EXHIBIT 4.2
Restricted Stock Award Agreement
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Under
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Xxxxxx Financial, Inc. 1998 Stock Incentive Plan
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This Restricted Stock Award Agreement (the "Agreement") is entered into
this __ day of May, 1998 (the "Effective Date") between Xxxxxx Financial, Inc.
(the "Company") and _ (the "Participant"). Any term capitalized but not defined
in this Agreement will have the meaning set forth in the Xxxxxx Financial, Inc.
1998 Stock Incentive Plan (the "Plan").
The Plan provides for the grant of restricted stock to key employees of the
Company or its Subsidiaries as approved by the Committee. In exercise of its
discretion under the Plan, the Committee has determined that the Participant
should receive a restricted stock award under the Plan and, accordingly, the
Company and the Participant hereby agree as follows:
1. Grant. The Company hereby grants to the Participant a Restricted Stock
Award (the "Award") of _ shares of Class A Common Stock, $0.25 par value,
of the Company ("Common Stock"). The Award will be subject to the terms
and conditions of the Plan and this Agreement. The Award constitutes the
right, subject to the terms and conditions of the Plan and this Agreement,
to distribution of shares of Common Stock (known as "Restricted Shares" or
"Shares").
2. Stock Certificates. Certificates for the Restricted Shares will be issued
in the Participant's name and will be held by the Secretary of the Company
until: (i) the Shares are forfeited; or (ii) the Shares vest. The
Certificates will be distributed to the Participant or, if applicable, his
or her beneficiary, in accordance with Section 5 below.
3. Rights as Stockholder. On and after the Effective Date, and except to the
extent provided in Section 9 below, the Participant will be entitled to all
of the rights of a stockholder with respect to the Restricted Shares,
including the right to vote the Restricted Shares and to receive dividends
and other distributions payable with respect to the Restricted Shares.
4. Vesting; Effect of Termination of Employment. Subject to the provisions of
Article 14 of the Plan, the Participant's Restricted Shares will become
vested on the earliest of:
(a) January 1, 2001, if (i) the Participant is continuously employed by
the Company or an Affiliate from the Effective Date until that date
and (ii) the Company has experienced an average growth in its annual
Net Income applicable to Common Stock of 13.5% over the three calendar
years preceding that date;
(b) January 1, 2004, if the Participant has been continuously employed by
the Company or an Affiliate from the Effective Date until that date;
and
(c) the date the Participant's employment with the Company and all
Affiliates is terminated on account of the Participant's death or
Disability.
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If the Participant terminates employment with the Company and all
Affiliates for a reason other than death or Disability, and before any of
his or her Restricted Shares have become vested under this Agreement, the
Participant's Restricted Shares that have not become vested will be
forfeited on and after the effective date of the termination. Neither the
Company nor any Subsidiary will have any further obligations to the
Participant under this Agreement if the Participant's Restricted Shares are
forfeited.
For purposes of this Agreement:
(a) "Net Income" means net income as reported in the Company's annual
audited financial statements.
(b) "Disability" means long-term disability as defined under the long-term
disability plan of the Company or a Subsidiary that covers the
Participant, or, if the Participant is not covered by a long-term
disability plan sponsored by the Company or a Subsidiary, the
Participant's inability to engage in any substantial gainful activity
by reason of any medically-determined physical or mental impairment
that can be expected to result in death or to be of long-continued and
indefinite duration. The Committee will determine whether a
Participant terminates employment on account of Disability, and may
require proof of Disability in such form and manner as it deems
appropriate. The Committee's interpretation will be final and
binding.
5. Terms and Conditions of Distribution. Certificates for Restricted Shares
will be distributed as soon as practicable after they vest. If the
Participant dies, either before or after termination of employment, before
his or her vested Restricted Shares have been distributed, certificates for
the Shares will be distributed to the beneficiary or beneficiaries he or
she designated, in the proportions he or she specified. To be effective, a
beneficiary designation must be made in writing. If the Participant failed
to designate a beneficiary or beneficiaries, certificates for the Shares
will be distributed to the Participant's personal representative.
Certificates for the Shares will be distributed no later than six months
after the Participant's death.
Distribution will not be made before the first date the Restricted Shares
may be distributed to the Participant without penalty or forfeiture under
federal or state laws or regulations governing short swing trading of
securities. In determining whether a distribution would result in such a
penalty or forfeiture, the Company and the Committee may rely upon
information reasonably available to them or upon representations of the
Participant's legal or personal representative.
6. Legend on Stock Certificates. The Company may require that certificates of
Common Stock distributed to the Participant pursuant to this Agreement bear
the following legend, or another legend that counsel to the Company
believes is desirable to facilitate compliance with applicable securities
laws:
The securities represented by this certificate may not be sold or
transferred unless they have first been registered under the
Securities Act of 1933, as amended, or unless counsel satisfactory to
Xxxxxx
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Financial, Inc. has given an opinion that registration under
such Act is not required.
7. Delivery of Certificates. Despite the provisions of Section 4, the Company
is not required to issue or deliver any certificates for shares of Common
Stock before completing the steps necessary to comply with applicable
federal and state securities laws (including any registration requirements)
and applicable stock exchange rules and practices. The Company will use
commercially reasonable efforts to cause compliance with those laws, rules
and practices.
8. No Right to Employment. Nothing in the Plan or this Agreement will be
construed as creating any right in the Participant to continued employment,
or as altering or amending the existing terms and conditions of employment
of the Participant.
9. Nontransferability. No interest of the Participant or any beneficiary in
or under this Agreement will be assignable or transferable by voluntary or
involuntary act or by operation of law, other than by testamentary bequest
or devise or the laws of descent or distribution. All rights of the
Participant and his or her beneficiary in and under this Agreement will be
wholly inalienable and beyond the power of any person to anticipate or in
any way create a lien or encumbrance upon them. Distribution of Restricted
Shares will be made only to the Participant; or, if the Committee has been
provided with evidence acceptable to it that the Participant is legally
incompetent, the Participant's personal representative; or, if the
Participant is deceased, to the beneficiaries or personal representative
that have been designated by the Participant in the manner required by the
Committee. The Committee may require personal receipts or endorsements of
a Participant's personal representative or beneficiaries. Any effort to
assign or transfer a right under this Agreement in contravention of this
Section 9 will be wholly ineffective, and will be grounds for termination
by the Committee of all rights of the Participant and his or her
beneficiary in and under this Agreement.
10. Withholding. As a condition precedent to distributing the Restricted
Shares, the Company may require the Participant or beneficiary to pay it
the amount it or a Subsidiary is required to withhold for federal, state or
local taxes. The amount to be withheld may be effected by the Employee's
agreeing that a portion of the Restricted Shares to which he or she would
otherwise be entitled shall be returned to the Company or a Subsidiary.
11. Administration. The Committee administers the Plan. The Participant's
rights under this Agreement are expressly subject to the terms and
conditions of the Plan, including continued shareholder approval of the
Plan, and to any guidelines the Committee adopts from time to time. The
Participant hereby acknowledges receipt of a copy of the Plan.
12. Interpretation. Any interpretation by the Committee of the terms and
conditions of the Plan, this Agreement or any guidelines adopted as
described in Section 11 will be final. This Agreement will be governed by
and construed under the laws of the State of Delaware.
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13. Sole Agreement. This Agreement is the entire Agreement between the parties
to it, and any and all prior oral and written representations are merged in
this Agreement. This Agreement may be amended only by written agreement
between the Participant and the Company.
In Witness Whereof, the Company and the Participant have duly executed this
Agreement as of the day and year first above written.
Xxxxxx Financial, Inc.
By:
_______________________________________
Its:
______________________________________
__________________________________________
(Participant's Signature)
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Special Restricted Stock Award Agreement
----------------------------------------
Under
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Xxxxxx Financial, Inc. 1998 Stock Incentive Plan
------------------------------------------------
This Special Restricted Stock Award Agreement (the "Agreement") is entered
into this __ day of May, 1998 (the "Effective Date") between Xxxxxx Financial,
Inc. (the "Company") and _ (the "Participant"). Any term capitalized but not
defined in this Agreement will have the meaning set forth in the Xxxxxx
Financial, Inc. 1998 Stock Incentive Plan (the "Plan").
The Plan provides for the grant of restricted stock to key employees of the
Company or its Subsidiaries as approved by the Committee. In exercise of its
discretion under the Plan, the Committee has determined that the Participant
should receive a restricted stock award under the Plan and, accordingly, the
Company and the Participant hereby agree as follows:
1. Grant. The Company hereby grants to the Participant a Special Restricted
Stock Award (the "Award") of _ shares of Class A Common Stock, $0.25 par
value, of the Company ("Common Stock"). The Award will be subject to the
terms and conditions of the Plan and this Agreement. The Award constitutes
the right, subject to the terms and conditions of the Plan and this
Agreement, to distribution of shares of Common Stock (known as "Special
Restricted Shares" or "Shares").
2. Stock Certificates. Certificates for the Special Restricted Shares will be
issued in the Participant's name and will be held by the Secretary of the
Company until: (i) the Shares are forfeited; or (ii) the Shares vest. The
Certificates will be distributed to the Participant or, if applicable, his
or her beneficiary, in accordance with Section 5 below.
3. Rights as Stockholder. On and after the Effective Date, and except to the
extent provided in Section 9 below, the Participant will be entitled to all
of the rights of a stockholder with respect to the Special Restricted
Shares, including the right to vote the Shares and to receive dividends and
other distributions payable with respect to the Shares.
4. Vesting; Effect of Termination of Employment. Subject to the provisions of
Article 14 of Plan, the Participant's Special Restricted Shares will become
vested on the earliest of:
(a) January 1, 2001, if (i) the Participant is continuously employed by
the Company or an Affiliate from the Effective Date until that date
and (ii) the Company has experienced an average growth in its annual
Net Income applicable to Common Stock of 16.5% over the three calendar
years preceding that date;
(b) January 1, 2004, if the Participant has been continuously employed by
the Company or an Affiliate from the Effective Date until that date;
and
(c) the date the Participant's employment with the Company and all
Affiliates is terminated on account of the Participant's death or
Disability.
If the Participant terminates employment with the Company and all
Affiliates for a reason other than death or Disability, and before any of
his or her Special Restricted Shares have become vested under this
Agreement, the Participant's Special Restricted Shares that have
not become vested will be forfeited on and after the effective date of the
termination. Neither the Company nor any Subsidiary will have any further
obligations to the Participant under this Agreement if the Participant's
Special Restricted Shares are forfeited.
For purposes of this Agreement:
(a) "Net Income" means net income as reported in the Company's annual
audited financial statements.
(b) "Disability" means long-term disability as defined under the long-term
disability plan of the Company or a Subsidiary that covers the
Participant, or, if the Participant is not covered by a long-term
disability plan sponsored by the Company or a Subsidiary, the
Participant's inability to engage in any substantial gainful activity
by reason of any medically-determined physical or mental impairment
that can be expected to result in death or to be of long-continued and
indefinite duration. The Committee will determine whether a
Participant terminates employment on account of Disability, and may
require proof of Disability in such form and manner as it deems
appropriate. The Committee's interpretation will be final and
binding.
5. Terms and Conditions of Distribution. Certificates for Special Restricted
Shares will be distributed as soon as practicable after they vest. If the
Participant dies, either before or after termination of employment, before
his or her vested Special Restricted Shares have been distributed,
certificates for the Shares will be distributed to the beneficiary or
beneficiaries he or she designated, in the proportions he or she specified.
To be effective, a beneficiary designation must be made in writing. If the
Participant failed to designate a beneficiary or beneficiaries,
certificates for the Shares will be distributed to the Participant's
personal representative. Certificates for the Shares will be distributed
no later than six months after the Participant's death.
Distribution will not be made before the first date the Special Restricted
Shares may be distributed to the Participant without penalty or forfeiture
under federal or state laws or regulations governing short swing trading of
securities. In determining whether a distribution would result in such a
penalty or forfeiture, the Company and the Committee may rely upon
information reasonably available to them or upon representations of the
Participant's legal or personal representative.
6. Legend on Stock Certificates. The Company may require that certificates of
Common Stock distributed to the Participant pursuant to this Agreement bear
the following legend, or another legend that counsel to the Company
believes is desirable to facilitate compliance with applicable securities
laws:
The securities represented by this certificate may not be sold or
transferred unless they have first been registered under the
Securities Act of 1933, as amended, or unless counsel satisfactory to
Xxxxxx Financial, Inc. has given an opinion that registration under
such Act is not required.
-2-
7. Delivery of Certificates. Despite the provisions of Section 4, the Company
is not required to issue or deliver any certificates for shares of Common
Stock before completing the steps necessary to comply with applicable
federal and state securities laws (including any registration requirements)
and applicable stock exchange rules and practices. The Company will use
commercially reasonable efforts to cause compliance with those laws, rules
and practices.
8. No Right to Employment. Nothing in the Plan or this Agreement will be
construed as creating any right in the Participant to continued employment,
or as altering or amending the existing terms and conditions of employment
of the Participant.
9. Nontransferability. No interest of the Participant or any beneficiary in
or under this Agreement will be assignable or transferable by voluntary or
involuntary act or by operation of law, other than by testamentary bequest
or devise or the laws of descent or distribution. All rights of the
Participant and his or her beneficiary in and under this Agreement will be
wholly inalienable and beyond the power of any person to anticipate or in
any way create a lien or encumbrance upon them. Distribution of Special
Restricted Shares will be made only to the Participant; or, if the
Committee has been provided with evidence acceptable to it that the
Participant is legally incompetent, the Participant's personal
representative; or, if the Participant is deceased, to the beneficiaries or
personal representative that have been designated by the Participant in the
manner required by the Committee. The Committee may require personal
receipts or endorsements of a Participant's personal representative or
beneficiaries. Any effort to assign or transfer a right under this
Agreement in contravention of this Section 9 will be wholly ineffective,
and will be grounds for termination by the Committee of all rights of the
Participant and his or her beneficiary in and under this Agreement.
10. Withholding. As a condition precedent to distributing the Special
Restricted Shares, the Company may require the Participant or beneficiary
to pay it the amount it or a Subsidiary is required to withhold for
federal, state or local taxes. The amount to be withheld may be effected
by the Employee's agreeing that a portion of the Special Restricted Shares
to which he or she would otherwise be entitled shall be returned to the
Company or a Subsidiary.
11. Administration. The Committee administers the Plan. The Participant's
rights under this Agreement are expressly subject to the terms and
conditions of the Plan, including continued shareholder approval of the
Plan, and to any guidelines the Committee adopts from time to time. The
Participant hereby acknowledges receipt of a copy of the Plan.
12. Interpretation. Any interpretation by the Committee of the terms and
conditions of the Plan, this Agreement or any guidelines adopted as
described in Section 11 will be final. This Agreement will be governed by
and construed under the laws of the State of Delaware.
13. Sole Agreement. This Agreement is the entire Agreement between the parties
to it, and any and all prior oral and written representations are merged in
this Agreement. This Agreement may be amended only by written agreement
between the Participant and the Company.
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In Witness Whereof, the Company and the Participant have duly executed this
Agreement as of the day and year first above written.
Xxxxxx Financial, Inc.
By:_______________________________________
Its:______________________________________
___________________________________________
(Participant's Signature)
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