EXHIBIT 10.21
RESTRICTED STOCK AWARD
(ADDITIONAL)
RESTRICTED STOCK AWARD AGREEMENT ("Agreement") dated as of January 9, 2003,
between MIDAS, INC., a Delaware corporation (the "Corporation"), and XXXX X.
XXXXXXX, President and Chief Executive Officer of the Corporation (the
"Holder").
WHEREAS, the Corporation desires, by granting to the Holder certain
restricted shares of the Corporation's Common Stock as hereinafter provided, to
provide an inducement to the Holder to accept employment with the Corporation,
not as part of the Corporation's Stock Incentive Plan (the "Plan"), as adopted
by the Board of Directors of the Corporation (the "Board") on November 21, 1997,
and approved by its shareholders, but nevertheless in accordance with the same
terms and provisions of the Plan, which is hereby incorporated by reference; and
WHEREAS, the Board has duly made all determinations necessary or
appropriate to the grant hereof.
NOW, THEREFORE, in consideration of the foregoing and the Holder's
acceptance of the terms and conditions hereof, the parties hereto have agreed,
and do hereby agree, as follows:
1. The Corporation hereby grants to the Holder, as a matter of
separate agreement and not in lieu of salary or any other compensation for
services, ONE HUNDRED FIFTY THOUSAND (150,000) shares of Common Stock of the
Corporation (the "Restricted Stock Award") on the terms and conditions herein
set forth.
2. The certificates representing the shares of Common Stock granted
to the Holder shall be registered in the name of the Holder and retained in the
custody of the Corporation until such time as they are delivered to the Holder
or forfeited to the Corporation in accordance with the terms hereof (the
"Restriction Period"). During the Restriction Period, the Holder will be
entitled to vote such shares and to receive dividends paid on such shares (less
any amounts, if any, which the Corporation is required to withhold for taxes).
3. If the Holder shall have been continuously in the employment of
the Corporation or one of its subsidiaries for a period of five (5) years from
the date of grant of this Restricted Stock Award, the Corporation shall deliver
to the Holder on or about the fifth (5th) anniversary thereof one or more
certificates, registered in the name of the Holder and free of restrictions
hereunder (except as provided in paragraph 7 below), representing all of the
shares granted to the Holder pursuant to this Agreement. In addition, on each
anniversary of the effective date of this Restricted Stock Award (beginning with
the first anniversary thereof), the Board may in its discretion, but shall not
be required to, accelerate vesting with respect to up to fifty thousand (50,000)
shares of the Common Stock granted to the Holder hereunder if, on such
anniversary date, the cumulative total shareholder return on the Corporation's
Common Stock during the immediately preceding twelve (12) month period exceeded
the cumulative total shareholder return of the Standard and Poor's 500 Stock
Index for the same period. No payment shall be required from the Holder in
connection with any delivery to the Holder of shares hereunder, except that the
Holder agrees to pay whatever income withholding tax the Corporation is
obligated to collect as a part of the delivery of the shares.
4. In the event of the termination of employment of the Holder by
reason of Retirement (as defined in the Plan), death or disability, and if there
then remain any undelivered shares subject to restrictions hereunder, then such
restrictions shall be deemed to have lapsed and the certificates for the
remaining shares shall forthwith be delivered to such retired Holder (or his
beneficiary, estate or heirs).
5. Subject to the provisions of paragraph 4 above, if the Holder
ceases to be an employee of the Corporation for any reason other than an
involuntary termination of employment without cause (as determined by the Board
in its discretion) during the Restriction Period, then the Holder shall cease to
be entitled to delivery of any of the shares covered by this Agreement which
have not theretofore been delivered by the Corporation pursuant to paragraph 3
above, and all rights of the Holder in and to such undelivered shares shall be
forfeited. In the event of any involuntary termination of the Holder's
employment without cause (as determined by the Board in its discretion), all
shares of Common Stock granted to the Holder hereunder not theretofore vested
shall continue to vest in accordance with the terms of this Agreement during the
two (2) year period immediately following the effective date of such
termination. The Holder is contemporaneously executing the attached Power of
Attorney To Transfer Stock to effectuate the forfeiture provisions contained in
this Paragraph 5. Notwithstanding the forfeiture provided herein, the Board may,
within 120 days after such termination of employment, in its sole discretion,
determine whether such former Holder shall receive all or any part of the
undelivered shares granted pursuant to this Agreement and whether to impose any
conditions in connection therewith. In addition, the Board shall from time to
time determine in its sole discretion whether any period of non-active
employment, including authorized leaves of absence, or absence by reason of
military or governmental service, shall constitute termination of employment for
the purposes of this paragraph.
6. The granting of this Restricted Stock Award shall not in any way
prohibit or restrict the right of the Corporation to terminate the Holder's
employment at any time, for any reason. Except as may otherwise be provided in
Paragraph 5 above, the Holder shall have no right to any prorated portion of the
shares of Common Stock otherwise deliverable to the Holder following a
termination of employment (whether voluntary or involuntary) in respect of any
period of employment prior to such termination.
7. While shares of Common Stock are held in custody for the Holder
pursuant to this Agreement, they may not be sold, transferred, pledged,
exchanged, hypothecated or disposed of by the Holder and shall not be subject to
execution, attachment or similar process. In addition, upon the vesting of any
shares of Common Stock granted to the Holder hereunder, the Holder shall be
required to retain, and may not sell, transfer, pledge, exchange, hypothecate or
dispose of, at least fifty percent (50%) of such vested shares for a period of
at least five (5) years.
8. This Agreement and each and every obligation of the Corporation
hereunder are subject to the requirement that if at any time the Corporation
shall determine, upon 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 granting hereof or the delivery of shares hereunder, then the delivery
of shares hereunder to the Holder may be postponed until such listing,
registration, qualification, consent or approval shall have been effected or
obtained free of any conditions not acceptable to the Board.
9. In addition to amounts in respect of taxes which the Corporation
shall be required by law to deduct or withhold from any dividend payments on the
shares covered hereby, the Corporation may defer making any delivery of shares
under this Agreement until completion of arrangements satisfactory to the
Corporation for the payment of any other applicable taxes, whether through share
withholding provided for by the Plan or otherwise.
10. The Holder may elect, by written notice to the Corporation, to
pay through withholding by the Corporation all or a portion of the estimated
federal, state, local and other taxes arising from the vesting or distribution
of shares of Common Stock pursuant to this Restricted Stock Award (a) by having
the Corporation withhold shares of Common Stock or (b) by delivering
previously-owned shares, in each case being such number of shares of Common
Stock as shall have a fair market value equal to the amount of taxes to be
withheld, rounded up to the nearest whole share.
11. In the event of a "change in control", as that term is defined in
the Plan, then the Holder shall have all the rights specified in Paragraph 10(B)
of the Plan.
12. Defined words used in this Agreement shall have the same meaning
as set forth in the definitions section or elsewhere in the Plan, the terms and
conditions of which shall constitute an integral part hereof.
13. Any notice which either party hereto may be required or permitted
to give the other shall be in writing and may be delivered personally or by
mail, postage prepaid, addressed to the Secretary of the Corporation at its
principal office and to the Holder at his address as shown on the Corporation's
payroll records, or to such other address as the Holder by notice to the
Corporation may designate in writing from time to time.
14. Although this Restricted Stock Award has not been granted under
the Plan, all of the relevant provisions of the Plan will be deemed to be a part
hereof. The Board shall have the right to resolve all questions which may arise
in connection with this Restricted Stock Award. Any interpretation,
determination or other action made or taken by the Board regarding the Plan or
this Restricted Stock Award shall be final, binding and conclusive.
MIDAS, INC.
By:
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Chairman
ACCEPTED:
Holder:
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XXXX X. XXXXXXX Date
POWER OF ATTORNEY TO TRANSFER STOCK
FOR VALUE RECEIVED, I, XXXX X. XXXXXXX, hereby irrevocably constitute
and appoint the Secretary of Midas, Inc. (the "Corporation") to be my
attorney-in-fact to transfer to MIDAS, INC. 75,000 shares of the Common Stock of
the Corporation granted to me as Restricted Stock, standing in my name on the
books of the Corporation, and represented by Certificate No. M0316 (the
"Restricted Shares") with full power of substitution in the premises;
PROVIDED HOWEVER, that exercise of this Power of Attorney shall be
expressly conditioned upon a forfeiture of the Restricted Shares pursuant to the
Restricted Stock Award dated January 9, 2003. On the day the Restricted Shares
are no longer restricted, this Power of Attorney shall be null and void and the
original shall be delivered to me together with the Certificate to which it
refers.
Dated: ___________, 2003.
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Xxxx X. Xxxxxxx
In the presence of:
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POWER OF ATTORNEY TO TRANSFER STOCK
FOR VALUE RECEIVED, I, XXXX X. XXXXXXX, hereby irrevocably constitute
and appoint the Secretary of Midas, Inc. (the "Corporation") to be my
attorney-in-fact to transfer to MIDAS, INC. 75,000 shares of the Common Stock of
the Corporation granted to me as Restricted Stock, standing in my name on the
books of the Corporation, and represented by Certificate No. M0317 (the
"Restricted Shares") with full power of substitution in the premises;
PROVIDED HOWEVER, that exercise of this Power of Attorney shall be
expressly conditioned upon a forfeiture of the Restricted Shares pursuant to the
Restricted Stock Award dated January 9, 2003. On the day the Restricted Shares
are no longer restricted, this Power of Attorney shall be null and void and the
original shall be delivered to me together with the Certificate to which it
refers.
Dated: ___________, 2003.
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Xxxx X. Xxxxxxx
In the presence of:
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