EXHIBIT 10.2
RESTRICTED STOCK AGREEMENT
RESTRICTED STOCK AGREEMENT (the "Agreement") dated this _____ day of
____________, 2000 by and between Xxxx Holdings, Inc., a Delaware corporation
(the "Corporation"), and ____________, an [employee of] [consultant to]
[non-employee director of] the Corporation or of a subsidiary of the
Corporation (the "Employee").
As of February 1, 2000, the Corporation has duly adopted the Xxxx
Holdings, Inc. Management Stock Performance Plan (the "Plan"), which is
incorporated herein by reference. Unless otherwise expressly stated, all
defined terms herein shall have the same meanings ascribed to them in the
Plan. In accordance with Section 7 and/or Section 12 of the Plan, the
Employee is granted certain rights to obtain shares of common stock, par
value $.01 per share (the "Shares"), of the Corporation, subject to the terms
of this Agreement.
1. TRANSFERABILITY. Prior to the completion of a sale of Shares
pursuant to an effective registration statement under the Securities Act
(other than a registration statement relating to the public offering of
Shares representing less than 15% of the then outstanding Shares) (an
"Initial Public Offering"), Shares (i) may not be assigned, transferred,
pledged or hypothecated in any way, (ii) shall not be assignable by operation
of law (except by will or by the laws of descent and distribution) and (iii)
shall not be subject to execution, attachment or similar process. Any
attempted assignment, transfer, pledge, hypothecation or other disposition
contrary to the provisions hereof shall be null and void and without effect.
2. ISSUANCE OF STOCK. Shares of Stock shall be evidenced in such
manner as the Compensation Committee may deem appropriate, including
book-entry registration or issuance of one or more stock certificates. Any
certificate issued in respect of shares of Stock shall be registered in the
name of the Employee to whom such shares are granted and shall bear an
appropriate legend referring to the terms, conditions, and restrictions
applicable to such shares of Stock, substantially in the following form:
"The transferability of this certificate and the shares of
stock represented hereby are subject to the terms and
conditions (including forfeiture) of the Xxxx Holdings, Inc.
Management Stock Incentive Plan and a Restricted Stock
Agreement. Copies of such Plan and Agreement are on file at
the offices of Xxxx Holdings, Inc., c/x Xxxx Graphic Systems,
Inc., 000 Xxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxx 00000-0000."
3. SPECIFIC RESTRICTIONS UPON SHARES. The Employee hereby agrees
with the Corporation as follows:
(a) the Employee shall acquire the Shares for investment
purposes only and not with a view to resale or other distribution thereof to
the public in violation of the Securities Act of 1933, as amended (the
"Securities Act"), and shall not dispose of any Shares in any transaction
which, in the opinion of counsel to the Corporation, may violate the
Securities Act, or the rules and regulations thereunder, or any applicable
state securities, or "blue sky", laws;
(b) if any Shares shall be registered under the Securities
Act, no public offering (otherwise than on a national securities exchange, as
defined in the Exchange Act) of any Shares shall be made by the Employee (or
any other person) under such circumstances that he or she (or such other
person) may be deemed an underwriter, as defined in the Securities Act; and
(c) the Corporation shall have the authority to endorse
upon the certificate or certificates representing the Shares such legends
referring to the foregoing restrictions or any other applicable restrictions,
as the Corporation may deem appropriate.
4. CALL RIGHTS. (a) Upon Employee's ceasing to be a full-time
employee of, a director of or a consultant to the corporation or any of its
subsidiaries for any reason prior to an Initial Public Offering (a "Call
Event"), the Company shall have the right (the "Call Right"), exercisable by
delivery of a written notice (the "Call Notice") to such Employee within 190
days after the death of the Employee and within one year after any other Call
Event (the "Call Notice Period"), to require such participant to sell all, or
any portion, of the Shares (the "Call Shares") owned by Employee on
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the date of the Call Event at a price per Call Share equal to the Share Call
Price (as defined below). Upon receipt of such notice, the Participant shall
sell such Call Shares, subject to the terms hereof.
(b) The term "Share Call Price" shall mean, as determined on the
date of the Call Notice, the Fair Value Price of the Call Shares.
(c) The term "Fair Value Price" shall be :
an amount equal to the quotient obtained by dividing (1) the difference
between (a) the product of (i) the Company's consolidated earnings from
continuing operations before interest, taxes, depreciation and
amortization,, excluding extraordinary items, for the four full fiscal
quarters ending immediately preceding the date of determination and
(ii) 7.5, and (b) the Company's average outstanding consolidated
indebtedness and preferred stock (valued, with respect to each series
thereof, at the greater of its liquidation preference and its call or
redemption price then in effect, if any) based upon such amounts
outstanding at the end of each of the four fiscal quarters ending
immediately preceding the date of determination (net of any cash and
cash equivalents in excess of $2.0 million) by (2) the number of Shares
then outstanding determined on a fully diluted basis; PROVIDED FURTHER,
that if there has been a disposition of assets, an acquisition,
recapitalization or reclassification of securities or any other
extraordinary transaction in the preceding four quarters, then the Fair
Value Price as determined by the formula set forth in the immediately
preceding proviso may (but shall not be required to) be adjusted as
determined by the Board of Directors acting reasonably.
5. SALE OF SHARES TO A THIRD PARTY. (a) If at any time prior to an
Initial Public Offering, Stonington proposes to sell shares for its own
account to one or more parties in one or more private transactions which is
not, and following such sale will not be, affiliated with Stonington (a
"Third Party") and which will result in Stonington ceasing to be the
beneficial owners of at least 50% of the common equity of the Corporation on
a fully diluted basis, the Participants shall have the right to participate
(a "Tag-Along-Right") in such sale with respect to any Shares (including
Shares obtainable upon exercise of Options or through payment for Non Vested
Units granted pursuant to the Plan) held by them on a pro rata basis (based
on the percentage of Participant Shares corresponding to the relationship of
the aggregate number of Shares to be sold by Stonington to the aggregate
number of Stonington Shares) for the same consideration per Share/Unit and
otherwise on the same terms as Stonington sells its Shares.
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(b) If circumstances occur which give rise to the Tag-Along right,
then Stonington shall give written notice to the Participants providing a
summary of the terms of the proposed sale to the Third party and advising
such Participants of their Tag-Along rights. Each participant may exercise
his or her Tag-Along Right by written notice to the Company stating the
number of Shares that he or she wishes to sell, up to the maximum number
permitted (being his or her pro rata amount referred to above and as
disclosed in the notice to be given to him or her). If a participant gives
written notice indicating that he or she wishes to sell, he or she shall be
obligated to sell that number of Shares or Units specified in his or her
written acceptance notice upon the same terms and conditions as Stonington is
selling to the third Party conditional upon and contemporaneous with
completion of the transaction of purchase and sale with the third Party.
(c) If at any time prior to an Initial Public Offering, Stonington
proposes to sell for its own account, in one or more transactions, Shares
which, in the aggregate, represent more than 40% of the capital stock of the
Company on a fully diluted basis to a Third Party in one or more private
transactions, Stonington shall, upon written request, have the right to
require the participants to participate (a "Drag-Along Right") in such sale
with respect to any Shares (including Shares obtainable upon exercise of
Options granted pursuant to the Plan) held by them on a pro rata basis (based
on the percentage of Participant's Shares corresponding to the relationship
of the aggregate number of Shares to be sold by Stonington to the aggregate
number of Stonington Shares) for the same consideration per Share and
otherwise on the same terms as Stonington sells its Shares.
(d) For purposes of this Section 5, to the extent that Shares
issuable upon exercise of an Option granted under the Plan are to be sold
pursuant to the exercise of a Tag-Along Right or Drag-Along Right, the
holders of such Options shall not be required to exercise their Options until
all conditions to the commitment by the Third Party to purchase the Shares
into which such Options are exercisable pursuant to the exercise of a
Tag-Along Right or Drag-Along Right have been satisfied or waived.
(e) Tag-Along Rights and Drag-Along Rights pursuant to this Section
5 shall be exercisable upon 15 calendar days' prior written notice.
6. SOLE AGREEMENT. This Agreement, together with, if applicable, the
Plan and any Incentive Option Agreement, Performance Option Agreement and/or
Non-Vested Stock/Unit
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Agreement, form the sole agreement between the parties to it regarding the
matters specified in it, and any and all prior written or oral understandings
regarding those matters are merged into it. This Agreement may be amended
only by written agreement between the Employee and the Corporation.
7. BINDING EFFECT. This Agreement shall inure to the benefit of and
be binding upon the parties hereto, their heirs, successors and permitted
assigns.
8. THE EMPLOYEE HEREBY REPRESENTS, WARRANTS AND ACKNOWLEDGES TO THE
CORPORATION THAT THE EMPLOYEE IS AN [EMPLOYEE OF] [CONSULTANT TO]
[NON-EMPLOYEE DIRECTOR OF] THE CORPORATION OR A SUBSIDIARY OF THE CORPORATION
AND THAT THE [EMPLOYEE] [CONSULTANT] [NON-EMPLOYEE DIRECTOR] WAS NOT AND IS
NOT BEING INDUCED TO ENTER INTO THIS AGREEMENT BY AN EXPECTATION OF
[EMPLOYMENT] [CONSULTANCY][DIRECTORSHIP] OR CONTINUED [EMPLOYMENT]
[CONSULTANCY] [DIRECTORSHIP].
9. NOTICES. Any notice required or permitted under this Agreement
shall be deemed given when delivered personally, or when deposited in a
United States Post Office as registered mail, postage prepaid, addressed, as
appropriate, to the Employee at his or her address set forth below or such
other address as he or she may designate in writing to the Corporation, or to
the Corporation, c/o Office of the Secretary, Xxxx Holdings, Inc., 000
Xxxxxxx Xxxx, Xxxxxxxx, XX 00000 or such other address(es) as the Corporation
may designate in writing to the Employee.
10. FAILURE TO ENFORCE NOT A WAIVER. The failure of the Corporation
to enforce at any time any provision of this Agreement shall in no way be
construed to be a waiver of such provision or of any other provision hereof.
11. GOVERNING LAW. This Agreement shall be governed by and construed
according to the laws of the State of Delaware, without regard to principles
of conflict of laws.
12. PROVISIONS OF PLAN. As to any Shares provided for herein that
have been granted pursuant to the Plan, and said Shares and this Agreement
are in all respects governed by the Plan
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and subject to all of the terms and provisions thereof, whether such terms
and provisions are incorporated in this Agreement solely by reference or are
expressly cited herein. In the event of any inconsistency between this
Agreement and the Plan, the terms of the Plan shall govern to the extent of
such inconsistency. For greater certainty, without limiting the generality of
the foregoing, the Employee agrees to be bound by any amendments to the Plan
or this Agreement made by the Compensation Committee of the Board of
Directors of the Corporation or the Board of Directors of the Corporation in
accordance with the provisions of the Plan to conform the Plan or this
Agreement to the rules and regulations of any appropriate regulatory
authority or any national securities exchange on which the Corporation
proposes to list or lists any of its shares. From and after the date, if any,
on which any shares of the Corporation are listed on any national securities
exchange an/or subject to the rules and regulations of any applicable
regulatory authority, the terms and conditions of this Agreement and the
implementation thereof shall be subject to the rules and regulations of such
exchange and/or regulatory authority, as the case may be, and, in the event
of any inconsistency between the terms and conditions of this Agreement and
the rules and regulations of any such exchange and/or regulatory authority,
as the case may be, shall prevail.
* * * * *
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IN WITNESS WHEREOF, the Corporation has executed this Agreement on
the day and year first above written.
XXXX HOLDINGS, INC.
By: ______________________________
Name: Xxxxxx X. Xxxxxx, III
Title: Executive Vice President
The undersigned hereby accepts, and agrees to, all terms and provisions of the
foregoing Agreement.
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(name)
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ADDRESS
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