Exhibit 10.26
RESTRICTED STOCK AGREEMENT
RESTRICTED STOCK AGREEMENT dated as of January 1, 2000 (the "Grant
Date") between UCAR International Inc. (the "Company") and Xxxxxxx X. Xxxxxxxx
(the "Recipient").
BACKGROUND
The Board of Directors of the Company (the "Board") has determined that
it is in the best interests of the Company and its stockholders to provide
incentives to the Recipient by, among other things, granting him 100,000 shares
(the "Shares") of its common stock, par value $.01 per share (the "Common
Stock"), subject to the restrictions and conditions set forth herein. Except as
otherwise provided herein, all capitalized terms used but not defined herein
shall have the meanings ascribed to them in the Employment Agreement between the
Company and the Recipient, as in effect at the relevant time (the "Employment
Agreement").
In consideration of the covenants contained herein and other good and
valuable consideration, receipt of which is hereby acknowledged, the parties
agree as follows:
ARTICLE 1
GRANT OF RESTRICTED SHARES
1.1 GRANT OF RESTRICTED SHARES. The Shares are hereby granted to
the Recipient. The Shares consist of treasury shares that have previously been
listed on the New York Stock Exchange.
1.2 RESTRICTIONS. All of the Shares are subject to the restrictions
and conditions set forth in Article 2.
ARTICLE 2
VESTING AND OTHER RESTRICTIONS ON RESTRICTED SHARES
2.1 UNVESTED SHARES. All of the Shares are unvested. Shares shall
vest as, but only as, provided in Section 2.2.
2.2 VESTING.
(a) The first 70,000 of the Shares shall vest on June 30, 2003
so long as the Recipient is then employed as a senior executive officer of the
Company. The remaining 30,000 of the Shares shall vest on December 31, 2004 so
long as the Recipient is then employed as a senior executive officer of the
Company.
(b) Notwithstanding Section 2.2(a), all unvested Shares shall
vest immediately upon:
(i) Termination of Employment of the Recipient by reason
of the Recipient's death or Disability;
(ii) Termination of Employment of the Recipient by the
Company without Cause, which for the purposes of
this Agreement includes Termination of Employment by
the Company to facilitate its pursuit of any
litigation initiated by the Company unless the Board
determines at the time of such Termination that the
Recipient has or may have liability to the Company in
connection with the subject matter of such lawsuit;
and
(iii) Resignation by the Recipient from employment with
Company for Good Reason.
(c) This Agreement does not change the procedural or other
provisions under the Employment Agreement applicable to a Termination of
Employment; provided, however, that, if the Board makes a determination
described in Sections 2.2(b)(ii) and 2.3 (c)(i)and it is subsequently determined
that the Recipient does not have such liability to the Company, then all
unvested Shares which are forfeited pursuant to Section 2.3(c)(i) by reason of
such determination shall be returned to the Recipient in full satisfaction of
all liability which the Company may have to the Recipient in respect of all
matters related to such forfeiture.
2.3 FORFEITURE.
(a) Except to the extent vested under Section 2.2(b), all
Shares shall be forfeited on June 30, 2003 if the Recipient is not then employed
as a senior executive officer of the Company.
(b) Except to the extent vested under Section 2.2(a) or 2.2(b),
30,000 Shares shall be forfeited on December 31, 2004 if the Recipient is not
then employed as a senior executive officer of the Company.
(c) All unvested Shares shall be forfeited upon:
(i) Termination of Employment of the Recipient by the
Company for Cause, which for purposes of this
Agreement includes Termination of Employment by the
Company upon a determination by the Board at the
time of such Termination that the Recipient has
or may have liability to the Company in connection
with the subject matter of any lawsuit mentioned in
Section 2.2(b)(ii);
(ii) Resignation by the Recipient from employment with
the Company without Good Reason;
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(iii) Retirement of the Recipient; or
(iv) Termination of Employment of the Recipient with
Company at the end of the Term of the Employment
Agreement (regardless of which party gives
notice of non-renewal or the reasons therefor).
2.4 REVERSION TO TREASURY SHARES. All Shares which are forfeited
pursuant to Section 2.3 shall automatically (and without further action by the
Company or the Recipient) revert back to the Company and shall thereupon again
constitute treasury shares.
2.5 CERTIFICATES EVIDENCING SHARES.
(a) The Shares will be evidenced by two (2) stock certificates
in the amounts of 70,000 Shares and 30,000 Shares, respectively (the
"Certificates"). Prior to vesting, (i) the Certificates will be held by the
Company, together with blank stock powers executed by the Recipient, and (ii)
the Shares will be subject to stop transfer instructions given by the Company to
the transfer agent for the Common Stock. Upon the vesting of any Shares, the
Certificate evidencing such Shares and the related stock power will be given to
the Recipient. Upon forfeiture of any Shares, the Company will cancel the
Certificate(s) evidencing such Shares and destroy the related stock power(s).
(b) Each Certificate will bear a restrictive legend on its
reverse side in substantially the following form:
THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "ACT"), OR THE SECURITIES LAWS OF
ANY STATE AND HAVE BEEN ISSUED IN RELIANCE UPON EXEMPTIONS
THEREFROM. THESE SECURITIES MAY NOT BE PLEDGED, HYPOTHECATED,
SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF EFFECTIVE
REGISTRATION UNDER THE ACT AND APPLICABLE STATE SECURITIES
LAWS OR AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY THAT
REGISTRATION IS NOT REQUIRED THEREUNDER. THE TRANSFER OF THESE
SECURITIES IS RESTRICTED UNDER THE RESTRICTED STOCK AGREEMENT
DATED AS OF JANUARY 1, 2000 BETWEEN THE COMPANY AND XXXXXXX X.
XXXXXXXX.
2.6 TRANSFER OF SHARES.
(a) Unvested Shares cannot be transferred or pledged; provided,
however, that unvested Shares can be transferred to family members of the
Recipient and trusts for the benefit of the Recipient and such family members so
long as the proposed transferee (i) agrees in writing to be bound by the terms
of this Agreement, including those set forth in Articles 2 and 3, (ii) gives a
blank, executed stock power to the Company to be held with the Certificate
representing the Shares so transferred and (iii) complies with such other terms
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and conditions as the Company may in good faith impose. Any attempt to effect a
transfer of unvested Shares other than in accordance with this Section 2.6(a)
shall be null and void.
(b) To the extent necessary to permit resale by the Recipient or
such family members or trusts of vested Shares, the Company will, upon request,
use reasonable efforts to register the resale of such Shares under the
Securities Act of 1933, as amended (the "Act"), so long as the Company is
permitted to do so on Form S-3 or S-8 or a similar abbreviated form and subject
to such terms and conditions as Company may in good faith impose.
ARTICLE 3
INVESTMENT REPRESENTATIONS
3.1 INVESTMENT REPRESENTATIONS. The Recipient hereby represents and
warrants that he is acquiring the Shares for investment solely for his own
account and not with a view to distribution of the Shares. The Recipient
acknowledges that neither the issuance nor the resale of the Shares has been
registered under the Act and that an instruction will be given to the Company's
transfer agent for the Common Stock that the Shares are subject to restrictions
on transfer in accordance with this Agreement.
ARTICLE 4
MISCELLANEOUS
4.1 NOTICES. All notices, requests and demands given to a party must
be given in writing and shall be deemed to have been duly given or made when
delivered by hand or three days after being deposited in the mail, postage
prepaid, or, in the case of telecopy notice, when received, addressed as follows
or to such other address of which the intended receiving party shall have been
duly notified hereunder:
(a) If to the Company, to the following address:
UCAR International Inc.
0000 Xxxx Xxx Xxxxxx, Xxxxx 0000
Xxxxxxxxx, Xxxxxxxxx 00000
Attn: General Counsel
Telecopy: (000) 000-0000
(b) If to the Recipient, to the following address:
Xxxxxxx X. Xxxxxxxx
5200 St. Xxxxxxx Island Drive
Grand Harbor
Xxxx Xxxxx, Xxxxxxx 00000
(000) 000-0000
4.2 AMENDMENT. This Agreement may be amended only by a writing
executed by the parties which specifically states that it is amending this
Agreement.
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4.3 GOVERNING LAW. This Agreement shall be governed by and construed
and enforced in accordance with the laws of the State of Delaware applicable to
contracts made and to be performed therein without regard to the conflicts of
law principles thereof.
4.4 TITLES. Titles are provided herein for convenience only and
shall not serve as a basis for interpretation or construction of this Agreement.
4.5 COUNTERPARTS. This Agreement may be executed in counterparts,
which together shall constitute one and the same instrument.
IN WITNESS WHEREOF, this Agreement has been executed and
delivered by the parties as of the date first written above.
RECIPIENT UCAR INTERNATIONAL INC.
/s/ X. X. Xxxxxxxx By: /s/ Xxxxx X. Xxxxxxx
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Xxxxxxx X. Xxxxxxxx Name: Xxxxx X. Xxxxxxx
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Title: Vice President
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STOCK POWER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
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Please insert social security or other identifying number of assignee
**SEVENTY THOUSAND**
------------------------------------------- (70,000) shares of the
Common Stock of UCAR International Inc. standing in his name on the books of
said Corporation represented by Certificate No. UC0360 herewith and does
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hereby irrevocably constitute and appoint ______________________ attorney to
transfer the said shares on the books of said Corporation with full power of
substitution in the premises.
/s/ X. X. Xxxxxxxx
Dated: _____________________ _____________________________
Xxxxxxx X. Xxxxxxxx
In presence of
________________________________
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STOCK POWER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
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Please insert social security or other identifying number of assignee
**THIRTY THOUSAND**
------------------------------------------- (30,000) shares of the
Common Stock of UCAR International Inc. standing in his name on the books of
said Corporation represented by Certificate No. _____________ herewith and does
hereby irrevocably constitute and appoint ______________________ attorney to
transfer the said shares on the books of said Corporation with full power of
substitution in the premises.
/s/ X. X. Xxxxxxxx
Dated: _____________________ _____________________________
Xxxxxxx X. Xxxxxxxx
In presence of
________________________________
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