EXHIBIT 10.55
RESTRICTED SHARE AGREEMENT
THIS RESTRICTED SHARE AGREEMENT is made and entered into as of the Date of
Award specified herein, by and between RAILTEX, INC., a Texas corporation (the
"Company"), and ______________________ (the "Grantee").
WITNESSETH
WHEREAS, the Company maintains the 1993 Stock Plan, as amended (the
"Plan"), under which the Compensation Committee of the Company's Board of
Directors (the "Compensation Committee") may, among other things, grant awards
of restricted shares in the form of shares of the Company's Common Stock, $.10
par value per share ("Common Stock"), subject to such terms, conditions and
restrictions as the Compensation Committee may deem appropriate; and
WHEREAS, pursuant to the Plan, the Compensation Committee has granted an
award of restricted shares conditioned upon the execution by the Company and the
Grantee of a Restricted Share Agreement setting forth all the terms, conditions
and restrictions relating to the restricted shares.
NOW, THEREFORE, in consideration of the foregoing recitals and the
covenants set forth herein, the parties hereto hereby agree as follows:
1. AWARD OF RESTRICTED SHARES. Pursuant to the terms of the Plan,
the Compensation Committee has granted to the Grantee a restricted share
award as of ______, __, ____ (the "Date of Award"), covering _________
(________) shares of Common Stock (the "Restricted Shares"), subject to
the terms, conditions and restrictions set forth in this Agreement.
2. RESTRICTIONS. Until a Restricted Share vests, it may not
be sold, assigned, conveyed, gifted, pledged, hypothecated or otherwise
transferred in any manner whatsoever.
3. VESTING OF RESTRICTED SHARES. Subject to accelerated vesting in
accordance with the provisions of Sections 4, 5 and 6 hereof and subject
to forfeiture in accordance with the provisions of Section 6 hereof,
_________ (_____) of the Restricted Shares shall vest on the first
anniversary of the Date of Award, ________ (________) of the Restricted
Shares shall vest on the second anniversary of the Date of Award, _______
(_______) of the Restricted Shares shall vest on the third anniversary of
the Date of Award, _______ (______) of the Restricted Shares shall vest on
the fourth anniversary of the Date of Award, and the remaining __________
(______) of the Restricted Shares shall vest on the fifth anniversary of
the Date of Award.
4. ACCELERATION OF VESTING UPON DEATH, DISABILITY. If the employment
of the Grantee shall terminate by reason of the Grantee's death or
Disability (as hereinafter defined), all of the Restricted Shares granted
hereunder and not previously vested hereunder shall vest in full upon such
termination. For purposes of this Agreement, "Disability" shall have the
same meaning as "permanent and total disability" set forth in Section
22(e)(3) of the Internal Revenue Code of 1986, as amended (the "Code").
5. ACCELERATION OF VESTING UPON CHANGE OF CONTROL. Upon a Change of
Control (as hereinafter defined), all Restricted Shares granted hereunder
shall immediately vest in full. For purposes hereof, a "Change of Control"
shall be deemed to have taken place upon the occurrence of any of the
following events:
(i) the acquisition by any individual, entity or group (within
the meaning of Section 13(d)(3) or 14(d)(2) of the Exchange Act of
1934, as amended)(a "Person") of beneficial ownership (within the
meaning of Rule 13d-3 promulgated under the Exchange Act of 1934, as
amended) of 20% or more of the combined voting power of the then
outstanding securities entitled to vote generally in the election of
directors (the "Voting Stock") of the Company; provided, however,
that for purposes of this Section 5, the following acquisitions of
Voting Stock of the Company shall not constitute a Change of
Control: (A) any issuance of Voting Stock of the Company directly
from the Company that is approved by the Incumbent Board (as defined
below), the consideration for which constitutes principally of
property other than cash, (B) any acquisition by the Company of
Voting Stock of the Company, (C) any acquisition of Voting Stock of
the Company by any employee benefit plan (or related trust)
sponsored or maintained by the Company or any entity in which the
Company directly or indirectly owns 50% or more of the outstanding
Voting Stock (a "Subsidiary"); or (D) any acquisition of Voting
Stock of the Company by any Person pursuant to a Business
Organization, as defined below, that complies with clauses (A), (B)
and (C) of Section 5(iii) below; or
(ii) individuals who, as of the date hereof, constitute the
Board of Directors of the Company (the "Incumbent Board") cease for
any reason to constitute at least a majority of the Board; provided,
however, that any individual becoming a Director subsequent to the
date hereof whose election, or nomination for election by the
Company's shareholders, was approved by a vote of at least
two-thirds of the Directors then comprising the Incumbent Board
(either by a specific vote or by approval of the proxy statement of
the Company in which such person is named as a nominee for director,
without objection to such nomination) shall be deemed to have been a
member of the Incumbent Board; or
(iii) consummation of a reorganization, merger or
consolidation, a sale or other disposition of all or substantially
all of the assets of the Company, or other transaction (each, a
"Business Combination"), unless, in each case, immediately following
such Business Combination, (A) all or substantially all of the
individuals and entities who were beneficial owners of Voting Stock
of the Company immediately prior to such Business Combination
beneficially own, directly or indirectly, more than two-thirds of
the combined voting power of the then outstanding shares of Voting
Stock of the entity resulting from such Business Combination
(including, without limitation, an entity which as a result of such
transaction owns the Company or all or substantially all of the
Company's assets either directly or through one or more
subsidiaries), (B) no Person (other than the Company, such entity
resulting from such Business Combination, or any employee benefit
plan (or related trust) sponsored or maintained by the Company, any
Subsidiary or such entity resulting from such Business Combination)
beneficially owns, directly or indirectly, 20% or more of the
combined voting power of the then outstanding shares of Voting Stock
of the entity resulting from such Business Combination, and (C) at
least a majority of the members of the Board of Directors of the
entity resulting from such Business Combination were members of the
Incumbent Board at the time of the execution of the initial
agreement or of the action of the Board providing for such Business
Combination; or
(iv) approval by the shareholders of the Company of a complete
liquidation or dissolution of the Company, except pursuant to a
Business Combination that complies with clauses (A), (B) and (C) of
Section 5(iii) above.
6. FORFEITURE OF RESTRICTED SHARES; LAPSE OF RESTRICTIONS. All
restrictions pertaining to the Restricted Shares will lapse, and all Restricted
Shares granted hereunder shall immediately vest in full, upon any of the
following circumstances: (i) upon the death or Disability of the Grantee in
accordance with the terms and conditions of Section 4 of this Agreement, or (ii)
upon a Change of Control in accordance with the terms and conditions of Section
5 of this Agreement. Except as set forth in the preceding sentence, in the event
the Grantee shall cease to be an employee of the Company for any reason, or for
no reason, the then unvested portion of the award of Restricted Shares shall be
forfeited, the Grantee shall have no further rights under this Agreement and the
Common Stock covered by the Restricted Shares shall revert to the Company.
7. CHANGE IN COMMON STOCK OR CORPORATE STRUCTURE. In the event of any
stock dividend, stock split, combination or exchange of shares of Common Stock,
recapitalization or other change in the capital structure of the Company,
corporate separation or division (including, but not limited to, split-up,
spin-off or distribution to Company shareholders other than a normal cash
dividend), sale by the Company of all or a substantial portion of its assets,
rights offering, merger, consolidation, reorganization or partial or complete
liquidation, or any other corporate transaction or event having an effect
similar to any of the foregoing, the number of Restricted Shares subject to the
award granted hereunder shall be equitably and appropriately adjusted, as
determined by the Compensation Committee or the Company's Board of Directors in
its discretion. Any such adjustment made by the Compensation Committee or the
Company's Board of Directors shall be conclusive and binding upon the Grantee,
the Company and all other interested persons.
8. PAYMENT OF WITHHOLDING TAXES. If the Company becomes obligated to
withhold an amount of any federal, state or local tax imposed as a result of the
issuance of the Restricted Shares to the Grantee pursuant to this Agreement or
the vesting of Restricted Shares hereunder, including without limitation, any
federal, state or other income tax, or any F.I.C.A., state disability insurance
tax or other employment tax (the date upon which the Company becomes so
obligated shall be referred to herein as the "Withholding Date"), then the
Grantee shall pay such amount (the "Withholding Liability") to the Company on
the Withholding Date in cash or by check payable to the Company. The Grantee
hereby consents to the Company withholding the full amount of the Withholding
Liability from any compensation or other amounts otherwise payable to the
Grantee if the Grantee does not pay the Withholding Liability to the Company on
the Withholding Date, and the Grantee agrees that the withholding and payment of
any such amount by the Company to the relevant taxing authority shall constitute
full satisfaction of the Company's obligation to pay such compensation or other
amounts to the Grantee. The Grantee shall be entitled to elect to have the
Company withhold from any vested Restricted Shares to be delivered to the
Grantee a sufficient number of shares to satisfy the Withholding Liability.
9. STOCK CERTIFICATES. Upon the vesting of any part of the Restricted
Shares (and subject to payment by the Grantee of the Withholding Liability
pursuant to Section 8 hereof), the Company shall cause a stock certificate
covering the appropriate number of shares registered on the Company's books in
the name of the Grantee to be delivered to the Grantee. All Restricted Shares
which vest under this Agreement shall be fully paid and non-assessable.
10. VOTING, DIVIDENDS. The Grantee shall have all of the rights as a
stockholder (including the right to vote or receive dividends or distributions)
with respect to any Restricted Shares unless and until such Restricted Shares
are forfeited in accordance with the terms and provisions of this Agreement.
11. EMPLOYMENT RIGHTS. Nothing in this Agreement shall be deemed to confer
on the Grantee the right to continue in the employ of the Company or any of its
subsidiaries or affect the right of the Company to terminate the employment of
the Grantee at any time with or without cause.
12. NONTRANSFERABILITY. The rights of the Grantee with respect to the
Restricted Shares may not be assigned or transferred otherwise than by will or
the laws of descent and distribution.
13. IMPACT ON OTHER BENEFITS. The value of the Restricted Shares awarded
hereunder (either on the Date of Award or at the time of vesting) shall not be
includable as compensation or earnings for purposes of any other benefit plan
offered by the Company.
14. INTERPRETATION. This Agreement and the Restricted Shares awarded
hereunder are subject to all of the terms and provisions of the Plan. In the
event of any conflict or inconsistency between the terms and provisions of this
Agreement and the Plan, the terms and provisions of the Plan shall govern. The
Compensation Committee and/or the Company's Board of Directors shall have the
sole and complete authority and discretion to decide any questions concerning
the application, interpretation or scope of any of the terms and conditions of
this Agreement and the Plan, and its decisions shall be binding and conclusive
upon all interested parties.
15. AMENDMENT. This Agreement shall be subject to the terms of the Plan,
as amended, except that the award of Restricted Shares that is the subject of
this Agreement may not in any way be restricted or limited by any Plan amendment
or termination approved after the Date of Award without the Grantee's written
consent.
16. FORCE AND EFFECT. The various provisions of this Agreement are
severable in their entirety. Any determination of invalidity or unenforceability
of any one provision shall have no effect on the continuing force and effect of
the remaining provisions.
17. GOVERNING LAW. This Agreement shall be construed and enforced in
accordance with and governed by the laws of the State of Texas.
18. SUCCESSORS. This Agreement shall be binding upon and inure to the
benefit of the successors, assigns and heirs of the respective parties.
19. ENTIRE AGREEMENT. This Agreement contains the entire understanding of
the parties and shall not be modified or amended except by written instrument
duly signed by the parties. No waiver by either party of any default under this
Agreement shall be deemed a waiver of any later default.
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement
as of the Date of Award stated above.
RAILTEX, INC.
By:_______________________________________
Xxxxxx X. Xxxxxx
Vice President-Chief Financial
Officer
GRANTEE
_________________________________________
