the singular shall include the plural
and words in the plural shall include the singular.
(c) Governing Law. To the extent not preempted by federal law, this
Agreement shall be construed in accordance with and governed by the laws of the
State of Mississippi.
9. Incorporation of Plan.
This Agreement and the Restricted Stock Award made pursuant hereto are
subject to, and this Agreement hereby incorporates and makes a part hereof, all
terms and conditions of the Plan that are applicable to Agreements and Awards
generally and to Restricted Stock Awards in particular. The Board has the right
to interpret, construe and administer the Plan, this Agreement and the
Restricted Stock Award made pursuant hereto. All acts, determinations and
decisions of the
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Board made or taken pursuant to grants of authority under the Plan or with
respect to any questions arising in connection with the administration and
interpretation of the Plan, including the severability of any and all of the
provisions thereof, shall be in the Board's sole discretion and shall be
conclusive, final and binding upon all parties, including the Company, its
stockholders, Participants, Eligible Participants and their estates,
beneficiaries and successors. The Participant acknowledges that he has received
a copy of the Plan.
10. No Implied Rights.
Neither this Agreement nor the issuance of any Restricted Stock shall
confer on the Participant any right with respect to continuance of employment or
other service with the Company. If the Participant is an employee of the
Company, then except as may otherwise be limited by a written agreement between
the Company and the Participant, and acknowledged by the Participant, the right
of the Company to terminate at will the Participant's employment with it at any
time (whether by dismissal, discharge, retirement or otherwise) is specifically
reserved by the Company.
11. Integration.
This Agreement and the other documents referred to herein, including the
Plan, or delivered pursuant hereto, contain the entire understanding of the
parties with respect to their subject matter. There are no restrictions,
agreements, promises, representations, warranties, covenants or undertakings
with respect to the subject matter hereof other than those expressly set forth
herein and restrictions imposed by the Securities Act and applicable state
securities laws. This Agreement, including the Plan, supersedes all prior
agreements and understandings between the parties with respect to its subject
matter.
12. Counterparts.
This Agreement may be executed in two or more counterparts, each of which
shall be deemed an original, but which together constitute one and the same
instrument.
13. Amendments.
The Board may, at any time, without consent of or receiving further
consideration from the Participant, amend this Agreement and the Restricted
Stock Award made pursuant hereto in response to, or to comply with changes in,
Applicable law. To the extent not inconsistent with the terms of the Plan, the
Board may, at any time, amend this Agreement in a manner that is not unfavorable
to the Participant without the consent of the Participant. The Board may amend
this Agreement and the Restricted Stock Award made pursuant hereto otherwise
with the written consent of the Participant.
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14. Securities Act.
(a) The issuance and delivery of the Restricted Stock to the
Participant have been registered under the Securities Act by a Registration
Statement on Form S-8 that has been filed with the Securities and Exchange
Commission ("SEC") and has become effective. The Participant acknowledges
receipt from the Company of its Prospectus dated February ___, 2005, relating to
the Restricted Stock.
(b) If the Participant is an "affiliate" of the Company, which
generally means a director, executive officer or holder of 10% or more of its
outstanding shares, at the time certificates representing Restricted Stock are
delivered to the Participant, such certificates shall bear the following legend,
or other similar legend then being generally used by the Company for
certificates held by its affiliates:
"THESE SHARES MUST NOT BE OFFERED FOR SALE, SOLD, ASSIGNED OR
TRANSFERRED EXCEPT IN A TRANSACTION WHICH, IN THE OPINION OF COUNSEL
FOR THE ISSUER, IS EXEMPT FROM REGISTRATION THROUGH COMPLIANCE WITH
RULE 144 OR WITH ANOTHER EXEMPTION FROM REGISTRATION."
The Company shall remove such legend upon request by the Participant
if, at the time of such request, the shares are eligible for sale under SEC Rule
144(k), or any provision that has replaced it, in the opinion of the Company's
counsel.
15. Arbitration.
Any controversy or claim arising out of or relating to this Restricted
Stock Agreement shall be settled by arbitration administered by the American
Arbitration Association under its Commercial Arbitration Rules and judgment upon
the award rendered by the arbitrator(s) may be entered in any court having
jurisdiction thereof.
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IN WITNESS WHEREOF, the Participant has executed this Agreement on his own
behalf, thereby representing that he has carefully read and understands this
Agreement and the Plan as of the day and year first written above, and the
Company has caused this Agreement to be executed in its name and on its behalf,
all as of the day and year first written above.
XXXXXXXXX FARMS, INC.
By: ________________________________
Name: _______________________
Title: ________________________
_____________________________________
Participant
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