EPOCH HOLDING CORPORATION RESTRICTED STOCK AGREEMENT FOR [Name]
EPOCH
HOLDING CORPORATION
FOR
[Name]
This
RESTRICTED
STOCK AGREEMENT
(the
“Agreement”)
is
made and entered into effective as of [Date],
by and
between Epoch Holding Corporation, a Delaware corporation (the "Company"),
and
[Name]
(the
"Recipient").
RECITALS
The
Compensation Committee of the Board of Directors of the Company (the
“Committee”)
has
determined that it is in the best interests of the Company to recognize the
Recipient’s performance and to provide incentive to the Recipient to remain with
the Company by making this grant of Restricted Stock in accordance with the
terms of this Agreement; and
The
Restricted Stock is granted pursuant to the 2004 Omnibus Long-Term Incentive
Compensation Plan (the “Plan”)
which
is incorporated herein for all purposes. The Recipient hereby acknowledges
receipt of a copy of the Plan. Unless otherwise provided herein, terms used
herein that are defined in the Plan and not defined herein shall have the
meanings attributable thereto in the Plan.
NOW,
THEREFORE,
for and
in consideration of the mutual premises, covenants and agreements contained
herein, and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto, intending
to be
legally bound, hereby agree as follows:
1. Award
of Restricted Stock.
The
Committee hereby grants, as of [Date]
(the
“Date
of Grant”),
to
the Recipient, [Number]
shares
of restricted stock, par value $0.01 per share, of the Company (collectively
the
"Restricted
Stock"),
which
shares of Restricted Stock are and shall be subject to the terms, provisions
and
restrictions set forth in this Agreement and in the Plan. As a condition to
entering into this Agreement, and as a condition to the issuance of any shares
of Restricted Stock (or any other securities of the Company), the Recipient
agrees to be bound by all of the terms and conditions herein and in the
Plan.
2. Vesting
of Restricted Stock.
(a) Except
as
otherwise provided in Sections 2(b) and 4 hereof, the shares of Restricted
Stock
shall become vested in the following amounts, at the following times and upon
the following conditions, provided that the Continuous Service of the Recipient
continues through and on the Vesting Date:
|
Number
of Shares of Restricted Stock
|
Vesting
Date
|
|
[Number]
[Number]
[Number]
[Number]
|
[Date]
[Date]
[Date]
[Date]
|
There
shall be no proportionate or partial vesting of shares of Restricted Stock
in or
during the months, days or periods prior to the Vesting Date, and all vesting
of
shares of Restricted Stock shall occur only on the Vesting Date.
(b) Notwithstanding
any other term or provision of this Agreement, the Board or the Committee shall
be authorized, in its sole discretion, based upon its review and evaluation
of
the performance of the Recipient and of the Company, to accelerate the vesting
of any shares of Restricted Stock under this Agreement, at such times and upon
such terms and conditions as the Board or the Committee shall deem
advisable.
(c) For
purposes of this Agreement, the following terms shall have the meanings
indicated:
(i) “Non-Vested
Shares”
means
any portion of the Restricted Stock subject to this Agreement that has not
become vested pursuant to this Section 2.
(ii) “Vested
Shares”
means
any portion of the Restricted Stock subject to this Agreement that is and has
become vested pursuant to this Section 2.
3. Delivery
of Restricted Stock.
(a) One
or
more stock certificates evidencing the Restricted Stock shall be issued in
the
name of the Recipient but shall be held and retained by the Secretary of the
Company until the Vesting Date, subject to the provisions of Section 4 hereof.
All such stock certificates shall bear the following legends, along with such
other legends that the Board or the Committee shall deem necessary and
appropriate or which are otherwise required or indicated pursuant to any
applicable stockholders agreement:
THE
SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO SUBSTANTIAL VESTING AND
OTHER RESTRICTIONS AS SET FORTH IN THE RESTRICTED STOCK AGREEMENT BETWEEN THE
ISSUER AND THE ORIGINAL HOLDER OF THE SHARES, A COPY OF WHICH MAY BE OBTAINED
AT
THE PRINCIPAL OFFICE OF THE ISSUER. SUCH RESTRICTIONS ARE BINDING ON TRANSFEREES
OF THESE SHARES, AND INCLUDE VESTING CONDITIONS WHICH MAY RESULT IN THE COMPLETE
FORFEITURE OF THE SHARES.
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(b) The
Recipient shall deposit with the Company stock powers or other instruments
of
transfer or assignment, duly endorsed in blank with signature(s) guaranteed,
corresponding to each certificate representing shares of Restricted Stock until
such shares become Vested Shares. If the Recipient shall fail to provide the
Company with any such stock power or other instrument of transfer or assignment,
the Recipient hereby irrevocably appoints the Secretary of the Company as his
attorney-in-fact, with full power of appointment and substitution, to execute
and deliver any such power or other instrument which may be necessary to
effectuate the transfer of the Restricted Stock (or assignment of distributions
thereon) on the books and records of the Company.
(c) On
or
after the Vesting Date, upon
written request to the Company by the Recipient, the Company shall promptly
cause a new certificate or certificates to be issued for and with respect to
all
Vested Shares on the
Vesting Date,
which certificate(s) shall be delivered to the Recipient as soon as
administratively practicable after the date of receipt by the Company of the
Recipient's written request. The new certificate or certificates shall continue
to bear those legends and endorsements that the Company shall deem necessary
or
appropriate (including those relating to restrictions on transferability and/or
obligations and restrictions under the Securities Laws.)
4. Forfeiture
of Non-Vested Shares.
If the
Recipient’s Continuous Service with the Company is terminated for any reason,
any shares of Restricted Stock that are not Vested Shares, and that do not
become Vested Shares pursuant to Section 2 hereof or the Plan as a result of
such termination, shall be forfeited immediately upon such termination of
Continuous Service and revert back to the Company without any payment to the
Recipient. The Committee shall have the power and authority to enforce on behalf
of the Company any rights of the Company under this Agreement in the event
of
the Recipient’s forfeiture of Non-Vested Shares pursuant to this Section
4.
5. Rights
with Respect to Restricted Stock.
(a) Except
as
otherwise provided in this Agreement, the Recipient shall have, with respect
to
all of the shares of Restricted Stock, whether Vested Shares or Non-Vested
Shares, all of the rights of a holder of shares of common stock of the Company,
including without limitation (i) the right to vote such Restricted Stock, (ii)
the right to receive dividends, if any, as may be declared on the Restricted
Stock from time to time, and (iii) the rights available to all holders of shares
of common stock of the Company upon any merger, consolidation, reorganization,
liquidation or dissolution, stock split, stock dividend or recapitalization
undertaken by the Company; provided,
however,
that
all of such rights shall be subject to the terms, provisions, conditions and
restrictions set forth in this Agreement (including without limitation
conditions under which all such rights shall be forfeited). Any
shares
of
Restricted Stock issued
to the Recipient as a dividend with respect to shares of Restricted Stock shall
have the same status and bear the same legend as the shares of Restricted Stock
and shall be held by the Company, if the shares of Restricted Stock that such
dividend is attributed to is being so held, unless otherwise determined by
the
Committee. In addition, notwithstanding any provision to the contrary herein,
any cash dividends declared with respect to shares of Restricted Stock subject
to this Agreement shall be held in escrow by the Committee until such time
as
the shares of Restricted Stock that such cash dividends are attributed to shall
become Vested Shares, and in the event that such shares of Restricted Stock
are
subsequently forfeited, the cash dividends attributable to such portion shall
be
forfeited as well.
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(b) If
at any
time while this Agreement is in effect (or shares granted hereunder shall be
or
remain unvested while Recipient’s Continuous Service continues and has not yet
terminated or ceased for any reason), there shall be any increase or decrease
in
the number of issued and outstanding Shares of the Company through the
declaration of a stock dividend or through any recapitalization resulting in
a
stock split, combination or exchange of such Shares, then and in that event,
the
Board or the Committee shall make any adjustments it deems fair and appropriate,
in view of such change, in the number of shares of Restricted Stock then subject
to this Agreement. If any such adjustment shall result in a fractional share,
such fraction shall be disregarded.
(c) Notwithstanding
any term or provision of this Agreement to the contrary, the existence of this
Agreement, or of any outstanding Restricted Stock awarded hereunder, shall
not
affect in any manner the right, power or authority of the Company to make,
authorize or consummate: (i) any or all adjustments, recapitalizations,
reorganizations or other changes in the Company's capital structure or its
business; (ii) any merger, consolidation or similar transaction by or of the
Company; (iii) any offer, issue or sale by the Company of any capital stock
of
the Company, including any equity or debt securities, or preferred or preference
stock that would rank prior to or on parity with the Restricted Stock and/or
that would include, have or possess other rights, benefits and/or preferences
superior to those that the Restricted Stock includes, has or possesses, or
any
warrants, options or rights with respect to any of the foregoing; (iv) the
dissolution or liquidation of the Company; (v) any sale, transfer or assignment
of all or any part of the stock, assets or business of the Company; or (vi)
any
other corporate transaction, act or proceeding (whether of a similar character
or otherwise).
6. Transferability.
Unless
otherwise determined by the Committee, the shares of Restricted Stock are not
transferable unless and until they become Vested Shares in accordance with
this
Agreement, otherwise than by will or under the applicable laws of descent and
distribution. The terms of this Agreement shall be binding upon the executors,
administrators, heirs, successors and assigns of the Recipient. Except as
otherwise permitted pursuant to the first sentence of this Section, any attempt
to effect a Transfer of any shares of Restricted Stock prior to the date on
which the shares become Vested Shares shall be void ab
initio.
For
purposes of this Agreement, “Transfer”
shall
mean any sale, transfer, encumbrance, gift, donation, assignment, pledge,
hypothecation, or other disposition, whether similar or dissimilar to those
previously enumerated, whether voluntary or involuntary, and including, but
not
limited to, any disposition by operation of law, by court order, by judicial
process, or by foreclosure, levy or attachment.
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7. Tax
Matters; Section 83(b) Election.
(a) If
the
Recipient elects, within thirty (30) days of the Date of Grant, to include
in
gross income for federal income tax purposes an amount equal to the fair market
value (as of the Date of Grant) of the Restricted Stock pursuant to Section
83(b) of the Internal Revenue Code of 1986, as amended (the “Code”),
the
Recipient shall make arrangements satisfactory to the Company to pay to the
Company any federal, state or local income taxes required to be withheld with
respect to the Restricted Stock. If the Recipient shall fail to make such tax
payments as are required, the Company shall, to the extent permitted by law,
have the right to deduct from any payment of any kind otherwise due to the
Recipient any federal, state or local taxes of any kind required by law to
be
withheld with respect to the Restricted Stock.
(b) If
the
Recipient does not make the election described in Subsection 7(a) above, the
Recipient shall, no later than the date or dates as of which the restrictions
referred to in this Agreement hereof shall lapse, pay to the Company, or make
arrangements satisfactory to the Committee for payment of, any federal, state
or
local taxes of any kind required by law to be withheld with respect to the
Restricted Stock (including without limitation the vesting thereof), and the
Company shall, to the extent permitted by law, have the right to deduct from
any
payment of any kind otherwise due to Recipient any federal, state, or local
taxes of any kind required by law to be withheld with respect to the Restricted
Stock.
(c) Tax
consequences on the Recipient (including without limitation federal, state,
local and foreign income tax consequences) with respect to the Restricted Stock
(including without limitation the grant, vesting and/or forfeiture thereof)
are
the sole responsibility of the Recipient. The Recipient shall consult with
his
or her own personal accountant(s) and/or tax advisor(s) regarding these matters,
the making of a Section 83(b) election, and the Recipient’s filing, withholding
and payment (or tax liability) obligations.
8. Amendment,
Modification & Assignment; Non-Transferability.
This
Agreement may only be modified or amended in a writing signed by the parties
hereto. No promises, assurances, commitments, agreements, undertakings or
representations, whether oral, written, electronic or otherwise, and whether
express or implied, with respect to the subject matter hereof, have been made
by
either party which are not set forth expressly in this Agreement. Unless
otherwise consented to in writing by the Company, in its sole discretion, this
Agreement (and Recipient’s rights hereunder) may not be assigned, and the
obligations of Recipient hereunder may not be delegated, in whole or in part.
The rights and obligations created hereunder shall be binding on the Recipient
and his heirs and legal representatives and on the successors and assigns of
the
Company.
9. Complete
Agreement.
This
Agreement (together with those agreements and documents expressly referred
to
herein, for the purposes referred to herein) embody the complete and entire
agreement and understanding between the parties with respect to the subject
matter hereof, and supersede any and all prior promises, assurances,
commitments, agreements, undertakings or representations, whether oral, written,
electronic or otherwise, and whether express or implied, which may relate to
the
subject matter hereof in any way.
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10. Miscellaneous.
(a) No
Right to (Continued) Employment or Service.
This
Agreement and the grant of Restricted Stock hereunder shall not confer, or
be
construed to confer, upon the Recipient any right to employment or service,
or
continued employment or service, with the Company or any Related
Entity.
(b) No
Limit on Other Compensation Arrangements.
Nothing
contained in this Agreement shall preclude the Company or any Related Entity
from adopting or continuing in effect other or additional compensation plans,
agreements or arrangements, and any such plans, agreements and arrangements
may
be either generally applicable or applicable only in specific cases or to
specific persons.
(c) Severability.
If any
term or provision of this Agreement is or becomes or is deemed to be invalid,
illegal or unenforceable in any jurisdiction or under any applicable law, rule
or regulation, then such provision shall be construed or deemed amended to
conform to applicable law (or if such provision cannot be so construed or deemed
amended without materially altering the purpose or intent of this Agreement
and
the grant of Restricted Stock hereunder, such provision shall be stricken as
to
such jurisdiction and the remainder of this Agreement and the award hereunder
shall remain in full force and effect).
(d) No
Trust or Fund Created.
Neither
this Agreement nor the grant of Restricted Stock hereunder shall create or
be
construed to create a trust or separate fund of any kind or a fiduciary
relationship between the Company or any Related Entity and the Recipient or
any
other person. To the extent that the Recipient or any other person acquires
a
right to receive payments from the Company or any Related Entity pursuant to
this Agreement, such right shall be no greater than the right of any unsecured
general creditor of the Company.
(e) Law
Governing.
This
Agreement shall be governed by and construed and enforced in accordance with
the
laws of the State of New York (without reference to the conflict of laws rules
or principles thereof).
(f) Interpretation.
The
Recipient accepts the Restricted Stock subject to all of the terms, provisions
and restrictions of this Agreement and the Plan. The undersigned Recipient
hereby accepts as binding, conclusive and final all decisions or interpretations
of the Board or the Committee upon any questions arising under this Agreement.
(g) Headings.
Section, paragraph and other headings and captions are provided solely as a
convenience to facilitate reference. Such headings and captions shall not be
deemed in any way material or relevant to the construction, meaning or
interpretation of this Agreement or any term or provision hereof.
(h) Notices.
Any
notice under this Agreement shall be in writing and shall be deemed to have
been
duly given when delivered personally or when deposited in the United States
mail, registered, postage prepaid, and addressed, in the case of the Company,
to
the Company’s principal office at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇ ▇▇▇▇▇, Chief Financial Officer, or
if
the Company should move its principal office, to such principal office, and,
in
the case of the Recipient, to the Recipient’s last permanent address as shown on
the Company’s records, subject to the right of either party to designate some
other address at any time hereafter in a notice satisfying the requirements
of
this Section.
6
(i) Non-Waiver
of Breach.
The
waiver by any party hereto of the other party's prompt and complete performance,
or breach or violation, of any term or provision of this Agreement shall be
effected solely in a writing signed by such party, and shall not operate nor
be
construed as a waiver of any subsequent breach or violation, and the waiver
by
any party hereto to exercise any right or remedy which he or it may possess
shall not operate nor be construed as the waiver of such right or remedy by
such
party, or as a bar to the exercise of such right or remedy by such party, upon
the occurrence of any subsequent breach or violation.
(j) Counterparts.
This
Agreement may be executed in two or more separate counterparts, each of which
shall be an original, and all of which together shall constitute one and the
same agreement.
IN
WITNESS WHEREOF, the parties hereto, intending to be legally bound, have
executed this Agreement as of the date first written above.
| EPOCH HOLDING CORPORATION | ||
| |
|
|
| Date: | By: | /s/ |
|
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ |
||
| Title: Chief Executive Officer | ||
Agreed
and Accepted:
RECIPIENT:
__________________________________
[Name]
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