Exhibit 4.4
FORM OF RESTRICTED STOCK AGREEMENT FOR USE UNDER THE PLAN
XXXXX-ILLINOIS, INC.
1997 EQUITY PARTICIPATION PLAN
FORM OF RESTRICTED STOCK AGREEMENT
THIS RESTRICTED STOCK AGREEMENT, dated as of ___________ ___, 199_
(the "Award Date"), is made by and between XXXXX-ILLINOIS, INC., a Delaware
corporation (the "Company"), and _____________________, an employee of the
Company or a Parent Corporation or a Subsidiary (the "Employee"):
WHEREAS, the Company has established the 1997 Equity Participation
Plan (the "Plan"); and
WHEREAS, the Company wishes to carry out the Plan (the terms of
which are hereby incorporated by reference and made a part of this Agreement);
WHEREAS, the Plan provides for the issuance of shares of the
Company's Common Stock (as defined hereunder), subject to certain restrictions
thereon (hereinafter referred to as "Restricted Stock");
WHEREAS, participants in the Company's Amended and Restated Senior
Management Plan dated as of January 1, 1993, as amended (the "SMIP Plan"), and
the Amended and Restated Performance Award Plan dated as of January 1, 1993,
as amended (the "PAP Plan"), may elect prior to (i) their receipt of their
cash bonus under the SMIP Plan or PAP Plan and (ii) the Company's award of
Restricted Stock under the Plan, to receive their cash bonus in the form of
Restricted Stock;
WHEREAS, the Compensation Committee of the Company's Board of
Directors (the "Committee"), appointed to administer the Plan, has determined
that it would be to the advantage and best interest of the Company and its
stockholders to issue the shares of Restricted Stock provided for herein to
the Employee in partial consideration of past services to the Company and/or
its subsidiaries, and has advised the Company thereof and instructed the
undersigned Officers (as defined hereunder) to issue said Restricted Stock.
NOW, THEREFORE, in consideration of the mutual covenants herein
contained and other good and valuable consideration, receipt of which is
hereby acknowledged, the parties hereto do hereby agree as follows:
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ARTICLE I
DEFINITIONS
Whenever the following terms are used below in this Agreement,
they shall have the meaning specified below unless the context clearly
indicates to the contrary. Capitalized terms not otherwise defined herein
shall have the meanings set forth in the Plan. The masculine pronoun shall
include the feminine and neuter, and the singular the plural, where the
context so indicates.
Section 1.1 - Common Stock
"Common Stock" shall mean the Company's common stock, $.01 par
value.
Section 1.2 - Exchange Act
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended.
Section 1.3 - Fair Market Value
"Fair Market Value" of a share of the Company's stock as of a
given date shall be: (i) the closing price of a share of the Company's stock
on the principal exchange on which shares of the Company's stock are then
trading, if any, on the day previous to such date, or, if shares were not
traded on the day previous to such date, then on the next preceding trading
day during which a sale occurred; or (ii) if such stock is not traded on an
exchange but is quoted on NASDAQ or a successor quotation system, (1) the last
sales price (if the stock is then listed as a National Market Issue under the
NASD National Market System) or (2) the mean between the closing
representative bid and asked prices (in all other cases) for the stock on the
day previous to such date as reported by NASDAQ or such successor quotation
system; or (iii) if such stock is not publicly traded on an exchange and not
quoted on NASDAQ or a successor quotation system, the mean between the closing
bid and asked prices for the stock, on the day previous to such date, as
determined in good faith by the Committee; or (iv) if the Company's stock is
not publicly traded, the fair market value established by the Committee acting
in good faith.
Section 1.4 - Involuntary Termination
"Involuntary Termination" shall mean the time when the
employee-employer relationship between the Employee and the Company, a Parent
Corporation or a Subsidiary is terminated for any reason except for a
Voluntary/Cause Termination, but excluding terminations where there is a
simultaneous reemployment by the Company, a Parent Corporation or a
Subsidiary.
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Section 1.5 - Parent Corporation
"Parent Corporation" shall mean any corporation in an unbroken
chain of corporations ending with the Company if each of the corporations
other than the Company then owns stock possessing 50% or more of the total
combined voting power of all classes of stock in one of the other corporations
in such chain.
Section 1.6 - Plan
"Plan" shall mean the Company's 1997 Equity Participation Plan.
Section 1.7 - Restricted Stock
"Restricted Stock" shall mean Common Stock of the Company issued
under this Agreement and subject to the Restrictions imposed hereunder.
Section 1.8 - Restrictions
"Restrictions" shall mean the reacquisition and transferability
restrictions imposed upon Restricted Stock under this Agreement.
Section 1.9 - Rule 16b-3
"Rule 16b-3" shall mean that certain Rule 16b-3 under the Exchange
Act, as such Rule may be amended in the future.
Section 1.10 - Secretary
"Secretary" shall mean the Secretary of the Company.
Section 1.11 - Securities Act
"Securities Act" shall mean the Securities Act of 1933, as
amended.
Section 1.12 - Subsidiary
"Subsidiary" shall mean any corporation in an unbroken chain of
corporations beginning with the Company if each of the corporations other than
the last corporation in the unbroken chain then owns stock possessing 50% or
more of the total combined voting power of all classes of stock in one of the
other corporations in such chain. "Subsidiary" shall also mean any
partnership in which the Company and/or any Subsidiary owns more than 50% of
the capital or profits interests.
Section 1.13 - Voluntary/Cause Termination
"Voluntary/Cause Termination" shall mean the time when the
employee-employer relationship between the Employee and the Company, a Parent
Corporation or a Subsidiary is terminated with cause or upon the Employee's
voluntary termination of employment (other than by retirement) with the
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Company, a Parent Corporation or a Subsidiary, but excluding terminations
where there is a simultaneous reemployment by the Company, a Parent
Corporation or a Subsidiary.
ARTICLE II
ISSUANCE OF RESTRICTED STOCK
Section 2.1 - Issuance of Restricted Stock
In consideration of past services rendered to the Company and for
other good and valuable consideration which the Committee has determined to be
equal to the par value of its Common Stock, on the date hereof the Company
issues to the Employee ____________ shares of its Common Stock upon the terms
and conditions set forth in this Agreement.
Section 2.2 - No Right to Continued Employment
Nothing in this Agreement or in the Plan shall confer upon the
Employee any right to continue in the employ of the Company, any Parent
Corporation or any Subsidiary or shall interfere with or restrict in any way
the rights of the Company, any Parent Corporation or any Subsidiary, which are
hereby expressly reserved, to discharge the Employee at any time for any
reason whatsoever, with or without cause.
ARTICLE III
RESTRICTIONS
Section 3.1 - Reacquisition of Restricted Stock
(a) All shares of Restricted Stock issued to the Employee
pursuant to Section 2.1 are initially subject to reacquisition by the Company
immediately upon an Involuntary Termination; provided, however, that no such
reacquisition shall occur in the event of an Involuntary Termination because
of the Restricted Stockholder's retirement or total disability (each as
determined by the Committee in accordance with Company policies) or death, in
which event all shares of Restricted Stock shall immediately fully vest and
all Restrictions with respect to such shares of Restricted Stock shall
immediately expire. Following such a reacquisition by the Company, the
Company shall promptly pay to the Employee an amount equal to the product of
.83 times the Fair Market Value on the Award Date of the Restricted Stock
which is reacquired. The restriction that such shares of Restricted Stock be
subject to reacquisition by the Company shall not apply to any "Vested Shares"
held by the Employee.
(b) All shares of Restricted Stock issued to the Employee
pursuant to Section 2.1 are initially subject to reacquisition by the Company
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immediately upon a Voluntary/Cause Termination; provided, however, that no
such reacquisition shall occur in the event of a Voluntary/Cause Termination
because of the Restricted Stockholder's total disability (as determined by the
Committee in accordance with Company policies), retirement or death, in which
event all shares of Restricted Stock shall immediately fully vest and all
Restrictions with respect to such shares of Restricted Stock shall immediately
expire. Following such a reacquisition by the Company, the Company shall
promptly pay to the Employee an amount equal to the product of $.01 times the
number of shares of Restricted Stock reacquired. The restriction that such
shares of Restricted Stock be subject to reacquisition by the Company shall
not apply to any "Vested Shares" held by the Employee.
(c) "Vested Shares" shall prior to the third anniversary of the
Award Date equal zero percent of the total number of shares of Restricted
Stock acquired by the Employee pursuant to Section 2.1, and on and after the
third anniversary of the Award Date shall equal 100 percent of the total
number of shares of Restricted Stock acquired by the Employee pursuant to
Section 2.1.
(d) In the event of a dispute, the Committee, in its absolute
discretion, shall determine the effect of all other matters and questions
relating to Involuntary Termination or Voluntary/Cause Termination, including,
but not by way of limitation, the question of whether an Involuntary
Termination or Voluntary/Cause Termination resulted from a discharge for good
cause, and all questions of whether particular leaves of absence constitute
Involuntary Termination or Voluntary/Cause Termination. Notwithstanding any
other provision of the Plan or this Agreement, the Company or any of its
Subsidiaries has an absolute and unrestricted right to terminate the
Employee's employment at any time for any reason whatsoever, with or without
cause.
Section 3.2 - Legend
Certificates representing shares of Restricted Stock issued
pursuant to this Agreement shall, until all restrictions lapse and new
certificates are issued pursuant to Section 3.3, bear the following legend:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO CERTAIN
VESTING REQUIREMENTS AND MAY BE SUBJECT TO REACQUISITION BY THE COMPANY
UNDER THE TERMS OF THAT CERTAIN RESTRICTED STOCK AGREEMENT BY AND
BETWEEN XXXXX-ILLINOIS, INC. (THE "COMPANY") AND THE HOLDER OF THE
SECURITIES. PRIOR TO VESTING OF OWNERSHIP IN THE SECURITIES, THEY MAY
NOT BE, DIRECTLY OR INDIRECTLY, OFFERED, TRANSFERRED, SOLD, ASSIGNED,
PLEDGED, HYPOTHECATED OR OTHERWISE DISPOSED OF UNDER ANY CIRCUMSTANCES.
COPIES OF THE ABOVE REFERENCED AGREEMENT ARE ON FILE AT THE OFFICES OF
THE COMPANY AT XXX XXXXXXX, XXXXXX, XXXX 00000."
Section 3.3 - Lapse of Restrictions
Upon the vesting of the shares of Restricted Stock as provided in
Section 3.1 and subject to Section 4.3, the Company shall cause new
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certificates to be issued with respect to such Vested Shares and delivered to
the Employee or his legal representative, free from the legend provided for in
Section 3.2(a) and any of the other Restrictions. Such Vested Shares shall
cease to be considered Restricted Stock subject to the terms and conditions of
this Agreement.
Section 3.4 - Changes in the Company's Shares
In the event that the outstanding shares of Common Stock of the
Company are hereafter changed into or exchanged for a different number or kind
of shares or other securities of the Company, or of another corporation, by
reason of reorganization, merger, consolidation, recapitalization,
reclassification, or the number of shares is increased or decreased by reason
of a stock split-up, stock dividend, combination of shares or any other
increase or decrease in the number of such shares of Common Stock effected
without receipt of consideration by the Company (provided, however, that
conversion or exchange of any convertible or exchangeable securities of the
Company shall not be deemed to have been "effected without receipt of
consideration"), the Committee shall make appropriate adjustments in the
number and kind of shares which may be granted as Restricted Stock.
ARTICLE IV
MISCELLANEOUS
Section 4.1 - Administration
It shall be the duty of the Committee to conduct the general
administration of the Plan and this Agreement in accordance with their
provisions. The Committee shall have the power to interpret the Plan and this
Agreement and to adopt such rules for the administration, interpretation and
application of the Plan and this Agreement as are consistent therewith and to
interpret, amend or revoke any such rules. No member of the Committee shall
be personally liable for any action, determination or interpretation made in
good faith with respect to the Plan or this Agreement, and all members of the
Committee shall be fully protected by the Company in respect to any such
action, determination or interpretation. In its absolute discretion, the
Board may at any time and from time to time exercise any and all rights and
duties of the Committee under the Plan or this Agreement except with respect
to matters which under Rule 16b-3 or Section 162(m) of the Code, or any
regulations or rules issued thereunder, are required to be determined in the
sole discretion of the Committee.
Section 4.2 - Restricted Stock Not Transferable
No Restricted Stock or any interest or right therein or part
thereof shall be liable for the debts, contracts or engagements of the
Employee or his successors in interest or shall be subject to disposition by
transfer, alienation, anticipation, pledge, encumbrance, assignment or any
other means whether such disposition be voluntary or involuntary or by
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operation of law by judgment, levy, attachment, garnishment or any other legal
or equitable proceedings (including bankruptcy), and any attempted disposition
thereof shall be null and void and of no effect; provided, however, that this
Section 4.2 shall not prevent transfers by will or by applicable laws of
descent and distribution.
Section 4.3 - Conditions to Issuance of Stock Certificates
The Company shall not be required to issue or deliver any
certificate or certificates for shares of stock pursuant to this Agreement
prior to fulfillment of all of the following conditions:
(a) The admission of such shares to listing on all stock
exchanges on which such class of stock is then listed; and
(b) The completion of any registration or other
qualification of such shares under any state or Federal law or
under rulings or regulations of the Securities and Exchange
Commission or of any other governmental regulatory body, which the
Committee shall, in its absolute discretion, deem necessary or
advisable; and
(c) The obtaining of any approval or other clearance from
any state or Federal governmental agency which the Committee
shall, in its absolute discretion, determine to be necessary or
advisable; and
(d) Subject to the provisions of Section 4.10, the payment
by the Employee of all amounts required to be withheld, under
federal, state and local tax laws, with respect to the issuance of
Restricted Stock and/or the lapse or removal of any of the
Restrictions; and
(e) The lapse of such reasonable period of time as the
Committee may from time to time establish for reasons of
administrative convenience.
Section 4.4 - Escrow
The Secretary or such other escrow holder as the Committee may
appoint shall retain physical custody of the certificates representing
Restricted Stock, including shares of Restricted Stock issued pursuant to
Section 3.4, until all of the Restrictions expire or shall have been removed;
provided, however, that in no event shall the Employee retain physical custody
of any certificates representing Restricted Stock issued to him.
Section 4.5 - Notices
Any notice to be given under the terms of this Agreement to the
Company shall be addressed to the Company in care of its Secretary, and any
notice to be given to the Employee shall be addressed to him at the address
given beneath his signature hereto. By a notice given pursuant to this
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Section 4.5, either party may hereafter designate a different address for
notices to be given to it or him. Any notice which is required to be given to
the Employee shall, if the Employee is then deceased, be given to the
Employee's personal representative if such representative has previously
informed the Company of his status and address by written notice under this
Section 4.5. Any notice shall have been deemed duly given when enclosed in a
properly sealed envelope or wrapper addressed as aforesaid, deposited (with
postage prepaid) in a post office or branch post office regularly maintained
by the United States Postal Service.
Section 4.6 - Rights as Stockholder
Upon delivery of the shares of Restricted Stock to the escrow
holder pursuant to Section 4.4, the Employee shall have all the rights of a
stockholder with respect to said shares, subject to the restrictions herein
(including the provisions of Section 4.10), including the right to vote the
shares and to receive all dividends or other distributions paid or made with
respect to the shares.
Section 4.7 - Titles
Titles are provided herein for convenience only and are not to
serve as a basis for interpretation or construction of this Agreement.
Section 4.8 - Conformity to Securities Laws
This Agreement is intended to conform to the extent necessary with
all provisions of the Securities Act and the Exchange Act and any and all
regulations and rules promulgated by the Securities and Exchange Commission
thereunder, including without limitation Rule 16b-3. Notwithstanding anything
herein to the contrary, this Agreement shall be administered, and the
Restricted Stock shall be issued, only in such a manner as to conform to such
laws, rules and regulations. To the extent permitted by applicable law, this
Agreement and the Restricted Stock issued hereunder shall be deemed amended to
the extent necessary to conform to such laws, rules and regulations.
Section 4.9 - Amendment
This Agreement may be amended only by a writing executed by the
parties hereto which specifically states that it is amending this Agreement.
Section 4.10 - Tax Withholding
The Company's obligation (i) to issue or deliver to the Employee
any certificate or certificates for unrestricted shares of stock or (ii) to
pay to the Employee any dividends or make any distributions with respect to
the Restricted Stock, is expressly conditioned upon receipt from the Employee,
on or prior to the date the same is required to be withheld, of:
(a) Full payment (in cash or by check) of any amount that must
be withheld by the Company for federal, state and/or local tax purposes;
or
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(b) Subject to the Committee's consent and Section 4.10(c), full
payment by delivery to the Company of unrestricted shares of the
Company's Common Stock previously owned by the Employee duly endorsed
for transfer to the Company by the Employee with an aggregate Fair
Market Value (determined, as applicable, as of the date of the lapse of
the restrictions or vesting, or as of the date of the distribution)
equal to the amount that must be withheld by the Company for federal,
state and/or local tax purposes; or
(c) With respect to the withholding obligation for shares of
Restricted Stock that become unrestricted shares of stock as of a
certain date (the "Vesting Date"), subject to the Committee's consent,
full payment by retention by the Company of a portion of such shares of
Restricted Stock which become unrestricted or vested with an aggregate
Fair Market Value (determined as of the Vesting Date) equal to the
amount that must be withheld by the Company for federal, state and/or
local tax purposes; or
(d) Subject to the Committee's consent, any combination of
payments provided for in the foregoing subsections (a), (b) or (c).
Section 4.11 - Governing Law
The laws of the State of Delaware shall govern the interpretation,
validity, administration, enforcement and performance of the terms of this
Agreement regardless of the law that might be applied under principles of
conflicts of laws.
IN WITNESS HEREOF, this Agreement has been executed and delivered
by the parties hereto.
XXXXX-ILLINOIS, INC.
By ___________________________
Its ___________________________
____________________________
Employee
____________________________
____________________________
Address
Employee's Social Security Number
_______________________________
