Exhibit 10.2
XXXXX-ILLINOIS
1997 EQUITY PARTICIPATION PLAN
RESTRICTED STOCK AGREEMENT
THIS RESTRICTED STOCK AGREEMENT, dated May 17, 1999 is made by and between
Xxxxx-Illinois, Inc., a Delaware corporation (the "Company") and ____________,
an employee of the Company or a Parent Corporation or a Subsidiary (the
"Employee"):
WHEREAS, the Company has established the Xxxxx-Illinois 1997 Equity
Participation Plan (the "Plan"); and
WHEREAS, the Plan provides for the issuance of shares of the Company's
Common Stock , subject to certain restrictions thereon and to other conditions
stated herein; and
WHEREAS, the Compensation Committee of the Board of Directors of the
Company (the "Committee") has determined it would be to the advantage and best
interest of the Company and its stockholders to issue the shares of Restricted
Stock provided for herein to the Employee in partial consideration of services
rendered, or to be rendered, to the Company and/or its subsidiaries; and
NOW, THEREFORE, in consideration of the mutual covenants herein contained
and other good and valuable consideration, receipt of which is hereby
acknowledged, the parties hereto do hereby agree as follows:
ARTICLE I.
DEFINITIONS
Whenever the following terms are used in this Agreement, they shall have
the meaning specified below, unless the context clearly indicates to the
contrary. Capitalized terms not otherwise defined herein shall have the
meanings set forth in the Plan. The masculine pronoun shall include the
feminine and neuter and the singular the plural, where the context so
indicates.
Section 1.1. Cause
"Cause" shall mean dishonesty, disloyalty, misconduct,
insubordination, failure to reasonably devote working time to assigned duties,
failure or refusal to comply with any reasonable rule, regulation, standard or
policy which from time to time may be established by the Company, including,
without limitation, those policies set forth in the Xxxxx-Illinois Policy
Manual in effect from time to time, and failure to fully cooperate with any
investigation of an alleged violation of any such rule, regulation, standard
or policy.
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Section 1.2. Common Stock
"Common Stock" shall mean the common stock of the Company, $.01 par value.
Section 1.3. Competing Business
"Competing Business" shall mean any person, corporation or other entity
engaged in the United States of America or in any other country in which the
Company manufactures or sells its products, in the manufacture or sale of
glass containers, plastic containers, plastic closures, plastic prescription
containers, labels, or multipack plastic carriers for beverage bottles, or any
other products manufactured or sold by the Company within the last two
(2) years prior to the Employee's Termination of Employment.
Section 1.4. Exchange Act
"Exchange Act" shall mean the Securities Exchange Act of 1934, as amended.
Section 1.5. Fair Market Value
"Fair Market Value" of a share of the Company's stock as of a given date
shall be: (i) the closing price of a share of the Company's stock on the
principal exchange on which shares of the Company's stock are then trading, if
any, on the day previous to such date, or, if shares were not traded on the
day previous to such date, then on the next preceding trading day during which
a sale occurred; or (ii) if such stock is not traded on an exchange but
is quoted on NASDAQ or a successor quotation system, (1) the last sales price
(if the stock is then listed as a National Market Issue under the NASD
National Market System) or (2) the mean between the closing representative bid
and asked prices (in all other cases) for the stock on the day previous to
such date as reported by NASDAQ or such successor quotation system; or (iii)
if such stock is not publicly traded on an exchange and not quoted on NASDAQ
or a successor quotation system, the mean between the closing bid and asked
prices for the stock, on the day previous to such date, as determined in good
faith by the Committee; or (iv) if the Company's stock is not publicly traded,
the fair market value established by the Committee acting in good faith.
Section 1.6. Parent Corporation
"Parent Corporation" shall mean any corporation in an unbroken chain of
corporations ending with the Company if each of the corporations other than
the Company then owns stock possessing 50% or more of the total combined
voting power of all classes of stock in one of the other corporations in such
chain.
Section 1.7. Plan
"Plan" shall mean the Company's 1997 Equity Participation Plan.
Section 1.8. Restrictions
"Restrictions" shall mean the reacquisition and transferability
restrictions imposed upon Restricted Stock under this Agreement.
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Section 1.9. Restricted Stock
"Restricted Stock" shall mean Common Stock issued under this Agreement and
subject to the Restrictions imposed hereunder.
Section 1.10. Rule 16b-3
"Rule 16b-3" shall mean that certain Rule 16b-3 under the Exchange Act, as
such Rule may be amended from time to time.
Section 1.11. Secretary
"Secretary" shall mean the Secretary of the Company.
Section 1.12. Securities Act
"Securities Act" shall mean the Securities Act of 1933, as amended.
Section 1.13. Subsidiary
"Subsidiary" shall mean any corporation in an unbroken chain of
corporations beginning with the Company if each of the corporations other than
the last corporation in the unbroken chain then owns stock possessing fifty
percent (50%) or more of the total combined voting power of all classes of
stock in one of the other corporations in such chain. "Subsidiary" shall also
mean any partnership in which the Company and or any Subsidiary owns more than
fifty (50%) percent of the capital or profits interests.
Section 1.14. Termination of Employment
"Termination of Employment" shall mean the time when the employee-employer
relationship between the Employee and the Company, a Parent Corporation or a
Subsidiary is terminated for any reason, with or without Cause, including, but
not by way of limitation, a termination by resignation, discharge, death,
disability or retirement; but excluding (a) terminations where there is a
simultaneous reemployment or continuing employment of the Employee by the
Company, a Parent Corporation or any Subsidiary, (b) terminations where the
Employee continues a relationship (e.g., as a director or as a consultant)
with the Company, a Parent Corporation or a Subsidiary. The Committee,
in its absolute discretion, shall determine the effect of all matters and
questions relating to Termination of Employment, including, but not by way of
limitation, the question of whether a Termination of Employment resulted from
a discharge for good cause, and all questions of whether a particular leave of
absence constitutes a Termination of Employment. Notwithstanding any
other provision of this Agreement, the Company or any Subsidiary has the
absolute and unrestricted right to terminate the Employee's employment at any
time for any reason whatsoever, with or without Cause.
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ARTICLE II.
ISSUANCE OF RESTRICTED STOCK
Section 2.1. Issuance of Restricted Stock
In consideration of the services rendered or to be rendered to the
Company, a Parent Corporation or a Subsidiary and for other good and valuable
consideration which the Committee has determined to be equal to the par value
of its Common Stock, on the date hereof the Company issues to the Employee
_______ shares of its Common Stock, upon the terms and conditions set
forth in this Agreement.
Section 2.2. No Right to Continued Employment
Nothing in this Agreement or in the Plan shall confer upon the Employee
any right to continue in the employee of the Company, any Parent Corporation
or any Subsidiary or shall interfere with or restrict in any way the rights of
the Company, any Parent Corporation or any Subsidiary, which are hereby
expressly reserved, to discharge the Employee at any time for any reasons
whatsoever, with or without Cause.
ARTICLE III.
RESTRICTIONS
Section 3.1. Reacquisition of Restricted Stock
Until vested, all shares of Restricted Stock issued to the Employee
pursuant to this Agreement are subject to reacquisition by the Company
immediately upon a Termination of Employment other than from death or total
disability (as determined by the Committee in accordance with Company plans
and policies), in which event all shares of Restricted Stock shall immediately
fully vest and all Restrictions with respect to such shares of Restricted
Stock shall immediately expire. Following any reacquisition by the Company
pursuant to this Section 3.1, the Company shall promptly pay to the Employee
an amount equal to the product of $.01 times the number of shares of
Restricted Stock reacquired.
Section 3.2. Lapse of Restrictions.
The Restricted Stock shall fully vest, and all Restrictions thereon shall
immediately expire upon the later to occur of (a) the third anniversary of
this Agreement, and (b) normal retirement (as determined by the Committee in
accordance with Company plans and policies), early retirement with the consent
of the Chief Executive Officer of the Company (or, in the case of the Chief
Executive Officer of the Company, with the consent of the Committee), or a
Termination of Employment that is not initiated by, and not voluntary on the
part of the Employee, other than for Cause. Upon the vesting of the shares
and subject to Section 5.3, the Company shall cause new certificates to be
issued with respect to such vested shares and delivered to the Employee or his
legal representative, free from the legend provided for in Section 3.3 and any
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of the other Restrictions. Such vested shares shall cease to be considered
Restricted Stock subject to the terms and conditions of this Agreement.
Section 3.3. Legend.
Certificates representing shares of Restricted Stock issued pursuant to
this Agreement shall, until all restrictions lapse and new certificates are
issued pursuant to Section 3.2, bear the following legend:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO CERTAIN
VESTING REQUIREMENTS AND MAY BE SUBJECT TO REACQUISTION BY THE COMPANY
UNDER THE TERMS OF THAT CERTAIN RESTRICTED STOCK AGREEMENT BY AND
BETWEEN XXXXX-ILLINOIS, INC. (THE "COMPANY") AND THE HOLDER OF THE
SECURITIES. PRIOR TO VESTING OF OWNERSHIP IN THE SECURITIES, THEY MAY
NOT BE DIRECTLY OR INDIRECTLY, OFFERED, TRANSFERRED, SOLD, ASSIGNED,
PLEDGED, HYPOTHECATED OR OTHERWISE DISPOSED OF UNDER ANY CIRCUMSTANCES.
COPIES OF THE ABOVE REFERENCED AGREEMENT ARE ON FILE AT THE OFFICES OF
THE COMPANY AT ONE XXXXXXX, XXXXXX, XXXX 00000.
Section 3.4. Merger, Consolidation, Acquisition, Liquidation or Dissolution
Notwithstanding any other provision of this Agreement, upon the merger or
consolidation of the Company into another corporation, the acquisition by
another corporation or person (excluding any employee benefit plan of the
Company or any trustee or other fiduciary holding securities under an employee
benefit plan of the Company) of all or substantially all of the Company's
assets or 51% or more of the Company's then outstanding voting stock, or the
liquidation or dissolution of the Company, the Committee shall then provide by
resolution adopted prior to such event that, at some time prior to the
effective date of such event, all shares of Restricted Stock not previously
reacquired pursuant to Section 3.1 shall fully vest and all Restrictions with
respect to such shares of Restricted Stock shall immediately expire.
Section 3.5. Restrictions on New Shares
In the event that the outstanding shares of the Company's Common Stock are
hereafter changed into or exchanged for a different number of kind of shares
or other securities of the Company or of another corporation pursuant to a
merger of the Company into another corporation, or the exchange of all or
substantially all of the assets of the Company for the securities of another
corporation, or the acquisition by another corporation or person (excluding
any employee benefit plan of the Company or any trustee or other fiduciary
holding securities under an employee benefit plan of the Company) of 51% or
more of the Company's then outstanding voting stock, or the liquidation or
dissolution of the Company, or a stock split-up or stock dividend, such new,
additional or different shares or securities which are held or received by the
Employee in his capacity as a holder of Restricted Stock shall be considered
to be Restricted Stock and shall be subject to all of the Restrictions, unless
the Committee provides, pursuant to Section 3.4 for the accelerated vesting
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and expiration of the Restrictions on the shares of Restricted Stock
underlying the distribution of the new, additional or different shares or
securities.
ARTICLE IV.
NON-COMPETITION/NON-SOLICITATION
Section 4.1. Covenant Not to Compete
Employee covenants and agrees that prior to Employee's Termination of
Employment and for a period of three (3) years following the Employee's
Termination of Employment, Employee shall not, in the United States of America
or in any other country in which the Company manufactures or sells it
products, engage, directly or indirectly, whether as principal or as agent,
officer, director, employee, consultant, shareholder or otherwise, alone or
in association with any other person, corporation or other entity, in any
Competing Business.
Section 4.2. Non-Solicitation of Customers
Employee agrees that prior to his Termination of Employment he shall not,
directly or indirectly, solicit the business of, or do business with, any
customer or prospective customer of the Company for any business purpose other
than for the benefit of the Company. Employee further agrees that for three
(3) years following Employee's Termination of Employment, including without
limitation termination by the Company for Cause or without Cause, Employee
shall not, directly or indirectly, solicit the business of, or do business
with, any customers or prospective customers of the Company.
Section 4.3. Non-Solicitation of Employees
Employee agrees that prior to his Termination of Employment and for three
(3) years following Employee's Termination of Employment, including without
limitation termination by the Company for Cause or without Cause, Employee
shall not, directly or indirectly, solicit or induce, or attempt to solicit or
induce, any employee of the Company to leave the employment of the Company for
any reason whatsoever, or hire any employee of the Company except into the
employment of the Company.
Section 4.4. Exception
Notwithstanding anything contained in this Agreement to the contrary, the
restrictions set forth in Section 4.1 above shall lapse and be of no further
effect in the event of a Termination of Employment that is not initiated by,
and not voluntary on the part of the Employee, other than for Cause.
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ARTICLE V.
MISCELLANEOUS
Section 5.1. Administration
The Committee shall have the power to interpret the Plan and this
Agreement, and to adopt such rules for the administration, interpretation, and
application of the Plan as are consistent therewith, to interpret, amend or
revoke any such rules. All action taken and all interpretations and
determinations made by the Committee in good faith shall be final and binding
upon the Employee, the Company and all other interested persons. In its
absolute discretion, the Board may at any time and from time to time exercise
any and all rights and duties of the Committee under the Plan or this
Agreement except with respect to matters which under Rule 16b-3, or any
regulations or rules issued thereunder, are required to be determined in the
sole discretion of the Committee. No member of the Committee or Board shall
be personally liable for any action, determination or interpretation
made in good faith with respect to the Plan or the Restricted Stock, and all
members of the Committee and the Board shall be fully protected by the Company
in respect of any such action, determination or interpretation.
Section 5.2. Restricted Stock Not Transferable
No Restricted Stock or any interest or right therein or part thereof shall
be liable for the debts, contracts or engagements of the Employee or his
successors in interest or shall be subject to disposition by transfer,
alienation, anticipation, pledge, hypothecation, encumbrance, assignment or
any other means, whether such disposition be voluntary or involuntary or by
operation of law by judgment, levy, attachment, garnishment or any other legal
or equitable proceedings (including bankruptcy), any attempted disposition
thereof shall be null and void and of no effect; provided however, that this
Section 5.2 shall not prevent transfers by will or by the applicable laws of
descent and distribution.
Section 5.3. Conditions to Issuance of Stock Certificates
The Company shall not be required to issue or deliver any certificate or
certificates for shares of stock pursuant to this Agreement prior to
fulfillment of all of the following conditions:
(a) The admission of such shares to listing on all stock exchanges on
which such class of stock is then listed; and
(b) The completion of any registration or other qualification of such
shares under any state or federal law or under rulings or regulations of the
Securities and Exchange Commission or of any other governmental regulatory
body, which the Committee shall, in its sole discretion, deem necessary or
advisable; and
(c) The obtaining of any approval or other clearance from any state or
federal governmental agency which the Committee shall, in its sole discretion,
determine to be necessary or advisable; and
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(d) Subject to Section 5.10 the payment by the Employee of all amounts
which, under federal, state or local tax law, the Company (or other employer
corporation) is required to withhold upon issuance of Restricted Stock and/or
the lapse or removal of any of the Restrictions; and
(e) The lapse of such reasonable period of time as the Committee may from
time to time establish for reasons of administrative convenience.
Section 5.4. Escrow
The Secretary or such other escrow holder as the Committee may appoint
shall retain physical custody of the certificates representing Restricted
Stock, including shares of Restricted Stock issued pursuant to Section 3.5,
until all of the Restrictions expire or shall have been removed; provided,
however, that in no event shall the Employee retain physical custody of any
certificates representing Restricted Stock issued to him.
Section 5.5. Notices
Any notice to be given under the terms of this Agreement to the Company
shall be addressed to the Company in care of its Secretary, and any notice to
be given to the Employee shall be addressed to him at the address given
beneath his signature hereto. By a notice given pursuant to this Section 5.5,
either party may hereafter designate a different address for notices to be
given to him. Any notice which is required to be given to the Employee
shall, if the Employee is then deceased, be given to the Employee's personal
representative if such representative has previously informed the Company of
his status and address by written notice under this Section 5.5. Any notice
shall be deemed duly given when enclosed in a properly sealed envelope or
wrapper addressed as aforesaid, deposited (with postage prepaid) in a post
office or branch post office regularly maintained by the United States Postal
Service.
Section 5.6. Rights as Stockholder
Upon delivery of the shares of Restricted Stock to the escrow holder
pursuant to Section 5.4, the Employee shall have all the rights of a
stockholder with respect to said shares, subject to the restrictions herein
(including the provisions of Section 5.10), including the right to vote the
shares and to receive all dividends or other distributions paid or made with
respect to the shares.
Section 5.7. Titles
Titles are provided her in for convenience only and are not to serve as a
basis for interpretation or construction of this Agreement.
Section 5.8. Conformity to Securities Laws
The Employee acknowledges that the Plan and this Agreement is intended to
conform to the extent necessary with all provisions of the Securities Act and
the Exchange Act and any and all regulations and rules promulgated by the
Securities and Exchange Commission thereunder, including, without limitation,
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the applicable exemptive conditions of Rule 16b-3. Notwithstanding anything
herein to the contrary, this Agreement shall be administered, and the
Restricted Stock shall be issued only in such a manner as to conform to such
laws, rules and regulations. To the extent permitted by applicable law, this
Agreement and the Restricted Stock issued hereunder shall be deemed amended
to the extent necessary to conform to such laws, rules and regulations.
Section 5.9. Amendments
This Agreement and the Plan may be amended without the consent of the
Employee provided that such amendment would not impair any rights of the
Employee under this Agreement. No amendment of this Agreement shall, without
the consent of the Employee, impair any rights of the Employee under this
Agreement.
Section 5.10. Tax Withholding
The Company's obligation : (i) to issue or deliver to the Employee any
certificate or certificates for unrestricted shares of stock; or (ii) to pay
to the Employee any dividends or make any distributions with respect to the
Restricted Stock, is expressly conditioned upon receipt from the Employee, on
or prior to the date reasonably specified by the Company of:
(f) Full payment (in cash or by check ) of any amount that must be
withheld by the Company for federal, state and/or local tax purposes; or
(g) Subject to the Committee's consent and Section 5.10(c), full payment
by delivery to the Company of unrestricted shares of the Company's Common
Stock previously owned by the Employee duly endorsed for transfer to the
company by the Employee with an aggregate Fair Market Value (determined, as
applicable, as of the date of the lapse of the restrictions or vesting or as
of the date of the distribution) equal to the amount that must be withheld by
the Company for federal, state and/or local tax purposes; or
(h) With respect to the withholding obligation for shares of Restricted
Stock that become unrestricted shares as of a certain date (the "Vesting
Date"), subject to the committee's consent, full payment by retention by the
Company of a portion of such shares of Restricted Stock which become
unrestricted or vested with an aggregated Fair Market Value (determined on the
Vesting Date) equal to the amount that must be withheld by the Company for
federal, state and/or local tax purposes; or
(i) Subject to the Committee's consent, an combination of payments
provided for in the foregoing subsections (a), (b) or (c).
Section 5.11. Governing Law
This Agreement shall be administered, interpreted and enforced under the
internal laws of the State of Delaware without regard to conflicts of laws
thereof.
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IN WITNESS HEREOF, this Agreement has been executed and delivered by the
parties hereto.
XXXXX-ILLINOIS, INC.
By
Its:Executive Vice President
------------------------
EMPLOYEE
Address
Employee's Taxpayer
Identification Number:
