RESTRICTED STOCK AGREEMENT
Exhibit 99.1
THIS
RESTRICTED STOCK AGREEMENT is entered into this
22nd day of December, 2005 but
effective as of June 13, 2005 (being the grant date of this restricted stock award), between OM
Group, Inc., a Delaware corporation (the “Company”), and Xxxxxx X. Xxxxxxxxx (the “Executive”).
WHEREAS, the Company maintains the 1998 Long-Term Incentive Compensation Plan (the “Plan”) for
the purpose of (i) motivating executive personnel by means of long-term incentive compensation,
(ii) furthering the identity of interests of participants with those of the shareholders of the
Company through ownership and performance of the common stock of the Company, and (iii) permitting
the Company to attract and retain directors and executive personnel upon whose judgment the
successful conduct of the business of the Company largely depends.
WHEREAS, pursuant to the terms of the Plan, the terms, conditions and restrictions of each
restricted stock award is to be set forth in an award agreement.
NOW, THEREFORE, the Company and the Executive agree as follows:
1. Award of Restricted Stock.
Subject to the terms, conditions and restrictions set forth in this Agreement, the Company
hereby grants to the Executive an award of 166,194 shares of common stock of the Company (the
“Restricted Stock”).
2. Restrictions on Transfer of Restricted Stock.
The Executive shall not be entitled to sell, exchange, transfer, pledge, hypothecate, assign
or otherwise dispose of the Restricted Stock until such time that such Restricted Stock has vested
in accordance with this Agreement. Any attempted sale, exchange, transfer, pledge, hypothecation,
assignment or other disposition of such Restricted Stock in violation of this Agreement shall be
void and of no effect and the Company shall have the right to disregard the same on its books and
records.
3. Issuance of Stock Certificate.
The Company shall cause a certificate evidencing the Restricted Stock to be issued in the name
of the Executive following execution of this Agreement. Such certificate shall bear the following
legend, together with any other legend deemed necessary or desirable by the Company in order to
comply with applicable laws or to ensure the enforceability of the provisions of the Plan or this
Agreement:
The sale or other transfer of the shares represented by this certificate
is subject to certain restrictions set forth in the Restricted Stock
Agreement between Xxxxxx X. Xxxxxxxxx (the registered owner) and OM
Group, Inc., effective as of June 13, 2005 under the OM Group, Inc. 1998
Long-Term Incentive Compensation Plan. A copy of such restrictions may
be obtained from the Secretary of OM Group, Inc.
Such stock certificate shall be held by the Company (or its designated agent) on behalf of the
Executive until such time as the Restricted Stock has vested or is forfeited in accordance with
this Agreement.
4. Rights Relating to Restricted Stock.
The Restricted Stock shall constitute issued and outstanding shares of common stock of the
Company, and the Executive shall be entitled to exercise voting rights pertaining to the Restricted
Stock. In the event dividends are paid by the Company with respect to the Restricted Stock prior
to such time as the Restricted Stock has vested in accordance with this Agreement, such dividends
shall be distributed to and held by the Company (or its designated agent) in the same manner as the
Restricted Stock and be distributed to the Executive upon vesting of the Restricted Stock or
forfeited in accordance with this Agreement. In the event that shares of common stock of the
Company are distributed to owners of outstanding common stock by reason of a stock dividend, stock
split, recapitalization or otherwise, such shares received by the Executive shall be encompassed
within the term “Restricted Stock” for purposes of this Agreement and the Executive shall deliver
to the Company all such shares received, to be held by the Company on behalf of the Executive
subject to the same restrictions as the Restricted Stock.
5. Vesting.
5.1 Vesting Date; Forfeiture; New Certificates.
(a) The Restricted Stock granted to the Executive pursuant to this Agreement shall vest, such
that the restrictions set forth in this Agreement shall no longer be applicable and the Restricted
Stock shall no longer be subject to forfeiture as provided in this Agreement, on May 31, 2008 (the
“Vesting Date”).
(b) In the event the Executive ceases to be employed by the Company due to death or
disability prior to the Vesting Date, a pro rata number of shares of the Restricted Stock shall
vest, as measured by the number of days in the period commencing with the date of this grant and
ending on the date of death or disability as compared to the number of days in the period
commencing with the date of this grant and ending on the Vesting Date, with any fractional share
rounded down to the nearest whole number. New certificates representing such pro rata number of
vested shares shall be issued in accordance with Section 5.1(d) of this Agreement, but reasonably
promptly after any such cessation of employment, and the provisions of this Agreement shall
otherwise apply to such vested shares. The balance of Restricted Stock
-2-
granted pursuant to this Agreement and not vested pursuant to this Section 5.1(b) shall be
forfeited without compensation or other consideration.
(c) In the event the Executive ceases to be employed by the Company prior to the Vesting Date
for any reason other than death or disability, the Executive shall forfeit to the Company, without
compensation or any other consideration, all Restricted Stock that is granted pursuant to this
Agreement. For purposes of this Agreement, the Executive shall have ceased to be employed by the
Company when he no longer has the right or obligation to perform services for the Company,
notwithstanding the continuation of any employment agreement for any other purpose or the
continuation of compensation or benefits under any such employment agreement or otherwise.
(d) In the absence of a prior forfeiture of the Restricted Stock pursuant to this Agreement,
as promptly as practicable after the Vesting Date and compliance with Section 6 of this Agreement,
the Company shall cause a new certificate or certificates to be issued in the name of the
Executive, or his designee, in exchange for the certificate for the Restricted Stock that is
described in Section 3 of this Agreement. Such new certificate shall not contain the legend set
forth in Section 3 of this Agreement but may contain any other legend the Company believes is
appropriate in order to comply with applicable securities law requirements.
5.2 Accelerated Vesting upon Change in Control. Upon a Change in Control (as defined
in the Plan) of the Company prior to the Vesting Date, vesting of the Restricted Stock subject to
this Agreement shall be accelerated in accordance with the provisions of Section 24(c) of the Plan,
assuming the Executive is employed by the Company at the time of such Change in Control.
6. Tax Provision. Executive agrees that, no later than the date upon which the
Restricted Stock becomes vested in accordance with this Agreement, the Executive will pay to the
Company, or make arrangements satisfactory to the Company regarding payment of, any federal, state
or local taxes of any kind required by law to be paid and/or withheld with respect to such
Restricted Stock.
7. Special Incentive Compensation.
The Executive agrees that the award of the Restricted Stock under the Agreement is special
incentive compensation and that it, any dividends paid thereon (even if treated as compensation for
tax purposes) and any other property received on account of such Restricted Stock will not be taken
into account as “salary” or “compensation” or “bonus” in determining the amount of any payment
under any pension, retirement or profit-sharing plan of the Company or any life insurance,
disability or other benefit plan of the Company.
-3-
8. Relationship to the Plan.
This Agreement is subject to the terms of the Plan and any related administrative policies
adopted by the Company. If there is any inconsistency between this Agreement and the Plan or any
such administrative policies, the Plan and the policies, in that order, shall govern.
9. No Effect on Employment Relationship.
Executive’s employment relationship with the Company is the subject of a separate employment
agreement and nothing in this Agreement shall interfere with or affect the rights of the Company
and the Executive under that employment agreement or confer upon the Executive any right to
continued employment with the Company.
10. Binding Effect.
Subject to the provisions of the Plan, this Agreement shall inure to the benefit of and be
binding upon the Executive and the Company and their respective heirs, legal representatives,
successors and assigns.
11. Amendment.
No amendment, modification, waiver or release of or under this Agreement will be effective
unless evidenced by an instrument in writing signed by each of the Company and the Executive.
12. Governing Law.
This Agreement shall be governed by and construed in accordance with the laws of the State of
Ohio, without regard to principles of conflict of laws.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year
first above written.
| OM GROUP, INC. | ||||||
| By | ||||||
| EXECUTIVE | ||||||
| Xxxxxx X. Xxxxxxxxx | ||||||
-4-
