Exhibit 10(iii)9
THE IT GROUP, INC.
INCENTIVE STOCK AND ESCROW AGRREMENT
2000 STOCK INCENTIVE PLAN
This INCENTIVE STOCK AND ESCROW AGREEMENT (this "Agreement") is entered
into as of ________ ___, 200_ by and between a Delaware corporation (the
"Company"), and `First' `Last' ("Employee"). Capitalized terms used and not
otherwise defined herein shall have the meanings ascribed to them in the Plan
(as such term is hereinafter defined).
RECITALS
The Compensation Committee of the Board of Directors, which administers the
Company's 2000 Stock Incentive Plan (the "Plan"), has granted to Employee on
______ __, 200_, as a separate inducement in connection with his or her
employment with the Company, and not in lieu of any salary or other compensation
for his or her services, an award (the "Incentive Stock Award") to purchase
restricted shares of Common Stock, $.01 par value, of the Company (the "Common
Stock") on the terms and conditions set forth herein.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing and of the mutual
covenants set forth herein and other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the parties hereto
hereby agree as follows:
1. Grant Incentive Stock
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The Company hereby grants to Employee, and Employee hereby acquires
from the Company `Stock' shares of restricted Common Stock (the
"Shares"). By executing this Agreement, Employee hereby agrees to be
bound by the terms of this Agreement and the Plan.
2. Deposit of Certificate
----------------------
Concurrently with the execution hereof, Employee consents to the
delivery to the Company, to be held in escrow by the Company, of the
certificate or certificates evidencing the Shares and agrees to
execute and deliver to the Company undated stock powers and other
instruments of transfer duly executed in favor of the Company by
Employee. Employee acknowledges that the certificates evidencing the
Shares will have affixed a legend including in the form of Exhibit A
hereto.
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3. Vesting
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Subject to earlier vesting pursuant to Paragraph 4(c) or Paragraph 13
hereof, the Shares shall be subject to the restrictions set forth in
Paragraph 4 hereof until the Shares fully vest. Twenty-five (25%)
percent of the Shares awarded shall vest and the restrictions thereon
shall terminate January 1 each year through [2004], commencing
January 1, [2001].
The period during which some or all of the Shares are subject to such
restrictions is referred to as the "Restricted Term."
4. Restrictions on Transfer; Repurchase of Incentive Stock
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(a) Except as expressly allowed by the Plan, during the term the
Shares may not be sold, assigned, transferred, hypothecated or
otherwise disposed of or encumbered, other than by will or by the
laws of descent and distribution, and are subject to forfeiture
to the Company as set forth herein.
(b) In the event of the termination of the employment of Employee
with the Company or any subsidiary of the Company for any reason
other than those contemplated by Paragraph 4(c), unless the
Restricted Term has expired prior to such termination of
employment, the Shares that are not then vested shall be
forfeited to the Company for no consideration and Employee shall
automatically cease to have any rights in and to the Shares.
(c) If Employee (i) ceases to be an employee of the Company due to
his retirement in accordance with the Company's then applicable
retirement policy and practices or (ii) shall have a Permanent
Disability or die while an employee of the Company, the
conditions imposed on the Shares related to continuous employment
of the Employee set forth in Paragraph 3 shall be deemed to have
been satisfied. Any unvested Shares shall thereupon vest and the
restrictions thereon shall terminate. "Permanent Disability"
shall mean the inability in engage in any substantial gainful
activity by reason of any medically determinable physical or
mental impairment which can be expected to result in death or
which has lasted or can be expected to last for a continuous
period of not less than twelve (12) months. Employee shall not be
deemed to have a Permanent Disability until proof of the
existence thereof shall have been furnished to the Committee (as
such term is defined in Paragraph 7 hereinafter) in such form and
manner, and at such times, as the Committee may require. Any
determination by the Committee that Employee does or does not
have a Permanent Disability shall be final and binding upon the
Company and Employee.
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5. Voting and Other Rights
-----------------------
During the Restricted Term, Employee shall, except as otherwise
provided herein, have all the rights of a stockholder with
respect to all of the Shares, including, without limitation, the
right to vote such Shares and the right to receive all dividends
or other distributions, if any, with respect to such Shares.
6. Delivery of Certificates
------------------------
Upon the termination of the Restricted Term, the Company shall
deliver to Employee all stock certificates and related
instruments of transfer evidencing the Shares vested pursuant to
Paragraph 3 and all restrictions set forth in Paragraph 4 hereof
with respect to such Shares shall terminate.
7. Administration of Plan
----------------------
This Plan shall be administered by the Compensation Committee of
the Board of Directors of the Company (the "Committee"). Subject
to the provisions of this Plan, the Committee shall be authorized
and empowered to do all things necessary or desirable in
connection with the administration of this Plan, including,
without limitation, the following:
(i) adopt, amend and rescind rules and regulations relating to
the Plan;
(ii) determine which persons are eligible to receive Incentive
Stock Awards and to which of such persons, if any,
Incentive Stock Awards shall be granted;
(iii) grant Incentive Stock Awards to Employees and determine
the terms and conditions thereof, including the number of
restricted shares issuable pursuant thereto;
(iv) determine whether, and the extent to which, adjustments
are required pursuant to Paragraph 11 hereof; and
(v) interpret and construe the Plan and the terms and
conditions of all Awards granted under the Plan.
8. Employment Rights
-----------------
No provision of this Agreement or of the Incentive Stock Award
granted hereunder shall (a) confer upon Employee any right to
participate in any employee welfare or benefit plan or other program
of the Company or any of its subsidiaries (other than the 2000 Plan
pursuant to this Incentive Stock Award), (b) affect the right of the
Company and each of its subsidiaries to terminate the employment of
Employee (and Employee agrees that the Company and each of its
subsidiaries may terminate the employment of Employee with or
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without cause at any time unless Employee and the Company or such
subsidiary are parties to a written employment agreement that
expressly provides otherwise), (c) confer upon Employee, if Employee
is a director of any of the Company's affiliates, any right to
continue his or her relationship with the Company notwithstanding that
Employee remains an employee or director of such other entity, (d) if
Employee is a director of an affiliate of the Company, affect the
right of the Company to discontinue its relationship with such
Employee or Employee's employer or (e) confer upon Employee, if
Employee is a director of the Company or any of its subsidiaries, any
right to continue as a director of the Company or any of its
subsidiaries, if such Employee's status as a director has otherwise
terminated.
9. Confidentiality and Non-Solicitation.
------------------------------------
(a) While employed by the Company and for a period of one year after
termination of Employee's employment, and regardless of the
reason for termination, Employee will not:
(i) Solicit or induce, or attempt to solicit or induce, any
Customer or Prospective Customer of the Company to purchase
competitive services from a source other than the Company,
or to cease doing business with the Company. The term
Customer or Prospective Customer means any customer for whom
Employee has performed any service or of whom Employee
learns during, or as a result of, employment with Company,
including all subsidiaries, divisions, parents and
affiliates thereof.
(ii) Solicit or induce, or attempt to solicit or induce, any
employee of the Company to terminate employment or to become
employed by a Competitive Business. The term Competitive
Business means environmental consulting, health and safety,
engineering, construction and remediation services, as well
as any other product or service which is competitive with
any product or service which is offered by the Company to
Customers during Employee's employment.
(b) Employee further agrees 1) to hold and safeguard for the benefit
of the Company all Company Confidential Information, and 2) not
to misappropriate, use for any other party's advantage, disclose
or otherwise make available to any person, Company's Confidential
Information except in the good faith performance of Employee's
job duties to persons having a need to know such information for
the benefit of the Company. This obligation not to
misappropriate or misuse Company Confidential information is not
limited in time, and therefore continues after the termination of
Employee's
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employment, regardless of the reason for termination
of employment.
(d) Confidential information includes, but is not limited to,
information relating to prices and customer contract provisions;
bid or proposal opportunities; expansion or acquisition plans;
marketing plans and activities; inventions; litigation and
litigation strategies; the identity of customers' contact
persons, customer requirements; operating costs; the identities
and performance of employees of the Company; business plans and
strategies; policies and procedures; and other non-public
information which is of value to the Company or to a competitor,
regardless of whether such information is patented, patentable,
copyrighted, or technically classifiable as a trade secret.
Confidential Information as used in this Agreement shall also
include the confidential information of the Company's customers,
vendors and others who entrust such information to the Company.
10. Arbitration and Attorney Fees
-----------------------------
To the maximum extent permitted by law, all actions, proceedings,
claims, disputes and other controversies arising out of or related
to this Agreement, or any of the matters referenced in this
Agreement, including the Employee's employment, including the
termination thereof, shall be decided by binding arbitration in the
city in which the Employee is based, or in the alternative, in the
city in which the dispute arose, in accordance with the rules of the
American Arbitration Association. If the Company and the Employee
have agreed in writing to other procedures and proceedings for
resolution of disputes, the Company may, at its election,
consolidate any proceedings into the arbitration provided for in
this Agreement or the arbitration provided for in this Agreement
into any other proceedings otherwise agreed to by the Employee. The
arbitration panel shall be empowered to award provisional (i.e.,
injunctive) relief upon proper application, but a party shall be
entitled, pending the appointment of all arbitrators and the
convening of such arbitration, to seek such relief from any court
otherwise having competent jurisdiction of such matter. In the event
of any action or proceeding (including arbitration) to construe or
enforce this Agreement, the prevailing party shall be entitled to
recover its reasonable attorney fees and costs.
11. Adjustments in Stock
--------------------
If the outstanding securities of the class then subject to the Plan
are increased, decreased or exchanged for or converted into cash,
property or a different number or kind of securities, or if cash,
property or securities are distributed in respect of such outstanding
securities, in either case as a
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result of a reorganization, merger, consolidation, recapitalization,
restructuring, reclassification, dividend (other than a regular,
quarterly cash dividend) or other distribution, stock split, reverse
stock split, spin-off or the like, subject to other provisions of the
Agreement, or if substantially all of the property and assets of the
Company are sold, then, unless the terms of such transaction shall
provide otherwise, the Committee shall make appropriate and
proportionate adjustments in (a) the number and type of shares or
other securities or cash or other property that may be acquired
pursuant to Incentive Stock Awards theretofore granted under this
Plan, and (b) the maximum number and type of shares or other
securities that may be issued pursuant to Incentive Stock Awards
thereafter granted under this Plan.
12. Payment of Withholding Taxes
----------------------------
If the Company becomes obligated to withhold an amount (the
"Withholding Amount") on account of any federal, state or local tax
imposed as a result of the grant of the Shares to Employee pursuant to
this Agreement or the expiration of the Restricted Term, including,
without limitation, any federal, state or other income tax, or any
F.I.C.A., state disability insurance tax or other employment tax,
then, (a) if employee is not subject to the reporting requirements of
Section 16 of the Securities Exchange Act of 1934 (the "Exchange
Act"), then at the election of Employee, Employee shall either (i)
deliver to the Company Shares necessary to equal the Withholding
Amount when valued at the closing market price on the New York Stock
Exchange ("NYSE") on the trading day preceding the withholding date
(or if the Shares are not listed on NYSE, the closing market price
on a national securities exchange on which Common Stock of the
Company is listed on the trading day preceding the withholding date)
rather than at the Formula Price, or (ii) pay the Withholding Amount
to the Company in cash or by cashier's or certified bank check
payable to the Company. If Employee is required to file reports
pursuant to Section 16(a) of the Exchange Act and the rules and
regulations promulgated thereunder, then the Withholding Amount
shall be required to be satisfied by the method set forth in clause
(i) of this Paragraph 12, and the use of such method shall be deemed
to have been approved by the Committee without any specific action
or election by Employee.
13. Change of Control and Other Terminating Events
----------------------------------------------
(a) All restrictions upon the Shares hereunder shall terminate
immediately prior to a Change of Control (as hereinafter
defined), provided that no such termination shall occur (i) in
the case of Change of Control of the type described in Paragraphs
13(b)(ii) or 13(b)(iii) below, if a two-thirds majority of the
Company's Board of Directors affirmatively recommends such Change
of Control to
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the Company's stockholders, or (ii) in the case of Change in
Control of the type described in Paragraph 13(b)(i) or 13 (b)(v)
below, if a two-thirds majority of the Company's Board of
Directors approves such Change in Control.
(b) "Change in Control" shall mean the first to occur of the
following events:
(i) any date upon which the Directors of the Company who were
nominated by the Board of Directors for election as
Directors and/or were elected by the holders of the
Cumulative Convertible Participating Preferred Stock of the
Company cease to constitute a majority of the Directors of
the Company; provided, however, that no individual initially
elected or nominated as a Director of the Company as a
result of an actual or threatened election contest with
respect to directors or any other actual or threatened
solicitation of proxies or consents by or on behalf of any
person other than the Board shall be counted as having been
nominated by the Board of Directors for this purpose;
(ii) a reorganization, merger or consolidation of the Company the
consummation of which results in the outstanding securities
of any class then subject to this Agreement being exchanged
for or converted into cash, property and/or securities not
issued by the Company;
(iii) the acquisition of substantially all of the property and
assets of the Company by any person or entity;
(iv) the dissolution or liquidation of the Company; or
(v) the date of the first public announcement that any person or
entity, together with all Affiliates and Associates (as such
capitalized terms are defined in Rule 12b-2 promulgated
under the Exchange Act) of such person or entity, shall have
become the Beneficial Owner (as defined in Rule 13d-3
promulgated under the Exchange Act) of voting securities of
the Company representing 35% or more of the voting power of
the Company; provided, however, that the terms "person" and
"entity," as used in this subsection (v), shall not include
(x) the Company, any of its subsidiaries, The Carlyle Group
and its Affiliates (y) any employee benefit plan of the
Company or any of its subsidiaries, or (z) any entity
holding voting securities of the Company for or pursuant to
the terms of any such plan.
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14. Notice
------
Any notice to be given to the Company shall be addressed to the
Company in care of its Secretary at its principal office, or such
other address as the Company may hereinafter designate in writing to
Employee, and any notice to be given to the Employee shall be
addressed to him or her at the address given beneath his or her
signature hereto, or at such other address as Employee may hereafter
designate in writing to the Company. Any such notice shall have been
duly given when enclosed as aforesaid, registered or certified, and
deposited, postage and registration or certification fee prepaid, in a
post office or branch post office regularly maintained by the United
States Government.
15. Stock Incentive Plan
--------------------
This Agreement and the Shares are subject to all of the terms and
conditions of the Plan as the same shall be amended from time to time
in accordance with the terms thereof, as the same may be amended from
time to time; provided, however, that no such amendment shall deprive
Employee, without his or her consent, of the Shares or of any of
Employee's rights under this Agreement provided that no such consent
shall be required if the Committee determines in its sole discretion
and prior to the date of any Change of Control that such amendment
either (a) is required or advisable in order for the Company, the Plan
or this Agreement to satisfy any law or regulation or to meet the
requirements of any accounting standard, or (b) is not reasonably
likely to significantly diminish the benefits provided under this
Agreement, or that any such diminishment has been adequately
compensated. The interpretation and construction by the Committee of
the 2000 Plan and this Agreement and such rules and regulations as may
be adopted by the Committee for the purpose of administering the 2000
Plan shall be final and binding upon Employee. Until the Shares shall
expire, terminate or vest in full, the Company shall, upon written
request therefor, send a copy of the 2000 Plan, in its then-current
form, to Employee or any other person or entity then entitled to hold
the Shares.
16. Severability
------------
Each provision of this Agreement is severable from the others. Should
any provision of this Agreement be found invalid or unenforceable,
such provision shall be ineffective only to the extent required by
law, without invalidating the remainder of such provision or the
remainder of this Agreement; provided, however, should the
consideration received by Employee for any particular provision of
this Agreement be found legally inadequate, Employee agrees to return
all consideration received by reason
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of this Agreement. The terms and conditions set forth herein shall
survive the termination of this Agreement.
17. Laws Applicable to Construction
-------------------------------
This Agreement has been executed and delivered the day and year first
above written, and this Agreement shall be construed and enforced in
accordance with the laws of the State of Delaware.
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IN WITNESS WHEREOF, the Company has caused this Agreement to be executed by
its duly authorized representative, and the Employee has hereunto set his or her
hand on the day and year first above written.
EMPLOYEE ACKNOWLEDGES AND AGREES THAT HE OR SHE HAS READ AND UNDERSTOOD AND
AGREES TO ALL OF THE TERMS OF THIS AGREEMENT (INCLUDING SECTIONS 8-10 and 16).
UNLESS OTHERWISE EXTENDED BY THE COMPANY, THE COMMON STOCK GRANTED IN THIS
AGREEMENT WILL BE DEEMED WITHDRAWN UNLESS EMPLOYEE RETURNS A SIGNED COPY OF THIS
AGREEMENT WITH SIXTY (60) DAYS OF THE DATE OF GRANT.
THE IT GROUP, INC. EMPLOYEE:
By:
---------------------------------- ----------------------------------
Xxxxx X. Xxxx (First) (Last)
Sr. Vice President, General Counsel
And Secretary
The undersigned spouse of the Employee
----------------------------------
(Street)
Hereby consents to the terms and provisions
of this Incentive Stock Agreement as of ----------------------------------
the day and year first above written. (City), (State) (Zip)
(Spouse)
----------------------------------
(SS No.)
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EXHIBIT A
The securities represented by this Certificate are subject to the terms and
provisions, including certain restrictions on transfer and encumbrance, of that
certain Incentive Stock and Escrow Agreement dated as of [January 1], 200_, by
and between The IT Group, Inc., a Delaware corporation (the "Company"), and the
holder of the shares of common stock represented by this Certificate, a copy of
which is available for inspection at the executive offices of the Company.
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