Exhibit 10.8
XXXX X. XXXXXXX COMPANY
RESTRICTED STOCK AGREEMENT
This Restricted Stock Agreement evidences the grant by
Xxxx X. Xxxxxxx Company, a Georgia corporation, (the
"Company") of shares of restricted stock to Xxxxxxx X. Xxxx
("Executive"), subject to all of the specific terms and
conditions set forth in this agreement.
Specific Terms and Conditions
I. S Grant Date. The grant date is October 6, 1998
(the "Grant Date").
I. S Total Number of Shares. The total number of
shares of restricted par value $1.00 Common Stock of Xxxx X.
Xxxxxxx Company (the "restricted stock") subject to the grant
is 39,596 shares.
I. S Dividends and Voting. Executive shall have all
shareholder voting rights and rights to dividends paid in cash
with respect to the shares of stock subject to the grant.
The Company shall retain any dividends paid in stock, subject
to vesting pursuant to this agreement of the corresponding
restricted stock.
I. S Holding and Transfer of Stock Certificate. The
Company shall issue the shares of restricted stock in the name
of Executive; however, the Company shall hold the shares until
Executive vests in the shares or until the shares are
forfeited as described in S 5. If Executive vests in shares
of the restricted stock, the Company shall transfer physical
custody of vested shares to Executive free of any forfeiture
restrictions on such date or on the next business date if the
Executive vests on a date that it not a business date. Any
shares that are forfeited automatically shall revert back to
the Company. Executive shall have no right to transfer or
otherwise alienate or assign his interest in any shares of the
restricted stock, except through the laws of descent and
distribution, before Executive vests in the shares and
physical custody of the shares is transferred to Executive.
I. S Vesting and Forfeiture.
A. General Rule. Executive's right to the
shares of restricted stock shall remain subject to forfeiture
until Executive vests in the shares in accordance with this S
5. Executive shall vest in the shares of restricted stock,
and such shares shall no longer be subject to forfeiture, in
accordance with the following schedule based on his completed,
continuous years of employment with the Company, or, earlier,
in accordance with S 5(b), (c) or (d) below:
Completed Years of Number of
Employment with the Company Shares Vested
3 50%
4 75%
5 100%
A. Termination Without Good Cause. If the
Company terminates Executive without Good Cause (as defined
below) prior to his completion of 5 continuous years of
employment with the Company, Executive will vest in the shares
in accordance with the following schedule:
Completed Years of Number of
Employment with the Company Shares Vested
less than 3 50%
at least 3 but less than 4 75%
at least 4 but less than 5 100%
A. Death or Disability. Executive shall vest
completely in the shares of restricted stock and such shares
shall no longer be subject to forfeiture upon Executive's
death or total disability (as determined by the Company's
Board of Directors (the "Board")) while employed with the
Company.
A. Change in Control. Except as otherwise
provided in this S5(d), in the event of a Change in Control of
the Company (as defined below), Executive shall vest
completely in any shares of restricted stock not previously
vested. Notwithstanding the foregoing, if the Company
determines that, as a result of a Change in Control, any cash
compensation, benefits, acceleration of vesting of stock
options or restricted stock, or other payments in the nature
of compensation (within the meaning of Section 280G of the
Internal Revenue Code of 1986, as amended ("Code")) to (or for
the benefit of) Executive provided under the terms of this
Agreement or otherwise (collectively, such cash compensation,
benefits, acceleration and other payments are referred herein
as the "Payments") would constitute parachute payments (within
the meaning of Section 280G of the Code) that would cause
Executive to incur an excise tax under Section 4999 of the
Code or the Company to lose a tax deduction under Section 280G
of the Code for any Payments, such Payments shall be reduced
to the extent the Company deems necessary so that the
Executive is not subject to an excise tax under Section 4999
of the Code and the Company does not lose a tax deduction
under Section 280G of the Code for any Payments. The Company
shall reduce Payments in the following order: (1) by reducing
the number of stock options that become vested upon a Change
in Control (in reverse order of price, with the highest priced
options first becoming unvested), (2) by reducing the number
of shares of restricted stock that become vested upon a Change
in Control, and (3) by reducing cash compensation. In the
event that any shares of restricted stock covered by this
Agreement are not vested by reason of the reduction in
Payments pursuant to this S 5(d), such shares will
nevertheless continue to vest in accordance with the
provisions of S 5(a), (b) and (c) hereof. The Company (at the
Company's expense) shall use a public accounting firm
reasonably acceptable to Executive to make calculations
necessary for determining any such reduction of Payments and
to certify to Executive that the remaining Payments will not
cause Executive to incur an excise tax under Section 4999 of
the Code and to prepare Executive's federal income tax return
for the year of the Change in Control.
A. Voluntary Termination or Termination for
Good Cause. Executive shall completely forfeit his entire
interest in any shares of restricted stock that have not yet
previously vested (and shall receive no consideration from the
Company on account of such forfeiture) if (1) Executive
voluntarily terminates his employment before a vesting event
described in S 5(a), (b), (c) or (d) above, other than as a
result of a material breach by the Company of any written
agreement between Executive and the Company relating to
Executive's employment, including this Agreement, or (2)
Executive is terminated by the Company for Good Cause.
A. Definitions.
1. A "Change of Control" shall be deemed
to occur (A) upon the sale by the Company of all or
substantially all of its assets, the consolidation of the
Company with another person, or the merger of the Company
with any person as a result of which merger the Company
is not the surviving entity, (B) if Beneficial Ownership
of 30% or more of the Common Stock of the Company is held
by any person or entity, or (C) in the event that a
"Triggering Event" (as defined therein) shall have
occurred under the Company's Share Purchase Rights Plan
currently in effect or any successor plan. "Beneficial
Ownership" shall have the meaning provided in Rule 13d-3
under the Securities Exchange Act of 1934.
1. "Good Cause" shall mean (A) the
Executive's embezzlement of funds, commission of fraud
against the Company, or gross negligence or willful
misconduct in the performance of his duties; (B) the
failure of Executive to devote substantially all of his
full working time to the fulfillment of his duties with
the Company; (C) Executive's conviction of, guilty plea
to, or confession of a felony or any act of fraud or any
other act of moral turpitude; or (D) Executive's engaging
in conduct or activities materially damaging to the
property, business or reputation of the Company;
provided, however, that no conduct, action or decision
made or taken by Executive in good faith consistent with
the business judgment rule shall provide a basis for
termination for Good Cause.
A. Date of Employment. For the purposes of
this Agreement, Executive's employment shall be deemed to
commence on the Grant Date.
I. S Securities Registration. Executive agrees that,
if the shares of restricted stock are not registered under the
Securities Act of 1933 ("1933 Act") or any applicable state
securities law at the time of vesting, Executive will execute
a written representation to the Company, in form and substance
satisfactory to the Company, that such shares are being
acquired only for investment purposes and not with a view to,
or for resale in connection with, the distribution thereof.
In such case the certificate representing such shares may bear
a legend to the effect that there has been no such
registration and that such shares may not be transferred, sold
or offered for resale in the absence of such registration or
delivery to the Company of an opinion of legal counsel that
such registration is not required. In addition, if Executive
is an "affiliate" of the Company at the time of any proposed
sale, Executive shall not sell or otherwise transfer such
shares in the absence of an effective registration statement
under the 1933 Act or such state law or the availability of an
exemption from such registration.
I. S Other Laws. The Company shall have the right
to refuse to issue or transfer any stock pursuant to this
agreement if the Company acting in its absolute discretion
determines that the issuance or transfer of such stock might
violate any applicable law or regulation.
I. S Sale or Merger. Notwithstanding any other
provision of this agreement, if the Company agrees to sell all
or substantially all of its assets for cash or property or for
a combination of cash and property or agrees to any merger,
consolidation, reorganization, share exchange, division or
other corporate transaction in which stock is converted into
another security or into the right to receive securities or
property, the Board may in its sole discretion vest some or
all of the shares of restricted stock not previously vested.
I. S Employment and Termination. Nothing in this
agreement shall give Executive the right to continue in
employment by the Company or adversely affect the right of the
Company to terminate Executive's employment with or without
cause at any time.
I. S Section 83(b) Election. Executive agrees to
make a timely election under Section 83(b) of the Internal
Revenue Code with respect to the restricted stock which will
cause Executive to recognize as compensation income the fair
market value of such shares on the Grant Date. The Company
agrees to pay Executive a bonus on the Grant Date in an amount
sufficient (on a fully grossed-up basis) to offset the tax
expense associated with such election. The Executive shall
execute the form of election contained at Exhibit A, and shall
file the same within 30 days of the Grant Date as provided for
under the Code.
I. S Binding Effect. This agreement shall be
binding upon the Company and Executive and their respective
heirs, executors, administrators and successors.
I. S Interpretation. The Board, or its delegate,
shall have the power to interpret this agreement. The
interpretation of any provision of this agreement by the Board
shall be final and binding on all persons.
I. S Governing Law. This agreement shall be
governed by the laws of the State of Georgia.
I. S Headings. The headings contained in this
agreement are for reference purposes only and shall not affect
in any way the meaning or interpretation of this agreement.
I. S Sections. All references to sections (S) in
this agreement shall be to sections (S) of this agreement
unless otherwise expressly indicated in this agreement.
I. S Entire Agreement. This agreement is intended
by the parties hereto to be the final expression of their
agreement with respect to the subject matter hereof and is the
complete and exclusive statement thereof notwithstanding any
prior representation or statements to the contrary. This
agreement may be modified only by written instrument signed by
each of the parties hereto.
IN WITNESS WHEREOF, the parties have executed this
Restricted Stock Agreement.
XXXX X. XXXXXXX COMPANY
___________________________
_________
President
Date: October 6, 1998
___________________________
_________
Xxxxxxx X. Xxxx
Date: October 6, 1998
