DEFERRED SHARE AGREEMENT
Exhibit
10.8
DEFERRED SHARE AGREEMENT (this “Agreement”), dated as of October 24, 2005, is made
between Xxxxx Pet Care Enterprises, Inc. (the “Company”) and the individual whose name
appears on the signature page hereof (the “Employee”) pursuant to the terms of the
Company’s Transaction Bonus Plan (the “Plan”). Capitalized terms used in this Agreement
and not otherwise defined herein shall have the meaning given such terms in the Plan.
WHEREAS, the Board determined that the Employee shall receive a portion of his Bonus under the
Plan in the form of Deferred Shares, and the Plan requires that the Company and the Employee enter
into a Deferred Share Agreement setting forth the terms and conditions of such Deferred Shares;
1. Grant of Deferred Shares. Effective as of the date hereof, the Company hereby
evidences and confirms its award to the Employee, on the terms and conditions of this Agreement and
the Plan, of the number of Deferred Shares set forth on the signature page hereof, which represent
the Company’s contractual obligation to deliver shares of Common Stock to the Employee upon the
terms and conditions set forth herein and in the Plan.
2. Delivery of Shares Underlying Deferred Shares. Any shares of Common Stock
delivered or to be delivered in respect of Deferred Shares under this Section 2 are hereinafter
referred to as “Shares.”
(a) Unless the Employee shall elect to defer such distribution (a “Deferral Election”)
by written notice to the Company in accordance with the procedures and conditions provided under
Section 409A of the Code and the regulations and guidance promulgated thereunder (collectively,
“Section 409A”), upon the occurrence of a Trigger Event, the Company shall issue to the
Employee, without payment of any consideration by the Employee, one share of Common Stock in
settlement of each Deferred Share that he then holds.
(b) If a Trigger Event shall not have occurred prior to the dates specified below, and unless
the Employee shall make a Deferral Election, the Company shall issue to the Employee on such dates,
without payment of any consideration by the Employee, one share of Common Stock in settlement of
each Deferred Share to be settled on such dates, as follows: (i) on October 31, 2009, one-third of
the total number of Deferred Shares that he holds on such date; (ii) on October 31, 2010, one-half
of the Deferred Shares that he holds on such date (other than any such Deferred Shares that he may
have elected to defer receiving on October 31, 2009, as provided herein); and (iii) on October 31,
2011, the balance of any Deferred Shares that he holds on that date (other than any such Deferred
Shares that he may have elected to defer receiving on October 31, 2009, or October 31, 2010, as
provided herein). In like manner, any Deferred Shares that are
the subject of a Deferral Election shall be settled by the issuance of a like number of Shares
on the expiration of the applicable deferral period, unless the same are subject to a subsequent
Deferral Election.
As a condition to the delivery of any Shares in respect of Deferred Shares, the holder of such
Deferred Shares shall become a party to (and such Shares shall become subject to) the Stockholders
Agreement being entered into between the Company and a majority of its stockholders as of the date
of this Agreement, as the same may be modified or amended from time to time. In the case of any
Shares delivered in connection with a Change in Control, such Shares shall be deemed to be subject
to the Stockholders Agreement effective as of immediately prior to the Change in Control.
For the purposes of this Agreement, the following definitions shall apply:
“Trigger Event” means the first to occur of the following: (1) a Change in Control;
(2) the date of a termination of the Employee’s employment with the Company or an affiliate of the
Company, if such termination occurs at any time between January 1 and May 31 in a particular year;
or (3) the first March 15th following the date of a termination of the Employee’s
employment with the Company or an affiliate of the Company, if such termination occurs at any time
between June 1 and December 31 in a particular year. For purposes of this definition, a
termination of the Employee’s employment with the Company shall constitute a Trigger Event only if
such termination constitutes a “separation of service” under Section 409A.
“Change in Control” means a transaction or series of related transactions occurring
after the closing of the Transaction that:
(i) involves the acquisition of Common Stock or Class B Common Stock of the Company
representing more than 50% of the total fair market value of the Common Stock and Class B Common
Stock of the Company or any successor by any one person or group (other than Ontario Teachers’
Pension Plan Board, an entity without share capital organized under the laws xx Xxxxxxx, Xxxxxx
(“OTPP”), or an affiliate of OTPP or the Company;
(ii) involves the acquisition of Common Stock or Class B Common Stock of the Company
representing 35% or more of the total voting power of the Common Stock and Class B Common Stock of
the Company or any successor by any one person or group (other than OTPP or an affiliate of the
Company or OTPP);
(iii) involves a majority of the members of the Company’s board of directors being replaced
during any 12-month period by directors whose appointment or election is not endorsed by a majority
of the members of the Company’s board of directors before the date of the appointment or election;
(iv) involves the acquisition by any one person or group (other than OTPP or an affiliate of
the Company or OTPP) of assets of the Company that have a total gross fair market value equal to or
more than 50% of the total gross fair market value of all of the assets of the Company immediately
before such acquisition.
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For purposes of this definition, a Public Offering shall not be a Change in Control unless, in
connection with such Public Offering, one or more of criteria described in items (i) through (iii)
above is satisfied. The term “Change in Control” shall be interpreted in a manner consistent with
the Change in Control Event provisions of Section 409A.
“Public Offering” means a public offering pursuant to an effective registration
statement filed with the Securities and Exchange Commission (the “Commission”) that covers
shares of Common Stock of the Company or any successor that, after the closing of such public
offering, will be traded on the New York Stock Exchange, the American Stock Exchange or the
National Association of Securities Dealers Automated Quotation System or similar non-U.S. exchange
or quotation system.
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4. Miscellaneous.
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(A)
|
If to the Company, to: | |
Xxxxx Pet Care Enterprises, Inc. | ||
000 Xxxxxxxx Xxxxx Xxxxx | ||
Xxxxx 000 | ||
Xxxxxxxxx, Xxxxxxxxx 00000 | ||
Attn: President | ||
Fax Number: (000) 000-0000 | ||
Attn: General Counsel | ||
Fax Number: (000) 000-0000 |
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with copies to: | ||
Ontario Teachers’ Pension Plan Board | ||
0000 Xxxxx Xxxxxx | ||
Xxxxxxx, Xxxxxxx X0X 0X0 Xxxxxx | ||
Attn: General Counsel | ||
Fax Number: (000) 000-0000 | ||
Attn: Xxxx Xxxxxxx | ||
Fax Number: (000) 000-0000 | ||
Porter, Wright, Xxxxxx & Xxxxxx llp | ||
00 Xxxxx Xxxx Xxxxxx | ||
Xxxxxxxx, Xxxx 00000 | ||
Attn: Xxxxxxx X. Xxxxx, Esq. | ||
Fax Number: (000) 000-0000 | ||
and | ||
Debevoise & Xxxxxxxx LLP | ||
000 Xxxxx Xxxxxx | ||
Xxx Xxxx, Xxx Xxxx 00000 | ||
Attn: Xxxxxxxx X. Xxxxxxxxx, Esq. | ||
Fax Number: (000) 000-0000 |
(B) | If to the Employee, to the Employee’s last known home address; or | ||
(C) | to such other person or address as any party shall specify by notice in writing to the other party. |
All such notices, requests, demands, letters, waivers and other communications shall be deemed
to have been received (w) if by personal delivery, on the day after such delivery,
(x) if by certified or registered mail, on the fifth business day after the mailing
thereof, (y) if by next-day or overnight mail or delivery, on the day delivered, or
(z) if by fax, on the day delivered, provided that such delivery is confirmed.
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be deemed to constitute a waiver by the party taking such action of compliance with any
representations, warranties, covenants or agreements contained herein. The waiver by either party
hereto of a breach of any provision of this Agreement shall not operate or be construed as a waiver
of any preceding or succeeding breach and no failure by either party to exercise any right or
privilege hereunder shall be deemed a waiver of such party’s rights or privileges hereunder or
shall be deemed a waiver of such party’s rights to exercise the same at any subsequent time or
times hereunder.
(m) Applicable Law. This Agreement shall be governed by and construed in accordance
with the law of the State of Delaware, regardless of the law that might be applied under principles
of conflict of laws.
(p) FOR FLORIDA PURCHASERS. PURCHASERS OF SECURITIES THAT ARE EXEMPTED FROM REGISTRATION BY
SECTION 517.061(11) OF THE FLORIDA SECURITIES AND INVESTOR PROTECTION ACT HAVE THE RIGHT TO VOID
THEIR PURCHASE WITHIN THREE (3) DAYS AFTER THE FIRST TENDER OF CONSIDERATION UNLESS SALES ARE MADE
TO FEWER THAN FIVE (5) PURCHASERS IN FLORIDA (NOT COUNTING INSTITUTIONAL INVESTORS DESCRIBED IN
SECTION 517.061(7)).
XXXXX PET CARE ENTERPRISES, INC. | ||||
By: | ||||
Xxxxxxx X. Xxxxxx, President |
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The Employee: | ||
Address of the Employee: | ||
Number of Deferred Shares:
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