Exhibit 10.36
QUALITY DISTRIBUTION, INC.
2003 RESTRICTED STOCK INCENTIVE PLAN
RESTRICTED STOCK AWARD AGREEMENT
THIS RESTRICTED STOCK AWARD AGREEMENT (this "Agreement") is dated as of
[_______] [_], 2003, between Quality Distribution, Inc., a Florida corporation
(the "Corporation") and [___________] (the "Employee").
W I T N E S S E T H
WHEREAS, pursuant to the Quality Distribution, Inc. 2003 Restricted Stock
Incentive Plan, as amended, restated, supplemented or otherwise modified from
time-to-time (the "Plan"), the Corporation has granted to the Employee effective
as of the date hereof (the "Award Date"), a right to participate in the Plan,
upon the terms and conditions set forth herein and in the Plan.
NOW THEREFORE, in consideration of services rendered and to be rendered by
the Employee, and the mutual promises made herein and the mutual benefits to be
derived therefrom, the parties agree as follows:
1. Defined Terms. Capitalized terms used herein and not otherwise defined
herein shall have the meaning assigned to such terms in the Plan.
2. Restricted Stock Awards.
(a) Subject to the terms of this Agreement, the Corporation grants to
the Employee an aggregate of [____] shares of Common Stock (the "Initial
Restricted Stock Award") on the date hereof, at a per share price equal to the
purchase price of one share of Common Stock in the Corporation's initial public
offering of its Common Stock.
(b) At the sole discretion of the Administrator, the Corporation may
grant to the Employee additional shares of Common Stock (each such grant, a
"Future Restricted Stock Award", and together with the Initial Restricted Stock
Award, the "Restricted Stock Awards") on any Restricted Stock Award Date. Each
Future Restricted Stock Award shall be granted at a per share price equal to the
Fair Market Value of one share of Common Stock on the applicable Restricted
Stock Award Date.
3. Vesting. Unless accelerated in the sole discretion of the
Administrator and subject to Section 8 below, Restricted Stock Awards granted
under the Plan will vest fully as of December 31, 2008, and are subject to the
following vesting schedule:
(a) 20% of the Initial Restricted Stock Award shall vest on December
31 of each year (each such December 31 being referred to as a "Vesting Date"),
beginning on December 31, 2004 and ending on December 31, 2008;
(b) 25% of all Future Restricted Stock Awards, if any, granted
between April 1, 2004 and March 31, 2005, inclusive, shall vest on each Vesting
Date, beginning on December 31, 2005 and ending on December 31, 2008;
(c) 1/3 of all Future Restricted Stock Awards, if any, granted
between April 1, 2005 and March 31, 2006, inclusive, shall vest on each Vesting
Date, beginning on December 31, 2006 and ending on December 31, 2008;
(d) 50% of all Future Restricted Stock Awards, if any, granted
between April 1, 2006 and March 31, 2007, inclusive, shall vest on each Vesting
Date, beginning on December 31, 2007 and ending on December 31, 2008; and
(e) 100% of all Future Restricted Stock Awards, if any, granted
between April 1, 2007 and March 31, 2008, inclusive, shall vest on December 31,
2008.
4. Continuance of Employment. The vesting of Restricted Stock Awards
requires continued employment or service of the Employee with the Corporation or
an entity within the Company through and including each applicable Vesting Date
as a condition to the vesting of the applicable installment of the Restricted
Stock Award and the rights and benefits under this Agreement. Partial employment
or service, even if substantial, during any vesting period will not entitle the
Employee to any proportionate vesting or avoid or mitigate a termination of
rights and benefits upon or following a termination of employment or services as
provided in Section 8 below or under the Plan.
Nothing contained in this Agreement or the Plan constitutes an
employment or service commitment by the Corporation or an entity within the
Company, affects the Employee's status as an employee at will who is subject to
termination without cause, confers upon the Employee any right to remain
employed by the Corporation or an entity within the Company, interferes in any
way with the right of the Corporation or an entity within the Company at any
time to terminate such employment, or affects the right of the Corporation or an
entity within the Company to increase or decrease the Employee's other
compensation or benefits.
Nothing in this paragraph is intended to adversely affect any
independent contractual right of the Employee without his or her consent
thereto.
5. Dividend and Voting Rights. After the Award Date, the Employee shall
be entitled to cash dividends and voting rights with respect to those shares of
Common Stock subject to the Restricted Stock Award even though such shares are
not vested, provided that such rights shall terminate immediately as to any
shares of Common Stock that cease to be eligible for vesting.
6. Restrictions on Transfer. Prior to the time that they have become
vested, neither the shares of Common Stock, nor any interest therein, amount
payable in respect thereof, or Restricted Property (as defined in Section 9
hereof) may be sold, assigned, transferred, pledged or otherwise disposed of,
alienated or encumbered, either voluntarily or involuntarily. The transfer
restrictions in the preceding sentence shall not apply to (a) transfers to the
Corporation, or (b) transfers by will or the laws of descent and distribution.
7. Stock Certificates.
2
(a) Book Entry Form. The Corporation shall issue the shares of Common
Stock subject to the Award in book entry form, registered in the name of the
Employee with notations regarding applicable restrictions on transfer.
(b) Certificates to be Held by Corporation; Legend. Any certificates
representing Common Stock that may be delivered to the Employee by the
Corporation prior to vesting shall be redelivered to the Corporation to be held
by the Corporation until the restrictions on such shares shall have lapsed and
the shares shall thereby have become vested or the shares represented thereby
have been forfeited hereunder. Such certificates shall bear the following
legend:
"THE OWNERSHIP OF THIS CERTIFICATE AND THE SHARES OF STOCK EVIDENCED HEREBY
AND ANY INTEREST THEREIN ARE SUBJECT TO SUBSTANTIAL RESTRICTIONS ON
TRANSFER UNDER AN AGREEMENT ENTERED INTO BETWEEN THE REGISTERED OWNER AND
QUALITY DISTRIBUTION, INC. A COPY OF SUCH AGREEMENT IS ON FILE IN THE
OFFICE OF THE SECRETARY OF QUALITY DISTRIBUTION, INC."
(c) Delivery of Certificates Upon Vesting. Promptly after the lapse
or other release of restrictions, the Corporation shall either remove the
notations on any shares of Common Stock as to which the restrictions have lapsed
or been released (or such lesser number of shares as may be permitted pursuant
to Section 8.5 of the Plan) and that have been issued in book entry form or the
Corporation shall deliver to the Employee (or other person entitled under the
Plan to receive the shares) a certificate or certificates evidencing the number
of shares of Common Stock as to which the restrictions have lapsed or been
released (or such lesser number as may be permitted pursuant to Section 8.5 of
the Plan). The Employee or such other person shall deliver to the Corporation
any representations or other documents or assurances required pursuant to
Section 8.1 of the Plan. The shares so delivered shall no longer be restricted
shares hereunder.
(d) Stock Power; Power of Attorney. Concurrent with the execution and
delivery of this Agreement, the Employee shall deliver to the Corporation an
executed stock power in the form attached hereto as Exhibit A, in blank, with
respect to such shares. The Employee, by acceptance of the Restricted Stock
Award, shall be deemed to appoint, and does so appoint by execution of this
Agreement, the Corporation and each of its authorized representatives as the
Employee's attorney(s)-in-fact to effect any transfer of unvested forfeited
shares (or shares otherwise reacquired by the Corporation hereunder) to the
Corporation as may be required pursuant to the Plan or this Agreement and to
execute such documents as the Corporation or such representatives deem necessary
or advisable in connection with any such transfer.
8. Effect of Termination of Employment.
(a) Forfeiture after Certain Events. Except as provided in Section
7.2 of the Plan and Section 9 hereof, the Employee's shares of Common Stock
shall be forfeited to the extent such shares have not become vested upon the
date the Employee is no longer employed by the Corporation or an entity within
the Company for any reason, whether with or without Cause,
3
voluntarily or involuntarily. If an entity ceases to be a Subsidiary, such
action shall be deemed to be a termination of employment of all employees of
that entity, but the Administrator, in its sole and absolute discretion, may
make provision in such circumstances for accelerated vesting of some or all of
the remaining restricted shares under any Restricted Stock Awards held by such
employees, effective immediately prior to such event.
(b) Return of Shares. Upon the occurrence of any forfeiture of shares
of Common Stock hereunder, such unvested, forfeited shares shall, without
payment of any consideration by the Corporation for such transfer, be
automatically transferred to the Corporation, without any other action by the
Employee, or the Employee's Beneficiary or Personal Representative, as the case
may be. The Corporation may exercise its powers under Section 7(a) hereof and
take any other action necessary or advisable to evidence such transfer. The
Employee, or the Employee's Beneficiary or Personal Representative, as the case
may be, shall deliver any additional documents of transfer that the Corporation
may request to confirm the transfer of such unvested, forfeited shares to the
Corporation.
9. Adjustments Upon Specified Events. Upon the occurrence of certain
events relating to the Corporation's stock contemplated by Section 7.1 of the
Plan, the Administrator shall make adjustments if appropriate in the number and
kind of securities that may become vested under a Restricted Stock Award. If any
adjustment shall be made under Section 7.1 of the Plan or a Change in Control
Event shall occur and the shares of Restricted Stock are not fully vested upon
such Change in Control Event or prior thereto, the restrictions applicable to
such shares of Common Stock shall continue in effect with respect to any
consideration or other securities (the "Restricted Property" and, for the
purposes of this Agreement, "Common Stock" shall include "Restricted Property",
unless the content otherwise requires) received in respect of such Common Stock.
Such Restricted Property shall vest at such times and in such proportion as the
shares of Common Stock to which the Restricted Property is attributable vest, or
would have vested pursuant to the terms hereof if such shares of Common Stock
had remained outstanding. To the extent that the Restricted Property includes
any cash (other than regular cash dividends provided for in Section 5 hereof),
such cash shall be invested, pursuant to policies established by the
Administrator, in interest bearing, FDIC-insured (subject to applicable
insurance limits) deposits of a depository institution selected by the
Administrator, the earnings on which shall be added to and become a part of the
Restricted Property.
10. Tax Withholding. The Corporation (or the entity within the Company
last employing the Employee) shall be entitled to require a cash payment by or
on behalf of the Employee and/or to deduct from other compensation payable to
the Employee any sums required by federal, state or local tax law to be withheld
with respect to the vesting of any Common Stock. Alternatively, the Employee or
other person in whom the Common Stock vests may irrevocably elect, in such
manner and at such time or times prior to any applicable tax date as may be
permitted or required under Section 8.5 of the Plan and rules established by the
Administrator, to have the Corporation (or the entity within the Company last
employing the Employee) withhold and reacquire shares of Common Stock at their
Fair Market Value at the time of vesting to satisfy any withholding obligations
of the Company with respect to such vesting. Any election to have shares so held
back and reacquired shall be subject to such rules and procedures, which may
include prior approval of the Administrator, as the Administrator
4
may impose, and shall not be available if the Employee makes or has made an
election pursuant to Section 83(b) of the Code with respect to a Restricted
Stock Award.
11. Notices. Any notice to be given under the terms of this Agreement
shall be in writing and addressed to the Corporation at its principal office
located at 0000 Xxxxxxxx Xxxx Xxxxx, Xxxxx Xxxxxxx 00000 to the attention of the
Corporate Secretary and to the Employee at the address given beneath the
Employee's signature hereto, or at such other address as either party may
hereafter designate in writing to the other.
12. Plan. The Restricted Stock Award and all rights of the Employee with
respect thereto are subject to, and the Employee agrees to be bound by, all of
the terms and conditions of the provisions of the Plan, incorporated herein by
reference, to the extent such provisions are applicable to Restricted Stock
Awards granted to Eligible Employees. The Employee acknowledges receipt of a
copy of the Plan, which is made a part hereof by this reference, and agrees to
be bound by the terms thereof. Unless otherwise expressly provided in other
Sections of this Agreement, provisions of the Plan that confer discretionary
authority on the Administrator do not (and shall not be deemed to) create any
rights in the Employee unless such rights are expressly set forth herein or are
otherwise in the sole discretion of the Administrator so conferred by
appropriate action of the Administrator under the Plan after the date hereof.
13. Entire Agreement. This Restricted Stock Award Agreement and the Plan
together constitute the entire agreement and supersede all prior understandings
and agreements, written or oral, of the parties hereto with respect to the
subject matter hereof. The Plan and this Agreement may be amended pursuant to
Section 8.6 of the Plan.
14. Counterparts. This Agreement may be executed simultaneously in any
number of counterparts, each of which shall be deemed an original but all of
which together shall constitute one and the same instrument.
15. Section Headings. The section headings of this Agreement are for
convenience of reference only and shall not be deemed to alter or affect any
provision hereof.
16. Governing Law. This Agreement shall be governed by and construed and
enforced in accordance with the laws of the State of Florida without regard to
conflict of law principles thereunder.
* * * * *
5
IN WITNESS WHEREOF, the Corporation has caused this Agreement to be
executed on its behalf by a duly authorized officer and the Employee has
hereunto set his or her hand as of the date and year first above written.
QUALITY DISTRIBUTION, INC.
By:
-------------------------------------
Name:
Title:
EMPLOYEE
----------------------------------------
Signature
----------------------------------------
Print Name
6
EXHIBIT A
STOCK POWER
-----------
FOR VALUE RECEIVED and pursuant to that certain Restricted Stock Award Agreement
between Quality Distribution, Inc., a Florida corporation (the "Corporation"),
and _______________ (the "Employee") dated as of __________, 2003, the Employee,
hereby sells, assigns and transfers to the Corporation, an aggregate _____
shares of Common Stock of the Corporation, standing in the Employee's name on
the books of the Corporation and represented by stock certificate number(s)
_____________________________________________ to which this instrument is
attached, and hereby irrevocably constitutes and appoints _________________
____________________________________ as his or her attorney in fact and agent to
transfer such shares on the books of the Corporation, with full power of
substitution in the premises.
Dated ____________, __________
----------------------------------------
Signature
----------------------------------------
Print Name
(Instruction: Please do not fill in any blanks other than the signature line.
The purpose of the assignment is to enable the Company to exercise its
sale/purchase option set forth in the Restricted Stock Award Agreement without
requiring additional signatures on the part of the Individual.)
