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EXHIBIT 10.31
RESTRICTED STOCK AWARD AGREEMENT
under the
RENAL CARE GROUP, INC.
1996 STOCK INCENTIVE PLAN
Grantee: Xxx X. Xxxxxx
Number of Shares: 8,700
Effective Date of Grant: December 23, 1997
1. Grant of Shares. Renal Care Group, Inc. (the "Corporation") hereby
grants to the Grantee named above (the "Grantee"), under the Renal Care Group,
Inc. Amended and Restated 1996 Stock Incentive Plan (the "Plan"), as additional
compensation for services rendered, and subject to the restrictions and the
other terms and conditions set forth in this agreement (this "Agreement"), the
number of shares indicated above of the Corporation's $0.01 par value common
stock (the "Shares"). Capitalized terms used herein and not otherwise defined
shall have the meanings assigned such terms in the Plan.
2. Restrictions. The Shares may not be sold, transferred, exchanged,
assigned, pledged, hypothecated or otherwise encumbered unless and until such
restriction has expired as provided in Section 3 hereof. Any Shares as to which
such restriction has not yet expired are referred to herein as the "Restricted
Shares."
If the Grantee's employment with the Corporation or any Subsidiary
terminates for any reason other than as set forth in any of paragraphs (b)
through (d) of Section 3 hereof, then the Grantee shall forfeit all of the
Grantee's right, title and interest in and to the Restricted Shares as of the
date of employment termination.
The restrictions imposed under this Section shall apply to all shares of
capital stock or other securities that may be issued with respect to Restricted
Shares hereunder in connection with any merger, reorganization, consolidation,
recapitalization, stock dividend or other change in corporate structure
affecting the common stock of the Corporation.
3. Expiration and Termination of Restrictions. The restrictions imposed
under Section 2 will expire on the earliest to occur of the following:
(a) As to the following numbers of Restricted Shares awarded hereunder
(adjusted proportionately in the event of any change in the total numbers
of Restricted Shares) on the following respective dates:
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Date of Termination
Number of Shares of Restrictions
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8,700 December 23, 2002
(b) On the first day of the calendar month next following the
termination of the Grantee's employment with the Corporation or any
Subsidiary because of his or her death or Disability; or
(c) On the date the Grantee's employment with the Corporation or any
Subsidiary is terminated either (i) by the Company or any Subsidiary
without "Cause," as defined in Appendix A, or (ii) by the Grantee for "Good
Reason," as defined in Appendix A; or
(d) On the date specified by the Committee as it may deem appropriate
in connection with a termination of the Grantee's employment with the
Corporation or any Subsidiary in a manner not covered by paragraph (c) of
this Section; or
(e) On the date of any acceleration of vesting in accordance with
Article 9 of the Plan.
4. Delivery of Shares. The Shares will be issued in the name of the Grantee
as Restricted Stock and will be held by the Corporation during the Restricted
Period. Stock certificates shall be delivered as soon as practicable after
vesting of the Shares, but may be postponed for such period as may be required
for the Corporation with reasonable diligence to comply if deemed advisable by
the Corporation, with registration requirements under the Securities Act,
listing requirements under the rules of any stock exchange, and requirements
under any other law or regulation applicable to the issuance or transfer of the
Shares.
5. Voting and Dividend Rights. The Grantee, as beneficial owner of the
Shares, shall have full voting and dividend rights with respect to the Shares
during the Restricted Period.
6. Restrictions on Transfer and Pledge. The Restricted Shares may not be
pledged, encumbered, or hypothecated to or in favor of any party other than the
Corporation or a Subsidiary, or be subject to any lien, obligation, or liability
of the Grantee to any other party other than the Corporation or a Subsidiary.
The Restricted Shares are not assignable or transferable by the Grantee other
than by will or the laws of descent and distribution.
7. No Right of Continued Employment. Nothing in this Agreement shall
interfere with or limit in any way the right of the Corporation or any
Subsidiary to
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terminate the Grantee's employment at any time, nor confer upon
the Grantee any right to continue in the employ of the Corporation or any
Subsidiary.
8. Payment of Taxes. The Grantee will, no later than the date as of which
any amount related to the Shares first becomes includable in the Grantee's gross
income for federal income tax purposes, pay to the Corporation, or make other
arrangements satisfactory to the Committee regarding payment of, any federal,
state and local taxes of any kind required by law to be withheld with respect to
such amount. The obligations of the Corporation under this Agreement will be
conditional on such payment or arrangements, and the Corporation, and, where
applicable, its Subsidiaries will, to the extent permitted by law, have the
right to deduct any such taxes from any payment of any kind otherwise due to the
Grantee.
9. Amendment. This Agreement may not be amended except in writing, signed
by the parties hereto, provided that the Plan may be amended in the manner
provided in the Plan.
10. Plan Controls. The terms contained in the Plan are incorporated into
and made a part of this Agreement and this Agreement shall be governed by and
construed in accordance with the Plan. In the event of any actual or alleged
conflict between the provisions of the Plan and the provisions of this
Agreement, the provisions of the Plan shall be controlling and determinative.
11. Successors. This Agreement shall be binding upon any successor of the
Corporation, in accordance with the terms of this Agreement and the Plan.
12. Severability. If any one or more of the provisions contained in this
Agreement are invalid, illegal or unenforceable, the other provisions of this
Agreement will be construed and enforced as if the invalid, illegal or
unenforceable provision had never been included.
13. Notice. Notices and communications under this Agreement must be in
writing and either personally delivered or sent by registered or certified
United States mail, return receipt requested, postage prepaid. Notices to the
Corporation must be addressed to:
Renal Care Group, Inc.
Attn: Chief Financial Officer
0000 Xxxx Xxx Xxxxxx, Xxxxx 000
Xxxxxxxxx, Xxxxxxxxx 00000
or any other address designated by the Corporation in a written notice to the
Grantee. Notices to the Grantee will be directed to the address of the Grantee
then currently on file with the Corporation, or at any other address given by
the Grantee in a written notice to the Corporation.
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IN WITNESS WHEREOF, Renal Care Group, Inc., acting by and through its duly
authorized officers, has caused this Agreement to be executed, and the Grantee
has executed this Agreement, all as of the day and year first above written.
RENAL CARE GROUP, INC.
By: /s/ Xxxxxx Xxxxx
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Title: Executive Vice President
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I hereby accept the above Shares grant in accordance with and subject to
the terms and conditions set forth above.
I agree that any shares of common stock received by me hereunder will not
be sold or otherwise disposed of by me except in a manner in compliance with
applicable securities laws.
GRANTEE:
/s/ Xxx X. Xxxxxx
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Print Name: Xxx X. Xxxxxx
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APPENDIX A
1. For purposes of this Restricted Stock Award Agreement, "Cause" shall
mean any one of the following:
(i) the willful and continued failure of the Grantee to substantially
perform his or her duties with the Company or one of its affiliates (other than
any such failure resulting from incapacity due to Disability, and specifically
excluding any failure by the Grantee, after reasonable efforts, to meet
performance expectations), after a written demand for substantial performance is
delivered to the Grantee by the Board or the Chief Executive Officer of the
Company which specifically identifies the manner in which the Board or Chief
Executive Officer believes that the Grantee has not substantially performed the
Grantee's duties, or
(ii) the willful engaging by the Grantee in illegal conduct or gross
misconduct which is materially and demonstrably injurious to the Company.
For purposes of this provision, no act or failure to act, on the part of the
Grantee, shall be considered "willful" unless it is done, or omitted to be done,
by the Grantee in bad faith or without reasonable belief that the Grantee's
action or omission was in the best interests of the Company. Any act, or failure
to act, based upon authority given pursuant to a resolution duly adopted by the
Board or upon the instructions of the Chief Executive Officer or a senior
officer of the Company or based upon the advice of counsel for the Company shall
be conclusively presumed to be done, or omitted to be done, by the Grantee in
good faith and in the best interests of the Company. The cessation of employment
of the Grantee shall not be deemed to be for Cause unless and until there shall
have been delivered to the Grantee a copy of a resolution duly adopted by the
affirmative vote of not less than three-quarters of the entire membership of the
Board at a meeting of the Board called and held for such purpose (after
reasonable notice is provided to the Grantee and the Grantee is given an
opportunity, together with counsel, to be heard before the Board), finding that,
in the good faith opinion of the Board, the Grantee is guilty of the conduct
described in subparagraph (i) or (ii) above, and specifying the particulars
thereof in detail.
2. For purposes of this Restricted Stock Award Agreement, "Good Reason"
shall mean one of the following:
(i) the assignment to the Grantee of any duties inconsistent in any
respect with the Grantee's position (including status, offices, titles and
reporting requirements), authority, duties or responsibilities with the Company
as in effect on the date hereof, or any other action by the Company which
results in a diminution in such position, authority, duties or responsibilities,
excluding for this purpose an isolated, insubstantial and inadvertent action not
taken in bad faith and which is remedied by the Company promptly after receipt
of notice thereof given by the Grantee;
(ii) any reduction in the Grantee's base salary as in effect on the
date hereof, or as subsequently increased;
(iii) the failure by the Company, without the Grantee's consent, to
pay to him any portion of his current compensation, except pursuant to a
compensation deferral elected by the Grantee, or to pay to the Grantee any
portion of an installment of deferred compensation under any deferred
compensation program of the Company within thirty days of the date such
compensation is due; other
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than an isolated, insubstantial and inadvertent failure not occurring in bad
faith and which is remedied by the Company promptly after receipt of notice
thereof given by the Grantee;
(iv) The failure by the Company to continue in effect any compensation
plan (or substitute or alternative plan) in which the Grantee is entitled to
participate as of the date hereof which is material to the Grantee's total
compensation, including, but not limited to, the Company's annual bonus plan and
equity incentive plan, or the failure by the Company to continue the Grantee's
participation therein on a basis that is materially as favorable both in terms
of the amount of benefits provided and the level of the Grantee's participation
relative to other participants at the Grantee's grade level;
(v) The failure by the Company to continue to provide the Grantee with
benefits substantially similar to those enjoyed by him under the Company's
pension and deferred compensation plans, if any, except as required by law, and
the life insurance, medical, health and accident, and disability plans in which
the Grantee is entitled to participate as of the date hereof, or the taking of
any action by the Company which would directly or indirectly materially reduce
any of such benefits or deprive the Grantee of any material fringe benefit
enjoyed by the Grantee as of the date hereof, or the failure by the Company to
provide the Grantee with the number of paid vacation days to which the Grantee
is entitled;
(vi) The relocation of the Company's principal executive offices where
the Grantee is working to a location more than 35 miles from the location of
such offices on the date of this Agreement, or the Company's requiring the
Grantee to be based anywhere other than the location of the Company's principal
offices where the Grantee is working on the date of this Agreement except for
required travel on the Company's business to an extent substantially consistent
with the Grantee's present business travel obligations; or
(vii) The failure of the Company to obtain a satisfactory agreement
from any successor to assume and agree to perform this Agreement.
The Grantee's right to terminate his employment pursuant to this
Agreement for Good Reason shall not be affected by the Grantee's inability to
satisfactorily perform the duties required by the Grantee's current job
description due to physical or mental limitations or illness. The Grantee's
continued employment shall not constitute consent to, or a waiver of rights with
respect to, any circumstance constituting Good Reason hereunder.
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