FORM OF RESTRICTED STOCK AGREEMENT UNDER THE CENTURYTEL, INC. (2009 Grants to non-Section 16 Officers)
Exhibit
10.2(a)
FORM
OF RESTRICTED STOCK AGREEMENT
UNDER
THE CENTURYTEL, INC.
1983
RESTRICTED STOCK PLAN
(2009
Grants to non-Section 16 Officers)
This
RESTRICTED STOCK AGREEMENT (this “Agreement”) is entered into as of
April 7, 2009, by and between CenturyTel, Inc. (“CenturyTel”) and
________________ (“Award Recipient”).
WHEREAS, CenturyTel maintains
the 1983 Restricted Stock Plan, as it may be amended from time to time (the
“Plan”), under which the Compensation Committee (the “Committee”) of the Board
of Directors of CenturyTel (the “Board”) may, directly or indirectly, among
other things, grant restricted shares of CenturyTel’s common stock, $1.00 par
value per share (the “Common Stock”), to key employees of CenturyTel or its
subsidiaries (collectively, the “Company”), subject to such terms, conditions,
or restrictions as it may deem appropriate; and
WHEREAS, the chief executive
officer of CenturyTel, acting pursuant to powers delegated to him by the
Committee under Section 4 of the Plan, has awarded to the Award Recipient
restricted shares of Common Stock on the terms and conditions specified
below;
NOW, THEREFORE, the parties
agree as follows:
1.
AWARD OF
SHARES
Upon the
terms and conditions of the Plan and this Agreement, CenturyTel as of the date
of this Agreement (the “Grant Date”) hereby awards to the Award Recipient
________ restricted shares of Common Stock (“Restricted Stock”) that vest,
subject to Sections 2, 3 and 4 hereof, in installments as follows:
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Scheduled Vesting
Date
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Number of Shares of
Restricted Stock
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April 7,
2010
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April 7,
2011
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April 7,
2012
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2.
AWARD
RESTRICTIONS ON
RESTRICTED
STOCK
2.1 In
addition to the conditions and restrictions provided in the Plan, neither the
shares of Restricted Stock nor the right to vote the Restricted Stock, to
receive dividends thereon or to enjoy any other rights or interests thereunder
or hereunder may be sold, assigned, donated, transferred, exchanged, pledged,
hypothecated or otherwise encumbered prior to vesting. Subject to the
restrictions on transfer provided in this Section 2.1, the Award Recipient shall
be entitled to all rights of a shareholder of CenturyTel with respect to the
Restricted Stock, including the right to vote the shares and receive all
dividends and other distributions declared thereon.
2.2 If
the shares of Restricted Stock have not already vested in accordance with
Section 1 above, then, except to the extent otherwise provided in the special
accelerated vesting schedule set forth in Section 2.2(c), all of the shares
of Restricted Stock shall vest and all restrictions set forth in Section 2.1
shall lapse on the earlier of:
(a) the
date on which the employment of the Award Recipient terminates as a result of
(i) death, (ii) disability within the meaning of Section 22(e)(3) of the
Internal Revenue Code, (iii) retirement of the Award Recipient on or after
attaining the age of 55 with at least ten years of prior service with the
Company, but only if such vesting and lapsing of restrictions is specifically
approved by the chief executive officer of CenturyTel or his designee, or (iv)
the termination of the Award Recipient’s employment by the Company, but only if
such vesting and lapsing of restrictions is specifically approved by the chief
executive officer of CenturyTel or his designee (or is otherwise authorized
under Section 2.2(c));
(b) the
occurrence of a Change of Control of CenturyTel, as described in Section 9 of
the Plan; provided, however, that, notwithstanding anything in this Agreement
and the Plan to the contrary, (i) neither the execution, delivery, approval
or performance of the Merger Agreement dated as of October 26, 2008, among
Embarq Corporation, CenturyTel and Cajun Acquisition Company (the “Merger
Agreement”), nor the consummation of the merger of Cajun Acquisition Company
into Embarq Corporation (the “Merger”) or any other transaction contemplated
thereunder, shall be deemed to constitute a Change of Control of CenturyTel and
(ii) the shares of Restricted Stock will not vest solely as a result of the
consummation of the Merger or any other transaction contemplated by the Merger
Agreement (including as a result of the execution of the Merger Agreement or the
approval of the Merger Agreement by the Board of Directors of CenturyTel);
or
(c) the
date on which, following the consummation of the Merger, the Award Recipient (i)
is terminated by the Company without Cause (as defined below) or (ii) resigns
from the Company with Good Reason (as defined below), in either of which cases,
as of the last day of employment (the “Termination Date”), the following number
of shares of Restricted Stock shall accelerate under the following special
accelerated vesting schedule:
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Termination
Date
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Number
of Shares
Accelerated
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If the
Termination Date is
less
than 180 days after the
Grant
Date, then
..................................................................................................
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50% of the shares shall accelerate.
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If the Termination Date is
between 180 and 364 days
after the Grant Date, then
...................................................................................
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the number of shares
accelerated
shall equal the
product of the total number of
shares of Restricted Stock
multiplied by a fraction, the
numerator of which shall equal
the number of days worked
between the Grant Date and the
Termination Date, and the
denominator of which shall
equal 365 (provided in no event
shall such number of shares be
less than 50% of the total
number of shares of Restricted
Stock).
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If the Termination Date is
365 days or more after the
Grant Date, then
...................................................................................................
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100% of the shares shall
accelerate.
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2.3 For
purposes of Section 2.2, the following terms shall have the following
meanings:
(a) “Cause”
shall mean
(i) conviction
of a felony;
(ii) habitual
intoxication during working hours;
(iii) habitual
abuse of or addiction to a controlled dangerous substance; or
(iv) the
willful and continued failure of the Award Recipient to perform substantially
the Award Recipient’s duties with the Company (other than any such failure
resulting from incapacity due to physical or mental illness or the Award
Recipient’s termination of employment for Good Reason) for a period of 10 days
after a written demand for substantial performance is delivered to the Award
Recipient by the Board.
(b) “Good
Reason” shall mean either of the following acts of the Company unless the Award
Recipient shall otherwise expressly agree in writing:
(i) Any
directive requiring the Award Recipient to be based at any office or location
other than the office or location at which the Award Recipient is based on the
date immediately preceding the consummation of the Merger, excluding temporary
assignments requested from time to time to support the integration of the
business and operations of Embarq Corporation with those of the Company in
connection with the Merger; or
(ii) Any
reduction in the Award Recipient’s salary.
3.
TERMINATION
OF EMPLOYMENT
All
unvested Restricted Stock shall automatically terminate and be forfeited if the
employment of the Award Recipient terminates for any reason, unless and to the
extent otherwise provided in Section 2.2.
4.
FORFEITURE
OF AWARD
4.1 If,
at any time during the Award Recipient’s employment by the Company or within 18
months after termination of employment, the Award Recipient engages in any
activity in competition with any activity of the Company, or inimical, contrary
or harmful to the interests of the Company, including but not limited
to: (a) conduct relating to the Award Recipient’s employment for
which either criminal or civil penalties against the Award Recipient may be
sought, (b) conduct or activity that results in termination of the Award
Recipient’s employment for cause, (c) violation of the Company’s policies,
including, without limitation, the Company’s xxxxxxx xxxxxxx policy and
corporate compliance program, (d) accepting employment with, acquiring a 5% or
more equity or participation interest in, serving as a consultant, advisor,
director or agent of, directly or indirectly soliciting or recruiting any
employee of the Company who was employed at any time during the Award
Recipient’s tenure with the Company, or otherwise assisting in any other
capacity or manner any company or enterprise that is directly or indirectly in
competition with or acting against the interests of the Company or any of its
lines of business (a “competitor”), except for (A) any isolated, sporadic
accommodation or assistance provided to a competitor, at its request, by the
Award Recipient during the Award Recipient’s tenure with the Company, but only
if provided in the good faith and reasonable belief that such action would
benefit the Company by promoting good business relations with the competitor and
would not harm the Company’s interests in any substantial manner or (B) any
other service or assistance that is provided at the request or with the written
permission of the Company, (e) disclosing or misusing any confidential
information or material concerning the Company, (f) engaging in, promoting,
assisting or otherwise participating in a hostile takeover attempt of the
Company or any other transaction or proxy contest that could reasonably be
expected to result in a Change of Control (as defined in the Plan) not approved
by the CenturyTel Board of Directors or (g) making any statement or disclosing
any information to any customers, suppliers, lessors, lessees, licensors,
licensees, regulators, employees or others with whom the Company engages in
business that is defamatory or derogatory with respect to the business,
operations, technology, management, or other employees of the Company, or taking
any other action that could reasonably be expected to injure the Company in its
business relationships with any of the foregoing parties or result in any other
detrimental effect on the Company, then the award of Restricted Stock granted
hereunder shall automatically terminate and be forfeited effective on the date
on which the Award Recipient engages in such activity and (i) all shares of
Common Stock acquired by the Award Recipient pursuant to this Agreement (or
other securities into which such shares have been converted or exchanged) shall
be returned to the Company or, if no longer held by the Award Recipient, the
Award Recipient shall pay to the Company, without interest, all cash, securities
or other assets received by the Award Recipient upon the sale or transfer of
such stock or securities, and (ii) all unvested shares of Restricted Stock shall
be forfeited.
4.2 If
the Award Recipient owes any amount to the Company under Section 4.1 above, the
Award Recipient acknowledges that the Company may, to the fullest extent
permitted by applicable law, deduct such amount from any amounts the Company
owes the Award Recipient from time to time for any reason (including without
limitation amounts owed to the Award Recipient as salary, wages, reimbursements
or other compensation, fringe benefits, retirement benefits or vacation
pay). Whether or not the Company elects to make any such set-off in
whole or in part, if the Company does not recover by means of set-off the full
amount the Award Recipient owes it, the Award Recipient hereby agrees to pay
immediately the unpaid balance to the Company.
4.3 The Award
Recipient may be released from the Award Recipient’s obligations under Sections
4.1 and 4.2 above only if the chief executive officer of CenturyTel determines
in his sole discretion that such action is in the best interests of the
Company.
5.
STOCK
CERTIFICATES
No stock
certificates evidencing the Restricted Stock shall be issued by CenturyTel until
the lapse of restrictions under the terms hereof. Upon the lapse of
restrictions on shares of Restricted Stock, CenturyTel may, in its discretion,
issue the vested shares of Restricted Stock (either through book-entry issuances
or delivery of a stock certificate) in the name of the Award Recipient or his or
her nominee, subject to the other terms and conditions hereof, including those
governing any withholdings of shares under Section 6 below. Upon
receipt of any such stock certificate, the Award Recipient is free to hold or
dispose of the shares represented by such certificate, subject to (i) applicable
securities laws, (ii) CenturyTel’s xxxxxxx xxxxxxx policy, and (iii) any
applicable stock retention policies that CenturyTel may adopt in the
future.
6.
WITHHOLDING
TAXES
At the
time that all or any portion of the Restricted Stock vests, the Award Recipient
must deliver to CenturyTel the amount of income tax withholding required by
law. Unless otherwise directed in writing by CenturyTel, the Award
Recipient hereby agrees to fully satisfy this tax withholding obligation by
requesting CenturyTel to withhold from the shares the Award Recipient otherwise
would receive hereunder shares of Common Stock having a value equal to the
minimum amount required to be withheld (as determined under the Plan); provided,
however, that to prevent the issuance of fractional shares and the
under-withholding of taxes, the Award Recipient agrees that the number of shares
withheld shall be rounded up to the next whole number of shares.
7.
ADDITIONAL
CONDITIONS
Anything in this Agreement to the contrary notwithstanding, if, at any time
prior to the vesting of the Restricted Stock in accordance with Section 1
or 2 hereof, CenturyTel further determines, in its sole discretion, that the
listing, registration or qualification (or any updating of any such document) of
the shares of Common Stock issuable pursuant hereto is necessary on any
securities exchange or under any federal or state securities or blue sky law, or
that the consent or approval of any governmental regulatory body is necessary or
desirable as a condition of, or in connection with the issuance of shares of
Common Stock pursuant thereto, or the removal of any restrictions imposed on
such shares, such shares of Common Stock shall not be issued, in whole or in
part, or the restrictions thereon removed, unless such listing, registration,
qualification, consent or approval shall have been effected or obtained free of
any conditions not acceptable to CenturyTel. CenturyTel agrees to use
commercially reasonable efforts to issue all shares of Common Stock issuable
hereunder on the terms provided herein.
8.
NO
CONTRACT OF EMPLOYMENT INTENDED
Nothing
in this Agreement shall confer upon the Award Recipient any right to continue in
the employment of the Company, or to interfere in any way with the right of the
Company to terminate the Award Recipient’s employment relationship with the
Company at any time.
9.
BINDING
EFFECT
Upon
being duly executed and delivered by CenturyTel and the Award Recipient, this
Agreement shall inure to the benefit of and be binding upon the parties hereto
and their respective heirs, executors, administrators, legal representatives and
successors. Without limiting the generality of the foregoing,
whenever the term “Award Recipient” is used in any provision of this Agreement
under circumstances where the provision appropriately applies to the heirs,
executors, administrators or legal representatives to whom this award may be
transferred by will or by the laws of descent and distribution, the term “Award
Recipient” shall be deemed to include such person or persons.
10.
INCONSISTENT
PROVISIONS
The shares of Restricted Stock granted hereby are subject to the terms,
conditions, restrictions and other provisions of the Plan as fully as if all
such provisions were set forth in their entirety in this
Agreement. If any provision of this Agreement conflicts with a
provision of the Plan, the Plan provision shall control, except that the
provisions of Section 2.2(b) of this Agreement shall prevail over any
contrary provisions in the Plan. The Award Recipient acknowledges
receipt from CenturyTel of a copy of the Plan and a prospectus summarizing the
Plan and further acknowledges that the Award Recipient was advised to review
such materials prior to entering into this Agreement. The Award
Recipient waives the right to claim that the provisions of the Plan are not
binding upon the Award Recipient and the Award Recipient’s heirs, executors,
administrators, legal representatives and successors.
11.
ATTORNEYS’
FEES AND EXPENSES
Should
any party hereto retain counsel for the purpose of enforcing, or preventing the
breach of, any provision hereof, including, but not limited to, the institution
of any action or proceeding in court to enforce any provision hereof, to enjoin
a breach of any provision of this Agreement, to obtain specific performance of
any provision of this Agreement, to obtain monetary or liquidated damages for
failure to perform any provision of this Agreement, or for a declaration of such
parties’ rights or obligations hereunder, or for any other judicial remedy, then
the prevailing party shall be entitled to be reimbursed by the losing party for
all costs and expenses incurred thereby, including, but not limited to,
attorneys’ fees (including costs of appeal).
12.
GOVERNING
LAW
This
Agreement shall be governed by and construed in accordance with the laws of the
State of Louisiana.
13.
SEVERABILITY
If any
term or provision of this Agreement, or the application thereof to any person or
circumstance, shall at any time or to any extent be invalid, illegal or
unenforceable in any respect as written, the Award Recipient and CenturyTel
intend for any court construing this Agreement to modify or limit such provision
so as to render it valid and enforceable to the fullest extent allowed by
law. Any such provision that is not susceptible of such reformation
shall be ignored so as to not affect any other term or provision hereof, and the
remainder of this Agreement, or the application of such term or provision to
persons or circumstances other than those as to which it is held invalid,
illegal or unenforceable, shall not be affected thereby and each term and
provision of this Agreement shall be valid and enforced to the fullest extent
permitted by law.
14.
ENTIRE
AGREEMENT; MODIFICATION
The Plan
and this Agreement contain the entire agreement between the parties with respect
to the subject matter contained herein and may not be modified, except as
provided in the Plan, as it may be amended from time to time in the manner
provided therein, or in this Agreement, as it may be amended from time to time
by a written document signed by each of the parties hereto. Any oral
or written agreements, representations, warranties, written inducements, or
other communications with respect to the subject matter contained herein made
prior to the execution of the Agreement shall be void and ineffective for all
purposes.
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed and delivered on the day and year first above written.
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CenturyTel,
Inc.
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By: _________________________________
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Xxxx X. Post, III
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Chairman and Chief Executive Officer
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______________________________________
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{Insert name}
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Award
Recipient
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