Date of Grant: January 31, 1998
Grantee: Xxxxx X. Xxxxxx
Number of shares: 75,000
RESTRICTED STOCK GRANT AGREEMENT
UNDER THE XXXXXXXX'X, INC.
1997 STOCK-BASED INCENTIVE PLAN
XXXXXXXX'X, INC., a Tennessee corporation (the "Company"),
hereby grants to the person named above (the "Grantee") a
conditional grant (the "Grant") of the number of shares of common
stock of the Company listed above (the "Shares"), subject in all
respects to the terms of this agreement (the "Agreement") and the
Company's 1997 STOCK-BASED INCENTIVE PLAN (the "Plan"), which is
incorporated herein.
1. Restrictions and Return Provisions. The Shares shall be
subject to the following restrictions:
(a) Except as permitted in paragraph 5 of this
Agreement, neither this Xxxxx nor the Shares issued hereunder may
be sold, assigned, transferred, exchanged, pledged, hypothecated,
or otherwise encumbered prior to delivery of a certificate for
unrestricted Shares to the Grantee pursuant to paragraph 3 of this
Agreement.
(b) All rights of the Grantee to such restricted Shares
shall terminate without any payment by the Company to the Grantee,
if the Grantee voluntarily terminates employment with the Company,
or if the Company terminates the Grantee's employment for "cause,"
as defined in the Grantee's employment contract.
2. Lapsing of Restrictions. The Shares covered hereby shall
vest in the following ways:
(a) Restrictions shall lapse as a function of the
Company's achieving certain performance goals, as determined by the
Human Resources Committee of the Board of Directors (the
"Committee"). Shares shall be earned on the basis of achievement
of those goals for fiscal years 1998, 1999, and 2000. Those
performance goals, as currently formulated, are attached as an
addendum to this agreement. The Committee shall have the
unilateral authority to modify or change those goals and to
determine whether the goals have been achieved. In the exercise of
such discretion, the Committee may consider any matter relevant to
those performance goals, including but not limited to,
extraordinary gains or losses, mergers and acquisitions, changes in
accounting methods, and changes in company policies. Within 90
days after the end of each fiscal year, the Committee shall inform
the Grantee as to the number of Shares earned for that fiscal year.
The Committee's decision is conclusive and binding upon the
Grantee.
(b) With regard to Shares earned in accordance with
paragraph 2(a) ("Earned Shares"), 25% of such Earned Shares shall
immediately vest, and an additional 25% of such Earned Shares shall
vest at the end of each of the following three fiscal years.
(c) Upon a "Change in Control" as defined in the Plan,
all Shares shall immediately vest.
(d) Upon the Grantee's death or disability, all remaining
Earned Shares shall immediately vest.
(e) The Committee shall have the discretionary authority
to vest any and all Shares at any time.
(f) All Shares shall automatically vest ten (10) years
after the date of this Grant.
3. Certificates. The Grantee is entitled to a certificate
representing any Shares that become fully vested, and such a
certificate shall be issued at Grantee's request.
4. General Provisions.
(a) The Grantee acknowledges that the he or she shall
comply with this Agreement and applicable securities laws if he or
she decides to offer or dispose of any Shares. The Company may
require the Grantee to make any other representation and warranty
to the Company as may be appropriate or required by any law or
regulation.
(b) Nothing in this Agreement shall confer upon the
Grantee any right to continued employment with the Company. Any
such right must be found in a separate written employment contract.
5. Non-transferability of Grant. This Grant may not be
sold, assigned, transferred, exchanged, pledged, hypothecated, or
otherwise encumbered, other than by will or by the laws of descent
and distribution.
6. Withholding.
(a) Prior to the delivery of certificates representing
unrestricted Shares under paragraph 3, the Grantee shall remit to
the Company an amount sufficient to satisfy any federal, state or
local tax-withholding requirements. The Grantee may satisfy the
withholding requirement in whole or in part by electing to have the
Company withhold Shares having a value equal to the amount required
to be withheld. The value of the Shares to be withheld shall be
the fair market value, as determined by the Committee, of the stock
on the date that the amount of tax to be withheld is determined
(the "Tax Date"). Such election must be made prior to the Tax Date
and must comply with all applicable securities laws and other legal
requirements, as interpreted by the Committee.
(b) The Company reserves the right to make whatever
further arrangements it deems appropriate for the withholding of
any taxes in connection with any transaction contemplated by this
Agreement.
7. Adjustments in Shares. In the event of any change in the
outstanding common stock by reason of a stock dividend or
distribution, recapitalization, merger, consolidation, stock split,
combination of shares, exchange of shares, or the like, the
Committee shall make equitable adjustments to the Shares.
8. Tax Elections. The Grantee may make an election in
accordance with Section 83(b) of the Internal Revenue Code to
include in the Grantee's gross income the value of the Shares in
the year of this agreement.
9. Merger and Amendment. This Agreement supersedes any
other agreement, written or oral, between the parties with respect
to the subject matter hereof. This Agreement may only be amended
with the consent of the Committee and a written instrument executed
by the Company and the Grantee.
10. Grantee Acknowledgment. Xxxxxxx acknowledges receipt of
a copy of the Plan, and represents that he or she is familiar with
the terms and provisions thereof, and hereby accepts this Grant
subject to all the terms and provisions thereof. Grantee hereby
agrees to accept as binding the decisions and interpretations of
the Committee upon any question arising under this Agreement or the
Plan.
XXXXXXXX'X, INC.
By: ____________________________________
Its: Executive Vice President
____________________________________
Xxxxx X. Xxxxxx
Grantee
