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EXHIBIT 10.1
RESTRICTED STOCK AGREEMENT
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THIS AGREEMENT (the "Agreement") is made and entered into to be effective
as of May 13, 1999 by and between X. X. Xxxxx Corporation, a corporation
organized and existing under the laws of the State of Ohio ("Company"), and
Xxxxxx Xxxxx ("Zacks").
R E C I T A L S:
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1. Zacks possesses unique skills, knowledge and experience relating to the
business of the Company which he has developed in his many years of service to
the Company, including his extended service as Chief Executive Officer of the
Company.
2. The Company desires to reward Zacks for his significant contributions
to the Company in the past and to create an incentive for Zacks to continue his
employment with the Company in the future.
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants expressed in this Agreement, the parties hereto make the following
agreements, intending to be legally bound thereby:
Section 1. Grant of Restricted Shares. In consideration of Zacks' many
years of service and his significant contributions to the Company and subject to
the terms and conditions hereinafter set forth, the Company hereby issues to
Zacks 50,000 common shares, par value $1.00 per share, of the Company (the
"Restricted Shares"). Zacks shall exercise all voting rights with respect to the
Restricted Shares held by him and shall be entitled to receive all dividends
payable thereon. The Restricted Shares are being issued from the Company's
treasury shares.
Section 2. Restrictions on Transfer. Each Restricted Share shall represent
one issue and outstanding common share, par value $1.00 per share, of the
Company but shall be subject to the restrictions hereinafter set forth. None of
the Restricted Shares may be sold, transferred, pledged or otherwise alienated
or encumbered until or unless the restrictions imposed thereon by this Agreement
have lapsed according to the provisions of this Agreement.
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Section 3. Lapse of Restrictions; General Provisions. Subject to the
provisions of Sections 4, 5 and 6 of this Agreement, restrictions on transfer
shall lapse with respect to 20% of the total number of Restricted Shares issued
to Zacks under this Agreement (with appropriate adjustment for stock splits,
stock dividends and similar events) on each of May 13, 2000, May 13, 2001, May
13, 2002, May 13, 2003, and May 13, 2004, on which date all remaining
restrictions on transfer shall lapse.
Section 4. Disability. In the event during the term of this Agreement
Zacks' employment is terminated by the Company because he is unable to perform
his job responsibilities due to ill health or physical or mental disability,
restrictions on transfer shall lapse immediately with respect to all Restricted
Shares then held by Zacks which remain subject to restrictions on transfer.
Section 5. Death of Zacks. In the event of the death of Zacks, transfer
restrictions shall lapse immediately with respect to all Restricted Shares held
by Zacks at the time of his death and still covered by transfer restrictions.
Section 6. Termination of the Employment of Zacks; Change of Control. If
the employment of Zacks is terminated by the Company for "Cause," as that term
is defined in Section 5(b) of the Employment Agreement dated July 1, 1998
between the Company and Zacks (the "Employment Agreement"), or if Zacks
terminates his employment for any reason other than a "Good Reason," as that
term is defined in Section 5(c) of the Employment Agreement, Zacks shall
immediately forfeit any Restricted Shares whose transfer restrictions have not
previously lapsed under this Agreement. Anything contained herein to the
contrary notwithstanding, in the event that the employment of Zacks is
terminated by the Company for any reason other than for Cause (as defined in
Section 5(b) of the Employment Agreement) or by Zacks for Good Reason (as
defined in Section 5(c) of the Employment Agreement), restrictions on transfer
shall lapse, effective on the date of such termination of employment, with
respect to all Restricted Shares held by Zacks which are then covered by
transfer restrictions. Anything contained herein to the contrary
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notwithstanding, all transfer restrictions on the Restricted Shares which have
not previously lapsed shall lapse effective on a Change of Control of the
Company, as that term is defined in Section 9 of the Employment Agreement. The
terms used in this Section 6 which are defined in the Employment Agreement shall
continue to have the definitions set forth in the Employment Agreement after any
expiration or termination of the Employment Agreement.
Section 7. Securities Law Matters. Zacks hereby represents, warrants,
covenants and agrees with the Company as follows:
(a) The Restricted Shares are being acquired by him for his own account
without the participation of any other person and with the intent of holding the
Restricted Shares for investment and not with a view to, or for resale in
connection with, any distribution of the Restricted Shares.
(b) Zacks understands and agrees that the Restricted Shares will be
issued to him without registration under any state law relating to the
registration of securities for sale, and will be issued and sold in reliance on
the exemptions from registrations under the Securities Act of 1933 (the "1933
Act").
(c) Because the Restricted Shares are being issued to Zacks in a
transaction which is not registered under the 1933 Act or under any state
securities laws, the Restricted Shares cannot be offered for sale, sold or
transferred after the restrictions on transfer imposed by this Agreement have
lapsed other than pursuant to: (A) an effective registration under the 1933 Act
or in a transaction otherwise in compliance with the 1933 Act; and (B) evidence
satisfactory to the Company of compliance with the applicable state securities
laws.
(d) Each certificate representing the Restricted Shares shall be
endorsed with a legend substantially in the following form and Zacks shall not
make any transfer of the Restricted Shares without first complying with the
restrictions on transfer described in such legend:
TRANSFER IS RESTRICTED
THE SECURITIES EVIDENCED BY THIS CERTIFICATE HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED AND MAY NOT BE SOLD, TRANSFERRED, ASSIGNED, OR
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HYPOTHECATED UNLESS (1) THERE IS AN EFFECTIVE REGISTRATION UNDER
SUCH ACT COVERING SUCH SECURITIES, (2) THE TRANSFER IS MADE IN
COMPLIANCE WITH RULE 144 PROMULGATED UNDER SUCH ACT, OR (3) THE
ISSUER RECEIVES AN OPINION OF COUNSEL, REASONABLY SATISFACTORY TO
THE COMPANY, STATING THAT SUCH SALE, TRANSFER, ASSIGNMENT OR
HYPOTHECATION IS EXEMPT FOR THE REGISTRATION REQUIREMENTS OF SUCH
ACT.
Section 8. Legends. In addition to the legend referred to in Section 7(d),
all certificates for the Restricted Shares shall bear a legend prohibiting the
sale, transfer, pledge or other alienation thereof until the Company notifies
the Company's transfer agent that, and the extent to which, the restrictions on
transfer on such shares imposed by this Agreement have lapsed.
Section 9. Arbitration. Any controversy or claim arising out of or
relating to this Agreement, or the breach thereof, shall be submitted to
arbitration by the American Arbitration Association in Columbus, Ohio, and the
determination of the American Arbitration Association shall be final and
absolute. The Arbitrator shall be governed by the duly promulgated Commercial
Arbitration Rules of the American Arbitration Association and the pertinent
provisions of the laws of the State of Ohio relating to arbitration. Any
judgment upon the award rendered by the Arbitrator may be entered in any Court
having jurisdiction thereof. Arbitration and legal fees regarding disputes or
controversies arising under this Agreement shall be borne by the Company.
Section 10. Miscellaneous.
(a) The vesting of the Restricted Shares under this Agreement shall be
subject to any applicable tax withholding or other requirements of applicable
law.
(b) This Agreement shall be governed by and construed in accordance
with the laws of the State of Ohio.
(c) This Agreement embodies the entire agreement of the parties in
respect of the subject matter of this Agreement, and this Agreement supersedes
all prior and contemporaneous agreements between the parties in connection with
the subject matter of this Agreement. If any provision of this Agreement or the
application of any provision to any person or any circumstance shall be
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determined to be invalid or unenforceable, then such determination shall not
affect any other provision of this Agreement or the application of said
provision to any other person or circumstance, all of which other provisions
shall remain in full force and effect, and it is the intention of the Company
and Zacks that if any provision of this Agreement is susceptible of two or more
constructions, one of which would render the provision enforceable and the other
or others of which would render the provision unenforceable, then the provision
shall have the meaning which renders it enforceable.
(d) This Agreement shall inure to the benefit of and be binding upon
the successors and assigns (including successive, as well as immediate,
successors and assigns) of the Company; provided, however, that the Company may
not assign this Agreement or any of its rights or obligations hereunder to any
party other than a corporation which succeeds to substantially all of the
business and assets of the Company by merger, consolidation, sale of assets or
otherwise. This Agreement shall inure to the benefit of and be binding upon the
successors and assigns (including successive, as well as immediate, successors
and assigns) of Zacks; provided, however, that the rights of Zacks under this
Agreement may be assigned only to his personal representative by will or trust
or pursuant to applicable laws of descent and distribution.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement to be
effective as of the date first above written.
X. X. XXXXX CORPORATION
By /s/ Xxxxxxx X. Xxxxxxx
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Xxxxxxx X. Xxxxxxx,
Senior Vice President-Finance
/s/ Xxxxxx Xxxxx
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Xxxxxx Xxxxx
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