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Exhibit 10.20
EXECUTED COPY
RESTRICTED STOCK AWARD AGREEMENT
THIS AGREEMENT (the "Agreement"), is made, effective as of
February 14, 1999, (the "Grant Date") between SPALDING HOLDINGS CORPORATION, a
Delaware corporation (hereinafter called the "Company"), and Xxxxx X. Xxxxxxx
(hereinafter called the "Participant").
WHEREAS, the Company has adopted the 1996 Stock Purchase and
Option Plan for Key Employees of Evenflo & Spalding Holdings Corporation and
Subsidiaries (the "Plan"), which Plan as it may be amended from time to time is
incorporated herein by reference and made a part of this Agreement. Capitalized
terms not otherwise defined herein shall have the same meanings as in the Plan;
and
WHEREAS, the Committee has determined that it would be in the
best interests of the Company and its stockholders to grant the restricted stock
award provided for herein (the "Restricted Stock Award") to the Participant
pursuant to the Plan and the terms set forth herein.
NOW THEREFORE, in consideration of the mutual covenants
hereinafter set forth, the parties hereto agree as follows:
1. Grant of the Restricted Shares. Subject to the terms and
conditions of the Plan, the Management Stockholder's Agreement (as hereinafter
defined), and the additional terms and conditions set forth in this Agreement,
the Company hereby grants to the Participant a Restricted Stock Award consisting
of 500,000 shares of Common Stock (hereinafter called the "Restricted Shares"),
in consideration of the Participant's payment of the par value of $.01 per share
of Common Stock, for a total payment of $5,000. The Restricted Shares shall vest
and become nonforfeitable in accordance with Section 2 hereof.
2. Vesting
(a) Subject to the Participant's continued employment with the
Company, the Restricted Shares shall vest and become nonforfeitable, with
respect to twenty percent (20%) of the Shares initially granted hereunder, on
December 7, 1999, and on each of the first, second, third and fourth
anniversaries thereof. Notwithstanding the foregoing, in the event the above
vesting schedule results in the vesting of any fractional Shares, such
fractional Shares shall not be deemed vested hereunder but shall vest and become
nonforfeitable when such fractional Shares aggregate whole Shares.
(b) (i) If the Participant's employment with the Company is
terminated for Cause, the Restricted Shares shall, to the extent not
then vested, be forfeited by the Participant without consideration.
"Cause" shall mean (x) the Participant's willful and continued failure
to perform Participant's duties with respect to the Company or its
subsidiaries which continues beyond ten days after a written demand for
substantial performance is delivered to Participant by the Company or
(y) misconduct by Participant involving (I) dishonesty or breach of
trust in connection with Participant's employment which is reasonably
likely to be injurious to the Company or (II) conduct which would
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be a reasonable basis for an indictment of Participant for a felony or
for a misdemeanor involving moral turpitude.
(ii) If the Participant's employment with the Company is
terminated as a result of the Participant's death, Permanent Disability
or Retirement, the Restricted Shares shall, to the extent not then
vested and not previously forfeited, immediately become fully vested.
The Participant shall be deemed to have a "Permanent Disability" if the
Participant is unable to engage in the activities required by the
Participant's job by reason of any medically determined physical or
mental impairment which can be expected to result in death or which has
lasted or can be expected to last for a continuous period of not less
than 12 months. "Retirement" shall mean (x) retirement at age 65 or
over after having been employed by the Company or any subsidiary for at
least five years after the Grant Date or (y) retirement at age 55 or
over if such Participant has been employed with the Company or a
Subsidiary for a minimum of 15 years and after having been employed by
the Company or any subsidiary for at least five years after Base Date
(as defined in Section 7).
(c) Notwithstanding any other provision of this Agreement to
the contrary, in the event of a Change of Control the Restricted Shares shall,
to the extent not then vested and not previously forfeited, immediately become
fully vested. "Change of Control" means (i) a sale of all or substantially all
of the assets of the Company to a Person or Group who is not an Affiliate of
Kohlberg Kravis Xxxxxxx & Co. L.P. ("KKR"), (ii) a sale by KKR or any of its
Affiliates resulting in (A) more than 50% of the voting stock of the Company
being held by a Person or Group that does not include KKR or any of its
Affiliates and (B) more than 50% of the seats on the Board of Directors of the
Company being controlled by or being designees of a party or parties other than
KKR or any of its Affiliates, or (iii) a merger or consolidation of the Company
into another Person which is not an Affiliate of KKR. "Person" means an
individual, partnership, corporation, business trust, joint stock company,
trust, unincorporated association, joint venture, governmental authority or
other entity of whatever nature. "Group" means two or more Persons acting
together as a partnership, limited partnership, syndicate or other group for the
purpose of acquiring, holding or disposing of securities of the Company.
"Affiliate" means with respect to the Company, any corporation directly or
indirectly controlling, controlled by, or under common control with, the Company
or any other entity designated by the Board of Directors of the Company in which
the Company or an Affiliate has an interest.
3. Certificates. Certificates evidencing the Restricted Shares
shall be issued by the Company and shall be registered in the Participant's name
on the stock transfer books of the Company promptly after the date hereof, but
shall remain in the physical custody of the Company or its designee at all times
prior to the vesting of such Restricted Shares pursuant to Section 2. The
Participant hereby acknowledges and agrees that the Company shall retain custody
of such certificate or certificates until the restrictions imposed by Section 2
on the Common Stock granted hereunder lapse. As a condition to the receipt of
this Restricted Stock Award, the Participant shall deliver to the Company a
stock power, duly endorsed in blank, relating to the Restricted Shares. No
certificates shall be issued for fractional Shares.
4. Rights as a Stockholder. The Participant shall be the
record owner of the Restricted Shares until or unless such Shares are forfeited
pursuant to Section 2 hereof or pursuant to the terms of the Management
Stockholder's Agreement between the Participant and the Company dated as
December 7,1998 (the "Management Stockholder's Agreement"), and as record owner
shall be entitled to all rights of a common stockholder of the Company,
including,
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without limitation, voting rights with respect to the Restricted Shares;
provided that (i) any cash or in-kind dividends paid with respect to the
Restricted Shares which have not previously vested shall be withheld by the
Company and shall be paid to the Participant only when, and if, such Restricted
Shares shall become fully vested pursuant to Section 2 and (ii) the Restricted
Shares shall be subject to the limitations on transfer and encumbrance set forth
in Section 7. As soon as practicable following the vesting of any Restricted
Shares pursuant to Section 2, certificates for the Restricted Shares which shall
have vested shall be delivered to the Participant or to the Participant's legal
guardian or representative along with the stock powers relating thereto.
5. Legend on Certificates. The certificates representing the
vested Restricted Shares delivered to the Participant as contemplated by Section
4 above shall bear the legend set forth in Section 2(b) of the Management
Stockholder's Agreement and shall be subject to such stop transfer orders and
other restrictions as the Committee may deem advisable under the Plan or the
rules, regulations, and other requirements of the Securities and Exchange
Commission, any stock exchange upon which such Shares are listed, and any
applicable Federal or state laws, and the Committee may cause a legend or
legends to be put on any such certificates to make appropriate reference to such
restrictions.
6. Transferability. The Restricted Shares may not, at any time
prior to becoming vested pursuant to Section 2, be transferred, sold, assigned,
pledged, hypothecated or otherwise disposed of unless such transfer, sale,
assignment, pledge, hypothecation or other disposition complies with the
provisions of the Management Stockholder's Agreement.
7. Purchaser's Employment by the Company. Nothing contained in
this Agreement or in any other agreement entered into by the Company and the
Participant contemporaneously with the execution of this Agreement (i) obligates
the Company or any subsidiary of the Company to employ the Participant in any
capacity whatsoever or (ii) prohibits or restricts the Company (or any such
subsidiary) from terminating the employment, if any, of the Participant at any
time or for any reason whatsoever, with or without Cause, and the Participant
hereby acknowledges and agrees that, except as otherwise provided in the letter
agreement between the Participant and the Company, effective December 7, 1998
(the "Base Date"), neither the Company nor any other person has made any
representations or promises whatsoever to the Participant concerning the
participant's employment or continued employment by the Company or any
subsidiary of the Company.
8. Change in Capitalization. if, prior to the time the
restrictions imposed by Section 2 on the Shares granted hereunder lapse, the
Company shall be reorganized, or consolidated or merged with another
corporation, any stock, securities or other property exchangeable for such
Shares pursuant to such reorganization, consolidation or merger shall be
deposited with the Company and shall become subject to the restrictions and
conditions of this agreement to the same extent as if it had been the original
property granted hereby.
9. Withholding. It shall be a condition of the obligation of
the Company upon delivery of Restricted Stock to the Participant that the
Participant pay to the Company such amount as may be requested by the Company
for the purpose of satisfying any liability for any federal, state or local
income or other taxes required by law to be withheld with respect to such
Restricted Stock, including the payment to the Company upon the vesting of the
Restricted Shares (or such earlier or later date as may be applicable under
Section 83 of the Code) or other settlement in respect of the Restricted Shares
of all such taxes and requirements. The Company shall be authorized to take such
action as may be necessary in the opinion of the Company's
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counsel (including, without limitation, withholding vested Shares otherwise
deliverable to participant hereunder and/or withholding amounts from any
compensation or other amount owing from the Company to the Participant) to
satisfy all obligations for the payment of any such taxes. the Participant is
hereby advised to seek his own tax counsel regarding the taxation of the grant
of Restricted Shares made hereunder.
10. Securities Laws. Upon the vesting of any Restricted
Shares, the Company may require the Participant to make or enter into such
written representations, warranties and agreements as the Committee may
reasonably request in order to comply with applicable securities laws or with
this Agreement, consistent with the terms of the Management Stockholder's
Agreement. The granting of the Restricted Shares hereunder shall be subject to
all applicable laws, rules and regulations and to such approvals of any
governmental agencies as may be required.
11. 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 Participant shall be addressed to
him at the address given beneath his signature hereto. By a notice given
pursuant to this Section 10, either party may hereafter designate a different
address for notices to be given to him. Any notice which is required to be given
to the Participant shall, if the Participant is then deceased, be given to the
Participant's personal representative if such representative has previously
informed the Company of his status and address by written notice under this
Section 10. 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.
12. Governing Law. The laws of the State of Delaware (or if
the Company reincorporates in another state, the laws of that state) shall
govern the interpretation, validity and performance of the terms of this
Agreement regardless of the law that might be applied under principles of
conflicts of laws.
12. Restricted Stock Award Subject to Plan and Other
Management Equity Agreements. The Restricted Stock Award shall be subject to all
terms and provisions of the Plan and of the Management Stockholder's Agreement,
to the extent applicable to the Restricted Shares. In the event of any conflict
between this Agreement and the Plan, the terms of the Plan shall control. In the
event of any conflict between this Agreement or the Plan and the Management
Stockholder's Agreement, the terms of the Management Stockholder's Agreement
shall control.
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13. Signature in Counterparts. This Agreement may be signed in
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement.
SPALDING HOLDINGS CORPORATION
By: s/ Xxxxxx X. Xxxxxx
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Its: Vice President
s/ Xxxxx X. Xxxxxxx
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Xxxxx X. Xxxxxxx
