Exhibit
(a)(1)(E)
AMENDED XXXXXXX EDUCATION, INC.
1996 STOCK
OPTION PLAN
RESTRICTED STOCK AGREEMENT
FOR EMPLOYEE
Xxxxxxx Education, Inc., a Maryland corporation (the
"Corporation"), hereby grants shares of its
common stock, $.01 par value (the "Stock") to
the Grantee named below, subject to the vesting conditions set forth in
the attachment. Additional terms and conditions of the grant are set
forth in this cover sheet, in the attachment and in the
Corporation's Amended 1996 Stock Option Plan (the
"Plan").
Grant
Date:____________________
Name of Grantee:
_____________
Number of Shares of Stock Covered by Grant:
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The restricted stock
will vest in its entirety on , the same
date as the eligible option exchanged would have vested; subject to
special provisions for Change of Control or termination of Service as
described in the attachment and Plan. |
By signing this cover
sheet, you agree to all of the terms and conditions described in the
attached Agreement and in the Plan, a copy of which is also attached.
IN PARTICULAR, YOU ACKNOWLEDGE THAT THIS RESTRICTED STOCK GRANT
CONSTITUTES CONSIDERATION FOR YOUR ACCEPTANCE OF THE NON-COMPETITION
PROVISIONS CONTAINED IN THE ATTACHED AGREEMENT. You acknowledge
that you have carefully reviewed the Plan, and agree that the Plan will
control in the event any provision of this Agreement should appear to
be inconsistent.
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| Grantee: |
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(Signature) |
| Corporation: |
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(Signature) |
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Title:
Chairman and Chief
Executive
Officer |
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Attachment
This is not a stock certificate or a negotiable
instrument.
AMENDED XXXXXXX EDUCATION, INC.
1996
STOCK OPTION PLAN
RESTRICTED STOCK
AGREEMENT
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Restricted
Stock/
Nontransferability |
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This grant is an award of
Stock in the number of shares set forth on the cover sheet subject to
the vesting conditions described below ("Restricted
Stock"). To the extent not yet vested, your Restricted
Stock may not be transferred, assigned, pledged or hypothecated,
whether by operation of law or otherwise, nor may the Restricted Stock
be made subject to execution, attachment or similar
process. |
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| Defined Terms |
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For purposes of this
Restricted Stock Agreement:"Service" means
service as an employee, officer, director or consultant to the
Corporation. A change in your position or duties shall not result in
interrupted or terminated Service, so long as such you continue to be
an employee, officer, director of or consultant to the
Corporation. |
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"Disability" means
the inability to perform the duties of one's position with the
Corporation by reason of a medically determined physical or mental
impairment which has existed for a continuous period of at least 26
weeks and which, in the judgment of a physician who certifies to such
judgment, is expected to be of indefinite duration or to result in
imminent death. |
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"Change in
Control" of the Corporation means the occurrence of any of
the following after the Grant Date: |
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(a) The
acquisition by any individual, entity or group (within the meaning of
Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act")) (a
"Person") of beneficial ownership (within the
meaning of Rule 13d-3 promulgated under the Exchange Act) of more than
50% of either: (i) the then-outstanding shares of the
Corporation's Stock ("Common Stock") or
(ii) the combined voting power of the then-outstanding voting
securities of the Corporation entitled to vote generally in the
election of directors ("Voting Stock");
provided, however, that for purposes of this subsection (a), the
following acquisitions shall not constitute a Change in Control: (1)
any acquisition directly from the Corporation, (2) any acquisition by
the Corporation, (3) any acquisition by any employee benefit plan (or
related trust) sponsored or maintained by the Corporation or any
subsidiary of the Corporation, or (4) any acquisition by any Person
pursuant to a transaction which complies with clauses (i), (ii) and
(iii) of subsection (c) of this section;
or |
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(b) Individuals who constitute the Board of the
Corporation as of the Grant Date (the "Incumbent
Board") cease for any reason (other than death or
disability) 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
Corporation's shareholders, was approved by a vote of at least a
majority of the directors then comprising the Incumbent Board (either
by a specific vote or by approval of the proxy statement of the
corporation in which such person is named as a nominee for director,
without objection to such nomination) shall be considered as
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though such individual were a member of the
Incumbent Board, but excluding for this purpose any such individual
whose initial assumption of office occurs as a result of an actual or
threatened election contest (within the meaning of Rule 14a-11 of the
Exchange Act) with respect to the election or removal of directors or
other actual or threatened solicitation of proxies or consents by or on
behalf of a Person other than the Board or any of the Investors;
or |
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(c) Consummation of a reorganization, merger or
consolidation or sale or other disposition of all or substantially all
of the assets of the Corporation with or to any Person other than a
person under the control of one or more of the Investors (a
"Business Combination"), in each case,
unless, following such Business Combination, (i) all or substantially
all of the individuals and entities who were the beneficial owners,
respectively, of the Common Stock and Voting Stock of the Corporation
immediately prior to such Business Combination beneficially own,
directly or indirectly, more than 50% of, respectively, the
then-outstanding shares of common stock and the combined voting power
of the then-outstanding voting securities entitled to vote generally in
the election of directors, as the case may be, of the entity resulting
from such Business Combination (including, without limitation, an
entity which as a result of such transaction owns the Corporation or
all or substantially all of the Corporation's assets either
directly or through one or more subsidiaries) in substantially the same
proportions relative to each other as their ownership, immediately
prior to such Business Combination, of the Common Stock and Voting
Stock of the Corporation, as the case may be, (ii) no Person (excluding
any entity resulting from such Business Combination or any employee
benefit plan (or related trust) sponsored or maintained by the
Corporation or such entity resulting from such Business Combination)
beneficially owns, directly or indirectly, more than 50% of,
respectively, the then-outstanding shares of common stock of the entity
resulting from such Business Combination, or the combined voting power
of the then-outstanding voting securities of such corporation except to
the extent that such ownership existed prior to the Business
Combination and (iii) at least a majority of the members of the board
of directors of the corporation 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;
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(d) Approval by the shareholders of the Corporation
of a complete liquidation or dissolution of the
Corporation. |
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| Issuance and Vesting |
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The
Corporation will issue your Restricted Stock in your name as of the
Xxxxx Date. |
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Your right to the Stock under this Restricted
Stock Agreement vests as to the total number of shares of Restricted
Stock covered by this Agreement, as shown on the cover sheet, on the
same date as the eligible option exchanged would have
vested. |
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Notwithstanding the vesting schedule in the
preceding paragraph, the shares of Restricted Stock shall become fully
vested upon the |
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occurrence of a Change in Control of the
Corporation or upon your death or Disability. |
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If any of the
shares of Restricted Stock would otherwise become vested during a
period in which you are (i) subject to a Corporation lock-up agreement
restricting your ability to sell shares of Stock in the open market or
(ii) restricted from selling shares of Stock in the open market because
you are not then eligible to sell under the Corporation's xxxxxxx
xxxxxxx or similar plan as then in effect (whether because a trading
window is not open or you are otherwise restricted from trading),
vesting in such shares of Stock will be delayed until the first date on
which you are no longer prohibited from selling shares of Stock due to
such lock-up agreement or xxxxxxx xxxxxxx plan restriction. No
additional shares of Restricted Stock will vest after your Service has
terminated for any reason other than death or
Disability. |
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| Forfeiture of Unvested Stock |
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In the
event that your Service terminates for any reason other than death or
Disability, you will forfeit to the Corporation all of the shares of
Stock subject to this grant that have not yet vested. |
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| Death
or Disability |
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If your Service terminates because of your
death, then your shares of Restricted Stock will immediately become
fully vested. If your Service terminates because of your Disability,
then your shares of Restricted Stock will immediately become fully
vested, |
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| Escrow |
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The certificates for the
Restricted Stock shall be deposited in escrow with the Secretary of the
Corporation to be held in accordance with the provisions of this
paragraph. Each deposited certificate shall be accompanied by a duly
executed Assignment Separate from Certificate in the form attached
hereto as Exhibit A. The deposited certificates shall remain
in escrow until such time or times as the certificates are to be
released or otherwise surrendered for cancellation as discussed below.
Upon delivery of the certificates to the Corporation, you shall be
issued an instrument of deposit acknowledging the number of shares of
Stock delivered in escrow to the Secretary of the
Corporation. |
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All regular cash dividends on the Stock (or
other securities at the time held in escrow) shall be paid directly to
you and shall not be held in escrow. However, in the event of any stock
dividend, stock split, recapitalization or other change affecting the
Corporation's outstanding common stock as a class effected
without receipt of consideration or in the event of a stock split, a
stock dividend or a similar change in the Corporation Stock, any new,
substituted or additional securities or other property which is by
reason of such transaction distributed with respect to the Stock shall
be immediately delivered to the Secretary of the Corporation to be held
in escrow hereunder, but only to the extent the Stock is at the time
subject to the escrow requirements hereof. |
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The shares of
Stock held in escrow hereunder shall be subject to the following terms
and conditions relating to their release from escrow or their surrender
to the Corporation for cancellation: |
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If your interest in the shares vests as
described above, the certificates for such vested shares shall be
released from escrow and delivered to you, at your request, in
accordance with the following
schedule: |
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The release of any
vested shares (or other vested assets and securities) from escrow shall
be effected within thirty (30) days following the date on which such
shares first become vested. |
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| Withholding
Taxes |
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You agree, as a condition of this grant, that you
will make acceptable arrangements to pay any withholding or other taxes
that may be due as a result of the vesting of Stock acquired under this
grant. In the event that the Corporation determines that any federal,
state, local or foreign tax or withholding payment is required relating
to the vesting of shares arising from this grant, the Corporation shall
have the right to require such payments from you, or withhold such
amounts from other payments due to you from the Corporation or any
Affiliate. |
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| Section 83(b) Election |
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Under Section
83 of the Internal Revenue Code of 1986, as amended (the
"Code"), the difference between the purchase
price (if any) paid for the shares of Stock and their fair market value
on the date any forfeiture restrictions applicable to such shares lapse
will be reportable as ordinary income at that time. For this purpose,
"forfeiture restrictions" include the
forfeiture as to unvested Stock described above. You may elect to be
taxed at the time the shares are acquired, rather than when such shares
cease to be subject to such forfeiture restrictions, by filing an
election under Section 83(b) of the Code with the Internal Revenue
Service within thirty (30) days after the Grant Date. You will have to
make a tax payment to the extent the purchase price is less than the
fair market value of the shares on the Grant Date. No tax payment will
have to be made to the extent the purchase price is at least equal to
the fair market value of the shares on the Grant Date. The form for
making this election is attached as Exhibit B hereto. Failure
to make this filing within the thirty (30) day period will result in
the recognition of ordinary income by you (in the event the fair market
value of the shares as of the vesting date exceeds the purchase price)
as the forfeiture restrictions lapse. |
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YOU ACKNOWLEDGE
THAT IT IS YOUR SOLE RESPONSIBILITY, AND NOT THE CORPORATION'S,
TO DETERMINE WHETHER OR NOT TO MAKE A FILING, AND IF YOU DETERMINE TO
MAKE SUCH A FILING, TO FILE A TIMELY ELECTION UNDER SECTION 83(b), EVEN
IF YOU REQUEST THE CORPORATION OR ITS REPRESENTATIVES TO MAKE THIS
FILING ON YOUR BEHALF. YOU ARE RELYING SOLELY ON YOUR OWN ADVISORS WITH
RESPECT TO THE DECISION AS TO WHETHER OR NOT TO FILE ANY 83(b)
ELECTION. |
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| Non-Competition |
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During the period
you are providing Services to the Corporation and for a period of one
year thereafter, you shall not take actions in competition with the
Corporation in any state or similar jurisdiction in which the
Corporation conducts a material amount of its business. Unless
otherwise specified in an employment or other agreement |
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between the Corporation and you, you take
actions in competition with the Corporation if
you: |
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Fail to keep strictly
confidential all confidential business information disclosed by the
Corporation to you, or which is obtained by you or otherwise disclosed
to you in connection with performing Services for the Corporation, or
use any such confidential information for any purpose other than
performing Services for the Corporation; provided, however, that the
foregoing shall not apply to information which (1) at the time of
disclosure to you is already a matter of public knowledge, (2) after
disclosure to you becomes a matter of public knowledge, except by your
breach of this provision , (3) was already in your possession at the
time of disclosure and does not solely constitute specific and detailed
information regarding the Corporation (it being acknowledged that you
possessed extensive industry experience and general knowledge of the
education sector prior to joining the Corporation); or (4) which is
required to be disclosed by law or
regulation; |
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Enter into any
employment, consulting or similar relationships with third parties
which will result in a direct and material conflict of interest with
the Corporation's
business; |
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Act in any managerial
capacity for or acquire an ownership interest in (except a minority
interest of 5% or less acquired for investment purposes in a
company whose stock is traded on a public exchange) any person or
entity that is a direct and material competitor of the
Corporation; |
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Without the
written consent of the Corporation, solicit or direct anyone else to
solicit any officer or key employee of the Corporation (y) to terminate
his or her employment or other relationship with the Corporation or (z)
to seek or accept employment with you or any third party; provided that
the foregoing shall exclude actions which are the result of persons
responding to general advertisements and do not involve any
solicitation on your part. |
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You acknowledge and agree that
any material breach by you of any of the provisions of this Section
(the "Restrictive Covenants") would
result in irreparable injury and damage for which money damages would
not provide an adequate remedy. Therefore, if you materially breach, or
threaten to materially breach, any of the Restrictive Covenants, the
Corporation and its affiliates shall have the right to have the
Restrictive Covenants specifically enforced (without posting bond and
without the need to prove damages) by any court having equity
jurisdiction, including, without limitation, the right to an entry
against you of restraining orders and injunctions (preliminary,
mandatory, temporary and permanent) against violations, threatened or
actual, and whether or not then continuing, of such covenants. This
right and remedy shall be in addition to, and not in lieu of, any other
rights and remedies available to the Corporation and its affiliates
under law or in equity (including, without limitation, the recovery of
damages). In addition, in the event of such a material breach of the
Restrictive Covenants the Corporation shall have the right to cause a
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forfeiture of your Restricted Stock Agreement
and the value of any shares of Restricted Stock that vested in the
twelve (12) months prior to your material breach. |
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| Retention
Rights |
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This Agreement does not give you the right to be
retained by the Corporation (or any Parent, Subsidiaries or Affiliates)
in any capacity. The Corporation (and any Parent, Subsidiaries or
Affiliates) reserve the right to terminate your Service at any time and
for any reason. |
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| Shareholder Rights |
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You have the
right to vote the Restricted Stock and to receive any cash dividends
declared or paid on such stock. Any stock distributions you receive as
a result of any stock split, stock dividend, combination of shares or
other similar transaction shall be deemed to be a part of the
Restricted Stock and subject to the same conditions and restrictions
applicable thereto. Except as described in the Plan, no adjustments are
made for dividends or other rights if the applicable record date occurs
before your stock certificate is
issued. |
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| Adjustments |
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In the event of a stock
split, a stock dividend or a similar change in the Corporation stock,
the number of shares covered by this grant may be adjusted (and rounded
down to the nearest whole number) pursuant to the Plan. Your Restricted
Stock shall be subject to the terms of the agreement of merger,
liquidation or reorganization in the event the Corporation is subject
to such corporate activity. |
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| Legends |
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All
certificates representing the Stock issued in connection with this
grant shall, where applicable, have endorsed thereon the following
legends: |
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"THE SHARES REPRESENTED BY
THIS CERTIFICATE ARE SUBJECT TO CERTAIN RESTRICTIONS ON TRANSFER SET
FORTH IN AN AGREEMENT BETWEEN THE CORPORATION AND THE REGISTERED
HOLDER, OR HIS OR HER PREDECESSOR IN INTEREST. A COPY OF SUCH AGREEMENT
IS ON FILE AT THE PRINCIPAL OFFICE OF THE CORPORATION AND WILL BE
FURNISHED UPON WRITTEN REQUEST TO THE SECRETARY OF THE CORPORATION BY
THE HOLDER OF RECORD OF THE SHARES REPRESENTED BY THIS
CERTIFICATE." |
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| Applicable Law |
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This
Agreement will be interpreted and enforced under the laws of the State
of Maryland, other than any conflicts or choice of law rule or
principle that might otherwise refer construction or interpretation of
this Agreement to the substantive law of another
jurisdiction. |
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| The Plan |
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The text of the Plan is
incorporated in this Agreement by reference. Certain capitalized
terms used in this Agreement are defined in the Plan, and have the
meaning set forth in the Plan. |
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This Agreement and the
Plan constitute the entire understanding between you and the
Corporation regarding this grant of Restricted Stock. Any prior
agreements, commitments or negotiations concerning this grant are
superseded. |
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| Consent to Electronic Delivery |
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The Corporation may choose to deliver certain informational
materials relating to the Plan in electronic form. By accepting this
option grant you agree that the Corporation may deliver the Plan
prospectus and the Corporation's annual report to you in an
electronic format. If at any time you would prefer to receive paper
copies of these documents, as you are entitled to, the Corporation
would be pleased to provide copies. Please contact the General Counsel
of the Corporation to request paper copies of these
documents. |
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By signing the cover sheet of
this Agreement, you agree to all of the terms and conditions described
above and in the Plan.
ASSIGNMENT
SEPARATE FROM CERTIFICATE
FOR VALUE RECEIVED,
_____________hereby
assigns and transfers unto Xxxxxxx Education, Inc., a Maryland
corporation (the "Corporation"),
____________(__________)
shares of common stock of the Corporation represented by Certificate
No. ___ herewith and does hereby irrevocably
constitute and appoint
_______________________
as Attorney to transfer the said stock on the books of the Corporation
with full power of substitution in the premises.
Dated:____________,
______
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__________________________________
Print
Name |
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__________________________________
Signature |
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Spouse
Consent (if applicable)
___________________
(Purchaser's spouse) indicates by the execution of this
Assignment his or her consent to be bound by the terms herein as to his
or her interests, whether as community property or otherwise, if any,
in the shares of common stock of the Corporation.
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__________________________________
Signature |
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INSTRUCTIONS: PLEASE DO NOT FILL IN
ANY BLANKS OTHER THAN THE SIGNATURE LINE. THE PURPOSE OF THIS
ASSIGNMENT IS TO ENABLE THE CORPORATION TO CANCEL YOUR UNVESTED SHARES
AS SET FORTH IN THE AGREEMENT WITHOUT REQUIRING ADDITIONAL SIGNATURES
ON THE PART OF PURCHASER.
EXHIBIT B
ELECTION UNDER
SECTION 83(b) OF
THE INTERNAL REVENUE CODE
The undersigned hereby makes an election pursuant to
Section 83(b) of the Internal Revenue Code with respect to the property
described below and supplies the following information in accordance
with the regulations promulgated thereunder:
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The name, address and social security
number of the undersigned: |
Name: ____________________________________________________
Address: __________________________________________________
__________________________________________________________
Social
Security No.: __________________________________________
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Description of property with
respect to which the election is being made: |
_________
shares of common stock. Xxxxxxx Education, Inc., a Maryland
corporation, (the "Corporation").
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| 3. |
The date on which the property was
transferred is
______________,
2005. |
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| 4. |
The taxable year to which
this election relates is calendar year 2005. |
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| 5. |
Nature of restrictions to which the
property is subject: |
The shares of stock are subject to the
provisions of a Restricted Stock Agreement between the undersigned and
the Corporation. The shares of stock are subject to forfeiture under
the terms of the Agreement.
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| 6. |
The
fair market value of the property at the time of transfer (determined
without regard to any lapse restriction) was
$__________
per share, for a total of
$__________. |
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| 7. |
The amount paid by taxpayer for the
property was
$__________. |
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| 8. |
A copy of this statement has been
furnished to the Corporation. |
Dated:
_____________,
2005
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__________________________________
Taxpayer's
Signature |
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__________________________________
Taxpayer's
Printed Name |
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PROCEDURES FOR MAKING ELECTION
UNDER INTERNAL REVENUE CODE SECTION
83(b)
The following procedures must be followed
with respect to the attached form for making an election under Internal
Revenue Code section 83(b) in order for the election to be
effective:1
1. You must file one copy of the completed election form
with the IRS Service Center where you file your federal income tax
returns within 30 days after the Grant Date of your Restricted
Stock.
2. At the same time you file the election form with
the IRS, you must also give a copy of the election form to the
Secretary of the Corporation.
3. You must file another
copy of the election form with your federal income tax return
(generally, Form 1040) for the taxable year in which the stock
is transferred to you.
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| 1. |
Whether
or not to make the election is your decision and may create tax
consequences for you. You are advised to consult your tax advisor if
you are unsure whether or not to make the
election. |
