CLARK, INC. RESTRICTED STOCK AGREEMENT
Exhibit
10.1
XXXXX,
INC.
THIS
RESTRICTED STOCK AGREEMENT (the “Agreement”) is made and entered into as of
April 3, 2006, between Xxxxx, Inc., a Delaware corporation (the “Company”), and
__________________ (the “Employee”), an individual currently employed by the
Company or one of its subsidiaries or affiliates.
1. Award
of Restricted Stock Shares.
The
Company hereby awards to Employee _____________ Restricted Stock Shares pursuant
to the terms of the Xxxxx, Inc. Incentive Compensation Plan.
2. Vesting
Schedule.
Subject
to Sections 1, 5 6 and 7 hereof, the Employee shall have the right to the
shares of Common Stock under this Agreement as follows:
(a) as
of
April 3, 2007, the restrictions will lapse with respect to 25% of the Restricted
Stock Shares and such shares shall vest; and
(b) as
of
April 3, 2008, the restrictions will lapse with respect to 25% of the Restricted
Stock Shares and such shares shall vest; and
(c) as
of
April 3, 2009, the restrictions will lapse with respect to 25% of the Restricted
Stock Shares and such shares shall vest; and
(d) as
of
April 3, 2010, the restrictions will lapse with respect to 25% of the Restricted
Stock Shares and such shares shall vest.
3. Conversion
of Restricted Stock Shares and Payment of Accumulated Dividends.
(a) As
soon
as administratively practical following the Vesting Dates specified in Section
2
of this Agreement, the Company shall deliver to the Employee the number of
shares of common stock of the Company (“Stock”), without restrictions,
corresponding to the vested Restricted Stock Shares (as determined under
Sections 1 and 2 above). The Stock used for this purpose may come from the
Company’s authorized but unissued shares, or from the Company’s treasury
shares.
(b) At
or
about the time that shares of Stock corresponding to vested Restricted Stock
Shares are delivered to the Employee, the Company shall also deliver to Employee
an amount in cash equal to the product of (i) the amount of dividends paid
since
April 3, 2006 on each share of Stock multiplied by (ii) the number of vested
Restricted Stock Shares delivered to the Employee.
4. Non-transferability.
Except
to the extent otherwise determined by the Company, no Restricted Stock Shares
shall be assignable or otherwise transferable by Employee other than by will
or
by the laws of descent and distribution and, unless otherwise provided by the
Company, during the life of Employee any elections with respect to Restricted
Stock Shares may be made only by Employee or Employee’s guardian or legal
representative.
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5. Termination
of Employment.
(a) Except
to
the extent provided in Section 6 or 7 hereof or any employment agreement or
severance agreement between Employee and the Company or any of its subsidiaries
or affiliates, the provisions of this Section 5 shall apply to unvested
Restricted Stock Shares upon Employee’s termination of employment with the
Company and all subsidiaries or affiliates of the Company (“Termination”) for
any reason.
(b) In
the
event of Employee’s Termination before the end of the final vesting date
specified in Section 2 of this Agreement by reason of death, disability,
termination by the Company without “cause,” or a Change in Control pursuant to
Section 7 of this Agreement, restrictions on Restricted Stock Shares shall
immediately lapse and such shares shall become vested. “Disability” for this
purpose shall mean “disability” as defined under the Company’s then current
Group Long-Term disability plan. “Cause” shall have the meaning set forth in the
employment agreement applicable to Employee or, if no such employment agreement
exists shall be defined as follows:
(i) any
gross
misconduct or gross negligence in the performance of his duties that materially
and adversely affects the Company; or
(ii) a
material breach of the Intellectual Property and Confidentiality Agreement
with
the Company; or
(iii) the
intentional diversion of a material financial opportunity away from the Company
or any Xxxxx subsidiary or affiliates; or
(iv) the
commission of an act of dishonesty or fraud that is of a material nature and
involves a material breach of trust with respect to the interests of the
Company; or
(v) the
conviction of Employee for any felony or of a crime involving moral
turpitude.
(c) Unless
the Committee provides otherwise, in the event of Employee’s Termination during
the vesting Period for any reason other than as provided in Section 5(b),
all unvested Restricted Stock Shares shall be canceled and
forfeited.
6. Forfeiture
and Clawback related to Employee Actions.
Employee
agrees that if, during the term of Employee’s employment by, or service as a
Director of, the Company or a subsidiary and for a period of twelve months
following the termination of Employee’s employment, or service as a Director of,
there occurs a Forfeiture Event (as defined in clause (a) below), the
consequences specified in clause (b) below will occur.
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(a) A
Forfeiture Event shall have occurred if, Employee, either alone or on behalf
of
any business competing with the Company or any Affiliate, directly or indirectly
(i) solicits or induces, or in any manner attempts to solicit or induce any
person employed by, or an agent of, the Company or any Affiliate to terminate
his contract of employment or agency, as the case may be, with the Company
or
any Affiliate, as the case may be, or (ii) solicits, diverts, or attempts to
solicit or divert, as a supplier or customer, any person, concern or entity
which, as of the date of termination or during the one year period prior
thereto, furnishes products or services to, or receives products and services
from the Company or any Affiliate, or Employee attempts to induce any such
supplier or customer to cease being (or any prospective supplier or customer
not
to become) a supplier or customer of the Company or any Affiliate. The term
“suppliers” means suppliers of goods and services that are significant to the
conduct of the business of the Company’s Xxxxx Xxxxx and Partners business unit
and customers (regardless of significance) of the Xxxxx Xxxxx and Partners
business unit.
(b) If,
during the twelve month period following Employee’s termination, of employment
with the Company, for any reason except termination by reason of termination
by
the Company without “cause” or a Change in Control pursuant to Section 7 of this
Agreement, the Employee has been deemed to have violated the terms of Section
6
of this Agreement or there has occurred a Forfeiture Event under this Section
6,
the Employee shall reimburse the Company for the after-tax fair market value
of
the Restricted Stock Shares which were delivered to the Employee during the
prior twelve months. The Employee acknowledges the Company’s right to recover
such amounts due from any and all amounts due the Employee for prior services
as
an employee. The Employee further acknowledges that they will have no right
to
the further delivery of any other vested Restricted Stock Shares which have
not
yet been acquired by the Employee.
7. Change
in Control.
In the
event of a Change in Control on or prior to the end of the final vesting date
specified in Section 2 of this Agreement, the restrictions on any outstanding
Restricted Stock Shares shall immediately lapse and such shares shall
immediately vest. For purposes of this Agreement, a “Change in Control” shall be
deemed to have occurred if (i) the Company becomes a subsidiary of another
corporation or entity or is merged or consolidated into another corporation
or
entity or substantially all of the assets of the Company is sold to another
person, corporation, partnership or other entity; or (ii) any person,
corporation, partnership or other entity, either alone or in conjunction with
its “affiliates,” as that term is defined in Rule 405 of the General Rules and
Regulations under the Securities Act of 1933, as amended, or other group of
persons, corporations, partnerships or other entities who are not “affiliates”
but who are acting in concert, other than Employee or Employee’s family members
or any person, organization or entity that is controlled by Employee or
Employee’s family members, becomes the owner of record or beneficially of
securities of the Company that represent 33 1/3% or more of the combined voting
power of the Company’s then outstanding securities entitled to elect the Board
of Directors of the Company; or (iii) the Board of Directors of the Company
or a committee thereof makes a determination in its reasonable judgment that
a
“Change in Control” has taken place. In addition, if the Company sells or
divests the subsidiary or division of the Company of which the Employee is
a
part of to another person, corporation, partnership or entity, the restrictions
on any outstanding Restricted Stock Shares shall immediately lapse and such
shares shall immediately vest.
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8. Withholding
Tax.
Employee may be subject to withholding taxes as a result of the vesting of
Restricted Stock Shares. Employee shall pay to the Company in cash, promptly
when the amount of such obligations become determinable, all applicable federal,
state, local and foreign withholding taxes that result from such vesting.
Notwithstanding the foregoing, the Company may determine to withhold shares
of
Stock to pay the amount of tax required to be withheld upon vesting of
Restricted Stock Shares, unless Employee has otherwise provided for payment
of
withholding taxes. Any shares of Stock so withheld will be valued as of the
date
they are withheld. In no event will the value of shares withheld exceed the
required federal, state, local and foreign withholding tax obligations as
computed by the Company.
9. Administration.
The
Restricted Stock Shares awarded by this Agreement will be administered by the
Committee, whose decisions and determinations will be final and binding.
Participation is this program does not represent a guarantee of continued
employment.
10. Counterparts.
This
Agreement may be executed 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.
11. GOVERNING
LAW.
THIS
AGREEMENT SHALL BE GOVERNED BY THE LAWS OF THE STATE OF DELAWARE, WITHOUT REGARD
TO CONFLICT OF LAW PRINCIPLES.
XXXXX,
INC.
By: _____________________________________________
Name:
Title:
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______________________________________________
[Name
of Employee]
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