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EXHIBIT 10.1(d)
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FORM OF
RESTRICTED STOCK PURCHASE AGREEMENT
[FOR THE QUARTERLY PURCHASE OF RESTRICTED STOCK
IN LIEU OF SALARY INCREASES PURSUANT TO ELECTION BY PURCHASER]
AGREEMENT made as of the [DATE] by and between Ekco Group, Inc., a
Delaware corporation with a principal place of business at 00 Xxxx Xxxxx Xxxx,
Xxxxxx, Xxx Xxxxxxxxx 00000 (hereinafter the "Corporation") and [NAME AND
ADDRESS OF PURCHASER], (hereinafter the "Purchaser").
W I T N E S S E T H :
WHEREAS, the Corporation has adopted and amended the 1985 Restricted
Stock Plan (hereinafter the "1985 Plan") to promote the interests of the
Corporation by providing an incentive for employees, officers and directors of
the Corporation;
WHEREAS, pursuant to the provisions of the 1985 Plan, the Corporation
is offering to sell to the Purchaser shares of the Corporation's Common Stock,
par value $.01 per share, in accordance with the provisions of the 1985 Plan,
all on the terms and conditions hereinafter set forth; and
WHEREAS, Purchaser wishes to accept said offer.
NOW THEREFORE, in consideration of the premises and mutual interests to
be served hereby and the mutual covenants and promises contained herein, the
Corporation and Purchaser hereby agree as follows:
1. TERMS OF PURCHASE. The Purchaser hereby accepts the offer of the
Corporation to sell to the Purchaser, in accordance with the terms of the 1985
Plan and this Agreement, [NO. OF SHARES] (_____) shares of the Corporation's
Common Stock, par value $.01 per share (hereinafter collectively the "Plan
Shares") at a purchase price of $[PURCHASE PRICE], receipt of which is hereby
acknowledged by the Corporation.
2. PROVISIONS OF AGREEMENT CONTROLLING. The Purchaser specifically
understands and agrees that the Plan Shares issued under the 1985 Plan are being
sold to the Purchaser pursuant to the 1985 Plan, copies of which Plan Purchaser
acknowledges he or she has read, understands and by which he or she agrees to be
bound. The provisions of the 1985 Plan is incorporated herein by reference. In
the event of a conflict between the terms and conditions of the 1985 Plan and
this Agreement, the provisions of this Agreement will control.
3. RESTRICTIONS ON DISPOSITION. In accordance with Paragraph 5(b) of
the 1985 Plan, the Purchaser may not, and hereby specifically agrees that he or
she shall not pledge, encumber, hypothecate, assign, sell, transfer, give or
otherwise dispose of the Plan Shares, provided, however, that all of the
aforesaid restrictions shall lapse and shall no longer apply to:
(a) Any Plan Shares owned by the Purchaser upon the Purchaser's death.
(b) Any Plan Shares owned by the Purchaser upon the Purchaser's
"Disability" (as that term is specifically defined in Paragraph 9 hereof).
(c) As to twenty percent (20%) of the Plan Shares on each of the first,
second, third, fourth and fifth anniversary of the Closing Date for such Plan
Shares, provided that the Purchaser is at each such date an employee or
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director of the Corporation.
(d) Any Plan Shares owned by the Purchaser upon the occurrence of a
Change of Control unless such Change of Control shall have been approved by a
resolution adopted by the Board of Directors of the Corporation with at least
two-thirds (2/3) of the then serving Corporation directors who were Corporation
directors as of November 6, 1991 voting in favor. As used herein, a "Change of
Control" shall be deemed to have occurred (i) if any "person" (as such term is
used in Sections 13(d) and 14(d)(2) of the Securities Exchange Act of 1934, as
amended [the "1934 Act"]), other than the Corporation or any employee stock plan
of the Corporation, is or becomes the beneficial owner, directly or indirectly,
of securities of the Corporation representing fifteen percent (15%) or more of
the outstanding Common Stock of the Corporation; or (ii) ten (10) days following
the commencement of, or announcement of an intention to make, a tender offer or
exchange offer the consummation of which would result in the beneficial
ownership by any "person" of fifteen percent (15%) or more of the Common Stock
of the Corporation, provided, however, that at the conclusion of such ten (10)
day period such person has not discontinued or rescinded his intention to make
such a tender or exchange offer, or (iii) if during any consecutive twelve (12)
month period beginning on or after November 6, 1991 individuals who at the
beginning of such period were directors of the Corporation cease, for any
reason, to constitute at least a majority of the Board of Directors of the
Corporation; or (iv) if a merger of, or consolidation involving, the Corporation
in which the Corporation's stock is converted into securities of another
corporation or into cash shall be consummated, or a plan of complete liquidation
of the Corporation (whether or not in connection with a sale of all or
substantially all of the Corporation's assets) shall be adopted and consummated,
or substantially all of the Corporation's operating assets are sold (whether or
not a plan of liquidation shall be adopted or a liquidation occurs), excluding
in each case a transaction solely for the purpose of reincorporating the
Corporation in a different jurisdiction or recapitalizing the Corporation's
stock.
(e) The occurrence of the events described in the aforementioned
Subsections (a), (b), (c) and (d) shall each be deemed a ("Lapsing Event").
(f) Plan Shares as to which the restrictions on disposition have not
lapsed are hereinafter referred to as "Restricted Shares."
(g) Any disposition or encumbrance of any Restricted Shares contrary to
the provisions hereof shall be null and void, and the Corporation shall have no
obligation to recognize or give effect to such disposition or encumbrance on its
books and records or otherwise.
4. ADDITIONAL SHARES. As used in this Agreement, the term "Restricted
Shares" shall be deemed to include any securities issued in respect of the
Restricted Shares as a result of a stock split, stock dividend, combination of
shares or an exchange for other securities by reclassification, redesignation,
merger, consolidation, recapitalization or otherwise.
5. ESCROW OF SHARE CERTIFICATES. Certificates representing Plan Shares
shall be delivered to Xxxxxx, Xxxxxxxx & Branch, P.A., of Manchester, New
Hampshire, as Escrow Agent. The Escrow Agent will deliver any Plan Shares as to
which restrictions have lapsed pursuant to Section 3 above to the Purchaser as
soon as practicable after receipt of written notice signed by either the
President, Secretary or Treasurer of the Corporation that a Lapsing Event has
occurred. Such notice shall identify the Lapsing Event, and shall instruct the
Escrow Agent to deliver such Plan Shares as to which restrictions have
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lapsed.
The Escrow Agent will deliver all Plan Shares then held in escrow to
the Purchaser as to which restrictions have lapsed pursuant to Section 3(e) upon
receipt of written notice signed by Purchaser that a Lapsing Event pursuant to
Section 3(e) has occurred.
6. TAX LIABILITY OF THE PURCHASER AND PAYMENT OF TAXES. The Purchaser
agrees that, to the extent that the lapsing of restrictions on disposition of
any of the Restricted Shares or the declaration of dividends on any such shares
before the lapse of such restrictions on disposition results in the Purchaser's
being deemed to be in receipt of earned income under the provisions of the
Internal Revenue Code of 1986, as amended, the Corporation shall be entitled to
immediate payment from the Purchaser of the amount of any tax required to be
withheld by the Corporation with respect to such earned income as follows:
(i) in cash to the extent of the greater of two thousand, five hundred
dollars ($2,500.00) or ten percent (10%) of such withholding tax, and
(ii) by the Purchaser's issuing a promissory note (the "Promissory
Note") to the Corporation in principal amount equal to the full amount of the
balance of such withholding tax, which Promissory Note shall be due and payable
with interest at the annual rate of the prime rate of Fleet Bank of
Massachusetts, N.A. in effect at the date of the note plus one percent (1%),
ninety (90) days after the date on which the taxable event has occurred. The
Promissory Note shall also provide for mandatory prepayments equal to (a)
twenty-five percent (25%) of any net cash compensation, payable to the Purchaser
by the Corporation after the date of the Promissory Note, and (b) one hundred
percent (100%) of the proceeds from the sale by Purchaser of any of the Plan
Shares then owned. The Promissory Note shall be secured by a pledge of all the
Plan Shares which caused the tax liability to occur. Said Promissory Note and
pledge shall each be in form and substance reasonably satisfactory to the
Corporation. In the event Purchaser does not comply with the foregoing within
three (3) days after the due date for payment and presentation of documentation
indicating the tax required to be withheld by the Corporation, the Corporation,
in addition to its other remedies, will be entitled to the entire amount due
hereunder from any salary or any other payments due to the Purchaser from the
Corporation.
7. HOLDING PERIOD APPLICABLE TO PERSONS SUBJECT TO SECTION 16 OF THE
1934 ACT. If the Purchaser is subject to Section 16 of the 1934 Act, Section 16
requires that at least six (6) months must elapse from the date of purchase of
the Shares to the date of disposition.
8. SECURITIES LAW COMPLIANCE. The Purchaser represents that any sales
of Plan Shares at a time when the Purchaser may be deemed an "affiliate" of the
Corporation for purposes of the Securities Act of 1933, as amended (the "Act"),
shall be made in accordance with the requirements of Rule 144 under the Act (or
any successor rule) applicable to sales by an "affiliate" of shares registered
under the Act or in a transaction otherwise exempt from the registration
requirements of the Act and as to which the Corporation shall have received an
opinion of counsel satisfactory to it confirming such exemption.
9. CORPORATION'S DUTY ON OCCURRENCE OF LAPSING EVENT. Upon the
occurrence of a Lapsing Event described in Section 3(c) or 3(d), the
Corporation shall give notice of such event to the Escrow Agent immediately,
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but in no event, later than fifteen days after such event. Upon the occurrence
of a Lapsing Event described in Section 3(a) or 3(b) and upon receipt of written
request of a duly appointed executor or administrator of the estate of the
Purchaser, in the case of death of the Purchaser or the duly authorized
representative of the Purchaser or the Purchaser, in the case of Disability of
the Purchaser, and of documentation reasonably satisfactory to the Corporation
which substantiates the fact of death or Disability, the Corporation shall
notify the Escrow Agent as soon as practicable, but in no event, later than
fifteen (15) days after receipt of such request.
The term "Disability" shall mean permanent and total disability as
defined in the Corporations's Wage Continuation Plan in effect at the time such
Disability is being determined.
10. Sale of Restricted Shares to Corporation Upon Termination of
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Service.
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(a) In the event that the Purchaser's employment with, or position as a
director of, the Corporation terminates for any reason (hereinafter
"Termination") other than death, Disability or Change of Control as defined in
Section 3(e) above, then, the Corporation shall send written notice to the
Escrow Agent of such Termination no later than thirty (30) days after the
effective date thereof. Such notice shall contain instructions to the Escrow
Agent of either (i) the Corporation's intention to repurchase the Restricted
Shares from Purchaser, or (ii) the Corporation's determination not to purchase
all or any portion of the Restricted Shares.
(b) If the Corporation elects to purchase the Restricted Shares from
the Purchaser, the Escrow Agent shall deliver such Restricted Shares immediately
to the Secretary of the Corporation and the Corporation shall contemporaneously
with the receipt thereof make payment to the Purchaser at the price specified in
Section 1 above.
(c) If the Corporation elects not to purchase all or any portion of the
Restricted Shares, the Escrow Agent shall forthwith deliver one or more
certificates representing the Restricted Shares the Corporation has determined
not to purchase to the Purchaser and the Purchaser shall be restored to all
rights as a stockholder with respect to those shares as of the effective date of
Termination. The Corporation may impose such restrictions as it deems
appropriate on the transfer of the Restricted Shares which it does not purchase
hereunder, subject to the limitations set forth in Paragraph 7 of the 1985 Plan.
(d) If the Corporation does not within sixty (60) days after the
effective date of Termination give written instructions to the Escrow Agent,
then the Corporation will be deemed to have instructed the Escrow Agent to
purchase the Restricted Shares from the Purchaser and the terms of Subsection
(b) above shall apply.
11. EQUITABLE RELIEF, CONSENT TO JURISDICTION AND APPOINTMENT OF AGENT
FOR SERVICE OF PROCESS. The Purchaser specifically acknowledges and agrees that
in the event of a breach or threatened breach of the provisions of this
Agreement or the 1985 Plan, including the attempted transfer of the Restricted
Shares by the Purchaser, monetary damages may not be adequate to compensate the
Corporation, and, therefore, in the event of such a breach or threatened breach,
in addition to any right to damages, the Corporation shall be entitled to
equitable relief in any court having competent jurisdiction. Nothing herein
shall be construed as prohibiting the Corporation from pursuing any
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other remedies available to it for any such breach or threatened breach.
The Purchaser specifically consents to the jurisdiction of the courts
of the State of New Hampshire and to the appointment of the Secretary of the
Corporation as his or her agent for the service of process in any action,
whether at law or in equity, brought by the Corporation to protect any of its
rights hereunder or under the 1985 Plan.
12. NO IMPLIED AGREEMENT. Nothing herein contained shall be deemed to
give the Purchaser the right to be retained in the employ of the Corporation.
13. NOTICES. All notices required by this Agreement shall be in
writing signed by the party giving such notice and shall be delivered by
registered or certified mail, postage prepaid, to the addresses set forth
below:
To the Corporation: Ekco Group, Inc.
00 Xxxx Xxxxx Xxxx, Xxxxx 000
Xxxxxx, Xxx Xxxxxxxxx 00000
Attention: Corporate Secretary
To the Purchaser: Purchaser's last address in the records of
the Corporation
14. BINDING EFFECT. This Agreement shall be binding upon the
parties hereto and upon their respective successors and assigns and upon
Purchaser's heirs, executors and administrators.
15. GOVERNING LAW. This Agreement shall be interpreted and
construed in accordance with the laws of the State of New Hampshire.
16. SEVERABILITY. If any provision of this Agreement is held to be
invalid or unenforceable by a court of competent jurisdiction, then such
provision or provisions shall be modified to the extent necessary to make such
provision valid and enforceable, and to the extent that this is impossible, then
such provision shall be deemed to be excised from this Agreement, and the
validity, legality and enforceability of the rest of this Agreement shall not be
affected thereby.
17. ENTIRE AGREEMENT. This Agreement and the 1985 Plan constitute
the entire agreement among the parties with respect to the subject matter
hereof, and may not be modified, amended, renewed, or terminated, nor may any
term, condition or breach of any term or condition be waived, except by a
writing signed by the person or persons sought to be bound by such modification,
amendment, renewal, termination or waiver. Any waiver of any term, condition or
breach hereof shall not be a waiver of any other term or condition or of the
same term or condition for the future, or of any subsequent breach.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of the day and year first above written.
EKCO GROUP, INC.
By:
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Title:
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PURCHASER:
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EKCO GROUP, INC.
SCHEDULE TO
FORM OF RESTRICTED STOCK PURCHASE AGREEMENT, AS AMENDED
FOR THE QUARTERLY PURCHASE OF RESTRICTED STOCK
Each of the following employees of the Company has the following
Restricted Stock Purchase Agreements with the Company pursuant to the Company's
1985 Restricted Stock Plan which are identical in form to the foregoing Form of
Restricted Stock Purchase Agreement, as amended, except as to the number of
shares:
Name and Job Title(s) Date No. of Shares
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Xxxxxx Xxxxx 04/02/95 490
President & Chief 07/02/95 491
Executive Officer 10/01/95 490
12/31/95 491
Xxxxxxx X. Xxxxxxxxx 04/02/95 264
Executive Vice Presi- 07/02/95 265
dent, Secretary & 10/01/95 265
General Counsel 12/31/95 265
Xxxxxx X. XxXxxxxxxx 04/02/95 245
Executive Vice Presi- 07/02/95 245
dent, Finance & Admi- 10/01/95 245
nistration, & Chief 12/31/95 246
Financial Officer
Xxxxx X. XxXxxxxxx 04/02/95 309
Vice President & 07/02/95 309
Controller 10/01/95 309
12/31/95 309
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