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Exhibit 10.53
EXHIBIT A
XXXX NATIONAL CORPORATION
RESTRICTED STOCK AGREEMENT
THIS RESTRICTED STOCK AGREEMENT (as amended, modified or
supplemented from time to time, this "AGREEMENT") dated January 18, 2000 is
made by and between Xxxx National Corporation, a Delaware corporation (the
"COMPANY"), and Xxxxx Xxxxxxx, an individual residing in the State of Ohio (the
"GRANTEE").
WHEREAS, the Compensation Committee (the "COMMITTEE") of the
Board of Directors of the Company (the "BOARD") has authorized by resolution the
execution of a restricted stock agreement in the form hereof; and
WHEREAS, the Grantee and the Company entered into an
Employment Agreement (the "EMPLOYMENT AGREEMENT") on January 18, 2000 (the
"EFFECTIVE DATE");
NOW, THEREFORE, in consideration of the Grantee's acceptance
of the terms and conditions of this Agreement, and subject to the terms of this
Agreement, the Company hereby awards to the Grantee 525,000 shares (together
with all other shares of Common Stock that become subject to this Agreement,
collectively, the "RESTRICTED SHARES") of the Company's common stock, par value
$.001 per share ("COMMON STOCK"):
1. ISSUANCE OF COMMON STOCK. The Restricted Shares covered by
this Agreement shall be represented by certificates registered in the name of
the Grantee and bearing a legend referring to the restrictions set forth in this
Agreement.
2. RESTRICTION ON TRANSFER OF COMMON STOCK. The Restricted
Shares may not be transferred, sold, pledged, exchanged, assigned or otherwise
encumbered or disposed of by the Grantee, except to the Company, until they have
become nonforfeitable in accordance with Section 3 of this Agreement. Any
purported transfer, encumbrance or other disposition of the Restricted Shares
that is in violation of this Section 2 will be null and void, and the other
party to any such purported transaction will not obtain any rights to or
interest in the Restricted Shares. The Committee or the Board may, in their sole
and absolute discretion, waive the restrictions set forth in this Section 2 with
respect to all or any portion of the Restricted Shares granted under this
Agreement. At the reasonable request of Grantee, the Company shall cooperate
with Grantee to permit transfers to family members or trusts controlled by
Grantee or members of his immediate family to facilitate estate planning. Any
transferee must agree to be bound by the terms and conditions of this Agreement
in a writing in form and substance reasonably acceptable to the Company.
3. PURCHASE OF COMMON STOCK. On or before the date that is
one-hundred eighty (180) days after the Effective Date (the "LAST PURCHASE
DATE") the Grantee shall purchase
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for his account not less than 262,500 shares of Common Stock or such lesser
number as are acquired by the Maximum Purchase Amount (the "PURCHASED SHARES").
The Company shall grant such reasonable extensions, in light of the
circumstances, as may be requested by the Executive. In no event will Executive
be required to expend more than Two Million Six Hundred Thirty-Five Thousand
Dollars ($2,635,000; the "Maximum Purchase Amount") for the Purchased Shares.
4. VESTING OF COMMON STOCK. (a) Except as otherwise set forth
in this Section 4 and in Section 5, the Restricted Shares will become
nonforfeitable as follows:
(i) fifty percent (50%) of the Restricted Shares
will become nonforfeitable on the second
anniversary of the Effective Date; and
(ii) twenty-five percent (25%) of the original
number of Restricted Shares awarded will
become nonforfeitable on each of the third
and fourth anniversaries of the Effective
Date; and
(iii) notwithstanding the provisions of Section
4(a)(ii), if, for any period of 20
consecutive trading days commencing on or
after the second anniversary of the
Effective Date and ending on or prior to the
fourth anniversary of the Effective Date,
the closing stock trading price of the
Common Stock on the New York Stock Exchange
equals or exceeds $25.00 per share, and
Grantee's employment has not terminated, all
Restricted Shares not then nonforfeitable
will become nonforfeitable as of the close
of business of the last trading day in such
20 day period.
(b) Anything in this Agreement to the contrary
notwithstanding:
(i) in the event the Grantee has not purchased
for his account the minimum number of
262,500 Purchased Shares or expended the
Maximum Purchase Amount as required by
Section 3 by the Last Purchase Date
(including any extensions thereof), or, if
earlier, the date on which any Restricted
Shares become nonforfeitable, for each share
of Common Stock less than the minimum
262,500 Purchased Shares that have not been
purchased by Grantee, two (2) Restricted
Shares shall be forfeited; such forfeiture
to affect, first, those shares that would
otherwise become nonforfeitable at the next
earliest date, so as to reduce the number of
shares that will otherwise become
nonforfeitable at that date, before having
any effect on subsequent tranches, and
second, those shares in subsequent tranches
in a like serial fashion.
(ii) Purchased Shares shall include shares
acquired by Grantee upon exercise of all or
part of an option to acquire shares of
Common Stock granted on the Effective Date
to the Grantee pursuant to
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Nonqualified Stock Option Agreement No. 2
between the Company and the Grantee but not
shares inquired pursuant to Nonqualified
Stock Option Agreement No. 1 between the
Company and the Grantee; and
(iii) no additional Restricted Shares shall become
nonforfeitable if at the time they would
otherwise become nonforfeitable the Grantee
does not own a number of unrestricted shares
of Common Stock at least equal to the lesser
of the aggregate number of Restricted Shares
which have not yet become nonforfeitable or
the Purchased Shares.
(c) If prior to a change in control the Grantee's employment
is terminated by the Company without Cause or by Grantee for Good Reason and:
(i) the termination occurs on or before the
first anniversary of the Effective Date, an
aggregate of twenty-five percent (25%) of
the original number of shares of Restricted
Shares awarded (as may be reduced by Section
4(b)(i)) will immediately become
nonforfeitable; or
(ii) the termination occurs after the first
anniversary and on or before the second
anniversary of the Effective Date, an
aggregate of seventy-five percent (75%) of
the original number of Restricted Shares (as
reduced by Section 4(b)(i)) will immediately
become nonforfeitable; or
(iii) the termination occurs after the second
anniversary of the Effective Date, all
Restricted Shares awarded will immediately
become nonforfeitable; or
(iv) notwithstanding the provisions of Section
4(c)(i), (ii) and (iii), if, for the period
of 20 consecutive trading days ending
immediately prior to the date of termination
of employment the closing stock trading
price of the Common Stock on the New York
Stock Exchange equals or exceeds $25.00 per
share, all Restricted Shares not then
nonforfeitable will become nonforfeitable as
of the close of business of the last trading
day in such 20 day period.
(d) In the event of the occurrence of a Change in Control, and
the Grantee's employment is terminated without Cause or by Grantee for Good
Reason and:
(i) the termination occurs on or before the
first anniversary of the Effective Date, an
aggregate of fifty percent (50%) of the
original number of the Restricted Shares (as
reduced by Section 4(b)(i)) awarded will
immediately become nonforfeitable;
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(ii) the termination occurs after the first
anniversary and on or before the second
anniversary of the Effective Date, an
aggregate of seventy-five percent (75%) of
the original number of the Restricted Shares
(as reduced by Section 4(b)(i)) awarded will
immediately become nonforfeitable;
(iii) the termination occurs after the second
anniversary of the Effective Date, all
Restricted Shares awarded will immediately
become nonforfeitable; and
(iv) notwithstanding the provisions of Section
4(c)(i), (ii) and (iii), if, for the period
of 20 consecutive trading days ending
immediately prior to the date of termination
of employment the closing stock trading
price of the Common Stock on the New York
Stock Exchange equals or exceeds $25.00 per
share, all Restricted Shares not then
nonforfeitable will become nonforfeitable as
of the close of business of the last trading
day in such 20 day period.
(e) If the Grantee's employment terminates as a result of
his death or Disability:
(i) on or before the first anniversary of the
Effective Date, an aggregate of twenty-five
percent (25%) of the original number of
Restricted Shares awarded (as may be reduced
by Section 4(b)(i)) will immediately become
nonforfeitable;
(ii) after the first anniversary and on or before
the second anniversary of the Effective
Date, an aggregate of fifty percent (50%) of
the original number of Restricted Shares
awarded (as may be reduced by Section
4(b)(i)) will immediately become
nonforfeitable;
(iii) after the second anniversary and on or
before the third anniversary of the
Effective Date, an aggregate of seventy-five
percent (75%) of the Restricted Shares
awarded (as may be reduced by Section
4(b)(i)) will immediately become
nonforfeitable;
(iv) after the third anniversary of the Effective
Date, all Restricted Shares (as may be
reduced by Section 4(b)(i)) awarded will
immediately become nonforfeitable.
5 TERMINATION OF RIGHTS AND FORFEITURE OF COMMON STOCK. Except
for Restricted Shares that have become nonforfeitable in accordance with Section
4, all of the Restricted Shares will be forfeited if the Grantee ceases to be
employed by the Company or a Subsidiary. In the event of a forfeiture, any
certificate(s) representing the Restricted Shares will be canceled.
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6 DIVIDEND, VOTING AND OTHER RIGHTS. (a) Except as otherwise
provided in this Agreement, the Grantee will have all of the rights of a
stockholder with respect to the Restricted Shares, including the right to vote
the Restricted Shares and receive any dividends that may be paid thereon;
PROVIDED, HOWEVER, that any additional shares of Common Stock or other
securities that the Grantee may become entitled to receive pursuant to a stock
dividend, stock split, combination of shares, recapitalization, merger,
consolidation, separation or reorganization or any other change in the capital
structure of the Company will be subject to the same restrictions as the
Restricted Shares.
(b) Cash dividends, if any, and any other distributions paid
on the Restricted Shares will be sequestered by the Company until such time as
such Restricted Shares become nonforfeitable in accordance with Section 4 and
will, to the extent practicable, be deemed to be reinvested (at the Stock Price
on the dividend payment date) on an immediate basis in additional shares of
Common Stock from the Company's treasury, which will be subject to the same
restrictions as the underlying Restricted Shares granted under this Agreement.
If Restricted Shares are forfeited pursuant to Section 5, all dividends and
other distributions, together with the earnings thereon, with respect to such
Restricted Shares will likewise be forfeited.
7 RETENTION OF STOCK CERTIFICATE(S) BY COMPANY. Any
certificates representing Restricted Shares will be held in custody by the
Company together with a stock power endorsed in blank by the Grantee with
respect thereto, until those shares have become nonforfeitable in accordance
with Section 4.
8 HOLDING PERIOD. Any sale of shares by the Grantee is subject
to the provisions of the Employment Agreement.
9 COMPLIANCE WITH LAW. Grantee acknowledges that Grantee is an
accredited investor as defined in Regulation D promulgated under the Securities
Act of 1933, has complete access to the Company's financial and other
information, is fully capable of making an investment decision concerning the
Company's Common Stock without assistance of third parties, and has no intention
to distribute any of the Restricted Shares to third parties. Grantee is
receiving the grant of Restricted Shares in connection with and as an inducement
to Grantee's accepting employment as an executive officer of the Company.
10. ADJUSTMENTS: (a) The Board of Directors of the Company or
the Compensation Committee shall make any adjustments in the number or kind of
shares of Common Stock or other securities covered by this Agreement as such
Board or Committee may in good faith determine is equitably required to prevent
dilution or enlargement of the rights of the Grantee that otherwise would result
from (i) any stock dividend, stock split, combination of shares,
recapitalization or other change in the capital structure of the Company, or
(ii) any merger, consolidation, spin-off, split-off, spin-out, split up,
reorganization, partial or complete liquidation or other distribution of assets,
issuance of rights to purchase securities, or (iii) any distribution to the
holders of the Common Stock of rights or warrants to purchase equity interests
of the Company, or (iv) any other corporate transaction or event having an
effect similar to any of the foregoing. Moreover, in the event of any such
transaction or event, the Board of Directors
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or the Compensation Committee, in its discretion, may provide in substitution
for any or all outstanding awards under this Agreement such alternative
consideration as it, in good faith, may determine to be equitable in the
circumstances and may require in connection therewith the surrender of all
awards so replaced.
(b) In the event that any provision of this Agreement would
result in a calculation of a number of shares in amounts other than a whole
number, the number of shares so calculated will be reduced or increased to the
nearest whole number (rounding 0.50 up), with the effect of any such rounding
deemed to attached to the last group of shares to be so calculated (with the
calculations to be conducted in alphabetical or numerical order, as applicable).
11. WITHHOLDING TAXES. If the Company is required to withhold
any federal, state, local or foreign tax in connection with any issuance of
restricted or nonrestricted shares of Common Stock or other securities pursuant
to this Agreement, it will be a condition to such issuance that the Grantee make
provisions satisfactory to the Company for payment of all such taxes. In the
event that the Grantee desires to have an amount greater than the Withholding
Amount withheld, the excess over the Withholding Amount must be paid to the
Company in cash.
12. RIGHT TO TERMINATE EMPLOYMENT. No provision of this
Agreement will limit in any way whatsoever any right that the Company or a
Subsidiary may otherwise have to terminate the employment of the Grantee at any
time.
13. RELATION TO OTHER BENEFITS. Any economic or other benefit
to the Grantee under this Agreement shall not be taken into account in
determining any benefits to which the Grantee may be entitled under any
profit-sharing, retirement or other benefit or compensation plan maintained by
the Company or a Subsidiary and shall not affect the amount of any insurance
coverage available to any beneficiary under any insurance plan covering
employees of the Company or a Subsidiary.
14. AMENDMENTS. No amendment or variation of the terms of this
Agreement will be valid unless the same are in writing signed by all parties.
15. SEVERABILITY. In the event that one or more of the
provisions of this Agreement are invalidated for any reason by a court of
competent jurisdiction, any provision so invalidated will be deemed to be
separable from the other provisions hereof, and the remaining provisions hereof
will continue to be valid and fully enforceable.
16. GOVERNING LAW. This Agreement is made under, and will be
construed in accordance with, the laws of the State of Ohio without regard to
conflict of law principles of such state.
17. TAXES. Grantee will make a proper election under Section
83(b) of the Internal Revenue Code of 1986, as amended, no later than 30 days
after the date of this Agreement with respect to all of the Restricted Shares.
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18. DEFINITIONS. As used in this Agreement, the terms "CAUSE,"
"CHANGE IN CONTROL," "GOOD REASON" and "SUBSIDIARY" shall have the meanings set
forth in the Employment Agreement, and the term "STOCK Price" means the closing
price of the Common Stock on the New York Stock Exchange on which the Common
Stock is traded.
This Restricted Stock Agreement has been executed by the
parties at Cleveland, Ohio.
XXXX NATIONAL CORPORATION
By: /s/ Xxxxxxx X. Xxxx
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Name: Xxxxxxx X. Xxxx
Title: Chairman, CEO
/s/ Xxxxx Xxxxxxx
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Xxxxx Xxxxxxx
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