Exhibit 10.1
NON-EMPLOYEE DIRECTORS
RESTRICTED STOCK AGREEMENT
UNDER
TEXAS INDUSTRIES, INC. 2004 OMNIBUS EQUITY COMPENSATION PLAN
Pursuant to its 2004 Omnibus Equity Compensation Plan, TEXAS
INDUSTRIES, INC., effective this __________________ day of __________________,
20 ____________, hereby grants to _______________________________ ("Grantee")
______ Shares of Common Stock as an award of Restricted Stock (as defined in the
Plan) on the terms and conditions hereinafter set forth.
ARTICLE I
DEFINITIONS
-----------
(a) "Common Stock" means shares of the Company's Common Stock, $1.00 par
value.
(b) "Company" means Texas Industries, Inc., a Delaware corporation, and any
successor thereto as defined in the Plan.
(c) "Grant Date" means the date of this Agreement, as set forth above.
(d) "Grantee" means the person named above to whom Shares of Restricted
Stock have been awarded, except where the context plainly otherwise
requires.
(i) "Plan" means the Texas Industries, Inc. 2004 Omnibus Equity
Compensation Plan, as it may be amended from time to time.
(j) "Period of Restriction" is defined in Article II, Section (a).
(k) "Share" means a share of Common Stock.
(l) "Successor" means the legal representative of the estate of a deceased
Grantee or the person or persons who shall acquire any rights under
this Agreement by bequest or inheritance or by reason of the death of
the Grantee.
(n) Each other capitalized term that is used but not defined in this
Agreement shall have the meaning prescribed in the Plan.
ARTICLE II
RESTRICTIONS
------------
(a) Except as otherwise provided in the Plan or this Agreement, the Shares
of Restricted Stock may not be sold, transferred, pledged, assigned, or
otherwise disposed of until the end of the applicable Period of
Restriction. The period of time between the Grant Date and the date the
Shares of Restricted Stock become vested is referred to herein as the
"Period of Restriction."
(b) In the event that as a result of (i) any stock dividend, stock split or
other change in the Stock, or (ii) any merger or sale of all or
substantially all of the assets or other acquisition of the Company,
and by virtue of any such change the Grantee shall in his or her
capacity as owner of unvested Shares of Restricted Stock (the "Prior
Stock") be entitled to new or additional or different shares or
securities, such new or additional or different shares or securities
shall thereupon be subject to all of the conditions and restrictions
that were applicable to the Prior Stock during the Period of
Restriction of the Prior Stock.
(c) The Company shall not be required (i) to transfer on its books any
securities which have been sold or transferred in violation of any of
the provisions in this Agreement, or (ii) to treat as owner of such
securities or to accord the right to vote as owner or to pay dividends
to any transferee to whom such shares shall have been so transferred.
ARTICLE III
VESTING
-------
(a) Unless vested earlier in accordance with Article V, the interest of
Grantee in the Shares of Restricted Stock shall vest as to one-third of
such Shares on the date of the next annual stockholders' meeting after
the Grant Date, and as to an additional one-third on each succeeding
annual stockholders' meeting thereafter, so as to be 100% vested on the
date of the third annual stockholders' meeting after the Grant Date,
conditioned upon Grantee's continued service as a director of the
Company as of each vesting date.
(b) If the Grantee's service as a director of the Company is terminated,
the balance of the Shares of Restricted Stock which have not vested at
the time of such termination shall be forfeited by Grantee, and
ownership transferred back to the Company.
2
ARTICLE IV
CERTIFICATES AND LEGENDS
------------------------
(a) The Company will retain the certificates representing Shares of
Restricted Stock in the Company's possession until such time as such
Shares are vested or restrictions applicable to such Shares have
otherwise been satisfied or lapse. Grantee will deliver to the Company
such stock powers executed in blank as may be requested by the Company
in order to transfer back to the Company any Shares of Restricted stock
that may be forfeited pursuant to Article III, paragraph (b).
(b) Each certificate representing Shares of Restricted Stock shall bear the
following legend: The sale or transfer of shares of stock represented
by this certificate, whether voluntary, involuntary, or by operation of
law, is subject to certain restrictions on transfer as set forth in the
Texas Industries, Inc. 2004 Omnibus Equity Compensation Plan, and an
associated Restricted Stock Agreement. A copy of the Plan and such
Agreement may be obtained from Texas Industries, Inc.
(c) Upon vesting of Shares of Restricted Stock, the Company shall deliver
to Grantee, as soon thereafter as practicable, a certificate in the
Grantee's name for such Shares without the legend set forth in
paragraph (b) of this Article IV, and such Shares shall become freely
transferable by Grantee.
ARTICLE V
CHANGE OF CONTROL
-----------------
(a) If a Change of Control (as defined below) occurs, all Shares of
Restricted Stock shall become immediately vested, notwithstanding the
specific terms of this Agreement.
(b) "Change of Control" means the occurrence of any of the following after
the Grant Date:
(i) Any person becomes the beneficial owner of securities of the
Company representing more than 50% of the combined voting
power of the Company's then outstanding securities that have
the right to vote for the election of directors generally.
"Person" shall have the meaning ascribed to such term in
Section 3(a)(9) of the Securities Exchange Act of 1934, as
amended, and used in Sections 13(d)(3) and 14(d)(2) thereof,
including a "group" as defined in Section 13(d) thereof, other
than (1) any employee plan established by the Company, (2) the
Company or any of its subsidiaries, (3) an underwriter
temporarily holding securities pursuant to an offering of such
securities, or (4) an entity owned, directly or indirectly, by
security holders (including, without limitation, warrant or
option holders) of the Company in substantially the same
proportions as their ownership of the Company. "Beneficial
owner" shall have the meaning ascribed to such term in Rule
13d-3 under such act.
(ii) Continuing Directors cease for any reason to constitute a
majority of the directors of the Company then serving.
"Continuing Directors" means directors of the Company who
were:
(x) directors on the Grant Date, or
(y) elected or nominated for election with the approval
of a majority of the directors who, at the time of
such election or nomination, were Continuing
Directors.
3
(iii) A merger, consolidation or other business combination
(including an exchange of securities with the security holders
of an entity that is a constituent in such transaction) of the
Company with any other entity, unless the voting securities of
the Company outstanding immediately prior to such merger,
consolidation or business combination continue to represent at
least a majority of the combined voting power of the
securities having the right to vote for the election of
directors generally of the Company or the surviving entity or
any parent thereof outstanding immediately after such merger,
consolidation or business combination (either by remaining
outstanding or by being converted into or exchanged for voting
securities of the surviving entity or parent thereof).
(iv) The Company (taken as a whole with its subsidiaries) sells,
leases or otherwise disposes of all or substantially all of
its assets (in one transaction or a series of related
transactions, including by means of a sale, lease or
disposition of the assets or equity interests in one or more
of its direct or indirect subsidiaries), other than such a
sale, lease or other disposition to an entity of which at
least a majority of the combined voting power of the
outstanding securities are owned directly or indirectly by
stockholders of the Company.
(v) The occurrence of any other event or circumstance that results
in the Company filing or being required to file a report or
proxy statement with the Securities and Exchange Commission
disclosing that a change of control of the Company has
occurred.
ARTICLE VI
SECURITIES ACT COMPLIANCE
-------------------------
Grantee may not sell or otherwise dispose of vested Shares of
Restricted Stock received pursuant to this Agreement unless Grantee first
satisfies himself/herself that such Shares have been duly registered under the
Securities Act of 1933 or that under such Act no prospectus and no compliance
with Regulation A of the Securities and Exchange Commission are required for
such sale or disposition and that no state license or permit is necessary for
such sale or disposition, or that such a state license or permit, if required,
has been duly issued.
4
ARTICLE VII
OTHER TERMS
-----------
(a) Grantee understands that (i) during the Period of Restriction, Grantee
shall have all the rights of a shareholder with respect to the Shares
of Restricted Stock except for the right to transfer the Shares of
Restricted Stock, as set forth in Article II. Accordingly, Grantee
shall have the right to vote the Shares of Restricted Stock and to
receive any cash dividends paid to or made with respect to the Shares
of Restricted Stock; and (ii) nothing in this Agreement or the Plan
shall confer on Grantee any right to continue in the service of the
Company as a director, notwithstanding the possibility that unvested
Shares of Restricted Stock will thereby be forfeited.
(b) Grantee shall be liable for any and all income taxes arising out of
this grant or the vesting of Shares of Restricted Stock hereunder.
(c) If Grantee makes an election pursuant to Section 83(b) of the Code
concerning this grant of Restricted Stock, Grantee shall promptly file
a copy of such election with the Company.
(d) This Agreement shall be non-transferable and non-assignable except by
will and by the law of descent and distribution to the extent that on
the date of Grantee's death there were vested Shares of Restricted
Stock that had not yet been delivered to Grantee.
(e) The Grantee or Successor of the Grantee agrees that any dispute or
disagreement which may arise hereunder shall be determined by the Board
of Directors or the Committee in its sole discretion and judgment, and
that any such determination and any interpretation by the Board of
Directors or the Committee of the terms of this Agreement or the Plan
shall be final and binding and conclusive, for all purposes, upon the
Company, the Grantee or the Successor of the Grantee. No member of the
Board or the Committee shall be liable to any person for any action,
failure to act, omission or determination taken or made in good faith
with respect to the Plan or this Agreement.
(f) Any notice given by the Company to the Grantee shall be effective to
bind any person who shall acquire rights hereunder. The Company shall
be under no obligation whatsoever to advise the Grantee of the
existence, maturity or termination of any of the Grantee's rights
hereunder and the Grantee shall be deemed to have familiarized
himself/herself with all matters contained herein and in the Plan which
may affect any of the Grantee's rights and privileges hereunder.
(g) This Agreement is subject to the Plan and its terms and provisions
(including any subsequent amendments thereto), which Plan and its terms
and provisions are by this reference incorporated herein. In the event
of a conflict between any term or provision contained herein and a term
or a provision of the Plan, the applicable terms and provisions of the
Plan will govern and prevail.
5
IN WITNESS WHEREOF, TEXAS INDUSTRIES, INC. has caused this Restricted
Stock Agreement to be executed as of the Grant Date, and Grantee has accepted
the terms and provisions hereof.
TEXAS INDUSTRIES, INC.
By:
-------------------------
Name:
-------------------------
Title:
-------------------------
ACCEPTED:
-------------------------------------
Name:
-------------------------------
6
