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EXHIBIT 10.40
XXXXXXX CORPORATION
RESTRICTED STOCK AGREEMENT
This Restricted Stock Agreement (the "Agreement") is entered
into as of the 17th day of December, 1998, by and between XXXXXXX CORPORATION
(the "Company") and [NAME] ("Employee").
W I T N E S S E T H:
WHEREAS, the Company has adopted the Xxxxxxx Corporation 1994
Stock Incentive Plan (the "Plan") which is administered by a Committee
appointed by the Company's Board of Directors (the "Committee"); and
WHEREAS, the Committee has granted to Employee an award of
restricted stock under the terms of the Plan to encourage continued loyalty and
diligence (the "Award"); and
WHEREAS, to comply with the terms of the Plan and to further
the interests of the Company and Employee, the parties hereto have set forth
the terms of such award in writing in the Agreement;
NOW, THEREFORE, for and in consideration of the mutual
promises herein contained, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties agree as
follows:
1. STOCK AWARD.
a) GENERAL. Subject to the restrictions and other
conditions set forth herein, the Company hereby grants to Employee an award of #
shares of the no par value common stock of the Company. Such shares are
hereinafter referred to as the "Restricted Shares."
b) BACKGROUND. The Restricted Shares were awarded to
Employee on December 15, 1998 (the "Grant Date").
2. VESTING RESTRICTIONS.
a) GENERAL. The Restricted Shares will vest either upon
attainment of the performance criteria described in subsection (b), upon
Employee's satisfaction of the tenure of employment condition set forth in
subsection (c), or upon a change in control of the Company as set forth in
subsection (d).
b) PERFORMANCE CRITERIA. The Restricted Shares will
vest immediately if both of the following performance criteria are satisfied in
any fiscal year of the Company ending on or before November 5, 2001:
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i) the Company has revenues of at least $2 billion; and
ii) the Company has attained either (A) $100 million in
pretax profits or (B) $2.25 reported earnings per
share.
The determination of whether such performance criteria have been
satisfied shall be made by the Compensation Committee acting in good faith, and
such determination shall be binding on the Employee.
c) TENURE OF EMPLOYMENT. If Employee remains
continuously employed by the Company or any of its subsidiaries until December
31, 2007 (that is, for at least 9 years from the Grant Date), any of the
Restricted Shares that have not yet vested will do so on said date, and Employee
thereupon will become vested in all such Restricted Shares.
d) CHANGE IN CONTROL. Upon the date of a Change in
Control (as defined below), any of the Restricted Shares that have not yet
vested will do so on such date. A "Change in Control" shall include (A)
consummation of a merger, consolidation or other business combination of the
Company, other than a merger, consolidation or business combination which would
result in the outstanding common stock of the Company immediately prior thereto
continuing to represent (either by remaining outstanding or by being converted
into common stock of the surviving entity or a parent or affiliate thereof) at
least 50% of the outstanding common stock of the Company or such surviving
entity (or parent or affiliate thereof) outstanding immediately after such
merger, consolidation or business combination, or (B) approval of a plan of
complete liquidation of the Company or an agreement for the sale or disposition
by the Company of all or substantially all of the Company's assets. In addition,
a Change in Control shall also be deemed to occur if, on or before November 5,
2001, any person (as such term is used in Sections 13(d) and 14(d) of the
Securities Exchange Act of 1934 (the "Exchange Act")) other than Xxx X. Xxxxxxx
and his affiliates becomes the beneficial owner (within the meaning of Rule
13d-3 under the Exchange Act) of securities of the Company representing 30% or
more of the Company's then-outstanding voting securities, provided that the
Restricted Shares shall vest only if following such event either (i) the Company
involuntarily terminates the Employee's employment, or (ii) the performance
criteria described in subsection (b) become unattainable as a result of actions
taken by such person acquiring such beneficial ownership of the Company's
securities.
3. FORFEITURE UPON TERMINATION OF EMPLOYMENT. If Employee's
employment with the Company and all of its subsidiaries terminates for any
reason, any Restricted Shares that are not then vested under Section 2 shall be
immediately forfeited, and Employee shall have no rights in such Restricted
Shares.
4. DELIVERY OF STOCK CERTIFICATE. The certificate representing
the Restricted Shares shall be held in escrow by the Company during the period
that such shares have not vested under Section 2. Within a reasonable time after
the Restricted Shares become vested, the Company shall deliver a stock
certificate representing such vested Restricted Shares in the name of Employee.
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5. AGREEMENT OF EMPLOYEE. Employee acknowledges that certain
restrictions under state or federal securities laws may apply with respect to
the Restricted Shares granted to him pursuant to the Award. Specifically,
Employee acknowledges that, to the extent he is an "affiliate" of the Company
(as that term is defined by the Securities Act of 1933), the Restricted Shares
granted to him as a result of the Award are subject to certain trading
restrictions under applicable securities laws (including particularly the
Securities and Exchange Commission's Rule 144). Employee hereby agrees to
execute such documents and take such actions as the Company may reasonably
require with respect to state and federal securities laws and any restrictions
on the resale of such shares which may pertain under such laws.
6. EXECUTION OF AGREEMENT. Employee shall execute this Agreement
within 30 days after receipt of same, or the Agreement and the Award shall be
null and void ab initio.
7. WITHHOLDING. Employee shall pay an amount equal to the amount
of all applicable federal, state and local employment taxes which the Company is
required to withhold at any time. Such payment may be made in cash, by
withholding from Employees' normal pay, or by delivery of shares of the
Company's common stock (including shares then vesting under this Agreement).
8. PLAN PROVISIONS. In addition to the terms and conditions set
forth herein, the Award is subject to and governed by the terms and conditions
set forth in the Plan, which is hereby incorporated by reference. Any terms used
herein with an initial capital letter shall have the same meaning as provided in
the Plan, unless otherwise specified herein. In the event of any conflict
between the provisions of the Agreement and the Plan, the Plan shall control.
9. MISCELLANEOUS.
a) LIMITATION OF RIGHTS. The granting of the Award and
the execution of the Agreement shall not give Employee any rights to similar
grants in future years or any right to be retained in the employ or service of
the Company or any of its subsidiaries or to interfere in any way with the right
of the Company or any such Subsidiary to terminate Employee's employment or
services at any time or the right of Employee to terminate his employment at any
time.
b) SHAREHOLDER RIGHTS. During the period that any shares
of Restricted Stock remain unvested and subject to forfeiture under Section 3,
the Employee shall retain all rights of a shareholder of the Company with
respect to such shares, including the right to vote such shares and the right to
receive dividends paid in respect of such shares.
c) SEVERABILITY. If any term, provision, covenant or
restriction contained in the Agreement is held by a court or a federal
regulatory agency of competent jurisdiction to be invalid, void or
unenforceable, the remainder of the terms, provisions, covenants and
restrictions contained in the Agreement shall remain in full force and effect,
and shall in no way be affected, impaired or invalidated.
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d) CONTROLLING LAW. The Agreement is being made in
Georgia and shall be construed and enforced in accordance with the laws of that
state.
e) CONSTRUCTION. The Agreement contains the entire
understanding between the parties and supersedes any prior understanding and
agreements between them representing the subject matter hereof. There are no
representations, agreements, arrangements or understandings, oral or written,
between and among the parties hereto relating to the subject matter hereof which
are not fully expressed herein.
f) AMENDMENT. Any amendment to this Agreement must be in
writing and signed by both the Company and the Employee.
g) HEADINGS. Section and other headings contained in the
Agreement are for reference purposes only and are in no way intended to
describe, interpret, define or limit the scope, extent or intent of the
Agreement or any provision hereof.
IN WITNESS WHEREOF, the parties hereto have executed the
Agreement as of day and year first set forth above.
XXXXXXX CORPORATION
By:
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Title:
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EMPLOYEE
[NAME]
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