Exhibit (10v)
THE XXXXX GROUP, INC.
Amended and Restated
Stock Rights and Restrictions Agreement
for
Restricted Stock Award
Under
1990 Incentive Stock Plan
Stock Rights and Restrictions Agreement made as of this
______ day of _______________, 199____, by and between The Xxxxx
Group, Inc., a Tennessee corporation (hereinafter referred to as
the "COMPANY"), and ______________________________________, an
employee of the Company (hereinafter referred to as the
"PARTICIPANT");
W I T N E S S E T H:
WHEREAS, the shareholders of the Company have approved the
1990 Incentive Stock Plan, as amended (hereinafter referred to
as the "PLAN"), for the purpose of providing financial
incentives to directors of the Company and to selected key
associates of the Company and its Affiliates who contribute
significantly to the strategic and long-term performance
objectives and growth of the Company and its Affiliates; and
WHEREAS, the Company desires to grant to the Participant an
Award of restricted shares of the Company's common stock under
the Plan as a financial incentive and in consideration for the
Participant's agreement to abide by the terms and conditions of
the covenant not to compete contained in Section 10 hereof, and
upon the additional terms and subject to the conditions
described herein; and
WHEREAS, the Participant desires to accept such grant and
to enter into the covenant not to compete contained in Section
10 hereof in consideration for such grant; and
WHEREAS, this Amended and Restated Agreement is intended to
replace and supersede any prior Stock Rights and Restricted
Agreement for Restricted Stock awarded to Participant.
NOW, THEREFORE, in consideration of the mutual covenants
herein set forth, for other good and valuable consideration, and
subject to the terms and conditions of the Plan (a copy of which
is or has been furnished to Participant) which are hereby
incorporated herein by reference, the parties hereto hereby
agree as follows:
1. ADMINISTRATION. Under the Plan the Compensation
Committee of the Board of Directors of the Company ("COMMITTEE")
administers the Plan, may grant shares of restricted stock and
other Awards under the Plan, construe and interpret the Plan,
establish rules and regulations and perform all other acts as it
believes reasonable and proper under the Plan. Any Award may be
canceled if a Participant violates the terms of either this
Stock Rights and Restrictions Agreement or the Plan or acts in a
manner which the Committee determines to be inimical to the best
interest of the Company. Any decision made, or action taken, by
the Committee shall be final, conclusive and binding on both
parties to this Agreement.
2. AWARD OF RESTRICTED SHARES. Effective _______________,
(the date the Committee approved this grant) the Committee
hereby irrevocably grants to the Participant ____________ shares
of the Company's Common Stock, par value $3.00 per share, as an
Award of shares of restricted stock (the "RESTRICTED SHARES")
pursuant to the Plan and as incentive compensation, subject to
the terms and conditions hereinafter set forth. The number of
Restricted Shares which are the subject of this Award shall be
subject to antidilution and other adjustments in accordance with
PARAGRAPH 15 of the Plan, provided that any additional shares
issued as a result of such an adjustment shall be Restricted
Shares as if such shares were originally issued subject hereto.
By signing his name to the acceptance at the end of this
Agreement, the Participant hereby irrevocably agrees to accept
such Award subject to the terms and conditions hereinafter set
forth.
3. LENGTH OF THE RESTRICTED PERIOD. This Award of
Restricted Shares is conditioned upon Participant's continued
employment by the Company for a minimum period of _______ (____)
years. Accordingly, and subject to the other provisions of this
Agreement, the restrictions set forth herein with respect to the
Restricted Shares shall remain in full force and effect until
5:00 p.m., Eastern Time, on the ______ (___th) anniversary of
the effective date of the Award set forth in Section 2 hereof.
The period of time from such effective date until the expiration
of restrictions in accordance with the preceding sentence is
referred to herein as the "RESTRICTED PERIOD". The Committee,
in its sole discretion, may elect to accelerate (but not delay)
the expiration of the Restricted Period with respect to all or
any portion of the Restricted Shares.
4. RESTRICTIONS ON TRANSFER DURING THE RESTRICTED PERIOD.
During the Restricted Period, the Restricted Shares shall not
be transferable by the Participant. More particularly, such
shares may not be sold, assigned or transferred (whether by
sale, gift or otherwise), pledged, hypothecated or encumbered in
whole or in part either directly or by operation of law or
otherwise including, but not by way of limitation, by execution,
levy, garnishment, attachment, pledge, bankruptcy or in any
other manner. Any attempted assignment, transfer, pledge,
hypothecation or other disposition of any of the Restricted
Shares in violation of the foregoing provisions shall be null
and void and without effect and shall cause the Participant to
immediately forfeit all rights to the Restricted Shares, which
shall immediately revert to the Company.
5. ANTI-ASSIGNMENT PROVISION. This Agreement shall be
binding upon and inure to the benefit of the parties hereto, and
the successors and assigns of the Company and its subsidiaries.
However, except as may be approved by the Committee, where such
approval will not adversely affect compliance of the Plan with
Rule 16b-3 under the Securities Exchange Act of 1934, as amended
(the "EXCHANGE ACT"), neither the Restricted Shares nor this
Agreement shall be transferable or assignable by the
Participant.
6. TERMINATION OF EMPLOYMENT. Since this Award of
Restricted Shares is being made (subject to the terms and
conditions hereof) as additional incentive compensation and
Participant is not being required to make any payment for the
Restricted Shares, the provisions of PARAGRAPH 7 of the Plan
which deal with the Company's repurchase option are inapplicable
to the Restricted Shares. Instead, upon any termination of the
Participant's employment (as defined in Section 9 hereof) prior
to the expiration of the Restricted Period with respect to any
of the Restricted Shares for any reason other than Participant's
death or disability, regardless of whether such termination is
initiated by Participant or by the Company and regardless of
whether it is for cause or without cause, voluntary or
involuntary, all of the Restricted Shares shall immediately
revert to the Company and the Participant shall cease to have
any right or interest in such shares.
In the event of Participant's death or disability, the
Participant shall be entitled to receive a portion of the
Restricted Shares granted hereunder equal to that fraction of
the Restricted Shares with respect to which the Company has
recognized compensation expense under generally accepted
accounting principles (as such principles are in effect on the
date this Award is effective) as of the date of death or
disability. Disability shall be determined for this purpose in
accordance with Paragraph 12 of the Plan.
7. CERTIFICATES ISSUED WITH RESPECT TO RESTRICTED SHARES.
All certificates evidencing Restricted Shares issued to the
Participant under this Agreement shall be registered in the name
of the Participant, shall be deposited by him, together with a
stock power endorsed in blank, with the Company, and shall bear
a restrictive legend in substantially the following form:
THESE SECURITIES HAVE BEEN ISSUED PURSUANT TO THE
XXXXX GROUP, INC. INCENTIVE STOCK PLAN (THE "PLAN")
AND ARE SUBJECT TO THE TERMS, CONDITIONS AND
LIMITATIONS CONTAINED IN SUCH PLAN AND IN A STOCK
RIGHTS AND RESTRICTIONS AGREEMENT DATED
__________________, 1997. THESE SECURITIES MAY NOT
BE SOLD OR OTHERWISE DISPOSED OF OR ENCUMBERED EXCEPT
IN COMPLIANCE WITH THE PROVISIONS OF THE PLAN AND OF
SUCH AGREEMENT.
Upon the expiration of the Restricted Period with respect to any
of the Restricted Shares represented by any such certificate,
the Company shall: (i) cancel any earlier certificate
evidencing such shares which was issued as described above; and
(ii) issue and deliver to the Participant a certificate of like
tenor representing the number of shares of Common Stock for
which the Restricted Period shall have expired, registered in
the Participant's name but not bearing the restrictive legend
described above.
8. RIGHTS OF PARTICIPANT WITH RESPECT TO RESTRICTED
SHARES. Except as otherwise provided in the Plan or in this
Stock Rights and Restrictions Agreement, Participants who
receive Restricted Shares in accordance with this Agreement
shall have all of the rights of any holder of the Company's
common stock with respect to such shares, including without
limitation the right to vote such shares and to receive any
dividends declared and paid with respect to such shares during
the Restricted Period.
9. EMPLOYMENT. As used herein, the term "employment"
shall mean the employment or performance of services by an
individual for the Company (or any Affiliate of the Company, as
defined in the Plan) in Participant's current officer capacity,
or in any future capacity which constitutes a promotion or
increase in Participant's responsibilities as compared to
Participant's present position as __________________.
"Employment" shall also include any period of "Related
Employment" as set forth in PARAGRAPH 14 of the Plan. Except as
otherwise explicitly provided herein, any other change in
Participant's employment status with the Company shall be deemed
a termination of employment for purposes of this Stock Rights
and Restrictions Agreement.
10. COVENANT NOT TO COMPETE. Participant agrees that for
a period of one (1) year following any termination of
Participant's employment with the Company, Participant will not
own, manage, operate, control, be employed by, engage in or
participate in the ownership, management, operation, control
of, or be connected in any manner with or have any other direct
or indirect financial interest in any business, firm, person,
partnership, corporation, enterprise or concern which is
engaged in any business of the type and character competitive
with the operations of the Company with respect to which
Participant was associated, including any of its subsidiaries
or Affiliates, at the time of Participant's termination of
employment. The above notwithstanding, the Participant may own
stock in any publicly traded corporation that competes with the
Company, provided that such stock constitutes less than one-
percent (1%) of the issued and outstanding stock of such
company.
11. NO RIGHT TO CONTINUED EMPLOYMENT. It is understood
that this Agreement is not intended and shall not be construed
as an agreement or commitment by the Company or any subsidiary
or Affiliate to employ the Participant during the term of the
Restricted Period with respect to the Restricted Shares which
are the subject hereof, or for any fixed period of time.
12. WITHHOLDING. The Company shall not deliver or
otherwise make Restricted Shares, or shares of common stock with
respect to which the Restricted Period has expired, available to
the Participant until the Company has received from Participant,
in cash or any other form acceptable to the Committee, the
amount necessary to enable the Company to remit to the
appropriate government entity on behalf of the Participant any
amounts required to be withheld for taxes, in accordance with
Paragraph 17(f) of the Plan. If the applicable party fails to
cooperate with the Company in fulfilling the requirements of
this Section 13, then the Company shall have the right to
retain, or to sell without notice, a sufficient number of shares
of such stock to cover the amount required to be withheld.
13. PAYMENT OF EXPENSES. The Company shall pay all fees
and expenses necessarily incurred by it in connection with the
issue of shares pursuant hereto and will use its best efforts to
comply with all laws and regulations which, in the opinion of
counsel for the Company, shall be applicable.
14. ENTIRE AGREEMENT. This Stock Rights and Restrictions
Agreement and the Plan represent the entire agreement between
the parties with respect to the subject matter hereof, and
supersedes all negotiations, representations or agreements,
either written or oral, with respect hereto. This agreement may
not be amended, modified or altered, except in writing, duly
accepted and executed by both parties.
15. GOVERNING LAW. This Stock Rights and Restrictions
Agreement has been entered into pursuant to and shall be
governed by the laws of the State of Tennessee.
16. GENDER AND NUMBER. Any use of the masculine includes
the feminine and the neuter; and any use of the singular
includes the plural, whenever such meanings are appropriate.
17. HEADINGS AND DEFINITIONS. The headings appearing at
the beginning of each Section in this Agreement are intended
only as an index and are not to be construed to vary the meaning
of the provision to which they refer. Any capitalized terms
used but not defined herein shall have the meanings assigned to
such terms in the Plan.
IN WITNESS WHEREOF, this Agreement has been duly executed
by the Participant and the Company has caused this Agreement to
be duly executed by its officers thereunto duly authorized on
the date and year above written.
ATTEST: THE XXXXX GROUP, INC.
_______________________ By:_______________________
Name: Title:
Title:
ACCEPTED BY:
__________________________
PARTICIPANT
Name:_____________________
Social Security No.:_________
