RESTRICTED SHARE AND STOCK APPRECIATION RIGHT AWARD AGREEMENT
Exhibit 99.1
THIS RESTRICTED SHARE AND STOCK APPRECIATION RIGHT AWARD AGREEMENT (the “Agreement”),
made effective as of January 2, 2008, between Xxxxx Enterprises, Incorporated, a Florida
corporation (the “Corporation”), and ___(“Participant”).
RECITALS
In consideration of services to be rendered by the Participant and to provide an incentive to
the Participant to remain with the Corporation and its Subsidiaries, it is in the best interests of
the Corporation to make an award to Participant under the Xxxxx Enterprises, Incorporated 2001
Equity Incentive Plan (the “Plan”), which is incorporated herein by reference, consisting
of (i) shares of the Corporation’s common stock, par value $.01 per share (“Stock”) which
will be issued subject to (a) restrictions on transfer for a period of time and (b) divestiture
under certain conditions, all as described herein (“Restricted Stock”), and (ii) a Stock
Appreciation Right, in accordance with the terms of this Agreement.
The Participant hereby acknowledges receipt of a copy of the Plan. Unless otherwise provided
herein, terms used herein that are defined in the Plan and not defined herein shall have the
meanings attributable thereto in the Plan.
NOW, THEREFORE, for and in consideration of the mutual premises, covenants and agreements
contained herein, and for other good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, the parties hereto, intending to be legally bound, hereby agree as
follows:
1. Restricted Stock.
1.1 Grant of Restricted Stock. The Corporation hereby grants to Participant a total
of _________(_________) shares of Stock (the “Restricted Shares”), subject to the
transfer restrictions and other conditions set forth in this Agreement. The Corporation shall
cause the Restricted Shares to be issued and a stock certificate representing the Restricted Shares
to be registered in the name of Participant promptly upon execution of this Agreement, but the
stock certificate shall be delivered to, and held in custody by, the Corporation until the
applicable restrictions lapse at the times specified in Section 1.3 below. On or before the date
of execution of this Agreement, Participant shall deliver to the Corporation one or more stock
powers endorsed in blank relating to the Restricted Shares, which will permit transfer to the
Corporation of all or any portion of the Restricted Shares and any securities constituting Retained
Distributions (as defined below in Section 1.2(a)(ii)) that shall be forfeited or that shall not
become vested in accordance with this Agreement.
1.2. Restrictions.
(a) Participant shall have all rights and privileges of a shareholder of the Corporation with
respect to the Restricted Shares, including voting rights and the right to receive dividends paid
with respect to such shares, except that the following restrictions shall apply, until such time or
times as restrictions lapse under Section 1.3 of this Agreement:
(i) Participant shall not be entitled to delivery of the certificate or certificates
for any of the Restricted Shares until the restrictions imposed by this Agreement have
lapsed with respect to those Restricted Shares, at the times defined in Section 1.3;
(ii) other than regular cash dividends and such other distributions as the Board of
Directors may in its sole discretion designate, the Corporation will retain custody of all
distributions (“Retained Distributions”) made or declared with respect to the
Restricted Shares (and such Retained Distributions will be subject to the same restrictions,
terms and conditions as are applicable to the Restricted Shares) until such time, if ever,
as the Restricted Shares with respect to which such Retained Distributions shall have been
made, paid or declared shall have become vested, and such Retained Distributions shall not
bear interest or be segregated in separate accounts;
(iii) the Restricted Shares may not be sold, transferred, assigned, pledged or
otherwise encumbered or disposed of by Participant before these restrictions have lapsed
pursuant to Section 1.3, except with the prior written consent of the Administrator; and
(iv) the Restricted Shares and Retained Distributions shall be subject to forfeiture
upon termination of Participant’s employment with the Corporation to the extent set forth in
Section 1.5 below and upon the breach of any restrictions, terms or conditions of this
Agreement.
Once any portion of Participant’s Restricted Stock award has become vested under Section 1.3,
the newly vested shares shall no longer be subject to the preceding restrictions, and shall no
longer be considered to be Restricted Shares.
(b) Any attempt to dispose of Restricted Shares in a manner contrary to the restrictions set
forth in this Agreement shall be ineffective.
1.3 When Restrictions Lapse.
(a) Restricted Shares Based Upon Operating Income. With regard to 2/3 of the
Restricted Shares (the “Income Based Restricted Shares”), such Income Based Restricted Shares shall
vest and the restrictions set forth in this Agreement shall lapse with respect to such vested
shares on March 16, 2011, provided that (i) the Income from Operations of the Corporation, as
reported in its audited Consolidated Statement of Operations, during fiscal years 2008, 2009 and
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2010 (measured as of December 31, 2010) equals a cumulative total amount of at least
$183,720,000 (“Income from Operations Calculation”), and (ii) Participant is employed by the
Corporation or a Subsidiary on such date. The number of the Income Based Restricted Shares which
shall vest, and with regard to which the restrictions shall lapse shall be a number equal to 53.3%
of the Income Based Restricted Shares in the event the Income from Operations Calculation is
$183,720,000, and shall increase on a pro-rata basis up to a number equal to 66.7% of the Income
Based Restricted Shares in the event the Income from Operations Calculation is $190,788,000. In
the event the Income from Operations Calculation is between $190,788,000 and $209,253,000, the
number of Income Based Restricted Shares which shall vest, and with regard to which the
restrictions shall lapse shall increase on a pro-rata basis between a number equal to 66.7% of the
Income Based Restricted Shares up to a number equal to 100% of the Income Based Restricted Shares.
Examples of this calculation are set forth on Exhibit “A.”
(b) Restricted Shares Based Upon Revenue. With regard to 1/3 of the Restricted Shares (the
“Revenue Based Restricted Shares”), such Revenue Based Restricted Shares shall vest and the
restrictions set forth in this Agreement shall lapse with respect to such vested shares on March
16, 2011, provided that (i) the Gross Revenue from Operations of the Corporation, as reported in
its audited Consolidated Statement of Operations, during fiscal years 2008, 2009 and 2010 (measured
as of December 31, 2010) equals a cumulative total of at least $2,388,953,000 (“Gross Revenue from
Operations Calculation”), and (ii) Participant is employed by the Corporation or a Subsidiary on
such date. The number of the Revenue Based Restricted Shares which shall vest, and with regard to
which the restrictions shall lapse shall be a number equal to 53.3% of the Revenue Based Restricted
Shares in the event the Gross Revenue from Operations Calculation is $2,388,953,000, and shall
increase on a pro-rata basis up to a number equal to 66.7% of the Revenue Based Restricted Shares
in the event the Gross Revenue from Operations Calculation is $2,463,044,000. In the event the
Gross Revenue from Operations Calculation is between $2,463,044,000 and $2,654,978,000, the number
of Revenue Based Restricted Shares which shall vest, and with regard to which the restrictions
shall lapse shall increase on a pro-rata basis between a number equal to 66.7% of the Revenue Based
Restricted Shares up to a number equal to 100% of the Revenue Based Restricted Shares. Examples of
this calculation are set forth on Exhibit “B.”
(c) Vesting Upon Change in Control. The foregoing notwithstanding, in the event of a
Change in Control (as defined in the Plan) prior to the date the Restricted Shares vest, all of the
Restricted Shares shall vest and the restrictions set forth in this Agreement shall lapse with
respect to such vested shares on the date of the Change in Control, provided that Participant is
employed by the Corporation or a Subsidiary on the date of the Change in Control.
1.4. Issuance of Stock Certificates for Shares. The stock certificate representing
the Restricted Shares shall be issued promptly following the execution of this Agreement, and shall
be delivered to the Corporate Secretary or such other custodian as may be designated by the
Corporation, to be held until the restrictions have lapsed under Section 1.3. Such stock
certificates shall bear the following legend:
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The transferability of this certificate and the shares of stock represented
hereby are subject to the terms and conditions (including forfeiture) of a
Restricted Share and Stock Appreciation Right Award Agreement entered into
between the registered owner and Xxxxx Enterprises, Incorporated. A copy of
such Agreement is on file in the offices of, and will be made available for
a proper purpose by, the Corporate Secretary of Xxxxx Enterprises,
Incorporated.
Once the restrictions imposed by this Agreement have lapsed with respect to any portion of the
Restricted Shares, upon the written request of Participant, a stock certificate or certificates for
such portion of the Restricted Shares shall be returned and exchanged for new stock certificates
without the foregoing legend for the newly vested portion of the Restricted Shares. Upon the
written request of Participant, the certificates representing the newly vested shares shall be
delivered to Participant (or to the person to whom the rights of Participant shall have passed by
will or the laws of descent and distribution) promptly after the date on which the restrictions
imposed on such shares by this Agreement have lapsed, but not before Participant has made any tax
payment to the Corporation or made other arrangements for tax withholding, as required by
Section 3. The certificate for any Restricted Shares which vest as a result of a Change in
Control, shall be delivered promptly after the date of the Change in Control.
1.5. Forfeiture On Termination of Employment. If the Participant’s employment with
the Corporation or Subsidiary is terminated for any reason, either by the Corporation or
Participant, prior to the date on which the Restricted Shares have vested and the restrictions set
forth in this Agreement have lapsed with respect to such vested shares pursuant to Section 1.3, any
Restricted Shares remaining subject to the restrictions imposed by this Agreement shall be
forfeited, unless there shall have been a Change in Control (as defined in the Plan) prior to such
date, in which event the provisions of Section 1.3(c) shall control.
2. Stock Appreciation Right.
2.1 Grant of Stock Appreciation Right. The Corporation hereby grants to Participant,
as of the date hereof, a stock appreciation right (the “SAR”) with respect to
______(______) shares of Stock (the “Covered Shares”), which
represents the right to receive that number of shares of Stock determined by dividing (i) the total
number of shares of Stock subject to the SAR being exercised by the Participant, multiplied by the
amount by which the Fair Market Value of a share of Stock on the day the right is exercised exceeds
the Fair Market Value of a share of Stock on the date of grant of the SAR (such amount being
hereinafter referred to as the “Spread”), by (ii) the Fair Market Value of a share of Stock
on the exercise date. This SAR is in all respects limited and conditioned as hereinafter provided
and is subject to the terms and conditions of the Plan.
2.2. Vesting. Subject to the limitations herein, 1/3 of the SARs shall vest and be
exercisable on and after each of January 2, 2009, January 2, 2010 and January 2, 2011, provided
that Participant is employed by the Corporation or a Subsidiary on such date. The foregoing
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notwithstanding, in the event of a Change in Control (as defined in the Plan), the SAR shall vest
on the date of the Change in Control, provided that Participant is employed by the Corporation or a
Subsidiary on the date of the Change in Control.
2.3 Exercise of SAR. Subject to the terms and conditions contained herein, including
Section 2.2, Section 2.4 and Section 3, and in the Plan, the SAR, to the extent vested, may be
exercised, in whole or in part, and the Participant shall become entitled to payment in Stock of
the Spread with respect to the exercised portion of the SAR, by written notice to the Corporation
at any time and from time to time, provided however, that the SAR shall terminate on, and shall not
be exercisable in any event after, the tenth anniversary of the date hereof. The SAR is subject to
cancellation as provided in the Plan.
2.4. Conditions to Exercise. The SAR may not be exercised by Participant unless the
following conditions are met:
| (a) | except as provided in Section 2.5 or Section 2.6 below, the Participant is employed by the Corporation or a Subsidiary on the date of exercise; | ||
| (b) | Participant shall have given written notice to the Corporation (to the attention of the Corporation’s Secretary) with respect to the number of Covered Shares Participant intends to exercise; | ||
| (c) | Participant shall have complied with Section 3 hereof with regard to any withholding tax liability relating to such exercise; and | ||
| (d) | legal counsel for the Corporation must be satisfied at the time of exercise that the issuance of the shares of Stock upon exercise will be in compliance with the Securities Act and applicable United States Federal, state, local and foreign laws. |
2.5 Retirement, Death Or Disability. If the Participant: (i) dies while employed by
the Corporation or a Subsidiary or within the period when the SAR could have otherwise been
exercised by the Participant; (ii) terminates employment with the Corporation or a Subsidiary by
reason of the “permanent and total disability” (within the meaning of Section 22(e)(3) of the Code)
of the Participant; or (iii) terminates employment with the Corporation or a Subsidiary as a result
of the Participant’s retirement, provided that the Corporation or such Subsidiary has consented in
writing to the Participant’s retirement, then, in each such case, the Participant, or the duly
authorized representatives of the Participant, shall have the right, at any time within three (3)
months after the death, disability or retirement of the Participant, as the case may be, and prior
to the termination of the SAR pursuant to Section 2.3 above, to exercise the SAR to the
extent the SAR was exercisable by the Participant immediately prior to the Participant’s death,
disability or retirement.
2.6 Other Termination of Employment. The SAR shall be exercisable only within three
(3) months after the termination of the Participant’s employment with the Corporation or a
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Subsidiary, other than by reason of the Participant’s death, permanent disability or retirement
with the consent of the Corporation or a Subsidiary as provided in Section 2.5 above, but only if
and to the extent the SAR was exercisable immediately prior to such termination. Notwithstanding
the foregoing, if the Participant’s employment is terminated for cause, or the Participant
terminates his or her own employment with the Corporation, any portion of the SAR not yet exercised
(whether or not vested) shall terminate immediately on the date of termination of employment.
“Cause” shall have the meaning set forth in any employment agreement then in effect between the
Participant and the Corporation or any of its Subsidiaries, or if the Participant does not have any
employment agreement, “cause” shall mean (i) if the Participant engages in conduct which has
caused, or is reasonably likely to cause, demonstrable and serious injury to the Corporation, (ii)
the material negligence of, or failure to perform, the Participant’s duties to the Corporation or
(iii) if the Participant is convicted of a felony or a misdemeanor which substantially impairs the
Participant’s ability to perform his or her duties to the Corporation.
2.7. Payment of Spread. Upon exercise of all or a portion of this SAR, Participant
shall be paid that number of shares of Stock equal to the quotient of (i) the Spread applicable to
the number of Covered Shares to which this SAR is exercised divided by (ii) the Fair Market Value
of a share of Stock on the date such notice was received by the Corporation (the “Exercise
Date”), less any shares of Stock withheld to satisfy obligations for the payment of withholding
taxes and other tax obligations relating to this SAR pursuant to Section 3. If any fractional
share of Stock would otherwise be issued to the Participant upon the exercise of some or all of the
SAR, the Participant shall be paid a cash amount equal to the same fraction of the Fair Market
Value of the Stock on the date of exercise.
2.8 Transfer. This SAR (including the right to receive the shares of Stock) may not
be sold, transferred, pledged, assigned, encumbered or otherwise alienated or hypothecated by
Participant, other than by will or the laws of descent and distribution and, during the lifetime of
Participant, the SAR may be exercised only by Participant (or, if Participant is incapacitated, by
Participant’s legal guardian or legal representative). In the event of the death of Participant,
the exercise of the SAR may be made only by the executor or administrator of Participant’s estate
or the Person or Persons to whom Participant’s rights under the SAR pass by will or the laws of
descent and distribution. If Participant or anyone claiming under or through Participant attempts
to violate this Section 2.8, such attempted violation shall be null and void and without effect,
and all of the Corporation’s obligations hereunder shall terminate. Any shares of Stock received
upon exercise of this SAR are subject to the restrictions on transfer, if any, and other rights and
obligations set forth in the Plan.
2.9 No Rights as a Stockholder. No Participant shall be deemed for any purpose to be
the owner of any Stock subject to any SAR unless and until (a) the SAR shall have been exercised
pursuant to the terms hereof, (b) the Corporation shall have issued and delivered the shares of
Stock to the Participant (or made a book entry registration thereof) and (c) the Participant’s name
shall have been entered as a stockholder of record on the books of the Corporation. Thereupon,
Participant shall have full voting, dividend and other ownership rights with respect to such shares
of Stock.
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3. Tax Withholding. Whenever the restrictions on Participant’s rights to some or all
of the Restricted Shares lapse under Section 1.3 of this Agreement, and whenever Participant shall
exercise some or all of the SAR under Section 2, or upon Participant’s notification to the
Corporation that Participant is filing an election with the Internal Revenue Service pursuant to
Section 83(b) of the Internal Revenue Code of 1986, as amended, with respect to the Restricted
Shares or SAR, the Corporation shall notify Participant of the amount of tax which must be withheld
by the Corporation under all applicable federal, state and local tax laws. Participant agrees to
make arrangements with the Corporation to (a) remit a cash payment of the required amount to the
Corporation, (b) to authorize the deduction of such amounts from Participant’s compensation, (c)
deliver to the Corporation shares of Stock currently held by the Participant (including newly
vested Restricted Shares) with a Fair Market Value on the date of delivery to the Corporation equal
to the required amount, or (d) to otherwise satisfy the applicable tax withholding requirement in a
manner satisfactory to the Corporation.
4. Agreement Not to Affect Employment; No Implied Rights. None of this Agreement, the
Restricted Shares or the SAR granted hereunder shall confer upon Participant any right to continued
employment with the Corporation or any Subsidiary, and shall not in any way modify or restrict the
Corporation’s or such Subsidiary’s right to terminate such employment. This Agreement shall not
create or be construed to create a trust or separate fund of any kind or a fiduciary relationship
between the Corporation or any Subsidiary and the Participant or any other person.
5. Agreement Subject to the Plan. This Agreement and the rights and obligations of
the parties hereto are subject to and governed by the terms of the Plan as the same may be amended
from time to time, the provisions of which are incorporated by reference into this Agreement.
6. Miscellaneous.
(a) This Agreement may be executed in one or more counterparts, all of which taken together
will constitute one and the same instrument.
(b) The terms of this Agreement may only be amended, modified or waived by a written agreement
executed by both of the parties hereto.
(c) The validity, performance, construction and effect of this Agreement shall be governed by
the laws of the State of Florida, without giving effect to principles of conflicts of law.
(d) This Agreement constitutes the entire agreement between the parties hereto with respect to
the transactions contemplated herein.
(e) The headings contained in this Agreement are for purposes of convenience only and shall
not affect the meaning or interpretation of this Agreement.
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(f) Except as otherwise herein provided, this Agreement shall be binding upon and shall inure
to the benefit of the Corporation, its successors and assigns, and of Participant and Participant’s
personal representatives.
(g) This Agreement may be executed by either of the parties (the “Originating Party”)
and transmitted to the other party (the “Receiving Party”) by facsimile, telecopy, telex or
other form of written electronic transmission, and, upon confirmation of receipt thereof by the
Receiving Party, this Agreement shall be deemed to have been duly executed by the Originating
Party. Upon the request of the Receiving Party, the Originating Party shall provide the Receiving
Party with an executed duplicate original of this Agreement.
IN WITNESS WHEREOF, the parties have executed this Restricted Share and Stock Appreciation
Right Award Agreement on the date and year first above written.
| XXXXX ENTERPRISES, INCORPORATED |
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| By: | ||||
| PARTICIPANT |
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