PREMIUM STANDARD FARMS, INC. RESTRICTED STOCK AWARD AGREEMENT
Exhibit 10.1
THIS
RESTRICTED STOCK AWARD AGREEMENT (the “Agreement”),
dated as of ___ (the “Grant
Date”), is made by and between Premium Standard Farms, Inc., a Delaware corporation (the
“Company”), and ___, an ___ of the Company (the “Participant”).
W I T N E S S E T H:
WHEREAS, the Company adopted that certain 2005 Long Term Incentive Plan, dated as of June 17,
2005 (the “Plan”); and
WHEREAS, among other things, the Plan provides for the granting of restricted stock awards by
the Compensation Committee of the Board of Directors of the Company (the “Committee”) to eligible
employees of the Company or an Affiliate to purchase shares of the common stock of the Company, par
value $.01 per share (the “Common Stock”), in accordance with the terms and provisions thereof; and
WHEREAS, the Committee considers the Participant to be an employee who is eligible for a grant
of restricted stock pursuant to the Plan, and has determined that it would be in the best interests
of the Company to grant the restricted stock documented herein; and
WHEREAS, the Participant wishes to accept such award, subject to the terms and conditions
hereinafter set forth.
NOW, THEREFORE, the parties hereto hereby agree as follows:
1. Definitions. Unless otherwise provided herein, the capitalized terms
have the same definition and meaning as provided in the Plan.
2. Restricted Stock Award. Subject to the terms and conditions of the Plan
and the terms, conditions and restrictions set forth in this Agreement, the Committee hereby awards
to the Participant shares of Common Stock of the Company (the “Restricted Stock”).
3. Restrictions. Prior to the expiration of any period in which a
possibility of forfeiture exists pursuant to Section 4 below (the “Applicable Restriction Period”),
the Participant may not sell, assign, margin, transfer, encumber, convey, gift, alienate,
hypothecate, pledge or otherwise dispose of any Restricted Stock to which such Applicable
Restriction Period relates, except for transfer by will or the laws of descent and distribution.
Any attempt to sell, assign, margin, transfer, encumber, convey, gift, alienate, hypothecate,
pledge or otherwise dispose of the Restricted Stock to which such Applicable Restriction Period
relates, or to subject such Restricted Stock to execution, attachment or similar process, contrary
to the provisions hereof, shall be void and ineffective, shall give no right to any purported
transferee, and may, at the discretion of the Committee, result in forfeiture of such Restricted
Stock.
4. Applicable Restriction Period. Except to the extent otherwise provided
in this Agreement and in the Plan, if the Participant remains continuously employed by the Company
through the expiration of any Applicable Restriction Period, the possibility of forfeiture with
respect to such percentage of the Restricted Stock as is set forth below shall lapse, and such
Restricted Shares shall be fully-owned by the Participant in accordance with the following
schedule:
(a) percent ( %) of the Participant’s Restricted Stock shall no
longer be subject to forfeiture on and after the anniversary of the Grant Date; and
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(b) An additional percent ( %) of the Participant’s Restricted
Stock shall no longer be subject to forfeiture on and after each of the , and
anniversaries of the Grant Date.
5. Shareholder Rights. Notwithstanding the foregoing and except as provided
in Section 3, the Participant shall have, with respect to the Restricted Stock, all of the rights
of a shareholder of the Company holding a class of Common Stock that is the subject of the
Restricted Stock, including, if applicable, the right to vote the shares and the right to receive
any cash dividends thereon; provided, however, that if any dividends or other distributions with
respect to the Restricted Stock shall be paid in shares of Common Stock, such shares shall be
subject to the same restrictions as the shares of Restricted Stock with respect to which they are
paid.
6. Escrow of Restricted Stock. As of the Grant Date of the Restricted Stock
award, the Company shall issue in the name of the Participant a certificate or certificates
evidencing the Restricted Stock, or retain such shares in a separate account, and shall retain
custody of any such certificate or certificates and control of any such account to the extent, and
for so long as, the restrictions described herein have not lapsed during any Applicable Restriction
Period. The Participant hereby agrees, upon the request of the Company, to execute in blank and to
deliver to the Company such stock powers and other related documents as may be deemed advisable by
the Company in order to effectively carry out the provisions of this Agreement, and, by execution
of this Agreement, the Participant hereby designates the Secretary of the Company as his or her
attorney in fact, with full power and authority to execute on the Participant’s behalf any of the
foregoing documents.
7. Other Conditions.
(a) Termination of Employment. If the Participant incurs a
Termination of Employment, all shares of Common Stock remaining subject to the restrictions
described herein as of the date of Termination of Employment shall be forfeited and
Participant shall have no rights therein. Notwithstanding the foregoing, the effect of a
Termination of Employment for death or Disability of the Participant shall be governed by
the Plan.
(b) Termination due to Change in Control. In the event of a Change
of Control, the restrictions applicable to the Restricted Stock shall lapse, and such
Restricted Stock shall become free of all restrictions and become fully vested and
transferable to the full extent of the original grant.
8. Government Regulations, Registration and Listing of Stock. This
Agreement, the awarding of the Restricted Stock and the Company’s obligation to deliver shares
evidencing the Restricted Stock hereunder shall be subject to all applicable federal, state and
local laws, rules and regulations and to such approvals which may be required by regulatory or
governmental agencies.
9. Agreement Respecting Taxes. The Participant hereby agrees to pay to the
Company, or to make arrangements satisfactory to the Company for the payment of, any federal, state
or local taxes of any kind required by law to be withheld with respect to the Restricted Stock or
this Restricted Stock award, including withholding from the Participant’s compensation. In
addition, the Participant hereby acknowledges and agrees that the Company shall, to the maximum
extent permitted by law, have the right to deduct from any compensation, other payments or awards
otherwise due to the Participant, any taxes described in the previous sentence required by law to
be withheld with respect to the Restricted Stock or this Restricted Stock award. Finally, the
Participant acknowledges that he or she is aware that any taxes referred to in this section may be
due upon the vesting of all or a portion of the Restricted Stock.
10. Code Section 83(b) Election. The Participant hereby agrees to
immediately notify the Company in the manner described in this Section 10 of any election made by
the Participant under Section 83(b) of the Code with respect to the Restricted Stock. The
Participant shall execute and deliver to the Company with this executed Agreement the (i)
Acknowledgement and Statement of Decision Regarding Election Pursuant to Section 83(b) of the
Internal Revenue Code and (ii) Election Pursuant to Section 83(b) of the Internal Revenue Code,
both of which are attached hereto as Exhibits A and B, respectively. The Participant should
consult the Participant’s own tax adviser
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to determine if there is a comparable election to file in the state of the Participant’s
residence and whether such filing is desirable under the circumstances.
11. No Other Rights Created. Neither this Agreement nor the Restricted
Stock award shall constitute an employment agreement nor shall confer upon the Participant any
right to remain in the employ of the Company. The Participant shall remain subject to termination
of his employment to the same extent as though this Agreement and the Restricted Stock award did
not exist.
12. Binding Effect. The Participant hereby acknowledges receipt of a copy
of the Plan and agrees to be bound by all of the terms and provisions thereof. The terms of the
Plan as it presently exists, and as it may hereafter be amended, are deemed incorporated herein by
reference, and any conflict between the terms of this Agreement and the terms and provisions of the
Plan shall be resolved by the Committee, whose determination shall be final and binding on all
parties. In general, and except as otherwise determined by the Committee, the provisions of the
Plan shall supersede the provisions of this Agreement to the extent of any conflict between the
Plan and this Agreement.
13. Notices. Any notice hereunder to the Company shall be addressed to it
at 000 Xxxxxxxxxxxx Xxxxxx, Xxxxx 000, Xxxxxx Xxxx, Xxxxxxxx 00000, to the attention of Vice
President, Human Resources. Any notice hereunder to the Participant shall be addressed to the
Participant at the address set forth below, subject to the right of either party at any time
hereafter to designate at any time hereafter in writing a different address.
14. Amendment. The Committee may at any time unilaterally amend the terms
and conditions pertaining to the Restricted Stock award; provided, however that any such amendment
which is adverse to the Participant shall require the Participant’s written consent. Any other
amendment of this Agreement shall require a written agreement executed by both parties.
15. Miscellaneous. This Agreement contains a complete statement of all the
arrangements between the parties with respect to its subject matter. This Agreement shall be
governed by and construed and enforced in accordance with the laws of the State of Delaware
applicable to agreements made and to be performed exclusively in the State of Delaware. The
headings in this Agreement are solely for convenience of reference and shall not affect its meaning
or interpretation.
(a) Legend on Stock Certificates. All certificates representing the
Restricted Stock will bear the following legend:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO A RESTRICTED STOCK
AWARD AGREEMENT AMONG PREMIUM STANDARD FARMS, INC. (THE “CORPORATION”) AND THE
HOLDER OF THE STOCK REPRESENTED BY THIS CERTIFICATE. COPIES OF THE AGREEMENT WILL
BE FURNISHED BY THE CORPORATION TO THE HOLDER HEREOF UPON WRITTEN REQUEST.
IN WITNESS WHEREOF, the Company has caused this Agreement to be executed by its duly
authorized officer and the Participant has executed this Agreement as of the day and year first
above written.
PREMIUM STANDARD FARMS, INC. | ||||||
By: | ||||||
Name: | ||||||
Title: | ||||||
Participant: |
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Name: | ||||||
Address: | ||||||
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EXHIBIT A
ACKNOWLEDGMENT AND STATEMENT
OF DECISION REGARDING ELECTION
PURSUANT TO SECTION 83(b)
of
THE INTERNAL REVENUE CODE
OF DECISION REGARDING ELECTION
PURSUANT TO SECTION 83(b)
of
THE INTERNAL REVENUE CODE
The undersigned (which term includes the undersigned’s spouse), a holder of shares of
Common Stock (the “Restricted Stock”) of Premium Standard Farms, Inc., a Delaware
corporation (the “Company”), pursuant to a Restricted Stock Award Agreement with the
Company dated as of (the “Agreement”), hereby states as follows:
1. The undersigned acknowledges receipt of a copy of the Agreement. The undersigned
has carefully reviewed the Agreement.
2. The undersigned either [check as applicable]:
(a) has consulted, and has been fully advised by, the undersigned’s
own tax adviser, whose business address is
, regarding the federal, state and local tax consequences of
being issued the Interests under the Agreement, and particularly regarding the advisability
of making elections pursuant to Section 83(b) of the Internal Revenue Code of 1986, as
amended (the “Code”), and pursuant to the corresponding provisions, if any, of
applicable state laws; or
(b) has knowingly chosen not to consult such tax adviser.
3. The undersigned hereby states that the undersigned has decided to make an
election pursuant to Section 83(b) of the Code and is submitting to the Company, together with the
undersigned=s executed Agreement, an executed form which is attached as Exhibit B to the Agreement.
4. Neither the Company nor a representative of the Company has made any warranty or
representation to the undersigned with respect to the tax consequences of the issuance of the
Restricted Stock to the undersigned pursuant to the Agreement or of the making or failure to make
an election pursuant to Section 83(b) of the Code or corresponding provisions, if any, of
applicable state law.
5. The undersigned is also submitting to the Company, together with the Agreement,
an executed original of an election, if any is made, of the undersigned pursuant to provisions of
state law corresponding to Section 83(b) of the Code, if any, which are applicable to the issuance
of the Restricted Stock to the undersigned pursuant to the Agreement.
Date:
|
Participant: | |||
(Sign Name) | ||||
(Print Name) | ||||
Date:
|
Participant Spouse | |||
(Sign Name) | ||||
(Print Name) |
A-1
EXHIBIT B
ELECTION PURSUANT TO SECTION 83(b) OF THE
INTERNAL REVENUE CODE TO INCLUDE IN GROSS INCOME
THE EXCESS OVER THE PURCHASE PRICE, IF ANY,
OF THE VALUE OF PROPERTY TRANSFERRED
IN CONNECTION WITH SERVICES
INTERNAL REVENUE CODE TO INCLUDE IN GROSS INCOME
THE EXCESS OVER THE PURCHASE PRICE, IF ANY,
OF THE VALUE OF PROPERTY TRANSFERRED
IN CONNECTION WITH SERVICES
The undersigned hereby elects pursuant to Section 83(b) of the Internal Revenue Code of 1986,
as amended, to include in the undersigned’s gross income for the
2___ taxable year the excess (if
any) of the fair market value of the property described below, over the amount the undersigned paid
for such property, if any, and supplies herewith the following information in accordance with the
Treasury regulations promulgated under Section 83(b):
1. The undersigned’s name, address and taxpayer identification (social security)
number are:
Name:
Address:
Social Security #:
2. The property with respect to which the election is made consists of
shares of Common Stock (the “Restricted Stock”) of Premium Standard Farms, Inc., a Delaware
corporation (the “Company”).
3. The date on which the above property was transferred to the undersigned was
and the taxable year to which this election relates is 2___.
4. The above property is subject to the following restrictions: (a) forfeiture of
the Restricted Stock if the Participant ceases to be an employee of the Company or an affiliate of
the Company, and (b) certain restrictions should the undersigned wish to transfer the Restricted
Stock.
5. The fair market value of the above property at the time of transfer (determined
without regard to any restrictions other than those which by their terms will never lapse) is
$
per share.
6. The
amount paid for the above property by the undersigned was $
per share.
7. A copy of this election has been furnished to the Company, and a copy will be
filed with the income tax return of the undersigned to which this election relates.
Date:
|
Participant: | |||
(Sign Name) | ||||
(Print Name) | ||||
Date:
|
Participant Spouse | |||
(Sign Name) | ||||
(Print Name) |
B-1