EXHIBIT 10.8
MIDAS, INC.
RESTRICTED STOCK AGREEMENT
RESTRICTED STOCK AGREEMENT dated as of __________, 1999 (the "Purchase
Date") between Midas, Inc., a Delaware corporation (the "Corporation"), and
________________ (the "Purchaser") pursuant to the Corporation's Stock
Incentive Plan (the "Plan"). Capitalized terms not defined herein shall
have the meanings specified in the Plan.
WHEREAS, the Corporation desires to carry out the purposes of the Plan;
WHEREAS, the Purchaser has contemporaneously herewith paid the Corporation
$__________ or executed a promissory note in the amount of $__________ (the
"Note") in favor of the Corporation in connection with the purchase by the
Purchaser of _________ shares (the "Shares") of the Corporation's Common
Stock ("Stock") subject to this Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
hereinafter set forth and for other good and valuable consideration,
receipt of which is hereby acknowledged, the parties hereto have agreed,
and do hereby agree, as follows:
1. The Purchaser shall accept this Agreement by executing it in the space
provided below and returning it to the Corporation. The Shares shall be
issued and outstanding shares issued in the Purchaser's name. One or more
certificates representing the Shares shall be held by the corporation
during the Restriction Period (as defined in paragraph 4.(a)). The
Purchaser shall contemporaneously herewith execute and deliver to the
Corporation one or more irrevocable stock powers relating to the Shares.
2. During the Restriction Period, the Shares may not be transferred by the
Purchaser other than by will, the laws of descent and distribution or
pursuant to beneficiary designation procedures approved by the Corporation.
Except to the extent permitted by the foregoing, the Shares 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. Any attempt to sell, transfer,
assign, pledge, hypothecate or encumber, or otherwise dispose of the
Shares, shall be null and void.
3. During the Restrictions Period, the Purchaser shall have the right to
vote the Shares and to receive the dividends and other distributions on the
Shares unless and until the Shares are repurchased by the Corporation
pursuant to paragraph 4(c) hereof.
4. (a) The restrictions on transfer set forth in paragraph 2 hereof and the
Corporation's right and obligation to repurchase the Shares as set forth in
paragraph 4(c) hereof shall expire with respect to 100 percent (100%) of
the Shares at the earlier of (I) 5:00 p.m., Chicago time, on __________,
2002 or (ii) pursuant to paragraph 4(b) hereof or (iii) in accordance with
Section 10 of the Plan (the "Expiration Date"). The period during which the
restrictions on transfer set forth in paragraph 2 hereof and the
Corporation's right and obligation to repurchase the Shares as set forth in
paragraph 4(c) hereof have not expired is hereinafter referred to as the
"Restriction Period". Subject to paragraph 5 hereof, as soon as practicable
after the Expiration Date, the Corporation shall deliver one or more
certificates issued in the Purchaser's name representing the Shares and
shall return the irrevocable stock power(s) to the Purchaser. The
Corporation shall pay all original issue or transfer taxes and all fees and
expenses incident to such delivery, except as otherwise provided in
paragraph 5 hereof.
(b) If, during the Restriction Period, the Purchaser's employment with the
Corporation terminates for any reason other than unilateral resignation of
employment by the Purchaser or termination of the Purchaser's employment by
the Corporation for cause, the Expiration Date shall be the effective date
of the Purchaser's termination of employment.
(c) If, during the Restriction Period, the Purchaser's employment with the
Corporation terminates by reason of unilateral resignation of employment by
the Purchaser, or by reason of the Corporation's termination of the
Purchaser's employment with the Corporation for cause, the Corporation
shall, no later than 15 calendar days after the effective date of the
Purchaser's termination of employment, repurchase 100 percent (100%) of the
Shares at a purchase price per Share equal to the lesser of *I) $22.00 and
(ii) the closing price of a share of Stock on the effective date of the
Purchaser's termination of employment (or if such day is not a trading day,
on the immediately preceding trading day).
(d) The Corporation and the Purchaser agree that, in connection with any
repurchase by the Corporation of Shares pursuant to paragraph 4(c), up to
100 percent (100%) of the aggregate repurchase price of the Shares shall be
paid by the Corporation to the Purchaser no later than 15 calendar days
after the effective date of the Purchaser's termination of employment by
(I) reducing the principal and accrued interest, if any, if respect of the
Note and/or (ii) paying all or a portion of the repurchase price to any
lender that loaned money to Purchaser for Purchaser's acquisition of the
Shares or Purchaser's refinancing of any debt incurred by Purchaser to
acquire the Shares; provided, that the Purchaser agrees that any principal
and accrued interest in respect of the Note remaining after any such
reduction shall remain obligations of the Purchaser payable in accordance
with the terms of the Note.
5. (a) As a condition precedent to the delivery to the Purchaser of any
Shares, the Purchaser shall, upon request by the Corporation, pay to the
Corporation such amount
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of cash as the Corporation 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 this Agreement. If the Purchaser shall fail to advance the
Required Tax Payments after request by the Corporation, the Corporation
may, in its discretion, deduct any Required Tax Payments from any amount
then or thereafter payable by the Corporation to the Purchaser.
(b) The Purchaser may elect to satisfy his obligation to advance the
Required Tax Payments by any of the following means: (1) a cash payment
(including a check) to the Corporation, (2) delivery (either actual
delivery or by attestation procedures established by the Corporation) to
the Corporation of previously owned whole shares of Stock (which the
Purchaser has held for at least six months prior to the delivery of such
shares or which the Purchaser purchased on the open market and for which
the Purchaser has good title, free and clear of all liens and encumbrances)
having a fair market value, determined as of the date the obligation to
withhold or pay taxes first arises in connection with this Agreement (the
"Tax Date"), equal to the Required Tax Payments, (3) authorizing the
Corporation to withhold from the Shares otherwise to be delivered to the
Purchaser pursuant to this Agreement, a number of whole Shares having a
fair market value, determined as of the Tax Date, equal to the Required Tax
Payments, (4) a cash payment by a broker-dealer acceptable to the
Corporation through whom the Purchaser has sold Shares with respect to
which the Required Tax Payments have arisen or (5) any combination of (1),
(2) and (3). The Company shall have sole discretion to disapprove of an
election pursuant to any of clauses (2)-(5). Shares of Stock to be
delivered or withheld may not have a fair market value in excess of the
minimum amount of the Required Tax Payments. Any fraction of a share of
Stock which would be required to satisfy such an obligation shall be
disregarded and the remaining amount due shall be paid in cash by the
Purchaser. No certificate representing a Share a shall be delivered until
the Required Tax Payments have been satisfied in full.
6. In the event of a stock split, stock, dividend, reverse stock split,
spin-off, split-up, recapitalization, merger, consolidation, combination,
exchange of shares or the like during the Restriction Period, or any
distribution during the Restriction Period to holders of Stock other than a
regular cash dividend, the number and class of securities subject to this
Agreement shall be appropriately adjusted in such manner as the Committee
shall in its sole discretion determine to be equitable and consistent with
the purposes of the Plan. If any adjustment would result in a fractional
security being subject to this Agreement, the Corporation shall pay the
Purchaser in connection with the delivery of any Shares pursuant to
paragraph 4(a) hereof, an amount in cash determined by multiplying (I) such
fraction (rounded to the nearest hundredth) by (ii) the fair market value
of a share of Stock. The decision of the Committee regarding any such
adjustment shall be final, binding and conclusive.
7. This Agreement and each and every obligation of the Corporation
hereunder are subject to the requirement that if at any time Corporation
shall determine, upon
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advice of counsel, that the listing, registration, or qualification of the
shares covered hereby upon any securities exchange or under any state or
Federal law, or the consent or approval of any governmental regulatory
body, is necessary or desirable as a condition of or in connection with the
delivery of Shares hereunder, the Shares shall not be delivered, in whole
or in part, unless and until such listing, registration, qualification,
consent or approval shall have been effected or obtained free of any
conditions not acceptable to the Board of Directors of the Corporation. The
Corporation agrees to use reasonable efforts to effect or obtain any such
listing, registration, qualification, consent or approval.
8. In the event of a "change in control" or a "Pooling Transaction", as
those terms are defined in the Plan, the Purchaser shall have all of the
rights specified in Paragraph 10(B) and, if applicable, Paragraph 10(D) of
the Plan.
9. Nothing herein contained shall confer on the Purchaser any right to
continue in the employment of the Corporation or any of its subsidiaries or
interfere in any way with the right of the Corporation or any subsidiary to
terminate the Purchaser's employment at any time; affect the Purchaser's
right to participate in and receive benefits under and in accordance with
the provisions of any pension, profit-sharing, insurance, or other employee
benefit plan or program of the Corporation or any of its subsidiaries; or
limit or otherwise affect the right of the Board of Directors of the
Corporation (subject to any required approval by the shareholders) at any
time or from time to time to alter, amend, suspend or discontinue the Plan
and the rules for its administration; provided, however, that no
termination or amendment of the Plan may, without the consent of the
Purchaser, adversely affect the Purchaser's rights under this Agreement.
10. The Committee shall have the right to resolve all questions which may
arise in connection with this Agreement. Any interpretation, determination
or other action made or taken by the Committee regarding the Plan or this
Agreement shall be final, binding and conclusive.
11. This Agreement is subject to the provisions of the Plan and shall be
interpreted in accordance therewith. The Purchaser hereby acknowledges
receipt of a copy of the Plan.
12. As used herein, employment by the Corporation shall include employment
by a corporation which is a "subsidiary corporation" of the Corporation, as
such term is defined in section 424 of the Code.
13. All notices, requests or other communications provided for in this
Agreement shall be made, if to the Corporation, to Midas, Inc., 000 Xxxxx
Xxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000, Attention: General Counsel, and
if to the Purchaser, to the last address of the Purchaser listed in the
Corporation's records. All notices, requests or other communications
provided for in this Agreement shall be made in writing either (a) by
personal delivery, (b) by facsimile with confirmation of receipt, (c) by
mailing in the
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Xxxxxx Xxxxxx mails to the last known address of the party entitled thereto
or (d) by express courier service. The notice, request or other
communication shall be deemed to be received upon personal delivery, upon
confirmation of receipt of facsimile transmission, or upon receipt by the
party entitled thereto if by United States mail or express courier service;
provided, however, that if a notice, request or other communication is not
received during regular business hours, it shall be deemed to be received
on the next succeeding business day of the Corporation.
14. This Agreement and all determinations made and actions taken pursuant
hereto, to the extent not otherwise governed by the laws of the United
States, shall be governed by the laws of the State of Delaware and
construed in accordance therewith without giving effect to conflicts of
laws principles.
IN WITNESS WHEREOF, this Restricted Stock Agreement has been duly executed
by the Corporation and the Purchaser as of the Purchase Date.
MIDAS, INC.: PURCHASER:
By:___________________________ ___________________________
Name:
Title:
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PROMISSORY NOTE
$________________ ________________, 1999
The undersigned, _______________, an individual resident of the State
of ____________ ("Maker"), for value received, and intending to be legally bound
hereby, promises to pay to the order of Midas, Inc., a Delaware corporation
("Payee"), at 000 Xxxxx Xxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000, or at such
other place or places as the holder hereof may designate in writing, the
principal sum of ____________________ Dollars ($__________), plus interest on
the unpaid principal amount from time to time outstanding, at a rate of interest
of _____ percent (__%) per annum, with all principal owed hereunder payable in
full on or before the Maturity Date (as hereinafter defined). Interest shall
accrue on the unpaid principal amount hereof from time to time outstanding
beginning on the date hereof until all principal amounts due hereunder are paid
in full.
Maker acknowledges that he is executing this Promissory Note (this
"Note") for the sole purpose of financing his purchase of __________ shares of
restricted common stock of Payee (collectively, the "Stock), upon the terms and
subject to the conditions set forth under that certain Nonqualified Option
Agreement to Purchase Restricted Stock dated as of September 17, 1998 (the
"Option Agreement"), and that certain Restricted Stock Agreement executed
contemporaneously herewith (the "RSA) (the Option Agreement and the RSA are
collectively referred to herein as the "Stock Agreements").
All amounts of principal owed hereunder shall become immediately due
and payable from Maker to Payee, in one single lump sum payment, on the date
(the "Maturity Date") which is the earlier to occur of: (a) the four (4) year
anniversary of the date of this Note and (b) the date which is one (1) month
after the effective date of Maker's termination of employment with the
Corporation for any reason; provided, however, that if the Maker's employment
with the Corporation terminates by reason of death or disability, the Maturity
Date shall be the one (1) year anniversary of the effective date of the Holder's
termination of employment.
Notwithstanding anything contained herein to the contrary, all
interest accruing under this Note from and including the date hereof to be
excluding the Maturity Date shall be waived by Payee.
All payments on account of indebtedness evidenced by this Note shall
be first applied to any and all costs, expenses and fees, including reasonable
attorneys' fees and costs, incurred by Payee in connection with the enforcement
of this Note, then to any accrued interest on the unpaid principal balance
hereunder (subject to the above-described interest waiver provision), and the
remainder to the unpaid principal balance hereunder.
The rights and remedies of the holder hereof as provided in this Note,
the Stock Agreements and in all other agreements, documents or instruments
securing and/or evidencing this indebtedness shall be cumulative and concurrent,
and may be pursued singly, successively or together against Maker and/or against
any collateral at the sole discretion of the holder hereof.
Upon the occurrence and during the continuation of any default under
this Note or the Stock Agreements, the entire unpaid principal balance
hereunder, together with any accrued interest thereon (subject to the
above-described interest waiver provision), shall, at the option of Payee,
become immediately due and payable. In addition, Payee shall be entitled to
exercise all rights of Payee hereunder and under applicable law, cumulatively
and not exclusively, including, but not
limited to, such rights with respect to any collateral as may be permitted or
required by law to satisfy the obligations evidenced by this Note, without in
any way reducing Maker's obligation to pay any deficiency remaining.
Each right, power and remedy of Payee provided for in this Note or in
any other document, or now or hereafter existing at law or in equity or by
statute, shall be cumulative and concurrent and shall be in addition to every
other such right, power or remedy. The exercise or the beginning of the exercise
by Payee or any one or more of the rights, powers or remedies provided for in
this Note, or now or hereafter existing at law or in equity or by statute or
otherwise, shall not preclude the simultaneous or later exercise by Payee of any
or all such other rights, powers or remedies, and no failure or delay on the
part of Payee to exercise any such right, power or remedy shall operate as a
waiver thereof.
This Note may be prepaid in whole or in part from time to time,
without premium or penalty. In addition to the other sums payable hereunder,
Maker agrees to pay to the holder hereof, on demand, all costs, expenses and
fees, including reasonable attorneys' fees and costs, that may be incurred by
the holder of this Note in enforcing any of the terms hereof.
FULL RECOURSE: Maker hereby waives presentment for payment, demand,
notice of non-payment, notice of dishonor, protest of any dishonor, notice of
protest and protest of this Note and all other notices in connection with the
delivery, acceptance, performance, default or enforcement of the payment of this
Note, and agrees that his liabilities shall be unconditional without regard to
the liability of any other party and shall not in any manner be affected by any
indulgence, extension of time, renewal, waiver or modification granted or
consented to by the holder hereof. The holder hereof shall not by any act of
omission or commission be deemed to waive any rights or remedies hereunder
unless such waiver is in writing and signed by the holder hereof, and then only
to the extent specifically set forth therein. The waiver of any right or remedy
shall not be construed as a waiver of any other right or remedy, nor shall any
single or partial exercise of any right or remedy preclude any other or further
exercise thereof or of any other right or remedy.
Whenever possible, each provision of this Note shall be interpreted in
such manner as to be effective and valid under applicable law, but if any
provision of this Note is deemed to be invalid or unenforceable under such law,
such provision shall be ineffective only to the extent of such invalidity or
unenforceability without affecting the validity or enforceability of any other
provision of this Note. This Note shall be governed and controlled as to
validity, enforcement, interpretation, construction, effect and in all other
respects by the statutes, laws and decisions of the State of Illinois.
IN WITNESS WHEREOF, Maker has executed this Promissory Note as of the
date first above written.
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Name:
