EXHIBIT 10.16.1
XXXXXX CORPORATION
RESTRICTED STOCK AGREEMENT
This Restricted Stock Agreement ("Agreement"), entered into on the 24th
day of January 2002 (the "Effective Date"), which is the date on which the Grant
described below was approved by the Stock Option Committee of the Board of
Directors of XXXXXX CORPORATION, is between XXXXXX CORPORATION, a Delaware
corporation (the "Company"), and Xxxxxx X. Xxxxxxx (the "Employee").
WHEREAS, the Company and Employee agree as follows:
1. Award of Common Stock. The Company hereby grants (the "Grant") to
Employee Twenty-Five Thousand (25,000) shares (the "Shares") of common stock,
$1.00 par value, of the Company ("Common Stock") which shall be subject to the
restrictions on transferability set forth in paragraph 2(d) herein (the
"Restrictions") and to the other provisions of this Agreement. The Shares may be
increased as set forth in paragraph 4 below (such increases to be included in
the term "Shares"), and all such Shares shall be issued to the Employee in
accordance with paragraph 2(b) below.
2. Restricted Period.
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(a) For a period of four (4) years commencing on the Effective Date
(the "Restricted Period"), the Shares shall be subject to the Restrictions and
any other restrictions as set forth herein. The Restrictions shall expire as to
all of the Shares on January 24, 2006, the fourth anniversary of the Effective
Date. The Shares which are subject to the Restrictions shall hereinafter be
referred to as "Restricted Shares." The Shares which are no longer subject to
the Restrictions as set forth in this paragraph (a) and in paragraphs (f) or (g)
below shall hereinafter be referred to as "Transferable Shares."
(b) Prior to the first to occur of (i) a Change of Control (as
defined in paragraph (g) below), (ii) a date which is within ten (10) days of
the Employee's death or disability (as provided in paragraph (f) below) or (iii)
the last day of the Restricted Period, the Company shall issue or transfer to
Employee (or cause to be issued or transferred to Employee), in the manner
hereinafter provided, the Shares. The issuance or transfer may be out of
authorized but unissued shares of Common Stock, or out of treasury shares of
Common Stock, or from an Affiliate (as defined in paragraph 6) of the Company.
Each certificate representing Restricted Shares shall be registered in
Employee's name and shall be either deposited with the Secretary of the Company
or its designee in an escrow account or held by the Secretary of the Company, at
the election of the Company, together with stock powers or other instruments of
transfer appropriately endorsed in blank by Employee (Employee hereby agreeing
to execute such stock powers or other instruments of transfer as requested by
the Company). Such certificate or certificates shall remain in such escrow
account or with the Secretary of the Company until the earlier to occur of (i)
the termination of the Restricted Period or (ii) the expiration of the
Restrictions as set forth in paragraphs (f) or (g) below. Certificates
representing the Restricted Shares shall bear a legend in substantially the
following form:
THE SHARES REPRESENTED BY THIS CERTIFICATE MAY BE TRANSFERRED ONLY IN
COMPLIANCE WITH THE CONDITIONS SPECIFIED IN THE RESTRICTED STOCK
AGREEMENT, DATED JANUARY 24, 2002 BETWEEN XXXXXX CORPORATION ("COMPANY")
AND THE REGISTERED HOLDER OF THIS CERTIFICATE. A COPY OF THE FORM OF SUCH
AGREEMENT IS AVAILABLE FOR INSPECTION AT THE PRINCIPAL OFFICE OF THE
COMPANY AND WILL BE FURNISHED WITHOUT CHARGE TO THE REGISTERED HOLDER OF
SUCH CERTIFICATE UPON WRITTEN REQUEST.
The Company may place appropriate stop transfer instructions with respect to the
Restricted Shares with the transfer agent for the Common Stock. Upon Restricted
Shares becoming Transferable Shares, the Company shall deliver, in exchange for
the legended certificates, a certificate or certificates for such Shares to the
Employee free of the legend set forth above.
(c) Subject to the terms of this Agreement, upon the Company's
issuance or delivery of certificates representing the Shares pursuant to
paragraph (b) above, the Employee shall, during the Restricted Period, have all
of the rights of a stockholder with respect to the Shares including, but not
limited to, the right to receive dividends, if any, as may be declared on such
Restricted Shares from time to time, and the right to vote (in person or by
proxy) such Restricted Shares at any meeting of shareholders of the Company.
(d) The Restricted Shares, the right to receive certificates
representing the Restricted Shares and the right to vote the Restricted Shares
and to receive dividends thereon, may not be sold, assigned, transferred,
exchanged, pledged, hypothecated, or otherwise encumbered and no such purported
sale, assignment, transfer, exchange, pledge, hypothecation, or encumbrance,
whether made or created by voluntary act of Employee or any agent of Employee or
by operation of law, shall be recognized by, or be binding upon, or shall in any
manner affect the rights of, the Company or any agent or any custodian holding
certificates for the Restricted Shares during the Restricted Period, unless the
Restrictions have then expired pursuant to the provisions of paragraphs (f) or
(g) below. This provision shall not prohibit Employee from granting revocable
proxies in customary form to vote the Shares.
(e) If the status of employment (hereinafter referred to as
"employment") of Employee with the Company or its Affiliates (as defined in
Section 6 herein) shall terminate, prior to the expiration of the Restricted
Period as set forth in paragraphs (a), (f) or (g) of this Section then, in that
event, the right to have the Restricted Shares delivered pursuant to paragraph
(b) above and any Restricted Shares outstanding shall, upon such termination of
employment, be forfeited by Employee to the Company, without the payment of any
consideration or further consideration by the Company, and neither Employee nor
any successors, heirs, assigns, or legal representatives of Employee shall
thereafter have any further rights or interest in the Restricted Shares or
certificates therefor, and Employee's name shall thereupon be deleted from the
list of the Company's stockholders with respect to the Restricted Shares.
(f) If the employment of Employee with the Company or its Affiliates
shall terminate by reason of death or disability, any Restrictions on the
Restricted Shares shall be deemed to have expired as to the Restricted Shares as
of the date of any such occurrence, and the Restricted Shares shall thereafter
be Transferable Shares. For purposes of this Agreement, "disability" means the
inability of Employee to perform the essential requirements of his or her job
with or without reasonable accommodation.
(g) Upon the occurrence of a Change of Control (as defined herein),
any Restrictions on the Restricted Shares set forth in this Agreement shall be
deemed to have expired, and the Restricted Shares shall thereafter be
Transferable Shares. A "Change of Control" of the Company shall be conclusively
deemed to have occurred if (and only if) any of the following shall have taken
place: (i) a change in control is reported by the Company in response to Item 1
of Form 8-K (or any successor item of Form 8-K or any similar item of any other
report required to be filed by the Company under the Securities Exchange Act of
1934, as amended ("1934 Act")); (ii) any "person" (as such term is used in
Sections 13(d) and 14(d)(2) of the 0000 Xxx) is or becomes the "beneficial
owner" (as defined in Rule 13d-3 under the 1934 Act), directly or indirectly, of
securities of the Company representing forty percent or more of the combined
voting power of the Company's then outstanding securities; or (iii) following
the election or removal of directors, a majority of the Board consists of
individuals who were not members of the Board two years before such election or
removal, unless the election of each director who was not a director at the
beginning of such two-year period has been approved in advance by directors
representing at least a majority of the directors then in office who were
directors at the beginning of the two-year period.
(h) If the employment of Employee with the Company shall terminate
prior to the expiration of the Restricted Period, and there exists a dispute
between Employee and the Company as to the satisfaction of the conditions to the
release of the Shares from the Restrictions hereunder or the terms and
conditions of the Grant, the Shares shall remain subject to the Restrictions
until the resolution of such dispute, regardless of any intervening expiration
of the Restricted Period, except that any dividends that may be payable to the
holders of record of Common Stock as of a date during the period from
termination of Employee's employment to the resolution of such dispute shall:
(1) to the extent to which such dividends would have been
payable to Employee on the Shares, be held by the Company as part of
its general funds, and shall be paid to or for the account of
Employee only upon, and in the event of, a resolution of such dispute
in a manner favorable to Employee, and
(2) be canceled upon, and in the event of, a resolution of such
dispute in a manner unfavorable to Employee.
3. Taxes. To the extent that the receipt of the Restricted Shares,
Transferable Shares, or the lapse of any Restrictions results in income to
Employee for federal or state income tax purposes, Employee shall deliver to the
Company at the time of such receipt or lapse, as the case may be, such amount of
money or, if the Company so determines, shares of unrestricted Common Stock as
the Company may require to meet its obligation under applicable tax laws or
regulations, and if Employee fails to do so, the Company is authorized to
withhold from any cash or Common Stock remuneration then or thereafter payable
to Employee any tax required to be withheld by reasons of such resulting
compensation income. Employee agrees to notify the Company promptly of any tax
election made by Employee with respect to the Shares.
4. Changes in Capital Structure. If at any time:
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(a) after the Effective Date and prior to the date on which the
Company issues or delivers to Employee certificates representing the Shares as
set forth in paragraph 2(b), the Company shall :
(1) declare a dividend or other distribution in respect of the
Common Stock payable in shares of capital stock, cash or other
property, then and in each such case (A) with respect to a dividend
payable in shares of capital stock, the number of Shares shall be
increased by the number of shares of capital stock which would have
been issued to Employee as a dividend with respect to the Shares if
certificates representing the Shares had been issued or delivered to
Employee on the Effective Date, and such additional shares of capital
stock shall be issued or delivered to Employee contemporaneously with
the issuance or delivery to Employee of the Shares, and shall be
subject to the Restrictions to the same extent as the Shares, and (B)
with respect to a dividend payable in cash or property other than
shares of capital stock, an amount of cash or such other property
equal to the amount of cash or other property which would have been
paid or delivered to Employee if certificates representing the Shares
had been issued or delivered to Employee on the Effective Date shall
be paid or delivered to Employee as compensation income
contemporaneously with the payment or delivery of the dividend to the
Company's stockholders;
(2) split, combine or reclassify the Common Stock into a
different number or kind of shares of capital stock or other
securities, or if the Company shall complete a recapitalization in
which the Common Stock shall be changed or exchanged into a different
number or kind of shares of capital stock or other securities, then
and in each such case the Shares shall thereafter represent the
number and kind of shares of capital stock or other securities into
which the Common Stock has been split, combined, reclassified or
changed or exchanged in such transaction, as if certificates
representing the Shares had been issued or delivered on the Effective
Date, and at such time as the Shares would otherwise be issuable or
deliverable under this Agreement, certificates representing the
shares of capital stock or other securities into which the Common
Stock shall have been split, combined, reclassified or changed or
exchanged in such transaction shall be issued or delivered to
Employee in lieu of the Shares, and shall be subject to the
Restrictions to the same extent as the Shares; or
(3) be merged or consolidated with or into another person, then
and in each such case the Shares shall thereafter represent the
number and kind of shares of capital stock or other securities which
Employee would have received in such transaction if certificates
representing the Shares had been issued or delivered on the Effective
Date, and at such time as the Shares would otherwise be issuable or
deliverable under this Agreement, certificates representing the
shares of capital stock or other securities which would have been
issuable in respect of the Shares in such transaction if the Shares
had been issued or delivered on the Effective Date shall be issued or
delivered to Employee in lieu of the Shares, and shall be subject to
the Restrictions to the same extent as the Shares.
(b) after the issuance or delivery of certificates
representing the Shares the Company shall:
(1) declare a dividend or other distribution in respect of the
Common Stock payable in shares of capital stock, cash or other
property, then and in each such case (A) with respect to a dividend
payable in shares of capital stock, the number of Shares shall be
increased by the number of shares of capital stock issued to Employee
as a dividend with respect to the Shares, and such additional shares
of capital stock shall be issued or delivered to Employee
contemporaneously with the issuance or delivery to Employee of the
Shares, and shall be subject to the Restrictions to the same extent
as the Shares, and (B) with respect to a dividend payable in cash or
property other than shares of capital stock, the amount of cash or
other property constituting the amount of the dividend with respect
to the Shares shall be paid or delivered to Employee
contemporaneously with the payment or delivery of the dividend to the
Company's stockholders;
(2) split, combine or reclassify the Common Stock into a
different number or kind of shares of capital stock or other
securities, or if the Company shall complete a recapitalization in
which the Common Stock shall be changed or exchanged into a different
number or kind of shares of capital stock or other securities, then
the Shares shall thereafter represent the number and kind of shares
of capital stock or other securities into which the Common Stock has
been split, combined, reclassified or changed or exchanged in such
transaction, and at such time as the Shares would otherwise be
issuable or deliverable under this Agreement, certificates
representing the shares of capital stock or other securities into
which the Common Stock shall have been split, combined, reclassified
or changed or exchanged in such transaction shall be issued or
delivered to Employee in lieu of the Shares, and shall be subject to
the Restrictions to the same extent as the Shares; or
(3) be merged or consolidated with or into another person, then
the Shares shall thereafter represent the number and kind of shares
of capital stock or other securities into which the Common Stock has
been converted in the merger or consolidation, and at such time as
the Shares would otherwise be issuable or deliverable under this
Agreement, certificates representing the shares of capital stock or
other securities into which the Common Stock has been converted in
the merger or consolidation shall be issued or delivered to Employee,
and shall be subject to the Restrictions to the same extent as the
Shares.
5. Compliance With Securities Laws.
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(a) Employee represents and warrants to the Company that Employee is
acquiring the Shares for his own account, for investment, and without a view to
any sale or distribution thereof in violation of any federal or state securities
laws. Employee understands that the grant of the Shares to Employee has not been
registered under the Securities Act of 1933, as amended, or the securities laws
of any state, and, accordingly, that in addition to the other restrictions
placed on the Shares by this Agreement, the Shares may not be offered, sold,
assigned, transferred, exchanged, pledged, hypothecated or otherwise encumbered
in absence of either (a) an effective registration statement under the
Securities Act of 1933, as amended, and applicable state securities laws or (b)
an opinion of counsel satisfactory to the Company that such registration is not
required.
(b) Employee agrees that, if required by the Company, the
certificates representing the Shares (whether the Shares are Restricted Shares
or Transferable Shares) shall bear a legend in substantially the following form:
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY STATE SECURITIES LAWS
AND, ACCORDINGLY, MAY NOT BE OFFERED, SOLD, ASSIGNED, TRANSFERRED,
EXCHANGED, PLEDGED, HYPOTHECATED OR OTHERWISE ENCUMBERED IN THE ABSENCE OF
EITHER (1) AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF
1933, AS AMENDED, AND APPLICABLE STATE SECURITIES LAWS OR (2) AN OPINION
OF COUNSEL SATISFACTORY TO XXXXXX CORPORATION THAT SUCH REGISTRATION IS
NOT REQUIRED.
(c) Upon the execution of this Agreement and receipt of any
certificates for the Shares pursuant to this Agreement, Employee (or Employee's
legal representative upon Employee's death or disability) will enter into such
additional written representations, warranties and agreements as the Company may
reasonably request in order to comply with applicable securities laws or with
this Agreement.
6. Employment Relationship. Employee shall be considered to be in the
employment of the Company as long as he remains as an employee of the Company or
its Affiliates. Any questions as to whether and when there has been a
termination of such employment, and the cause of such termination, shall be
determined by the Company, with the advice of the employing corporation (if an
Affiliate of the Company), and the Company's determination shall be final. For
purposes of this Agreement, "Affiliates" shall mean any "parent corporation" of
the Company and any "subsidiary corporation" of the Company within the meaning
of Sections 424(e) and (f), respectively, of the Internal Revenue Code of 1986,
as amended.
7. Binding Effect. The terms and conditions hereof shall, in accordance
with their terms, be binding upon, and inure to the benefit of, all successors
of Employee, including, without limitation, Employee's estate and the executors,
administrators, or trustees thereof, heirs and legatees, and any receiver,
trustee in bankruptcy, or representative of creditors of Employee. This
Agreement shall be binding upon and inure to the benefit of any successors to
the Company.
8. Notice. All notices, requests, demands and other communications given
under or by reason of this Agreement shall be in writing and shall be deemed
given when delivered in person or when mailed, by certified mail (return receipt
requested), postage prepaid, addressed as follows (or to such other address as a
party may specify by notice pursuant to this provision):
(a) To the Company:
XXXXXX CORPORATION
Attention: Secretary
0000 Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
(b) To the Employee:
Xxxxxx X. Xxxxxxx
XXXXXX CORPORATION
0000 Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
9. Arbitration. Any dispute or controversy arising under or in connection
with this Agreement shall be settled by binding arbitration in Houston, Texas by
one arbitrator appointed in the manner set forth by the American Arbitration
Association. Any arbitration proceeding pursuant to this paragraph shall be
conducted in accordance with the Employment Dispute Resolution Rules of the
American Arbitration Association. Judgment may be entered on the arbitrators'
award in any court having jurisdiction.
10. Entire Agreement and Amendments. This Agreement contains the entire
agreement of the parties relating to the matters contained herein and supersedes
all prior agreements and understandings, oral or written, between the parties
with respect to the subject matter hereof. This Agreement may be changed only by
an agreement in writing signed by the party against whom enforcement of any
waiver, change, modification, extension or discharge is sought.
11. Separability. If any provision of the Agreement is rendered or
declared illegal or unenforceable by reason of any existing or subsequently
enacted legislation or by the decision of any arbitrator or by decree of a court
of last resort, the parties shall promptly meet and negotiate substitute
provisions for those rendered or declared illegal or unenforceable to preserve
the original intent of this Agreement to the extent legally possible, but all
other provisions of this Agreement shall remain in full force and effect.
12. Governing Law. The execution, validity,
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interpretation, and performance of this Agreement shall be
governed by, and construed in accordance with, the laws of the
State of Delaware except to the extent pre-empted by federal law.
IN WITNESS WHEREOF, the Company has caused this Agreement to be duly
executed by one of its officers thereunto duly authorized, and Employee has
executed this Agreement, all as of the day and year first above written.
XXXXXX CORPORATION
By: /s/ XXXXXX X. XXXXXXX
---------------------------------
Corporate Secretary
EMPLOYEE
Name:/s/ XXXXXX X. XXXXXXX
------------------------------------
Xxxxxx X. Xxxxxxx
EXHIBIT 10.16.2
XXXXXX CORPORATION
RESTRICTED STOCK AGREEMENT
This Restricted Stock Agreement ("Agreement"), entered into on the 24th
day of January 2002 (the "Effective Date"), which is the date on which the Grant
described below was approved by the Stock Option Committee of the Board of
Directors of XXXXXX CORPORATION, is between XXXXXX CORPORATION, a Delaware
corporation (the "Company"), and Xxxxxxx X. Xxxxxx (the "Employee").
WHEREAS, the Company and Employee agree as follows:
1. Award of Common Stock. The Company hereby grants (the "Grant") to
Employee Twenty-Five Thousand (25,000) shares (the "Shares") of common stock,
$1.00 par value, of the Company ("Common Stock") which shall be subject to the
restrictions on transferability set forth in paragraph 2(d) herein (the
"Restrictions") and to the other provisions of this Agreement. The Shares may be
increased as set forth in paragraph 4 below (such increases to be included in
the term "Shares"), and all such Shares shall be issued to the Employee in
accordance with paragraph 2(b) below.
2. Restricted Period.
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(a) For a period of four (4) years commencing on the Effective Date
(the "Restricted Period"), the Shares shall be subject to the Restrictions and
any other restrictions as set forth herein. The Restrictions shall expire as to
all of the Shares on January 24, 2006, the fourth anniversary of the Effective
Date. The Shares which are subject to the Restrictions shall hereinafter be
referred to as "Restricted Shares." The Shares which are no longer subject to
the Restrictions as set forth in this paragraph (a) and in paragraphs (f) or (g)
below shall hereinafter be referred to as "Transferable Shares."
(b) Prior to the first to occur of (i) a Change of Control (as
defined in paragraph (g) below), (ii) a date which is within ten (10) days of
the Employee's death or disability (as provided in paragraph (f) below) or (iii)
the last day of the Restricted Period, the Company shall issue or transfer to
Employee (or cause to be issued or transferred to Employee), in the manner
hereinafter provided, the Shares. The issuance or transfer may be out of
authorized but unissued shares of Common Stock, or out of treasury shares of
Common Stock, or from an Affiliate (as defined in paragraph 6) of the Company.
Each certificate representing Restricted Shares shall be registered in
Employee's name and shall be either deposited with the Secretary of the Company
or its designee in an escrow account or held by the Secretary of the Company, at
the election of the Company, together with stock powers or other instruments of
transfer appropriately endorsed in blank by Employee (Employee hereby agreeing
to execute such stock powers or other instruments of transfer as requested by
the Company). Such certificate or certificates shall remain in such escrow
account or with the Secretary of the Company until the earlier to occur of (i)
the termination of the Restricted Period or (ii) the expiration of the
Restrictions as set forth in paragraphs (f) or (g) below. Certificates
representing the Restricted Shares shall bear a legend in substantially the
following form:
THE SHARES REPRESENTED BY THIS CERTIFICATE MAY BE TRANSFERRED ONLY IN
COMPLIANCE WITH THE CONDITIONS SPECIFIED IN THE RESTRICTED STOCK
AGREEMENT, DATED JANUARY 24, 2002 BETWEEN XXXXXX CORPORATION ("COMPANY")
AND THE REGISTERED HOLDER OF THIS CERTIFICATE. A COPY OF THE FORM OF SUCH
AGREEMENT IS AVAILABLE FOR INSPECTION AT THE PRINCIPAL OFFICE OF THE
COMPANY AND WILL BE FURNISHED WITHOUT CHARGE TO THE REGISTERED HOLDER OF
SUCH CERTIFICATE UPON WRITTEN REQUEST.
The Company may place appropriate stop transfer instructions with respect to the
Restricted Shares with the transfer agent for the Common Stock. Upon Restricted
Shares becoming Transferable Shares, the Company shall deliver, in exchange for
the legended certificates, a certificate or certificates for such Shares to the
Employee free of the legend set forth above.
(c) Subject to the terms of this Agreement, upon the Company's
issuance or delivery of certificates representing the Shares pursuant to
paragraph (b) above, the Employee shall, during the Restricted Period, have all
of the rights of a stockholder with respect to the Shares including, but not
limited to, the right to receive dividends, if any, as may be declared on such
Restricted Shares from time to time, and the right to vote (in person or by
proxy) such Restricted Shares at any meeting of shareholders of the Company.
(d) The Restricted Shares, the right to receive certificates
representing the Restricted Shares and the right to vote the Restricted Shares
and to receive dividends thereon, may not be sold, assigned, transferred,
exchanged, pledged, hypothecated, or otherwise encumbered and no such purported
sale, assignment, transfer, exchange, pledge, hypothecation, or encumbrance,
whether made or created by voluntary act of Employee or any agent of Employee or
by operation of law, shall be recognized by, or be binding upon, or shall in any
manner affect the rights of, the Company or any agent or any custodian holding
certificates for the Restricted Shares during the Restricted Period, unless the
Restrictions have then expired pursuant to the provisions of paragraphs (f) or
(g) below. This provision shall not prohibit Employee from granting revocable
proxies in customary form to vote the Shares.
(e) If the status of employment (hereinafter referred to as
"employment") of Employee with the Company or its Affiliates (as defined in
Section 6 herein) shall terminate, prior to the expiration of the Restricted
Period as set forth in paragraphs (a), (f) or (g) of this Section then, in that
event, the right to have the Restricted Shares delivered pursuant to paragraph
(b) above and any Restricted Shares outstanding shall, upon such termination of
employment, be forfeited by Employee to the Company, without the payment of any
consideration or further consideration by the Company, and neither Employee nor
any successors, heirs, assigns, or legal representatives of Employee shall
thereafter have any further rights or interest in the Restricted Shares or
certificates therefor, and Employee's name shall thereupon be deleted from the
list of the Company's stockholders with respect to the Restricted Shares.
(f) If the employment of Employee with the Company or its Affiliates
shall terminate by reason of death or disability, any Restrictions on the
Restricted Shares shall be deemed to have expired as to the Restricted Shares as
of the date of any such occurrence, and the Restricted Shares shall thereafter
be Transferable Shares. For purposes of this Agreement, "disability" means the
inability of Employee to perform the essential requirements of his or her job
with or without reasonable accommodation.
(g) Upon the occurrence of a Change of Control (as defined herein),
any Restrictions on the Restricted Shares set forth in this Agreement shall be
deemed to have expired, and the Restricted Shares shall thereafter be
Transferable Shares. A "Change of Control" of the Company shall be conclusively
deemed to have occurred if (and only if) any of the following shall have taken
place: (i) a change in control is reported by the Company in response to Item 1
of Form 8-K (or any successor item of Form 8-K or any similar item of any other
report required to be filed by the Company under the Securities Exchange Act of
1934, as amended ("1934 Act")); (ii) any "person" (as such term is used in
Sections 13(d) and 14(d)(2) of the 0000 Xxx) is or becomes the "beneficial
owner" (as defined in Rule 13d-3 under the 1934 Act), directly or indirectly, of
securities of the Company representing forty percent or more of the combined
voting power of the Company's then outstanding securities; or (iii) following
the election or removal of directors, a majority of the Board consists of
individuals who were not members of the Board two years before such election or
removal, unless the election of each director who was not a director at the
beginning of such two-year period has been approved in advance by directors
representing at least a majority of the directors then in office who were
directors at the beginning of the two-year period.
(h) If the employment of Employee with the Company shall terminate
prior to the expiration of the Restricted Period, and there exists a dispute
between Employee and the Company as to the satisfaction of the conditions to the
release of the Shares from the Restrictions hereunder or the terms and
conditions of the Grant, the Shares shall remain subject to the Restrictions
until the resolution of such dispute, regardless of any intervening expiration
of the Restricted Period, except that any dividends that may be payable to the
holders of record of Common Stock as of a date during the period from
termination of Employee's employment to the resolution of such dispute shall:
(1) to the extent to which such dividends would have been
payable to Employee on the Shares, be held by the Company as part of
its general funds, and shall be paid to or for the account of
Employee only upon, and in the event of, a resolution of such dispute
in a manner favorable to Employee, and
(2) be canceled upon, and in the event of, a resolution of such
dispute in a manner unfavorable to Employee.
3. Taxes. To the extent that the receipt of the Restricted Shares,
Transferable Shares, or the lapse of any Restrictions results in income to
Employee for federal or state income tax purposes, Employee shall deliver to the
Company at the time of such receipt or lapse, as the case may be, such amount of
money or, if the Company so determines, shares of unrestricted Common Stock as
the Company may require to meet its obligation under applicable tax laws or
regulations, and if Employee fails to do so, the Company is authorized to
withhold from any cash or Common Stock remuneration then or thereafter payable
to Employee any tax required to be withheld by reasons of such resulting
compensation income. Employee agrees to notify the Company promptly of any tax
election made by Employee with respect to the Shares.
4. Changes in Capital Structure. If at any time:
----------------------------
(a) after the Effective Date and prior to the date on which the
Company issues or delivers to Employee certificates representing the Shares as
set forth in paragraph 2(b), the Company shall :
(1) declare a dividend or other distribution in respect of the
Common Stock payable in shares of capital stock, cash or other
property, then and in each such case (A) with respect to a dividend
payable in shares of capital stock, the number of Shares shall be
increased by the number of shares of capital stock which would have
been issued to Employee as a dividend with respect to the Shares if
certificates representing the Shares had been issued or delivered to
Employee on the Effective Date, and such additional shares of capital
stock shall be issued or delivered to Employee contemporaneously with
the issuance or delivery to Employee of the Shares, and shall be
subject to the Restrictions to the same extent as the Shares, and (B)
with respect to a dividend payable in cash or property other than
shares of capital stock, an amount of cash or such other property
equal to the amount of cash or other property which would have been
paid or delivered to Employee if certificates representing the Shares
had been issued or delivered to Employee on the Effective Date shall
be paid or delivered to Employee as compensation income
contemporaneously with the payment or delivery of the dividend to the
Company's stockholders;
(2) split, combine or reclassify the Common Stock into a
different number or kind of shares of capital stock or other
securities, or if the Company shall complete a recapitalization in
which the Common Stock shall be changed or exchanged into a different
number or kind of shares of capital stock or other securities, then
and in each such case the Shares shall thereafter represent the
number and kind of shares of capital stock or other securities into
which the Common Stock has been split, combined, reclassified or
changed or exchanged in such transaction, as if certificates
representing the Shares had been issued or delivered on the Effective
Date, and at such time as the Shares would otherwise be issuable or
deliverable under this Agreement, certificates representing the
shares of capital stock or other securities into which the Common
Stock shall have been split, combined, reclassified or changed or
exchanged in such transaction shall be issued or delivered to
Employee in lieu of the Shares, and shall be subject to the
Restrictions to the same extent as the Shares; or
(3) be merged or consolidated with or into another person, then
and in each such case the Shares shall thereafter represent the
number and kind of shares of capital stock or other securities which
Employee would have received in such transaction if certificates
representing the Shares had been issued or delivered on the Effective
Date, and at such time as the Shares would otherwise be issuable or
deliverable under this Agreement, certificates representing the
shares of capital stock or other securities which would have been
issuable in respect of the Shares in such transaction if the Shares
had been issued or delivered on the Effective Date shall be issued or
delivered to Employee in lieu of the Shares, and shall be subject to
the Restrictions to the same extent as the Shares.
(b) after the issuance or delivery of certificates
representing the Shares the Company shall:
(1) declare a dividend or other distribution in respect of the
Common Stock payable in shares of capital stock, cash or other
property, then and in each such case (A) with respect to a dividend
payable in shares of capital stock, the number of Shares shall be
increased by the number of shares of capital stock issued to Employee
as a dividend with respect to the Shares, and such additional shares
of capital stock shall be issued or delivered to Employee
contemporaneously with the issuance or delivery to Employee of the
Shares, and shall be subject to the Restrictions to the same extent
as the Shares, and (B) with respect to a dividend payable in cash or
property other than shares of capital stock, the amount of cash or
other property constituting the amount of the dividend with respect
to the Shares shall be paid or delivered to Employee
contemporaneously with the payment or delivery of the dividend to the
Company's stockholders;
(2) split, combine or reclassify the Common Stock into a
different number or kind of shares of capital stock or other
securities, or if the Company shall complete a recapitalization in
which the Common Stock shall be changed or exchanged into a different
number or kind of shares of capital stock or other securities, then
the Shares shall thereafter represent the number and kind of shares
of capital stock or other securities into which the Common Stock has
been split, combined, reclassified or changed or exchanged in such
transaction, and at such time as the Shares would otherwise be
issuable or deliverable under this Agreement, certificates
representing the shares of capital stock or other securities into
which the Common Stock shall have been split, combined, reclassified
or changed or exchanged in such transaction shall be issued or
delivered to Employee in lieu of the Shares, and shall be subject to
the Restrictions to the same extent as the Shares; or
(3) be merged or consolidated with or into another person, then
the Shares shall thereafter represent the number and kind of shares
of capital stock or other securities into which the Common Stock has
been converted in the merger or consolidation, and at such time as
the Shares would otherwise be issuable or deliverable under this
Agreement, certificates representing the shares of capital stock or
other securities into which the Common Stock has been converted in
the merger or consolidation shall be issued or delivered to Employee,
and shall be subject to the Restrictions to the same extent as the
Shares.
5. Compliance With Securities Laws.
-------------------------------
(a) Employee represents and warrants to the Company that Employee is
acquiring the Shares for his own account, for investment, and without a view to
any sale or distribution thereof in violation of any federal or state securities
laws. Employee understands that the grant of the Shares to Employee has not been
registered under the Securities Act of 1933, as amended, or the securities laws
of any state, and, accordingly, that in addition to the other restrictions
placed on the Shares by this Agreement, the Shares may not be offered, sold,
assigned, transferred, exchanged, pledged, hypothecated or otherwise encumbered
in absence of either (a) an effective registration statement under the
Securities Act of 1933, as amended, and applicable state securities laws or (b)
an opinion of counsel satisfactory to the Company that such registration is not
required.
(b) Employee agrees that, if required by the Company, the
certificates representing the Shares (whether the Shares are Restricted Shares
or Transferable Shares) shall bear a legend in substantially the following form:
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY STATE SECURITIES LAWS
AND, ACCORDINGLY, MAY NOT BE OFFERED, SOLD, ASSIGNED, TRANSFERRED,
EXCHANGED, PLEDGED, HYPOTHECATED OR OTHERWISE ENCUMBERED IN THE ABSENCE OF
EITHER (1) AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF
1933, AS AMENDED, AND APPLICABLE STATE SECURITIES LAWS OR (2) AN OPINION
OF COUNSEL SATISFACTORY TO XXXXXX CORPORATION THAT SUCH REGISTRATION IS
NOT REQUIRED.
(c) Upon the execution of this Agreement and receipt of any
certificates for the Shares pursuant to this Agreement, Employee (or Employee's
legal representative upon Employee's death or disability) will enter into such
additional written representations, warranties and agreements as the Company may
reasonably request in order to comply with applicable securities laws or with
this Agreement.
6. Employment Relationship. Employee shall be considered to be in the
employment of the Company as long as he remains as an employee of the Company or
its Affiliates. Any questions as to whether and when there has been a
termination of such employment, and the cause of such termination, shall be
determined by the Company, with the advice of the employing corporation (if an
Affiliate of the Company), and the Company's determination shall be final. For
purposes of this Agreement, "Affiliates" shall mean any "parent corporation" of
the Company and any "subsidiary corporation" of the Company within the meaning
of Sections 424(e) and (f), respectively, of the Internal Revenue Code of 1986,
as amended.
7. Binding Effect. The terms and conditions hereof shall, in accordance
with their terms, be binding upon, and inure to the benefit of, all successors
of Employee, including, without limitation, Employee's estate and the executors,
administrators, or trustees thereof, heirs and legatees, and any receiver,
trustee in bankruptcy, or representative of creditors of Employee. This
Agreement shall be binding upon and inure to the benefit of any successors to
the Company.
8. Notice. All notices, requests, demands and other communications given
under or by reason of this Agreement shall be in writing and shall be deemed
given when delivered in person or when mailed, by certified mail (return receipt
requested), postage prepaid, addressed as follows (or to such other address as a
party may specify by notice pursuant to this provision):
(a) To the Company:
XXXXXX CORPORATION
Attention: Secretary
0000 Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
(b) To the Employee:
Xxxxxxx X. Xxxxxx
XXXXXX CORPORATION
0000 Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
9. Arbitration. Any dispute or controversy arising under or in connection
with this Agreement shall be settled by binding arbitration in Houston, Texas by
one arbitrator appointed in the manner set forth by the American Arbitration
Association. Any arbitration proceeding pursuant to this paragraph shall be
conducted in accordance with the Employment Dispute Resolution Rules of the
American Arbitration Association. Judgment may be entered on the arbitrators'
award in any court having jurisdiction.
10. Entire Agreement and Amendments. This Agreement contains the entire
agreement of the parties relating to the matters contained herein and supersedes
all prior agreements and understandings, oral or written, between the parties
with respect to the subject matter hereof. This Agreement may be changed only by
an agreement in writing signed by the party against whom enforcement of any
waiver, change, modification, extension or discharge is sought.
11. Separability. If any provision of the Agreement is rendered or
declared illegal or unenforceable by reason of any existing or subsequently
enacted legislation or by the decision of any arbitrator or by decree of a court
of last resort, the parties shall promptly meet and negotiate substitute
provisions for those rendered or declared illegal or unenforceable to preserve
the original intent of this Agreement to the extent legally possible, but all
other provisions of this Agreement shall remain in full force and effect.
12. Governing Law. The execution, validity,
-----------------
interpretation, and performance of this Agreement shall be
governed by, and construed in accordance with, the laws of the
State of Delaware except to the extent pre-empted by federal law.
IN WITNESS WHEREOF, the Company has caused this Agreement to be duly
executed by one of its officers thereunto duly authorized, and Employee has
executed this Agreement, all as of the day and year first above written.
XXXXXX CORPORATION
By: /s/ XXXXXX X. XXXXXXX
---------------------------------
Corporate Secretary
EMPLOYEE
Name:/s/ XXXXXXX X. XXXXXX
------------------------------------
Xxxxxxx X. Xxxxxx
EXHIBIT 10.16.3
XXXXXX CORPORATION
RESTRICTED STOCK AGREEMENT
This Restricted Stock Agreement ("Agreement"), entered into on the 24th
day of January 2002 (the "Effective Date"), which is the date on which the Grant
described below was approved by the Stock Option Committee of the Board of
Directors of XXXXXX CORPORATION, is between XXXXXX CORPORATION, a Delaware
corporation (the "Company"), and Xxxx X. Xxxxxxxx, Xx. (the "Employee").
WHEREAS, the Company and Employee agree as follows:
1. Award of Common Stock. The Company hereby grants (the "Grant") to
Employee Three Thousand (3,000) shares (the "Shares") of common stock, $1.00 par
value, of the Company ("Common Stock") which shall be subject to the
restrictions on transferability set forth in paragraph 2(d) herein (the
"Restrictions") and to the other provisions of this Agreement. The Shares may be
increased as set forth in paragraph 4 below (such increases to be included in
the term "Shares"), and all such Shares shall be issued to the Employee in
accordance with paragraph 2(b) below.
2. Restricted Period.
-----------------
(a) For a period of four (4) years commencing on the Effective Date
(the "Restricted Period"), the Shares shall be subject to the Restrictions and
any other restrictions as set forth herein. The Restrictions shall expire as to
all of the Shares on January 24, 2006, the fourth anniversary of the Effective
Date. The Shares which are subject to the Restrictions shall hereinafter be
referred to as "Restricted Shares." The Shares which are no longer subject to
the Restrictions as set forth in this paragraph (a) and in paragraphs (f) or (g)
below shall hereinafter be referred to as "Transferable Shares."
(b) Prior to the first to occur of (i) a Change of Control (as
defined in paragraph (g) below), (ii) a date which is within ten (10) days of
the Employee's death or disability (as provided in paragraph (f) below) or (iii)
the last day of the Restricted Period, the Company shall issue or transfer to
Employee (or cause to be issued or transferred to Employee), in the manner
hereinafter provided, the Shares. The issuance or transfer may be out of
authorized but unissued shares of Common Stock, or out of treasury shares of
Common Stock, or from an Affiliate (as defined in paragraph 6) of the Company.
Each certificate representing Restricted Shares shall be registered in
Employee's name and shall be either deposited with the Secretary of the Company
or its designee in an escrow account or held by the Secretary of the Company, at
the election of the Company, together with stock powers or other instruments of
transfer appropriately endorsed in blank by Employee (Employee hereby agreeing
to execute such stock powers or other instruments of transfer as requested by
the Company). Such certificate or certificates shall remain in such escrow
account or with the Secretary of the Company until the earlier to occur of (i)
the termination of the Restricted Period or (ii) the expiration of the
Restrictions as set forth in paragraphs (f) or (g) below. Certificates
representing the Restricted Shares shall bear a legend in substantially the
following form:
THE SHARES REPRESENTED BY THIS CERTIFICATE MAY BE TRANSFERRED ONLY IN
COMPLIANCE WITH THE CONDITIONS SPECIFIED IN THE RESTRICTED STOCK
AGREEMENT, DATED JANUARY 24, 2002 BETWEEN XXXXXX CORPORATION ("COMPANY")
AND THE REGISTERED HOLDER OF THIS CERTIFICATE. A COPY OF THE FORM OF SUCH
AGREEMENT IS AVAILABLE FOR INSPECTION AT THE PRINCIPAL OFFICE OF THE
COMPANY AND WILL BE FURNISHED WITHOUT CHARGE TO THE REGISTERED HOLDER OF
SUCH CERTIFICATE UPON WRITTEN REQUEST.
The Company may place appropriate stop transfer instructions with respect to the
Restricted Shares with the transfer agent for the Common Stock. Upon Restricted
Shares becoming Transferable Shares, the Company shall deliver, in exchange for
the legended certificates, a certificate or certificates for such Shares to the
Employee free of the legend set forth above.
(c) Subject to the terms of this Agreement, upon the Company's
issuance or delivery of certificates representing the Shares pursuant to
paragraph (b) above, the Employee shall, during the Restricted Period, have all
of the rights of a stockholder with respect to the Shares including, but not
limited to, the right to receive dividends, if any, as may be declared on such
Restricted Shares from time to time, and the right to vote (in person or by
proxy) such Restricted Shares at any meeting of shareholders of the Company.
(d) The Restricted Shares, the right to receive certificates
representing the Restricted Shares and the right to vote the Restricted Shares
and to receive dividends thereon, may not be sold, assigned, transferred,
exchanged, pledged, hypothecated, or otherwise encumbered and no such purported
sale, assignment, transfer, exchange, pledge, hypothecation, or encumbrance,
whether made or created by voluntary act of Employee or any agent of Employee or
by operation of law, shall be recognized by, or be binding upon, or shall in any
manner affect the rights of, the Company or any agent or any custodian holding
certificates for the Restricted Shares during the Restricted Period, unless the
Restrictions have then expired pursuant to the provisions of paragraphs (f) or
(g) below. This provision shall not prohibit Employee from granting revocable
proxies in customary form to vote the Shares.
(e) If the status of employment (hereinafter referred to as
"employment") of Employee with the Company or its Affiliates (as defined in
Section 6 herein) shall terminate, prior to the expiration of the Restricted
Period as set forth in paragraphs (a), (f) or (g) of this Section then, in that
event, the right to have the Restricted Shares delivered pursuant to paragraph
(b) above and any Restricted Shares outstanding shall, upon such termination of
employment, be forfeited by Employee to the Company, without the payment of any
consideration or further consideration by the Company, and neither Employee nor
any successors, heirs, assigns, or legal representatives of Employee shall
thereafter have any further rights or interest in the Restricted Shares or
certificates therefor, and Employee's name shall thereupon be deleted from the
list of the Company's stockholders with respect to the Restricted Shares.
(f) If the employment of Employee with the Company or its Affiliates
shall terminate by reason of death or disability, any Restrictions on the
Restricted Shares shall be deemed to have expired as to the Restricted Shares as
of the date of any such occurrence, and the Restricted Shares shall thereafter
be Transferable Shares. For purposes of this Agreement, "disability" means the
inability of Employee to perform the essential requirements of his or her job
with or without reasonable accommodation.
(g) Upon the occurrence of a Change of Control (as defined herein),
any Restrictions on the Restricted Shares set forth in this Agreement shall be
deemed to have expired, and the Restricted Shares shall thereafter be
Transferable Shares. A "Change of Control" of the Company shall be conclusively
deemed to have occurred if (and only if) any of the following shall have taken
place: (i) a change in control is reported by the Company in response to Item 1
of Form 8-K (or any successor item of Form 8-K or any similar item of any other
report required to be filed by the Company under the Securities Exchange Act of
1934, as amended ("1934 Act")); (ii) any "person" (as such term is used in
Sections 13(d) and 14(d)(2) of the 0000 Xxx) is or becomes the "beneficial
owner" (as defined in Rule 13d-3 under the 1934 Act), directly or indirectly, of
securities of the Company representing forty percent or more of the combined
voting power of the Company's then outstanding securities; or (iii) following
the election or removal of directors, a majority of the Board consists of
individuals who were not members of the Board two years before such election or
removal, unless the election of each director who was not a director at the
beginning of such two-year period has been approved in advance by directors
representing at least a majority of the directors then in office who were
directors at the beginning of the two-year period.
(h) If the employment of Employee with the Company shall terminate
prior to the expiration of the Restricted Period, and there exists a dispute
between Employee and the Company as to the satisfaction of the conditions to the
release of the Shares from the Restrictions hereunder or the terms and
conditions of the Grant, the Shares shall remain subject to the Restrictions
until the resolution of such dispute, regardless of any intervening expiration
of the Restricted Period, except that any dividends that may be payable to the
holders of record of Common Stock as of a date during the period from
termination of Employee's employment to the resolution of such dispute shall:
(1) to the extent to which such dividends would have been
payable to Employee on the Shares, be held by the Company as part of
its general funds, and shall be paid to or for the account of
Employee only upon, and in the event of, a resolution of such dispute
in a manner favorable to Employee, and
(2) be canceled upon, and in the event of, a resolution of such
dispute in a manner unfavorable to Employee.
3. Taxes. To the extent that the receipt of the Restricted Shares,
Transferable Shares, or the lapse of any Restrictions results in income to
Employee for federal or state income tax purposes, Employee shall deliver to the
Company at the time of such receipt or lapse, as the case may be, such amount of
money or, if the Company so determines, shares of unrestricted Common Stock as
the Company may require to meet its obligation under applicable tax laws or
regulations, and if Employee fails to do so, the Company is authorized to
withhold from any cash or Common Stock remuneration then or thereafter payable
to Employee any tax required to be withheld by reasons of such resulting
compensation income. Employee agrees to notify the Company promptly of any tax
election made by Employee with respect to the Shares.
4. Changes in Capital Structure. If at any time:
----------------------------
(a) after the Effective Date and prior to the date on which the
Company issues or delivers to Employee certificates representing the Shares as
set forth in paragraph 2(b), the Company shall :
(1) declare a dividend or other distribution in respect of the
Common Stock payable in shares of capital stock, cash or other
property, then and in each such case (A) with respect to a dividend
payable in shares of capital stock, the number of Shares shall be
increased by the number of shares of capital stock which would have
been issued to Employee as a dividend with respect to the Shares if
certificates representing the Shares had been issued or delivered to
Employee on the Effective Date, and such additional shares of capital
stock shall be issued or delivered to Employee contemporaneously with
the issuance or delivery to Employee of the Shares, and shall be
subject to the Restrictions to the same extent as the Shares, and (B)
with respect to a dividend payable in cash or property other than
shares of capital stock, an amount of cash or such other property
equal to the amount of cash or other property which would have been
paid or delivered to Employee if certificates representing the Shares
had been issued or delivered to Employee on the Effective Date shall
be paid or delivered to Employee as compensation income
contemporaneously with the payment or delivery of the dividend to the
Company's stockholders;
(2) split, combine or reclassify the Common Stock into a
different number or kind of shares of capital stock or other
securities, or if the Company shall complete a recapitalization in
which the Common Stock shall be changed or exchanged into a different
number or kind of shares of capital stock or other securities, then
and in each such case the Shares shall thereafter represent the
number and kind of shares of capital stock or other securities into
which the Common Stock has been split, combined, reclassified or
changed or exchanged in such transaction, as if certificates
representing the Shares had been issued or delivered on the Effective
Date, and at such time as the Shares would otherwise be issuable or
deliverable under this Agreement, certificates representing the
shares of capital stock or other securities into which the Common
Stock shall have been split, combined, reclassified or changed or
exchanged in such transaction shall be issued or delivered to
Employee in lieu of the Shares, and shall be subject to the
Restrictions to the same extent as the Shares; or
(3) be merged or consolidated with or into another person, then
and in each such case the Shares shall thereafter represent the
number and kind of shares of capital stock or other securities which
Employee would have received in such transaction if certificates
representing the Shares had been issued or delivered on the Effective
Date, and at such time as the Shares would otherwise be issuable or
deliverable under this Agreement, certificates representing the
shares of capital stock or other securities which would have been
issuable in respect of the Shares in such transaction if the Shares
had been issued or delivered on the Effective Date shall be issued or
delivered to Employee in lieu of the Shares, and shall be subject to
the Restrictions to the same extent as the Shares.
(b) after the issuance or delivery of certificates
representing the Shares the Company shall:
(1) declare a dividend or other distribution in respect of the
Common Stock payable in shares of capital stock, cash or other
property, then and in each such case (A) with respect to a dividend
payable in shares of capital stock, the number of Shares shall be
increased by the number of shares of capital stock issued to Employee
as a dividend with respect to the Shares, and such additional shares
of capital stock shall be issued or delivered to Employee
contemporaneously with the issuance or delivery to Employee of the
Shares, and shall be subject to the Restrictions to the same extent
as the Shares, and (B) with respect to a dividend payable in cash or
property other than shares of capital stock, the amount of cash or
other property constituting the amount of the dividend with respect
to the Shares shall be paid or delivered to Employee
contemporaneously with the payment or delivery of the dividend to the
Company's stockholders;
(2) split, combine or reclassify the Common Stock into a
different number or kind of shares of capital stock or other
securities, or if the Company shall complete a recapitalization in
which the Common Stock shall be changed or exchanged into a different
number or kind of shares of capital stock or other securities, then
the Shares shall thereafter represent the number and kind of shares
of capital stock or other securities into which the Common Stock has
been split, combined, reclassified or changed or exchanged in such
transaction, and at such time as the Shares would otherwise be
issuable or deliverable under this Agreement, certificates
representing the shares of capital stock or other securities into
which the Common Stock shall have been split, combined, reclassified
or changed or exchanged in such transaction shall be issued or
delivered to Employee in lieu of the Shares, and shall be subject to
the Restrictions to the same extent as the Shares; or
(3) be merged or consolidated with or into another person, then
the Shares shall thereafter represent the number and kind of shares
of capital stock or other securities into which the Common Stock has
been converted in the merger or consolidation, and at such time as
the Shares would otherwise be issuable or deliverable under this
Agreement, certificates representing the shares of capital stock or
other securities into which the Common Stock has been converted in
the merger or consolidation shall be issued or delivered to Employee,
and shall be subject to the Restrictions to the same extent as the
Shares.
5. Compliance With Securities Laws.
-------------------------------
(a) Employee represents and warrants to the Company that Employee is
acquiring the Shares for his own account, for investment, and without a view to
any sale or distribution thereof in violation of any federal or state securities
laws. Employee understands that the grant of the Shares to Employee has not been
registered under the Securities Act of 1933, as amended, or the securities laws
of any state, and, accordingly, that in addition to the other restrictions
placed on the Shares by this Agreement, the Shares may not be offered, sold,
assigned, transferred, exchanged, pledged, hypothecated or otherwise encumbered
in absence of either (a) an effective registration statement under the
Securities Act of 1933, as amended, and applicable state securities laws or (b)
an opinion of counsel satisfactory to the Company that such registration is not
required.
(b) Employee agrees that, if required by the Company, the
certificates representing the Shares (whether the Shares are Restricted Shares
or Transferable Shares) shall bear a legend in substantially the following form:
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY STATE SECURITIES LAWS
AND, ACCORDINGLY, MAY NOT BE OFFERED, SOLD, ASSIGNED, TRANSFERRED,
EXCHANGED, PLEDGED, HYPOTHECATED OR OTHERWISE ENCUMBERED IN THE ABSENCE OF
EITHER (1) AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF
1933, AS AMENDED, AND APPLICABLE STATE SECURITIES LAWS OR (2) AN OPINION
OF COUNSEL SATISFACTORY TO XXXXXX CORPORATION THAT SUCH REGISTRATION IS
NOT REQUIRED.
(c) Upon the execution of this Agreement and receipt of any
certificates for the Shares pursuant to this Agreement, Employee (or Employee's
legal representative upon Employee's death or disability) will enter into such
additional written representations, warranties and agreements as the Company may
reasonably request in order to comply with applicable securities laws or with
this Agreement.
6. Employment Relationship. Employee shall be considered to be in the
employment of the Company as long as he remains as an employee of the Company or
its Affiliates. Any questions as to whether and when there has been a
termination of such employment, and the cause of such termination, shall be
determined by the Company, with the advice of the employing corporation (if an
Affiliate of the Company), and the Company's determination shall be final. For
purposes of this Agreement, "Affiliates" shall mean any "parent corporation" of
the Company and any "subsidiary corporation" of the Company within the meaning
of Sections 424(e) and (f), respectively, of the Internal Revenue Code of 1986,
as amended.
7. Binding Effect. The terms and conditions hereof shall, in accordance
with their terms, be binding upon, and inure to the benefit of, all successors
of Employee, including, without limitation, Employee's estate and the executors,
administrators, or trustees thereof, heirs and legatees, and any receiver,
trustee in bankruptcy, or representative of creditors of Employee. This
Agreement shall be binding upon and inure to the benefit of any successors to
the Company.
8. Notice. All notices, requests, demands and other communications given
under or by reason of this Agreement shall be in writing and shall be deemed
given when delivered in person or when mailed, by certified mail (return receipt
requested), postage prepaid, addressed as follows (or to such other address as a
party may specify by notice pursuant to this provision):
(a) To the Company:
XXXXXX CORPORATION
Attention: Secretary
0000 Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
(b) To the Employee:
Xxxx X. Xxxxxxxx, Xx.
XXXXXX CORPORATION
0000 Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
9. Arbitration. Any dispute or controversy arising under or in connection
with this Agreement shall be settled by binding arbitration in Houston, Texas by
one arbitrator appointed in the manner set forth by the American Arbitration
Association. Any arbitration proceeding pursuant to this paragraph shall be
conducted in accordance with the Employment Dispute Resolution Rules of the
American Arbitration Association. Judgment may be entered on the arbitrators'
award in any court having jurisdiction.
10. Entire Agreement and Amendments. This Agreement contains the entire
agreement of the parties relating to the matters contained herein and supersedes
all prior agreements and understandings, oral or written, between the parties
with respect to the subject matter hereof. This Agreement may be changed only by
an agreement in writing signed by the party against whom enforcement of any
waiver, change, modification, extension or discharge is sought.
11. Separability. If any provision of the Agreement is rendered or
declared illegal or unenforceable by reason of any existing or subsequently
enacted legislation or by the decision of any arbitrator or by decree of a court
of last resort, the parties shall promptly meet and negotiate substitute
provisions for those rendered or declared illegal or unenforceable to preserve
the original intent of this Agreement to the extent legally possible, but all
other provisions of this Agreement shall remain in full force and effect.
12. Governing Law. The execution, validity,
-----------------
interpretation, and performance of this Agreement shall be
governed by, and construed in accordance with, the laws of the
State of Delaware except to the extent pre-empted by federal law.
IN WITNESS WHEREOF, the Company has caused this Agreement to be duly
executed by one of its officers thereunto duly authorized, and Employee has
executed this Agreement, all as of the day and year first above written.
XXXXXX CORPORATION
By: /s/ XXXXXX X. XXXXXXX
---------------------------------
Corporate Secretary
EMPLOYEE
Name:/s/ XXXX X. XXXXXXXX, XX.
-------------------------------
Xxxx X. Xxxxxxxx, Xx.
EXHIBIT 10.16.4
XXXXXX CORPORATION
RESTRICTED STOCK AGREEMENT
This Restricted Stock Agreement ("Agreement"), entered into on the 24th
day of January 2002 (the "Effective Date"), which is the date on which the Grant
described below was approved by the Stock Option Committee of the Board of
Directors of XXXXXX CORPORATION, is between XXXXXX CORPORATION, a Delaware
corporation (the "Company"), and Xxxxxx X. Xxxxxxx (the "Employee").
WHEREAS, the Company and Employee agree as follows:
1. Award of Common Stock. The Company hereby grants (the "Grant") to
Employee Five Thousand (5,000) shares (the "Shares") of common stock, $1.00 par
value, of the Company ("Common Stock") which shall be subject to the
restrictions on transferability set forth in paragraph 2(d) herein (the
"Restrictions") and to the other provisions of this Agreement. The Shares may be
increased as set forth in paragraph 4 below (such increases to be included in
the term "Shares"), and all such Shares shall be issued to the Employee in
accordance with paragraph 2(b) below.
2. Restricted Period.
-----------------
(a) For a period of four (4) years commencing on the Effective Date
(the "Restricted Period"), the Shares shall be subject to the Restrictions and
any other restrictions as set forth herein. The Restrictions shall expire as to
all of the Shares on January 24, 2006, the fourth anniversary of the Effective
Date. The Shares which are subject to the Restrictions shall hereinafter be
referred to as "Restricted Shares." The Shares which are no longer subject to
the Restrictions as set forth in this paragraph (a) and in paragraphs (f) or (g)
below shall hereinafter be referred to as "Transferable Shares."
(b) Prior to the first to occur of (i) a Change of Control (as
defined in paragraph (g) below), (ii) a date which is within ten (10) days of
the Employee's death or disability (as provided in paragraph (f) below) or (iii)
the last day of the Restricted Period, the Company shall issue or transfer to
Employee (or cause to be issued or transferred to Employee), in the manner
hereinafter provided, the Shares. The issuance or transfer may be out of
authorized but unissued shares of Common Stock, or out of treasury shares of
Common Stock, or from an Affiliate (as defined in paragraph 6) of the Company.
Each certificate representing Restricted Shares shall be registered in
Employee's name and shall be either deposited with the Secretary of the Company
or its designee in an escrow account or held by the Secretary of the Company, at
the election of the Company, together with stock powers or other instruments of
transfer appropriately endorsed in blank by Employee (Employee hereby agreeing
to execute such stock powers or other instruments of transfer as requested by
the Company). Such certificate or certificates shall remain in such escrow
account or with the Secretary of the Company until the earlier to occur of (i)
the termination of the Restricted Period or (ii) the expiration of the
Restrictions as set forth in paragraphs (f) or (g) below. Certificates
representing the Restricted Shares shall bear a legend in substantially the
following form:
THE SHARES REPRESENTED BY THIS CERTIFICATE MAY BE TRANSFERRED ONLY IN
COMPLIANCE WITH THE CONDITIONS SPECIFIED IN THE RESTRICTED STOCK
AGREEMENT, DATED JANUARY 24, 2002 BETWEEN XXXXXX CORPORATION ("COMPANY")
AND THE REGISTERED HOLDER OF THIS CERTIFICATE. A COPY OF THE FORM OF SUCH
AGREEMENT IS AVAILABLE FOR INSPECTION AT THE PRINCIPAL OFFICE OF THE
COMPANY AND WILL BE FURNISHED WITHOUT CHARGE TO THE REGISTERED HOLDER OF
SUCH CERTIFICATE UPON WRITTEN REQUEST.
The Company may place appropriate stop transfer instructions with respect to the
Restricted Shares with the transfer agent for the Common Stock. Upon Restricted
Shares becoming Transferable Shares, the Company shall deliver, in exchange for
the legended certificates, a certificate or certificates for such Shares to the
Employee free of the legend set forth above.
(c) Subject to the terms of this Agreement, upon the Company's
issuance or delivery of certificates representing the Shares pursuant to
paragraph (b) above, the Employee shall, during the Restricted Period, have all
of the rights of a stockholder with respect to the Shares including, but not
limited to, the right to receive dividends, if any, as may be declared on such
Restricted Shares from time to time, and the right to vote (in person or by
proxy) such Restricted Shares at any meeting of shareholders of the Company.
(d) The Restricted Shares, the right to receive certificates
representing the Restricted Shares and the right to vote the Restricted Shares
and to receive dividends thereon, may not be sold, assigned, transferred,
exchanged, pledged, hypothecated, or otherwise encumbered and no such purported
sale, assignment, transfer, exchange, pledge, hypothecation, or encumbrance,
whether made or created by voluntary act of Employee or any agent of Employee or
by operation of law, shall be recognized by, or be binding upon, or shall in any
manner affect the rights of, the Company or any agent or any custodian holding
certificates for the Restricted Shares during the Restricted Period, unless the
Restrictions have then expired pursuant to the provisions of paragraphs (f) or
(g) below. This provision shall not prohibit Employee from granting revocable
proxies in customary form to vote the Shares.
(e) If the status of employment (hereinafter referred to as
"employment") of Employee with the Company or its Affiliates (as defined in
Section 6 herein) shall terminate, prior to the expiration of the Restricted
Period as set forth in paragraphs (a), (f) or (g) of this Section then, in that
event, the right to have the Restricted Shares delivered pursuant to paragraph
(b) above and any Restricted Shares outstanding shall, upon such termination of
employment, be forfeited by Employee to the Company, without the payment of any
consideration or further consideration by the Company, and neither Employee nor
any successors, heirs, assigns, or legal representatives of Employee shall
thereafter have any further rights or interest in the Restricted Shares or
certificates therefor, and Employee's name shall thereupon be deleted from the
list of the Company's stockholders with respect to the Restricted Shares.
(f) If the employment of Employee with the Company or its Affiliates
shall terminate by reason of death or disability, any Restrictions on the
Restricted Shares shall be deemed to have expired as to the Restricted Shares as
of the date of any such occurrence, and the Restricted Shares shall thereafter
be Transferable Shares. For purposes of this Agreement, "disability" means the
inability of Employee to perform the essential requirements of his or her job
with or without reasonable accommodation.
(g) Upon the occurrence of a Change of Control (as defined herein),
any Restrictions on the Restricted Shares set forth in this Agreement shall be
deemed to have expired, and the Restricted Shares shall thereafter be
Transferable Shares. A "Change of Control" of the Company shall be conclusively
deemed to have occurred if (and only if) any of the following shall have taken
place: (i) a change in control is reported by the Company in response to Item 1
of Form 8-K (or any successor item of Form 8-K or any similar item of any other
report required to be filed by the Company under the Securities Exchange Act of
1934, as amended ("1934 Act")); (ii) any "person" (as such term is used in
Sections 13(d) and 14(d)(2) of the 0000 Xxx) is or becomes the "beneficial
owner" (as defined in Rule 13d-3 under the 1934 Act), directly or indirectly, of
securities of the Company representing forty percent or more of the combined
voting power of the Company's then outstanding securities; or (iii) following
the election or removal of directors, a majority of the Board consists of
individuals who were not members of the Board two years before such election or
removal, unless the election of each director who was not a director at the
beginning of such two-year period has been approved in advance by directors
representing at least a majority of the directors then in office who were
directors at the beginning of the two-year period.
(h) If the employment of Employee with the Company shall terminate
prior to the expiration of the Restricted Period, and there exists a dispute
between Employee and the Company as to the satisfaction of the conditions to the
release of the Shares from the Restrictions hereunder or the terms and
conditions of the Grant, the Shares shall remain subject to the Restrictions
until the resolution of such dispute, regardless of any intervening expiration
of the Restricted Period, except that any dividends that may be payable to the
holders of record of Common Stock as of a date during the period from
termination of Employee's employment to the resolution of such dispute shall:
(1) to the extent to which such dividends would have been
payable to Employee on the Shares, be held by the Company as part of
its general funds, and shall be paid to or for the account of
Employee only upon, and in the event of, a resolution of such dispute
in a manner favorable to Employee, and
(2) be canceled upon, and in the event of, a resolution of such
dispute in a manner unfavorable to Employee.
3. Taxes. To the extent that the receipt of the Restricted Shares,
Transferable Shares, or the lapse of any Restrictions results in income to
Employee for federal or state income tax purposes, Employee shall deliver to the
Company at the time of such receipt or lapse, as the case may be, such amount of
money or, if the Company so determines, shares of unrestricted Common Stock as
the Company may require to meet its obligation under applicable tax laws or
regulations, and if Employee fails to do so, the Company is authorized to
withhold from any cash or Common Stock remuneration then or thereafter payable
to Employee any tax required to be withheld by reasons of such resulting
compensation income. Employee agrees to notify the Company promptly of any tax
election made by Employee with respect to the Shares.
4. Changes in Capital Structure. If at any time:
----------------------------
(a) after the Effective Date and prior to the date on which the
Company issues or delivers to Employee certificates representing the Shares as
set forth in paragraph 2(b), the Company shall :
(1) declare a dividend or other distribution in respect of the
Common Stock payable in shares of capital stock, cash or other
property, then and in each such case (A) with respect to a dividend
payable in shares of capital stock, the number of Shares shall be
increased by the number of shares of capital stock which would have
been issued to Employee as a dividend with respect to the Shares if
certificates representing the Shares had been issued or delivered to
Employee on the Effective Date, and such additional shares of capital
stock shall be issued or delivered to Employee contemporaneously with
the issuance or delivery to Employee of the Shares, and shall be
subject to the Restrictions to the same extent as the Shares, and (B)
with respect to a dividend payable in cash or property other than
shares of capital stock, an amount of cash or such other property
equal to the amount of cash or other property which would have been
paid or delivered to Employee if certificates representing the Shares
had been issued or delivered to Employee on the Effective Date shall
be paid or delivered to Employee as compensation income
contemporaneously with the payment or delivery of the dividend to the
Company's stockholders;
(2) split, combine or reclassify the Common Stock into a
different number or kind of shares of capital stock or other
securities, or if the Company shall complete a recapitalization in
which the Common Stock shall be changed or exchanged into a different
number or kind of shares of capital stock or other securities, then
and in each such case the Shares shall thereafter represent the
number and kind of shares of capital stock or other securities into
which the Common Stock has been split, combined, reclassified or
changed or exchanged in such transaction, as if certificates
representing the Shares had been issued or delivered on the Effective
Date, and at such time as the Shares would otherwise be issuable or
deliverable under this Agreement, certificates representing the
shares of capital stock or other securities into which the Common
Stock shall have been split, combined, reclassified or changed or
exchanged in such transaction shall be issued or delivered to
Employee in lieu of the Shares, and shall be subject to the
Restrictions to the same extent as the Shares; or
(3) be merged or consolidated with or into another person, then
and in each such case the Shares shall thereafter represent the
number and kind of shares of capital stock or other securities which
Employee would have received in such transaction if certificates
representing the Shares had been issued or delivered on the Effective
Date, and at such time as the Shares would otherwise be issuable or
deliverable under this Agreement, certificates representing the
shares of capital stock or other securities which would have been
issuable in respect of the Shares in such transaction if the Shares
had been issued or delivered on the Effective Date shall be issued or
delivered to Employee in lieu of the Shares, and shall be subject to
the Restrictions to the same extent as the Shares.
(b) after the issuance or delivery of certificates
representing the Shares the Company shall:
(1) declare a dividend or other distribution in respect of the
Common Stock payable in shares of capital stock, cash or other
property, then and in each such case (A) with respect to a dividend
payable in shares of capital stock, the number of Shares shall be
increased by the number of shares of capital stock issued to Employee
as a dividend with respect to the Shares, and such additional shares
of capital stock shall be issued or delivered to Employee
contemporaneously with the issuance or delivery to Employee of the
Shares, and shall be subject to the Restrictions to the same extent
as the Shares, and (B) with respect to a dividend payable in cash or
property other than shares of capital stock, the amount of cash or
other property constituting the amount of the dividend with respect
to the Shares shall be paid or delivered to Employee
contemporaneously with the payment or delivery of the dividend to the
Company's stockholders;
(2) split, combine or reclassify the Common Stock into a
different number or kind of shares of capital stock or other
securities, or if the Company shall complete a recapitalization in
which the Common Stock shall be changed or exchanged into a different
number or kind of shares of capital stock or other securities, then
the Shares shall thereafter represent the number and kind of shares
of capital stock or other securities into which the Common Stock has
been split, combined, reclassified or changed or exchanged in such
transaction, and at such time as the Shares would otherwise be
issuable or deliverable under this Agreement, certificates
representing the shares of capital stock or other securities into
which the Common Stock shall have been split, combined, reclassified
or changed or exchanged in such transaction shall be issued or
delivered to Employee in lieu of the Shares, and shall be subject to
the Restrictions to the same extent as the Shares; or
(3) be merged or consolidated with or into another person, then
the Shares shall thereafter represent the number and kind of shares
of capital stock or other securities into which the Common Stock has
been converted in the merger or consolidation, and at such time as
the Shares would otherwise be issuable or deliverable under this
Agreement, certificates representing the shares of capital stock or
other securities into which the Common Stock has been converted in
the merger or consolidation shall be issued or delivered to Employee,
and shall be subject to the Restrictions to the same extent as the
Shares.
5. Compliance With Securities Laws.
-------------------------------
(a) Employee represents and warrants to the Company that Employee is
acquiring the Shares for his own account, for investment, and without a view to
any sale or distribution thereof in violation of any federal or state securities
laws. Employee understands that the grant of the Shares to Employee has not been
registered under the Securities Act of 1933, as amended, or the securities laws
of any state, and, accordingly, that in addition to the other restrictions
placed on the Shares by this Agreement, the Shares may not be offered, sold,
assigned, transferred, exchanged, pledged, hypothecated or otherwise encumbered
in absence of either (a) an effective registration statement under the
Securities Act of 1933, as amended, and applicable state securities laws or (b)
an opinion of counsel satisfactory to the Company that such registration is not
required.
(b) Employee agrees that, if required by the Company, the
certificates representing the Shares (whether the Shares are Restricted Shares
or Transferable Shares) shall bear a legend in substantially the following form:
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY STATE SECURITIES LAWS
AND, ACCORDINGLY, MAY NOT BE OFFERED, SOLD, ASSIGNED, TRANSFERRED,
EXCHANGED, PLEDGED, HYPOTHECATED OR OTHERWISE ENCUMBERED IN THE ABSENCE OF
EITHER (1) AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF
1933, AS AMENDED, AND APPLICABLE STATE SECURITIES LAWS OR (2) AN OPINION
OF COUNSEL SATISFACTORY TO XXXXXX CORPORATION THAT SUCH REGISTRATION IS
NOT REQUIRED.
(c) Upon the execution of this Agreement and receipt of any
certificates for the Shares pursuant to this Agreement, Employee (or Employee's
legal representative upon Employee's death or disability) will enter into such
additional written representations, warranties and agreements as the Company may
reasonably request in order to comply with applicable securities laws or with
this Agreement.
6. Employment Relationship. Employee shall be considered to be in the
employment of the Company as long as he remains as an employee of the Company or
its Affiliates. Any questions as to whether and when there has been a
termination of such employment, and the cause of such termination, shall be
determined by the Company, with the advice of the employing corporation (if an
Affiliate of the Company), and the Company's determination shall be final. For
purposes of this Agreement, "Affiliates" shall mean any "parent corporation" of
the Company and any "subsidiary corporation" of the Company within the meaning
of Sections 424(e) and (f), respectively, of the Internal Revenue Code of 1986,
as amended.
7. Binding Effect. The terms and conditions hereof shall, in accordance
with their terms, be binding upon, and inure to the benefit of, all successors
of Employee, including, without limitation, Employee's estate and the executors,
administrators, or trustees thereof, heirs and legatees, and any receiver,
trustee in bankruptcy, or representative of creditors of Employee. This
Agreement shall be binding upon and inure to the benefit of any successors to
the Company.
8. Notice. All notices, requests, demands and other communications given
under or by reason of this Agreement shall be in writing and shall be deemed
given when delivered in person or when mailed, by certified mail (return receipt
requested), postage prepaid, addressed as follows (or to such other address as a
party may specify by notice pursuant to this provision):
(a) To the Company:
XXXXXX CORPORATION
Attention: Secretary
0000 Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
(b) To the Employee:
Xxxxxx X. Xxxxxxx
XXXXXX CORPORATION
0000 Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
9. Arbitration. Any dispute or controversy arising under or in connection
with this Agreement shall be settled by binding arbitration in Houston, Texas by
one arbitrator appointed in the manner set forth by the American Arbitration
Association. Any arbitration proceeding pursuant to this paragraph shall be
conducted in accordance with the Employment Dispute Resolution Rules of the
American Arbitration Association. Judgment may be entered on the arbitrators'
award in any court having jurisdiction.
10. Entire Agreement and Amendments. This Agreement contains the entire
agreement of the parties relating to the matters contained herein and supersedes
all prior agreements and understandings, oral or written, between the parties
with respect to the subject matter hereof. This Agreement may be changed only by
an agreement in writing signed by the party against whom enforcement of any
waiver, change, modification, extension or discharge is sought.
11. Separability. If any provision of the Agreement is rendered or
declared illegal or unenforceable by reason of any existing or subsequently
enacted legislation or by the decision of any arbitrator or by decree of a court
of last resort, the parties shall promptly meet and negotiate substitute
provisions for those rendered or declared illegal or unenforceable to preserve
the original intent of this Agreement to the extent legally possible, but all
other provisions of this Agreement shall remain in full force and effect.
12. Governing Law. The execution, validity,
-----------------
interpretation, and performance of this Agreement shall be
governed by, and construed in accordance with, the laws of the
State of Delaware except to the extent pre-empted by federal law.
IN WITNESS WHEREOF, the Company has caused this Agreement to be duly
executed by one of its officers thereunto duly authorized, and Employee has
executed this Agreement, all as of the day and year first above written.
XXXXXX CORPORATION
By: /s/ XXXXXXX X. XXXXXX
---------------------------------
President
EMPLOYEE
Name:/s/ XXXXXX X. XXXXXXX
------------------------------------
Xxxxxx X. Xxxxxxx
EXHIBIT 10.16.5
XXXXXX CORPORATION
RESTRICTED STOCK AGREEMENT
This Restricted Stock Agreement ("Agreement"), entered into on the 24th
day of January 2002 (the "Effective Date"), which is the date on which the Grant
described below was approved by the Stock Option Committee of the Board of
Directors of XXXXXX CORPORATION, is between XXXXXX CORPORATION, a Delaware
corporation (the "Company"), and Xxxxx X. Xxxxxxx, XX (the "Employee").
WHEREAS, the Company and Employee agree as follows:
1. Award of Common Stock. The Company hereby grants (the "Grant") to
Employee Five Thousand (5,000) shares (the "Shares") of common stock, $1.00 par
value, of the Company ("Common Stock") which shall be subject to the
restrictions on transferability set forth in paragraph 2(d) herein (the
"Restrictions") and to the other provisions of this Agreement. The Shares may be
increased as set forth in paragraph 4 below (such increases to be included in
the term "Shares"), and all such Shares shall be issued to the Employee in
accordance with paragraph 2(b) below.
2. Restricted Period.
-----------------
(a) For a period of four (4) years commencing on the Effective Date
(the "Restricted Period"), the Shares shall be subject to the Restrictions and
any other restrictions as set forth herein. The Restrictions shall expire as to
all of the Shares on January 24, 2006, the fourth anniversary of the Effective
Date. The Shares which are subject to the Restrictions shall hereinafter be
referred to as "Restricted Shares." The Shares which are no longer subject to
the Restrictions as set forth in this paragraph (a) and in paragraphs (f) or (g)
below shall hereinafter be referred to as "Transferable Shares."
(b) Prior to the first to occur of (i) a Change of Control (as
defined in paragraph (g) below), (ii) a date which is within ten (10) days of
the Employee's death or disability (as provided in paragraph (f) below) or (iii)
the last day of the Restricted Period, the Company shall issue or transfer to
Employee (or cause to be issued or transferred to Employee), in the manner
hereinafter provided, the Shares. The issuance or transfer may be out of
authorized but unissued shares of Common Stock, or out of treasury shares of
Common Stock, or from an Affiliate (as defined in paragraph 6) of the Company.
Each certificate representing Restricted Shares shall be registered in
Employee's name and shall be either deposited with the Secretary of the Company
or its designee in an escrow account or held by the Secretary of the Company, at
the election of the Company, together with stock powers or other instruments of
transfer appropriately endorsed in blank by Employee (Employee hereby agreeing
to execute such stock powers or other instruments of transfer as requested by
the Company). Such certificate or certificates shall remain in such escrow
account or with the Secretary of the Company until the earlier to occur of (i)
the termination of the Restricted Period or (ii) the expiration of the
Restrictions as set forth in paragraphs (f) or (g) below. Certificates
representing the Restricted Shares shall bear a legend in substantially the
following form:
THE SHARES REPRESENTED BY THIS CERTIFICATE MAY BE TRANSFERRED ONLY IN
COMPLIANCE WITH THE CONDITIONS SPECIFIED IN THE RESTRICTED STOCK
AGREEMENT, DATED JANUARY 24, 2002 BETWEEN XXXXXX CORPORATION ("COMPANY")
AND THE REGISTERED HOLDER OF THIS CERTIFICATE. A COPY OF THE FORM OF SUCH
AGREEMENT IS AVAILABLE FOR INSPECTION AT THE PRINCIPAL OFFICE OF THE
COMPANY AND WILL BE FURNISHED WITHOUT CHARGE TO THE REGISTERED HOLDER OF
SUCH CERTIFICATE UPON WRITTEN REQUEST.
The Company may place appropriate stop transfer instructions with respect to the
Restricted Shares with the transfer agent for the Common Stock. Upon Restricted
Shares becoming Transferable Shares, the Company shall deliver, in exchange for
the legended certificates, a certificate or certificates for such Shares to the
Employee free of the legend set forth above.
(c) Subject to the terms of this Agreement, upon the Company's
issuance or delivery of certificates representing the Shares pursuant to
paragraph (b) above, the Employee shall, during the Restricted Period, have all
of the rights of a stockholder with respect to the Shares including, but not
limited to, the right to receive dividends, if any, as may be declared on such
Restricted Shares from time to time, and the right to vote (in person or by
proxy) such Restricted Shares at any meeting of shareholders of the Company.
(d) The Restricted Shares, the right to receive certificates
representing the Restricted Shares and the right to vote the Restricted Shares
and to receive dividends thereon, may not be sold, assigned, transferred,
exchanged, pledged, hypothecated, or otherwise encumbered and no such purported
sale, assignment, transfer, exchange, pledge, hypothecation, or encumbrance,
whether made or created by voluntary act of Employee or any agent of Employee or
by operation of law, shall be recognized by, or be binding upon, or shall in any
manner affect the rights of, the Company or any agent or any custodian holding
certificates for the Restricted Shares during the Restricted Period, unless the
Restrictions have then expired pursuant to the provisions of paragraphs (f) or
(g) below. This provision shall not prohibit Employee from granting revocable
proxies in customary form to vote the Shares.
(e) If the status of employment (hereinafter referred to as
"employment") of Employee with the Company or its Affiliates (as defined in
Section 6 herein) shall terminate, prior to the expiration of the Restricted
Period as set forth in paragraphs (a), (f) or (g) of this Section then, in that
event, the right to have the Restricted Shares delivered pursuant to paragraph
(b) above and any Restricted Shares outstanding shall, upon such termination of
employment, be forfeited by Employee to the Company, without the payment of any
consideration or further consideration by the Company, and neither Employee nor
any successors, heirs, assigns, or legal representatives of Employee shall
thereafter have any further rights or interest in the Restricted Shares or
certificates therefor, and Employee's name shall thereupon be deleted from the
list of the Company's stockholders with respect to the Restricted Shares.
(f) If the employment of Employee with the Company or its Affiliates
shall terminate by reason of death or disability, any Restrictions on the
Restricted Shares shall be deemed to have expired as to the Restricted Shares as
of the date of any such occurrence, and the Restricted Shares shall thereafter
be Transferable Shares. For purposes of this Agreement, "disability" means the
inability of Employee to perform the essential requirements of his or her job
with or without reasonable accommodation.
(g) Upon the occurrence of a Change of Control (as defined herein),
any Restrictions on the Restricted Shares set forth in this Agreement shall be
deemed to have expired, and the Restricted Shares shall thereafter be
Transferable Shares. A "Change of Control" of the Company shall be conclusively
deemed to have occurred if (and only if) any of the following shall have taken
place: (i) a change in control is reported by the Company in response to Item 1
of Form 8-K (or any successor item of Form 8-K or any similar item of any other
report required to be filed by the Company under the Securities Exchange Act of
1934, as amended ("1934 Act")); (ii) any "person" (as such term is used in
Sections 13(d) and 14(d)(2) of the 0000 Xxx) is or becomes the "beneficial
owner" (as defined in Rule 13d-3 under the 1934 Act), directly or indirectly, of
securities of the Company representing forty percent or more of the combined
voting power of the Company's then outstanding securities; or (iii) following
the election or removal of directors, a majority of the Board consists of
individuals who were not members of the Board two years before such election or
removal, unless the election of each director who was not a director at the
beginning of such two-year period has been approved in advance by directors
representing at least a majority of the directors then in office who were
directors at the beginning of the two-year period.
(h) If the employment of Employee with the Company shall terminate
prior to the expiration of the Restricted Period, and there exists a dispute
between Employee and the Company as to the satisfaction of the conditions to the
release of the Shares from the Restrictions hereunder or the terms and
conditions of the Grant, the Shares shall remain subject to the Restrictions
until the resolution of such dispute, regardless of any intervening expiration
of the Restricted Period, except that any dividends that may be payable to the
holders of record of Common Stock as of a date during the period from
termination of Employee's employment to the resolution of such dispute shall:
(1) to the extent to which such dividends would have been
payable to Employee on the Shares, be held by the Company as part of
its general funds, and shall be paid to or for the account of
Employee only upon, and in the event of, a resolution of such dispute
in a manner favorable to Employee, and
(2) be canceled upon, and in the event of, a resolution of such
dispute in a manner unfavorable to Employee.
3. Taxes. To the extent that the receipt of the Restricted Shares,
Transferable Shares, or the lapse of any Restrictions results in income to
Employee for federal or state income tax purposes, Employee shall deliver to the
Company at the time of such receipt or lapse, as the case may be, such amount of
money or, if the Company so determines, shares of unrestricted Common Stock as
the Company may require to meet its obligation under applicable tax laws or
regulations, and if Employee fails to do so, the Company is authorized to
withhold from any cash or Common Stock remuneration then or thereafter payable
to Employee any tax required to be withheld by reasons of such resulting
compensation income. Employee agrees to notify the Company promptly of any tax
election made by Employee with respect to the Shares.
4. Changes in Capital Structure. If at any time:
----------------------------
(a) after the Effective Date and prior to the date on which the
Company issues or delivers to Employee certificates representing the Shares as
set forth in paragraph 2(b), the Company shall :
(1) declare a dividend or other distribution in respect of the
Common Stock payable in shares of capital stock, cash or other
property, then and in each such case (A) with respect to a dividend
payable in shares of capital stock, the number of Shares shall be
increased by the number of shares of capital stock which would have
been issued to Employee as a dividend with respect to the Shares if
certificates representing the Shares had been issued or delivered to
Employee on the Effective Date, and such additional shares of capital
stock shall be issued or delivered to Employee contemporaneously with
the issuance or delivery to Employee of the Shares, and shall be
subject to the Restrictions to the same extent as the Shares, and (B)
with respect to a dividend payable in cash or property other than
shares of capital stock, an amount of cash or such other property
equal to the amount of cash or other property which would have been
paid or delivered to Employee if certificates representing the Shares
had been issued or delivered to Employee on the Effective Date shall
be paid or delivered to Employee as compensation income
contemporaneously with the payment or delivery of the dividend to the
Company's stockholders;
(2) split, combine or reclassify the Common Stock into a
different number or kind of shares of capital stock or other
securities, or if the Company shall complete a recapitalization in
which the Common Stock shall be changed or exchanged into a different
number or kind of shares of capital stock or other securities, then
and in each such case the Shares shall thereafter represent the
number and kind of shares of capital stock or other securities into
which the Common Stock has been split, combined, reclassified or
changed or exchanged in such transaction, as if certificates
representing the Shares had been issued or delivered on the Effective
Date, and at such time as the Shares would otherwise be issuable or
deliverable under this Agreement, certificates representing the
shares of capital stock or other securities into which the Common
Stock shall have been split, combined, reclassified or changed or
exchanged in such transaction shall be issued or delivered to
Employee in lieu of the Shares, and shall be subject to the
Restrictions to the same extent as the Shares; or
(3) be merged or consolidated with or into another person, then
and in each such case the Shares shall thereafter represent the
number and kind of shares of capital stock or other securities which
Employee would have received in such transaction if certificates
representing the Shares had been issued or delivered on the Effective
Date, and at such time as the Shares would otherwise be issuable or
deliverable under this Agreement, certificates representing the
shares of capital stock or other securities which would have been
issuable in respect of the Shares in such transaction if the Shares
had been issued or delivered on the Effective Date shall be issued or
delivered to Employee in lieu of the Shares, and shall be subject to
the Restrictions to the same extent as the Shares.
(b) after the issuance or delivery of certificates
representing the Shares the Company shall:
(1) declare a dividend or other distribution in respect of the
Common Stock payable in shares of capital stock, cash or other
property, then and in each such case (A) with respect to a dividend
payable in shares of capital stock, the number of Shares shall be
increased by the number of shares of capital stock issued to Employee
as a dividend with respect to the Shares, and such additional shares
of capital stock shall be issued or delivered to Employee
contemporaneously with the issuance or delivery to Employee of the
Shares, and shall be subject to the Restrictions to the same extent
as the Shares, and (B) with respect to a dividend payable in cash or
property other than shares of capital stock, the amount of cash or
other property constituting the amount of the dividend with respect
to the Shares shall be paid or delivered to Employee
contemporaneously with the payment or delivery of the dividend to the
Company's stockholders;
(2) split, combine or reclassify the Common Stock into a
different number or kind of shares of capital stock or other
securities, or if the Company shall complete a recapitalization in
which the Common Stock shall be changed or exchanged into a different
number or kind of shares of capital stock or other securities, then
the Shares shall thereafter represent the number and kind of shares
of capital stock or other securities into which the Common Stock has
been split, combined, reclassified or changed or exchanged in such
transaction, and at such time as the Shares would otherwise be
issuable or deliverable under this Agreement, certificates
representing the shares of capital stock or other securities into
which the Common Stock shall have been split, combined, reclassified
or changed or exchanged in such transaction shall be issued or
delivered to Employee in lieu of the Shares, and shall be subject to
the Restrictions to the same extent as the Shares; or
(3) be merged or consolidated with or into another person, then
the Shares shall thereafter represent the number and kind of shares
of capital stock or other securities into which the Common Stock has
been converted in the merger or consolidation, and at such time as
the Shares would otherwise be issuable or deliverable under this
Agreement, certificates representing the shares of capital stock or
other securities into which the Common Stock has been converted in
the merger or consolidation shall be issued or delivered to Employee,
and shall be subject to the Restrictions to the same extent as the
Shares.
5. Compliance With Securities Laws.
-------------------------------
(a) Employee represents and warrants to the Company that Employee is
acquiring the Shares for his own account, for investment, and without a view to
any sale or distribution thereof in violation of any federal or state securities
laws. Employee understands that the grant of the Shares to Employee has not been
registered under the Securities Act of 1933, as amended, or the securities laws
of any state, and, accordingly, that in addition to the other restrictions
placed on the Shares by this Agreement, the Shares may not be offered, sold,
assigned, transferred, exchanged, pledged, hypothecated or otherwise encumbered
in absence of either (a) an effective registration statement under the
Securities Act of 1933, as amended, and applicable state securities laws or (b)
an opinion of counsel satisfactory to the Company that such registration is not
required.
(b) Employee agrees that, if required by the Company, the
certificates representing the Shares (whether the Shares are Restricted Shares
or Transferable Shares) shall bear a legend in substantially the following form:
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY STATE SECURITIES LAWS
AND, ACCORDINGLY, MAY NOT BE OFFERED, SOLD, ASSIGNED, TRANSFERRED,
EXCHANGED, PLEDGED, HYPOTHECATED OR OTHERWISE ENCUMBERED IN THE ABSENCE OF
EITHER (1) AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF
1933, AS AMENDED, AND APPLICABLE STATE SECURITIES LAWS OR (2) AN OPINION
OF COUNSEL SATISFACTORY TO XXXXXX CORPORATION THAT SUCH REGISTRATION IS
NOT REQUIRED.
(c) Upon the execution of this Agreement and receipt of any
certificates for the Shares pursuant to this Agreement, Employee (or Employee's
legal representative upon Employee's death or disability) will enter into such
additional written representations, warranties and agreements as the Company may
reasonably request in order to comply with applicable securities laws or with
this Agreement.
6. Employment Relationship. Employee shall be considered to be in the
employment of the Company as long as he remains as an employee of the Company or
its Affiliates. Any questions as to whether and when there has been a
termination of such employment, and the cause of such termination, shall be
determined by the Company, with the advice of the employing corporation (if an
Affiliate of the Company), and the Company's determination shall be final. For
purposes of this Agreement, "Affiliates" shall mean any "parent corporation" of
the Company and any "subsidiary corporation" of the Company within the meaning
of Sections 424(e) and (f), respectively, of the Internal Revenue Code of 1986,
as amended.
7. Binding Effect. The terms and conditions hereof shall, in accordance
with their terms, be binding upon, and inure to the benefit of, all successors
of Employee, including, without limitation, Employee's estate and the executors,
administrators, or trustees thereof, heirs and legatees, and any receiver,
trustee in bankruptcy, or representative of creditors of Employee. This
Agreement shall be binding upon and inure to the benefit of any successors to
the Company.
8. Notice. All notices, requests, demands and other communications given
under or by reason of this Agreement shall be in writing and shall be deemed
given when delivered in person or when mailed, by certified mail (return receipt
requested), postage prepaid, addressed as follows (or to such other address as a
party may specify by notice pursuant to this provision):
(a) To the Company:
XXXXXX CORPORATION
Attention: Secretary
0000 Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
(b) To the Employee:
Xxxxx X. Xxxxxxx, XX
XXXXXX CORPORATION
0000 Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
9. Arbitration. Any dispute or controversy arising under or in connection
with this Agreement shall be settled by binding arbitration in Houston, Texas by
one arbitrator appointed in the manner set forth by the American Arbitration
Association. Any arbitration proceeding pursuant to this paragraph shall be
conducted in accordance with the Employment Dispute Resolution Rules of the
American Arbitration Association. Judgment may be entered on the arbitrators'
award in any court having jurisdiction.
10. Entire Agreement and Amendments. This Agreement contains the entire
agreement of the parties relating to the matters contained herein and supersedes
all prior agreements and understandings, oral or written, between the parties
with respect to the subject matter hereof. This Agreement may be changed only by
an agreement in writing signed by the party against whom enforcement of any
waiver, change, modification, extension or discharge is sought.
11. Separability. If any provision of the Agreement is rendered or
declared illegal or unenforceable by reason of any existing or subsequently
enacted legislation or by the decision of any arbitrator or by decree of a court
of last resort, the parties shall promptly meet and negotiate substitute
provisions for those rendered or declared illegal or unenforceable to preserve
the original intent of this Agreement to the extent legally possible, but all
other provisions of this Agreement shall remain in full force and effect.
12. Governing Law. The execution, validity,
-----------------
interpretation, and performance of this Agreement shall be
governed by, and construed in accordance with, the laws of the
State of Delaware except to the extent pre-empted by federal law.
IN WITNESS WHEREOF, the Company has caused this Agreement to be duly
executed by one of its officers thereunto duly authorized, and Employee has
executed this Agreement, all as of the day and year first above written.
XXXXXX CORPORATION
By: /s/ XXXXXX X. XXXXXXX
---------------------------------
Corporate Secretary
EMPLOYEE
Name:/s/ XXXXX X. XXXXXXX, XX
------------------------------------
Xxxxx X. Xxxxxxx, XX
