EXHIBIT 10.28
RESTRICTED STOCK AWARD
THIS RESTRICTED STOCK AWARD ("Award") is entered into as of this 30th
day of September, 1997, by and between Xxxxxx Capital Group, Inc., a Delaware
corporation (the "Company"), and (the "Employee").
RECITALS:
The Board of Directors of the Company has determined that it is in the
best interests of the Company and its stockholders for designated officers,
employees and directors of the Company and its Subsidiaries to obtain or
increase their stock interest in the Company in order to create a greater
incentive to work for and manage the Company's affairs in such a way that its
shares may become more valuable. Employee is employed by the Company or a
Subsidiary as an officer or employee and the Company acknowledges that Employee
has rendered valuable services to the Company and has contributed to its
success.
In consideration of the premises and the mutual covenants set forth
herein, and other good and valuable consideration the receipt and sufficiency of
which are hereby acknowledged, the parties agree as follows:
Section 1. Definitions. For purposes of this Award, the following terms
shall have the following meanings:
(a) "Cause" shall mean termination because of (1) an act of fraud,
embezzlement or theft in connection with the Employee's duties or in the course
of the Employee's employment, (2) unreasonable neglect or refusal by the
Employee to perform his duties (other than any such failure resulting from the
Employee's incapacity due to disability), (3) the engaging by the Employee in
willful, reckless, or grossly negligent misconduct which is or may be materially
injurious to the Company, or (4) the Employee's conviction of or plea of guilty
or nolo contendere to a felony.
(b) "Change of Control" shall mean, and be deemed to have occurred, on
the date of the first to occur of any of the following:
(i) upon the vote of the shareholders of the Company approving a merger
or consolidation in which the Company's shareholders immediately prior to
the effective time of the merger or consolidation will beneficially own
immediately after the effective time of the merger or consolidation
securities of the surviving or new corporation having less than 50% of the
"voting power" of the surviving or new corporation, including "voting power"
exercisable on a contingent or deferred basis as well as immediately
exercisable "voting power"; provided, however, that no such merger or
consolidation shall constitute a "change of control" in the event that
following such transaction the Xxxxxx Family (as defined below) owns,
directly or indirectly, 30% or more of the combined "voting power" of the
surviving or new corporation's outstanding securities, excluding "voting
power" exercisable on a contingent or deferred basis.
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(ii) upon the consummation of a sale, lease, exchange or other transfer
or disposition by the Company of all or substantially all of the assets of
the Company on a consolidated basis, provided, however, that the mortgage,
pledge or hypothecation of all or substantially all of the assets of the
Company on a consolidated basis, in connection with a bona fide financing
shall not constitute a Sale of the Company; or
(iii) when any "person" (as such term is used in Sections 13(d) and
14(d) of the Securities Exchange Act of 1934) is or becomes the "beneficial
owner" (as defined in Rule 13d-3 of the Securities Exchange Act as in effect
on date hereof, but excluding (a) any Company sponsored employee benefit
plan and (b) any member of the Xxxxxx Family), directly or indirectly, of
shares of Company stock such that the Xxxxxx Family owns less than 30% of
the combined "voting power" of the Company's then outstanding securities,
excluding "voting power" exercisable on a contingent or deferred basis.
For purposes of this Agreement, the Xxxxxx Family means (i) Xxxxxx X. Xxxxxx and
Xxxx Xxxxxx, (ii) a descendant of Xxxxxx X. Xxxxxx and Xxxx Xxxxxx, (iii) any
estate, trust, guardianship or custodianship for the primary benefit of any
individual described in (i) or (ii) above, or (iv) a proprietorship,
partnership, limited liability company, or corporation controlled by and
substantially all the interest in which are owned, directly or indirectly, by
one or more individuals or entities described in (i), (ii), or (iii) above.
(c) "Common Stock" shall mean a share of the common stock of the
Company.
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(d) "Permanent Disability" shall mean Employee's inability to perform
his or her stated duties with the Company by reason of illness, accident or
other incapacity and inability to engage in any occupation or employment for
wage or profit for which he or she is reasonably qualified by education,
training, or experience, as determined by the Company in its sole discretion;
(f) "Plan" shall mean the Xxxxxx Capital Group, Inc. Incentive
Compensation Plan;
(g) "Qualified Retirement" shall mean the termination of Employee's
employment with the Company or any Subsidiary for any reason other than for
Cause after Employee reaches age sixty-five (65).
(h) "Restricted Shares" shall have the meaning specified in Section 2.
(i) "Restrictions" shall have the meaning specified in Section 3.
(j) "Section 83(b) Election" shall mean an election made pursuant to
Section 83(b) of the Internal Revenue Code of 1986, as amended, electing to be
taxed with respect to the Restricted Shares at the time of grant rather than
upon the forfeiture of the Restrictions.
(k) "Stock Transfer Agreement" shall mean the Stock Transfer Agreement
in the form attached hereto as Exhibit A.
(l) "Subsidiary" or "Subsidiaries" shall mean any corporation, 50% or
more of whose stock is owned, directly or indirectly, by or for the Company.
(m) "Vested Shares" shall have the meaning specified in Section 4.
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(n) "Vesting Date" shall mean the earliest to occur of (1) June 30, 2000
on which date 50 percent of the Restricted Shares shall become Vested Shares,
June 30, 2001 on which date 75 percent of the Restricted Shares shall become
Vested Shares, and June 30, 2002 on which date 100 percent of the Restricted
Shares shall become Vested Shares; (2) the date of Employee's termination of
employment with the Company or any Subsidiary by reason of Employee's death,
Permanent Disability, or Qualified Retirement on which date 100 percent of the
Restricted Shares shall become Vested Shares; or (3) the effective date of a
Change of Control of the Company on which date 100 percent of the Restricted
Shares become Vested Shares.
Section 2. Award of Shares. Subject to all of the terms and conditions
set forth below and in the Plan, the Company hereby grants to Employee a total
of ( ) shares of Common Stock (the "Restricted Shares"). The transfer of the
Restricted Shares to Employee is conditioned upon Employee, concurrently with
the execution of this Award, delivering to the Company: (1) a duly signed stock
power, endorsed in blank, relating to the Restricted Shares, (2) a duly signed
Stock Transfer Agreement in the form attached as Exhibit A, (3) a duly signed
Section 83(b) Election, only if the Employee, in his sole discretion, intends to
make such election, and (4) such other documents or agreements as the Company
may request.
Section 3. Restrictions. The Restricted Shares are being awarded to
Employee subject to the transfer and forfeiture restrictions set forth in
Sections 3(a) and (b) below (collectively, the "Restrictions").
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(a) Transfer. Prior to the date that the Restricted Shares become Vested
Shares, Employee may not directly or indirectly, by operation of law or
otherwise, voluntarily or involuntarily, anticipate, alienate, attach, sell,
assign, pledge, encumber, charge or otherwise transfer all or any part of the
Restricted Shares without the written consent of the Company, which consent may
be withheld by the Company in its sole discretion.
(b) Forfeiture. Upon termination of Employee's employment with the
Company or any Subsidiary, all Restricted Shares which are not Vested Shares at
the effective time of such termination shall immediately thereafter be returned
to or canceled by the Company, and shall be deemed to have been forfeited by
Employee to the Company. Upon a forfeiture of Employee's Restricted Shares under
this paragraph 3(b), the Company will not be obligated to pay Employee any
consideration whatsoever for the forfeited Restricted Shares.
4. Lapse of Restrictions. The Restrictions shall lapse with respect to
the Restricted Shares awarded hereunder upon the Vesting Date of such Restricted
Shares. To the extent the Restrictions shall have lapsed under this Section 4
with respect to the Restricted Shares subject to this Award, those shares (the
"Vested Shares") will thereafter be free of the terms and conditions of this
Award; provided, however, that all Vested Shares shall at all times remain
subject to the terms and conditions set forth in the Restricted Stock Transfer
Agreement.
5. Adjustments. If there is any change in the capital stock of the
Company by reason of any stock dividend or distribution, stock split,
recapitalization, reorganization, merger, consolidation, split-up, combination
or exchange of shares, or any similar change affecting the capital stock of the
Company, which has occurred after the date hereof, the terms "Restricted Shares"
and "Vested Shares" shall include any shares, securities, or other property that
Employee
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receives or becomes entitled to receive as a result of Employee's ownership of
the original Restricted Shares.
6. Issuance of Shares; Restrictive Legend. Stock certificates in respect
of the Restricted Shares shall be issued by the Company subject to Employee's
fulfillment of the conditions set forth in Section 2 hereof. Such certificates
shall be registered in Employee's name and shall be inscribed with a legend
evidencing the Restrictions, the Stockholders Agreement, and such additional
legend as may be required to comply with the Securities Act of 1933, as amended,
and other applicable federal or state securities laws.
7. Custody. All certificates representing the Restricted Shares (other
than Vested Shares) shall be deposited, together with stock powers executed by
Employee, in proper form for transfer, with the Company. The Company shall
provide Employee with a copy of a certificate representing the Restricted
Shares, which shall contain the legend set forth in Section 6. The Company is
hereby authorized to cause the transfer to come into its name of all
certificates representing the Restricted Shares which are forfeited to the
Company pursuant to Section 3 hereof. At the request of Employee, certificates
representing Vested Shares shall, subject to any applicable securities law
restrictions or any restrictions imposed by the Stockholders Agreement, be
delivered by the Company to Employee or Employee's personal representative.
Certificates representing shares that have become Vested Shares in accordance
with Section 4 shall be issued without the legend evidencing the Restrictions,
other than those transfer restrictions provided in the Stock Transfer Agreement.
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8. Voting and Other Rights. Upon Employee's timely compliance with each
of the conditions set forth in Section 2 hereof, Employee shall have all of the
rights and status as a shareholder of the Company in respect of the Restricted
Shares, including the right to vote such shares and to receive dividends or
other distributions thereon.
9. Miscellaneous.
(a) Entire Agreement. Subject to the terms and conditions set forth in
the Plan, this Award contains the entire understanding and agreement between the
parties and cannot be amended, modified or supplemented in any respect, except
as permitted under the Plan or by a subsequent written agreement entered into by
both parties.
(b) Successors. This Award is binding upon and will inure to the benefit
of any successor to the Company whether by way of a merger, purchase,
consolidation or otherwise.
(c) Applicable Law. This Award shall be construed in accordance with and
governed by the substantive laws of the State of Illinois (regardless of the law
that might otherwise govern under applicable New York principles of conflicts of
laws).
[Signature page follows]
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IN WITNESS WHEREOF, the parties have caused this Award to be effective
as of the day and year first above written.
XXXXXX CAPITAL GROUP, INC.
By:
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Its: President
EMPLOYEE
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