EXHIBIT 10.62
ALLIED WASTE INDUSTRIES, INC.
PERFORMANCE-ACCELERATED RESTRICTED STOCK AGREEMENT
(UNDER THE AMENDED AND RESTATED
1991 INCENTIVE STOCK PLAN)
THIS PERFORMANCE-ACCELERATED RESTRICTED STOCK AGREEMENT ("Agreement"),
dated _________________________ ("Date of Grant"), between ALLIED WASTE
INDUSTRIES, INC., a Delaware corporation ("Company"), and
_____________________________ ("Grantee"):
R E C I T A L S:
The Company has adopted the Allied Waste Industries, Inc. 1991 Incentive
Stock Plan, as most recently amended and restated effective March 29, 2001, and
as may be subsequently amended ("Plan"), all of the terms and provisions of
which are incorporated herein by reference and made a part of this Agreement.
All capitalized terms used but not defined in this Agreement have the meanings
given to them in the Plan.
The Compensation Committee of the Board of Directors ("Committee") has
determined that it would be in the best interests of the Company and its
stockholders to grant the Restricted Stock provided for herein to Grantee
pursuant to the Plan and this Agreement (collectively, "Performance-Accelerated
Restricted Stock Agreement" or "PARSAP"), as an inducement for Grantee to serve
as an employee of the Company and to provide Grantee with a proprietary interest
in the future of the Company.
NOW, THEREFORE, in consideration of the mutual covenants hereinafter set
forth, the parties hereto agree as follows:
1. Grant of Restricted Stock. The Company hereby grants to Grantee
____________________ shares of Restricted Stock ("Award Shares"), subject to the
following terms and conditions and to the provisions of the Plan.
2. Vesting. Except as otherwise provided herein, Grantee shall not have any
vested interest in any of the Award Shares until ten years following the Date of
Grant, at which time Grantee's interest shall become fully vested up to a
maximum of 100% of the Award Shares. Notwithstanding the foregoing, vesting will
be accelerated upon the Grantee's attaining certain performance goals, as
specified in Paragraph 3 below, or upon a Change in Control, as specified in
Paragraph 13 below. Vesting also may be accelerated upon the occurrence of
certain events, as specified in Paragraph 4 below.
3. Performance Goals.
(a) Vesting of all or a portion of the Award Shares may be accelerated due to
the achievement of predetermined performance goals during the third to fifth
years under this
PARSAP (the calendar years ending December 31, 2002, December 31, 2003,
and December 31, 2004) following the Date of Grant. The goal will be a
targeted implied equity value per share. It will be determined using an
implied market value multiple times EBITDA, minus debt, to arrive at an
implied equity value, divided by the number of shares outstanding, to
establish the implied equity value per share. Once any portion of the
Award Shares is vested as the result of the attainment of the performance
goals, such portion shall not be subject to forfeiture. The specific
performance criteria are described in Schedule A attached to this
Agreement.
(b) For purposes of this Agreement:
(i) "EBITDA" is based on the information reported in the Company's
financial statements, as approved by the Compensation
Committee of the Company's Board of Directors;
(ii) "fully diluted shares" means the aggregate of all issued and
outstanding shares of the Company's Common Sock, shares of
Common Stock issuable upon the vesting or payment of awards or
exercise of options under any employee benefit plan, including
the Plan, shares of Common Stock otherwise available or
reserved for issuance under employee benefit plans, including
the Plan, and shares of Common Stock issuable upon conversion
or exercise of any outstanding convertible securities,
warrants or options (for these purposes, shares of the
Company's Series A Senior Convertible Preferred Stock are
deemed convertible into shares of Common Stock); and
(iii) "debt" means all interest-bearing debt of the Company as of
the end of the relevant fiscal year.
(c) The target equity value per share, for purposes of this Paragraph 3
shall be adjusted for any stock dividend, stock split, or recapitalization
of the Company.
4. Effect of Termination of Employment. Except as may be otherwise specifically
provided in this Agreement, if Grantee's employment with the Company is
terminated for any reason, all unvested Award Shares at the time of Grantee's
termination of employment shall be forfeited upon Grantee's date of termination.
If Grantee's employment with the Company is terminated as the result of his
Retirement, or by the Company without Cause, at any time after December 31,
2004, any unvested Award Shares at the time of Grantee's termination of
employment shall become vested on a pro rata basis, based on the number of full
calendar months completed since the Date of Grant, as a fraction of the 10-year
period following the Date of Grant. If Grantee's employment with the Company is
terminated as the result of his Disability or death, any unvested Award Shares
shall become fully and immediately vested. Those Award Shares for which vesting
is not accelerated pursuant to the terms of this Section 4 or of Section 13
shall be forfeited upon Grantee's date of termination; provided, however, that
the Committee, in its discretion, may decide to accelerate the vesting of any
otherwise forfeitable Award Shares. If
Grantee's termination of employment is due to his death, Grantee's Award Shares
will be paid to Grantee's beneficiary.
5. Tender Offer/Merger; Adjustment of Shares. Notwithstanding anything contained
herein to the contrary:
(a) Award Shares (i) may be tendered in response to a tender offer for a
request or invitation to tender of greater than 50% of the outstanding
Common Stock of the Company or (ii) may be surrendered in a merger,
consolidation or share exchange involving the Company; provided, in each
case, that the securities or other consideration received in exchange
thereof shall thereafter be subject to the restrictions and conditions set
forth herein.
(b) In the event of any change in the outstanding Common Stock resulting
from a subdivision or consolidation of shares, whether through
reorganization, recapitalization, share split, reverse share split, share
distribution or combination of shares or the payment of a share dividend,
the Award Shares shall be treated in the same manner in any such
transaction as other Common Stock. Any Common Stock or other securities
received by the Grantee with respect to the Award Shares in any such
transaction shall be subject to the restrictions and conditions set forth
herein.
6. Rights as Stockholder. Grantee shall be entitled to all of the rights of a
stockholder with respect to the Award Shares including the right to vote such
shares and to receive dividends and other distributions payable with respect to
such shares since the Date of Grant.
7. Share Certificates. The Company will provide Grantee with a certificate for
the Award Shares, issued in the Grantee's name, but containing the stock legend
as provided for in Section 7(d) of the Plan. Within a reasonable time following
the vesting of a Grantee's Award Shares, the Company will re-issue one or more
certificates to the Grantee with respect to which the stock legend has been
removed in the case of vested Award Shares.
8. Deferral or Sale of Award Shares.
(a) Notwithstanding any contrary provisions of this Agreement, at least
one year prior to the vesting of Award Shares, Grantee may, in his
discretion, elect to defer the receipt of his Award Shares, in which case
such Award Shares will be deposited into a rabbi trust established for the
benefit of Grantee and other individuals who receive Award Shares.
(b) At least two years prior to the vesting of Award Shares, Grantee may
elect to have his Award Shares sold through a broker when the Award Shares
are vested. The Award Shares will be delivered to the designated broker
for the purpose of sale, once vested. Proceeds of the sale will first be
used to pay any required tax withholdings, and then any excess will be
paid to Grantee.
9. Term of Employment. This Agreement does not grant to Grantee any right to
continue serving as an employee of the Company.
10. Notices; Deliveries. Any notice of delivery required to be given under the
terms of this Agreement shall be addressed to the Company, in care of its
Secretary, at its principal office at 00000 X. Xxxxxxxx-Xxxxxx Xxxx, Xxxxx 000,
Xxxxxxxxxx, Xxxxxxx 00000, and any notice or delivery to be given to Grantee
shall be addressed to him at the address given by him beneath his signature
hereto or such other address as either party hereto may hereafter designate in
writing to the other. Any such notice or delivery shall be deemed to have been
duly given when addressed as aforesaid, registered or certified mail, and
deposited (postage or registration or certification fee prepaid) in a post
office or branch post office regularly maintained by the United States.
11. Disputes. As a condition of the granting of the Award Shares, Grantee and
his heirs and successors agree that any dispute or disagreement which may arise
hereunder shall be determined by the Committee in its sole discretion and
judgment, and that any such determination and any interpretation by the
Committee of the terms of the Plan and this Agreement shall be final and shall
be binding and conclusive, for all purposes, upon the Company, Grantee, his
heirs and personal representatives, and all permitted transferees.
12. Award Shares Subject to Plan. The Award Shares granted pursuant to this
Agreement are subject to the terms and provisions of the Plan. Unless otherwise
explicitly stated herein, in the event of a conflict between any term or
provision contained herein and a term or provision of the Plan, the applicable
terms and provisions of the Plan will govern and prevail under all
circumstances.
13. Acceleration of Vesting Upon Change in Control. Upon the occurrence of a
Change in Control of the Company, the Award Shares shall become fully and
immediately vested. If the Change in Control occurs within three years following
the Date of Grant and the Fair Market Value of the Company's Common Stock is
greater than $18.00 per share as of the date the Change in Control occurs, or if
the Fair Market Value of the Company's Common Stock is greater than $50.00 per
share as of the date the Change in Control occurs, Grantee shall receive an
additional payment to pay any excise taxes, and any income or excise taxes due
on those excise taxes paid by the Company, as a result of any accelerated
vesting due to the Change in Control. Notwithstanding anything to the contrary
contained in the Plan, for purposes of this Agreement, the term "Change in
Control" shall mean the occurrence of either of the following events: (a) an
acquisition of 50% or more of the Common Stock of the Company (including
convertible stock) by a buyer or buyers acting in concert (but not including
Apollo or Blackstone), or (b) a sale by Apollo or Blackstone to a single buyer
or buyers acting in concert.
14. Miscellaneous.
(a) All decisions of the Committee with respect to any questions arising
under the Plan or under this Agreement shall be conclusive.
(b) Nothing herein contained shall affect Grantee's right to participate
in and receive benefits from and in accordance with the then current provisions
of any employee pension, welfare, or fringe benefit plan or program of the
Company.
(c) Grantee agrees to make appropriate arrangements with the Company for
the satisfaction of any applicable federal, state or local income tax
withholding or similar requirements, including the payment to the Company at the
time of vesting of the Award Shares of any and all such taxes and the
satisfaction of all such requirements.
(d) Whenever the term "Grantee" is used herein under circumstances
applicable to any other person or persons to whom the Award Shares, in
accordance with the provisions of this Agreement or the Plan, may be
transferred, the word "Grantee" shall be deemed to include such person or
persons.
(e) If any provision of this Agreement or of the Plan would disqualify the
Agreement or the Plan under Rule 16b-3 promulgated under the Securities Exchange
Act of 1934, or would cause the Agreement or the Plan to not otherwise comply
with Rule 16b-3, such provision shall be construed or deemed amended to conform
to Rule 16b-3 to the extent permitted by applicable law and deemed advisable by
the Company's Board of Directors.
(f) Notwithstanding anything contained herein to the contrary, the
Company's obligation to issue or deliver certificates evidencing the Award
Shares shall be subject to all applicable laws, rules, and regulations and to
such approvals by any governmental agencies or national securities exchanges as
may be required.
(g) This Agreement shall be binding upon and inure to the benefit of any
successor or successors of the Company.
(h) The interpretation, performance and enforcement of this Agreement
shall be governed by the laws of the State of Arizona.
IN WITNESS WHEREOF, the Company has, as of the date first above written,
caused this Agreement to be executed on its behalf by its Chairman, President or
any Vice President, and Grantee has hereunder set his hand as of the date first
above written, which date is the Date of Grant of the Award Shares.
ALLIED WASTE INDUSTRIES, INC. GRANTEE
By_________________________ ___________________________________
Signature
___________________________________
Print Name
___________________________________
___________________________________
Address
