EXHIBIT 10.43
NCO GROUP, INC.
2004 EQUITY INCENTIVE PLAN
RESTRICTED STOCK UNIT AGREEMENT
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Award Date: _________
Grantee: ____________
The Grantee named above is hereby granted an Award of Restricted Stock
Units ("Units") effective as of the Award Date set forth above by NCO Group,
Inc. ("Corporation") in accordance with the following terms and conditions, and
the provisions of the NCO Group, Inc. 2004 Equity Incentive Plan, as amended
from time to time ("Plan"). All capitalized terms used and not defined herein
shall have the respective meanings given to them in the Plan.
1. Unit Award. The Corporation hereby awards the Grantee ______ Units
pursuant to the Plan and upon the terms and conditions, and subject to the
restrictions, therein and hereinafter set forth. Each Unit represents the right
to receive one share (a "Share") of common stock, no par value per share of the
Corporation ("Common Stock"), subject to adjustment as provided in Section 13
below. A copy of the Plan as currently in effect is available to the Grantee
from the Corporation upon request and is incorporated herein by reference. If no
Effective Date (as defined in Section 2) has occurred prior thereto, this Award
shall expire and be of no further force or effect on the earlier of (i) the date
that the Grantee has a Status Change other than by reason of death or Permanent
Disability or (ii) the close of business on October 26, 2015. If this Award has
expired, then no Shares or Dividend Equivalents shall be issuable hereunder.
2. Issuance of Shares. The Shares then issuable under the Units
represented by this Agreement shall be issuable effective as of the earlier of:
(a) subject to Section 3 below, the achievement of the
performance targets identified in Exhibit "A", attached hereto and incorporated
by reference herein ("Performance Target Distribution Event");
(b) the date that the Grantee has a Status Change by reason of
death or Permanent Disability ("Death or Disability Distribution Event"); or
(c) a Change in Control ("Change in Control Distribution
Event").
The effective date as of which the Shares are issuable by reason of a
Performance Target Distribution Event (or in lieu thereof if applicable,
Deferred Effective Date or Amended Deferred Effective Date as defined below),
Death or Disability Distribution Event, or Change in Control Distribution Event
is referred to as the "Effective Date." The Grantee shall be considered the
holder of the Shares represented by the Units evidenced by this Award effective
as of the Effective Date. The Corporation shall cause its transfer agent to
issue a certificate representing the Shares as soon as practicable after the
Effective Date to the Grantee or to his estate, in the event of an Effective
Date by reason of a death.
Subject to the restrictions set forth in the Plan, the Committee shall
have the authority, in its sole discretion, to accelerate the time at which the
Shares shall be issued whenever the Committee may determine that such action is
appropriate by reason of changes in applicable tax or other laws, or other
changes in circumstances occurring after the Award Date, provided that no such
acceleration with respect to a Grantee shall be permitted in the event that it
would cause a failure to comply with Code Section 409A.
The Corporation shall not be required to deliver any Shares under the
Plan prior to (a) the admission of such Shares to listing on the Nasdaq Stock
Market or any stock exchange on which the Shares of Common Stock may then be
listed, and (b) the completion of such registration or other qualification of
such Shares under any state or federal law, rule or regulation, as the Committee
shall determine necessary or advisable.
3. Deferral of Issuance of Shares.
This Section 3 and the terms of the NCO Group, Inc. Deferred
Compensation Plan which are incorporated by reference herein shall be applicable
only if the Grantee has timely executed and delivered a duly completed Deferral
Election as defined below.
(a) The Grantee may elect to defer the Effective Date by
reason of a Performance Target Distribution Event to a date that is no later
than the tenth (10th) anniversary of the Award Date with respect to all, and not
less than all, of the Shares issuable under the Units represented by this
Agreement by executing the Restricted Stock Unit Executive Deferred Compensation
Election ("Deferral Election"), attached hereto and incorporated by reference
herein, and delivering that Deferral Election to the Chief Financial Officer of
the Corporation no later than the earlier of thirty (30) days after the Award
Date or the date designated by the Committee. In the event that the foregoing
execution and delivery requirements are not met, no change in the Effective Date
by reason of a Performance Target Distribution Event shall be in effect. If the
Grantee has entered into an effective Deferral Election and the deferral
provided for therein applies, the date set forth therein ("Deferred Effective
Date") shall be the Effective Date with respect to the Grantee and replace the
Performance Target Distribution Event as an Effective Date. An election made in
a Deferral Election shall be irrevocable, except as provided herein.
(b) Subject to the requirements of Code Section 409A, the
acceptance by the Committee, and the tenth (10th) anniversary of the Award Date
deferral limit set forth in Section 3(a) above, the Grantee shall be permitted
to make a one-time additional deferral of the Deferred Effective Date by
executing and delivering an amended Deferral Election to the Chief Financial
Officer of the Corporation which (i) may not be effective until twelve (12)
months after the date on which the election is made, (ii) in the case of an
election related to a payment by reason of separation from service (as defined
in Code Section 409A and guidance issued thereunder) other than by reason of
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death or disability, as defined below, fixed date payment, or Change in Control
Event as defined in Code Section 409A and the guidance issued thereunder, the
first payment with respect to which such election is made must be deferred for a
period of not less than five (5) years from the date such payment would
otherwise have been made, and (iii) any election related to a fixed date payment
may not be made less than 12 months prior to the date of the first scheduled
payment. If an additional deferral election applies, the date set forth therein
("Amended Deferred Effective Date") shall be the Effective Date with respect to
the Grantee and replace the Deferred Effective Date described in the prior
election as an Effective Date. Disability means unable to engage in any
substantial gainful activity by reason of any medically determinable physical or
mental impairment which can be expected to result in death or can be expected to
last for a continuous period of not less than 12 months.
(c) In the event an "Unforeseeable Emergency" as defined below
occurs with respect to the Grantee on or after the Performance Target
Distribution Event, the Grantee may request that the Corporation issue to him
such number of Shares issuable under the Units that is reasonably needed to
satisfy his Unforeseeable Emergency. If such a request is granted, which action
is in the sole discretion of the Compensation Committee, the Grantee shall be
issued only such number of Shares as the Compensation Committee deems necessary
to meet the Unforeseeable Emergency plus amounts necessary to pay taxes
reasonably anticipated as a result of the distribution, but a distribution shall
not be made to the extent that the Unforeseeable Emergency may be relieved
through insurance or other reimbursement or otherwise, or liquidation of other
assets of the Grantee to the extent such liquidation would not itself cause
severe financial hardship. The Deferred Effective Date or Amended Deferred
Effective Date, as applicable, shall be deemed to have been attained with regard
to the number of Shares issuable under the Units that is issued to satisfy his
Unforeseeable Emergency. The number of Shares issuable under the Units
represented by this Agreement shall be adjusted accordingly. An Unforeseeable
Emergency shall be deemed to involve only circumstances of severe financial
hardship to the Grantee resulting from a sudden and unexpected illness or
accident of the Grantee, the Grantee's spouse, or of a dependent (as defined in
Section 152 of the Internal Revenue Code of 1986, as amended) of the Grantee,
loss of the Grantee's property due to casualty, or other similar extraordinary
and unforeseeable circumstances arising as a result of events beyond the control
of the Grantee.
(d) In the event that any deferral is finally determined by a
court or agreement with the Internal Revenue Service to be then income taxable
to the Grantee prior to any distribution event hereunder, the Grantee shall
notify the Corporation of the final determination of taxability and provide all
information as may be reasonably requested by the Corporation. In such an event
on or after the Performance Target Distribution Event, the Corporation may issue
the Shares issuable under the Units to the Grantee as soon as practicable.
(e) Notwithstanding anything contained herein to the contrary,
in the event that a Grantee has deferred the issuance of the Shares issuable
under the Units represented by the Agreement, no acceleration of the time or
schedule of any payment shall be permitted except as provided under Code Section
409A.
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4. Cash Dividends on Shares Issuable under the Units. In the event
that: (a) one or more cash dividends, if any, is paid with regard to a Share
issuable under a Unit on or after the Award Date and prior to the issuance of
such Share to the Grantee and (b) the Grantee becomes entitled to receive the
Share issuable under the Unit, the Corporation shall pay to the Grantee, in
cash, an amount equal to such cash dividends ("Dividend Equivalents") at the
same time that the Share issuable under the Unit is issued to the Grantee.
Notwithstanding the foregoing to the contrary, if a Share is issued by reason of
an Unforeseeable Emergency as provided in Section 3 (d) above, the Dividend
Equivalents that relate to that Share shall not be paid until the last Share
issuable under the Units under this Agreement is issued to the Grantee. No
interest shall be paid with regard to such Dividend Equivalents.
5. Restrictions on Transfer and Restricted Period. During the period
commencing on the Award Date and terminating on the Effective Date ("Restricted
Period"): (a) the Units, Xxxxxxx's rights under this Award or the Plan, and the
Dividend Equivalents may not be sold, assigned, anticipated, alienated,
hypothecated, transferred, pledged, advanced or otherwise encumbered by the
Grantee in any manner other than a transfer by will or under the laws of descent
and distribution, (b) the Shares issuable under the Units, the Units and the
Dividend Equivalents shall not be subject to attachment, garnishment or seizure
for the payment of any debts or judgments of the Grantee or any payee and (c)
the Shares issuable under the Units, the Units and the Dividend Equivalents
shall not be transferred by operation of law in the event of bankruptcy,
insolvency or otherwise.
6. Interest of Grantee in Shares Issuable under the Units, Units and
Dividend Equivalents. The Grantee shall not acquire any property interest in the
Shares issuable under the Units, the Units, the Dividend Equivalents, or any
other asset of the Corporation, his right being limited to the Corporation's
contractual promise to issue the Shares issuable under the Units and pay the
Dividend Equivalents, if any, pursuant to the terms of the Plan and this
Agreement. To the extent that the Grantee or his estate is entitled to receipt
of the Shares issuable under the Units and if applicable, Dividend Equivalents,
such right shall be no greater than the right of any unsecured general creditor
of the Corporation. The Corporation's promise is not funded or secured in any
way. The Corporation shall not be obligated to purchase or maintain any asset,
and any reference to Common Stock or investments is solely for the purpose of
computing the amounts payable to the Grantee. The Units and Dividend
Equivalents, if applicable, shall be for bookkeeping purposes only and shall not
represent a claim against any specified assets of the Corporation. Neither this
Agreement nor any action taken pursuant to the terms of this Agreement shall be
considered to create a fiduciary relationship between the Corporation and the
Grantee or any other person, or to establish a trust in which the assets of the
Corporation or any Affiliate are beyond the claims of any unsecured creditor of
the Corporation or any Affiliate.
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7. Provision for Taxes. The Corporation may make such provisions and
take such actions as it may deem necessary or appropriate for the withholding of
any taxes which a payee is required by any law or regulation of any governmental
authority, whether federal, state, or local, to withhold in connection with any
issuance of the Shares issuable under the Units and payment of Dividend
Equivalents under the Plan and this Agreement, including, but not limited to,
the withholding of Shares or appropriate sums from any amount otherwise payable
to the Grantee or in the event of the death of the Grantee, to the estate of the
Grantee. Each payor shall be responsible for the payment of all individual tax
liabilities with respect to any Share issuable under the Units and paid Dividend
Equivalents.
8. Securities Laws. This Section 8 shall be applicable if, on the Award
Date, the Common Stock subject to such Award has not been registered under the
Securities Act of 1933, as amended, and under applicable state securities laws,
and shall continue to be applicable for so long as such registration has not
occurred.
The Grantee hereby agrees, warrants and represents that Grantee is
acquiring the Units and Shares to be issued pursuant to this Agreement for
Xxxxxxx's own account for investment purposes only, and not with a view to, or
in connection with, any resale or other distribution of any of such Units or
Shares, except as hereafter permitted. The Grantee further agrees that Grantee
will not at any time make any offer, sale, transfer, pledge or other disposition
of such Units or Shares to be issued hereunder without an effective registration
statement under the Securities Act of 1933, as amended, and under any applicable
state securities laws or an opinion of counsel acceptable to the Corporation to
the effect that the proposed transaction will be exempt from such registration.
The Grantee shall execute such instruments, representations, acknowledgments and
agreements as the Corporation may, in its sole discretion, deem advisable to
avoid any violation of federal, state, local or securities exchange rule,
regulation or law.
The certificates for the Shares to be issued pursuant to this Agreement
shall bear the following securities legend ("Securities Legend"):
The shares represented by this certificate have not been registered
under the Securities Act of 1933, as amended, or under applicable state
securities laws. The shares have been acquired for investment and may
not be offered, sold, transferred, pledged or otherwise disposed of
without an effective registration statement under the Securities Act of
1933, as amended, and under any applicable state securities laws or an
opinion of counsel acceptable to the Corporation that the proposed
transaction will be exempt from such registration.
The Securities Legend shall be removed upon registration of the
legended shares under the Securities Act of 1933, as amended, and under any
applicable state laws or upon receipt of any opinion of counsel acceptable to
the Corporation that said registration is no longer required.
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The sole purpose of the agreements, warranties, representations and
legend set forth in this Section is to prevent violations of the Securities Act
of 1933, as amended, and any applicable state securities laws.
9. Status Change. If the Grantee has a Status Change during the
Restricted Period by reason of death or Permanent Disability and prior to the
Performance Target Distribution Event without regard to any deferral thereof,
all Units held by the Grantee at the time of such Status Change and Dividend
Equivalents, if any, shall automatically become free of all restrictions and
conditions, shall be fully vested in the Grantee and the Shares shall be issued
and Dividend Equivalents paid, as applicable. If the Grantee has a Status Change
during the Restricted Period which, for this sentence, shall be deemed to have
ended on the Performance Target Distribution Event without regard to any
deferral thereof, other than by reason of death or Permanent Disability, all
Units and Dividend Equivalents, if any, held by the Grantee at the time of such
Status Change shall be forfeited automatically and the Award canceled as of the
date of such Status Change. For clarification, if the Grantee has a Status
Change other than by reason of death or Permanent Disability at any time on or
after the Performance Target Distribution Event, but has a Deferral Election in
effect at such time, all Units held by the Grantee at the time of such Status
Change and Dividend Equivalents, if any, shall be issued and Dividend
Equivalents paid, as applicable, at the time provided for in the Deferral
Election.
10. No Rights as a Shareholder. This Agreement represents only the
right to receive the Shares and if applicable, Dividend Equivalents, and until
the Effective Date with regard to a Share, the Grantee shall have no rights
hereunder as a shareholder of the Corporation with regard to that Share. Without
limiting the generality of the foregoing, until the Effective Date with regard
to a Share, the Grantee shall have no right to vote the Share represented by the
Unit or to receive dividends declared thereon except the Dividend Equivalents as
provided in Section 4 above.
11. Limitation of Rights. The establishment of this Agreement, any
modification thereof, the creation of an account, or the payment of any benefit
shall not be construed as giving the Grantee, his estate, or any other person
whomsoever, any legal or equitable right against the Corporation, unless such
right shall be specifically provided for in this Agreement. Nothing in this
Agreement shall limit the right of the Corporation or any of its Affiliates to
terminate the Grantee's service as an officer, employee, director or otherwise
or impose upon the Corporation or any of its Affiliates any obligation to employ
or accept the services of the Grantee.
12. Limitation of Liability. Notwithstanding anything in this Agreement
to the contrary, neither the Corporation nor any individual acting as employee
or agent of the Corporation shall be liable to the Grantee or other person for
any claim, loss, liability or expense incurred in connection with this
Agreement. The Corporation does not undertake any responsibility to the Grantee
for the tax consequences of the Grantee's election to defer or otherwise under
this Agreement.
13. Adjustments for Changes in Capitalization of the Corporation. In
the event of any stock dividend, stock split, combination or exchange of equity
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securities, merger, consolidation, recapitalization, reorganization, divestiture
or other distribution (other than ordinary cash dividends) of assets to
shareholders, or any other event affecting the Common Stock that the Committee
deems, in its sole discretion, to be similar circumstances, the Committee may
make such adjustments as it may deem appropriate, in its sole discretion, to the
number and kind of Shares issuable under each Unit.
14. Change in Control. Notwithstanding anything in this Agreement to
the contrary, in the event of a Change in Control prior to the Performance
Target Distribution Event without regard to any deferral thereof, all Units held
by the Grantee at the time of such Change in Control and Dividend Equivalents,
if any, shall automatically become free of all restrictions and conditions,
shall become fully vested in the Grantee and the Shares shall be issued and
Dividend Equivalents paid, if any, to the Grantee.
15. Plan and Plan Interpretations Controlling. The Units hereby awarded
and the terms and conditions herein set forth are subject in all respects to the
terms and conditions of the Plan, which are controlling. All determinations and
interpretations by the Committee shall be binding and conclusive upon the
Grantee or Xxxxxxx's legal representatives with regard to any question arising
hereunder or under the Plan.
16. Tax Consequences. Xxxxxxx has reviewed with Xxxxxxx's own tax
advisors the federal, state, local and foreign tax consequences of this Award
and the transactions contemplated by this Agreement. Grantee is relying solely
on such advisors and not on any statements or representations of Corporation or
any of its agents. Grantee understands that Grantee (and not Corporation) shall
be responsible for Xxxxxxx's own tax liability that may arise as a result of
this Award or the transactions contemplated by this Agreement. Grantee
understands that Section 83 of the Internal Revenue Code of 1986, as amended
(the "Code"), taxes (as ordinary income) the fair market value of the Units as
of the date any "restrictions" on the Units lapse and the Shares are issued. To
the extent that a grant hereunder is not otherwise an exempt transaction for
purposes of Section 16(b) of the Securities and Exchange Act of 1934 (the "1934
Act"), with respect to officers, directors and 10% shareholders, a "restriction"
on the Shares includes for these purposes the period after the grant of the
Shares during which such officers, directors and 10% shareholders could be
subject to suit under Section 16(b) of the 1934 Act.
17. Entire Understanding; Amendment; Choice of Law. This Agreement
together with the Plan and the Deferral Election, if any, constitutes the entire
understanding between the Corporation and the Grantee with respect to the
subject matter hereof and no amendment, supplement or waiver of this Agreement,
in whole or in part, shall be binding upon the Corporation unless in writing and
signed by the Chief Executive Officer of the Corporation. This Agreement and the
performances of the parties hereunder shall be construed in accordance with and
governed by the laws of the Commonwealth of Pennsylvania without giving effect
to principles of conflicts of law, except where preempted by Federal law.
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18. Change in Law. In the event that the Grantee enters into an
effective Deferral Election and the Corporation determines that any change in
applicable law may operate to impact the intent of the Deferral Election to
provide for the deferral of the Shares issuable under the Units, and if
applicable, payment of Dividend Equivalents, the Corporation may amend this
Agreement in writing without the consent of the Grantee and in its sole
discretion to include or modify such provisions that it deems appropriate to
preserve to the extent possible the intent of this Agreement. The Corporation
shall provide any such amendment to the Grantee.
19. Gender and Number. Whenever any word is used herein in the
masculine, feminine or neuter gender, it shall be construed as though it were
also used in another gender in all cases where it would so apply, and whenever
any word is used herein in the singular or plural form, it shall be construed as
though it was also used in the other form in all cases where it would so apply.
20. Headings. The headings in the various sections in this Agreement
are for convenience of reference only and are not to be construed as part of
this Agreement.
21. Binding Effect. This Agreement shall be binding upon and inure to
the benefit of the Corporation, its successors and assigns, and to the Grantee,
his heirs, executors, personal representatives, successors and assigns.
22. Grantee Acceptance. The Grantee shall signify Xxxxxxx's acceptance
of the terms and conditions of this Agreement by signing in the space provided
below.
23. Electronic Delivery Consent. By signing and returning this
Restricted Stock Unit Agreement, the Grantee consents to receiving the Section
10(a) prospectus to the Plan and any amendments or supplements thereto and any
documents required to be delivered therewith, including a copy of the
Corporation's Form 10-K or Annual Report to Shareholders commencing with the
fiscal year ended December 31, 2003, by email at the email address maintained
for the Grantee by the Corporation as set forth below. The Grantee further
acknowledges that he may revoke this consent in whole by providing written
notice to the Chief Financial Officer of the Corporation.
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IN WITNESS WHEREOF, the parties hereto have caused this Restricted
Stock Unit Agreement to be executed on this 26th day of October, 2005.
NCO GROUP, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
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Name: Xxxxxxx X. Xxxxxxx
Title: President and CEO
GRANTEE:
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(E-Mail Address)
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(Street Address)
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(City, State & Zip Code)
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NCO GROUP, INC.
2004 EQUITY INCENTIVE PLAN
RESTRICTED STOCK UNIT AGREEMENT
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EXHIBIT A
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PERFORMANCE TARGET: Achievement by NCO Group, Inc. of an average return on
invested capital ("ROIC") of 8.25% for any Rolling Three-Year Period. ROIC is
defined as (i) income from continuing operations after adding back interest
expense (net of taxes) divided by (ii) the sum of average long-term debt plus
average minority interest plus average redeemable preferred stock plus average
shareholders' equity. Rolling Three-Year Period means the period of three
successive fiscal years of NCO Group, Inc. The first such Rolling Three-Year
Period shall begin on January 1, 2005 and end on December 31, 2007. The last
such Rolling Period shall begin on January 1, 2012 and end on December 31, 2014.
The Grantee must be employed on the date that the Performance Target is met in
order to be vested in the Units as of such date. The Compensation Committee
shall make all determinations of whether the Performance Target has been met
(and the Performance Target shall not be treated as having been satisfied prior
to the date on which the Compensation Committee actually makes its determination
as to whether the Performance Target has been met) and all such determinations
thereof from time to time shall be conclusive and binding on the Grantee.
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