FORM OF RESTRICTED SHARES AGREEMENT]
Exhibit 99.(d)(2)
[FORM OF RESTRICTED SHARES AGREEMENT]
Name of Grantee:
Grant Date:
Number of Shares:
YOUNG BROADCASTING INC.
2004 EQUITY INCENTIVE PLAN
This Restricted Shares Award Agreement (the “Agreement”) contains the terms and conditions of the Restricted Shares Award granted to you by Young Broadcasting Inc., a Delaware corporation (the “Company”).
1. Grant of Restricted Shares. The Company hereby grants to you, effective on the Grant Date ( , 20 ), the right to receive shares of Class A Common Stock in the form of Restricted Shares.
2. 2003 Equity Incentive Plan Governs. The award and this Agreement are subject to the terms of the Young Broadcasting Inc. 2004 Equity Incentive Plan (the “Plan”). The Plan is incorporated in this Agreement by reference and all capitalized terms used but not defined in this Agreement have the meaning set forth in the Plan. By accepting this award, you acknowledge receipt of a copy of the Plan and the prospectus covering the Plan and acknowledge that the award is subject to all the terms and provisions of the Plan. You further agree to accept as binding, conclusive and final all decisions and interpretations by the Committee of the Plan upon any questions arising under the Plan.
3. Vesting. The number of shares set forth below shall vest as of the “Vesting Dates” specified in the table below, provided that you have not had a Termination of Affiliation prior to such Vesting Date.
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Vesting Date |
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Number of Shares |
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Less than 1 year from Grant Date |
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0 |
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1st Anniversary of Grant Date |
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2nd Anniversary of Grant Date |
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3rd Anniversary of Grant Date |
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Except as provided in Section 4, if you have a Termination of Affiliation prior to the Vesting Date, you will immediately forfeit all remaining Restricted Shares and all of your rights to and interest in such remaining Restricted Shares shall terminate upon forfeiture without payment of any consideration.
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4. Acceleration of Vesting. Notwithstanding Section 3, upon your Termination of Affiliation due to death or Disability, all Restricted Shares granted hereunder shall immediately vest.
5. Transfer Restrictions. The Restricted Shares may not be sold, assigned, alienated, pledged, attached, sold or otherwise transferred or encumbered by you, and any purported assignment, alienation, pledge, attachment, sale, transfer or encumbrance shall be void and unenforceable against the Company or any Affiliate. The Restricted Shares shall be subject to a risk of forfeiture upon your Termination of Affiliation until the end of the Vesting Date (as defined in Section 3 above).
6. Stock Power and Delivery of Restricted Shares. The Restricted Shares will be held in book entry form by the Company for you until the Vesting Date. Upon issuance of the Restricted Shares in your name, you will be the holder of record of the Restricted Shares and will have all rights of a shareholder with respect to such shares (including the right to vote such shares at any meeting of shareholders of the Company and the right to receive all dividends paid with respect to such shares), subject only to the terms and conditions imposed by this Agreement. You agree to sign and deliver to the Company a stock power relating to the Restricted Shares.
If any Restricted Shares are forfeited hereunder at any time prior to the Vesting Date of such Restricted Shares, appropriate officers of the Company shall direct the transfer agent and registrar of the Company’s Common Stock to make appropriate entries upon their records showing cancellation of the certificate or certificates for such Restricted Shares.
Upon vesting of any shares of Restricted Shares hereunder in accordance with Section 3 or Section 4 above, the Company, or the administrator appointed by the Company will verify your delivery to the Company of the amount necessary to satisfy the Company’s federal, state and local employment and income tax withholding obligation as provided in Section 12, the Company shall cancel the stock power with respect to such vested Restricted Shares and the Company shall deliver such shares to you into an account held in our name at the administrator. Thereafter, such shares shall cease to be Restricted Shares and shall be nonforfeitable and freely transferable, except as provided in Section 10.
7. Grantee Certification; Cancellation and Rescission of Award. Upon settlement of this Award upon your Termination of Affiliation, you shall certify on a form acceptable to the Committee that you have not engaged in any Wrongful Activities (as defined in the Plan and which also includes a breach of any one or more of the restrictive covenants in Section 8 below). In addition, the settlement of this Award shall be cancelled and/or rescinded if the Committee determines that you have engaged in any Wrongful Activities at any time prior to the settlement of this Award or at any time during the one (1) year period following such settlement. In the event this Award is cancelled or rescinded pursuant to this Section 7, you shall be required to return to the Company any cash, Restricted Shares or other property you receive upon settlement of this Award (or, if you have sold such Restricted Shares or other property, any gain you
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realized upon the sale of such Restricted Shares or other property) and upon return of any such Restricted Shares or other property to the Company, the Company shall return to you the lesser of (a) the amount that you paid to the Company for such Restricted Shares or other property or (b) the Fair Market Value of such Restricted Shares or other property determined as of the date such Restricted Shares or property are returned to the Company.
8. Restrictive Covenants. By accepting the Award under this Agreement, you agree to the following restrictive covenants and acknowledge that a breach of any one or more of the following covenants could be determined to be a Wrongful Activity (as defined in the Plan) by the Committee and as described in Section 7 above.
(a) Confidentiality. You acknowledge that it is the policy of the Company and its subsidiaries to maintain as secret and confidential all valuable and unique information and techniques acquired, developed or used by the Company and its subsidiaries relating to their businesses, operations, employees and customers (“Confidential Information”). You recognize that the Confidential Information is the sole and exclusive property of the Company and its Affiliates, and that disclosure of Confidential Information would cause damage to the Company and its Affiliates. You shall not at any time disclose or authorize anyone else to disclose any Confidential Information or proprietary information that is (i) disclosed to or known by you as a result or consequence of or through your employment with the Company, (ii) not publicly or generally known outside the Company and (iii) relates in any manner to the Company’s business.
(b) Non-Competition. You understand that you may be exposed to confidential information and trade secrets of the Company or its customers, including (without limitation) intimate knowledge of customers, supplier requirements, business procedures, price lists, financial data, records and customer lists (hereinafter called “Confidential Information”). Confidential Information has been and will continue to be developed for the commercial advantage and at the expense of the Company and it is important to the Company to maintain the proprietary and confidential nature of Confidential Information to the fullest extent possible. Upon Termination of Affiliation for any reason, you shall not take any notes, manuals, records, charts, customer or supplier lists or other documents or things containing in whole or in part any of the Company’s Confidential Information. All Confidential Information shall, upon Termination of Affiliation, be returned to the Company.
(c) Non-Disparagement. For a continuous uninterrupted period of one (1) year after your Termination of Affiliation regardless of the reason thereof, you will not directly or indirectly, or through, on behalf of, or in conjunction with any person, persons, partnership, corporation, or other business association, make any statement or disclosure that disparages the Company or any of its Affiliates and is intended or reasonably likely to
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result in material harm to the Company or any of its Affiliates, provided, however, that the provisions of this subsection (i) shall not apply to your testimony as a witness, compliance with other legal obligations, your assertion or defense against any claim of breach of this Agreement, or statements or disclosures to members of the Board of Directors of the Company, and (ii) shall not require false statements or disclosures to be made.
(d) Remedy. You understand and agree that irreparable harm will result from any breach of this Section 8 and monetary damages will not provide adequate relief or remedy. Accordingly, you and Company specifically agree that, in the event that you shall breach any of your obligations under this Section 8, the Company shall be entitled to injunctive relief and, without limiting the generality of the foregoing, the Company shall be allowed to pursue any and all remedies it may have at law or in equity for such breach.
9. No Special Employment Rights. Neither the granting nor the vesting of the Restricted Shares under this Agreement shall be construed to confer upon you any right with respect to the continuation of your employment by the Company (or any Affiliate of the Company) or interfere in any way with the right of the Company (or any Affiliate of the Company), subject to the terms of any separate employment agreement to the contrary, at any time to terminate such employment or to increase or decrease your compensation from the rate in existence as of the date hereof.
10. Investment Intent; Transfer Restrictions. You are acquiring the Restricted Shares for your own account for investment purposes only and not with a present view to, or for resale in connection with, any distribution thereof, or any direct or indirect participation in any such distribution, in whole or in part, within the meaning of the Securities Act of 1933, as amended (the “Securities Act”). No arrangement exists between you and the Company and any other person regarding the resale or distribution of the Restricted Shares. You understand that the right to transfer Restricted Shares or unrestricted shares of Common Stock obtained upon vesting of the Restricted Shares is not permitted absent registration under the Securities Act or an exemption therefrom.
The Company may, without liability for its good faith actions, place legend restrictions upon the Restricted Shares or unrestricted Common Stock obtained upon vesting of the Restricted Shares and issue “stop transfer” instructions requiring compliance with applicable securities laws and the terms of the Restricted Shares.
11. Amendment. Subject to the terms and conditions of the Plan, the Board or the committee appointed by the Board to administer this Plan, whichever shall then have authority to administer the Plan, may amend this Agreement subject to such conditions as are deemed to be in the best interests of the Company and in accordance with the purposes and provisions of the Plan.
12. Tax Withholding. Whenever any Restricted Shares vest under the terms of this Agreement (a “Taxable Event”), you must remit or, in appropriate cases, agree to
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remit when due, the minimum amount necessary for the Company to satisfy all of its federal, state and local withholding (including FICA) tax requirements relating to such Taxable Event. The Committee may require you to satisfy these minimum withholding tax obligations by any (or a combination) of the following means: (i) a cash payment; (ii) withholding from compensation otherwise payable to you; (iii) authorizing the Company to withhold from the shares of Common Stock deliverable to you as a result of the vesting of Restricted Shares a number of shares having a fair market value, as of the date the withholding tax obligation arises, less than or equal to the amount of the withholding obligation; or (iv) delivering to the Company unencumbered “Mature Shares” (as defined below) of Common Stock having a fair market value, as of the date the withholding tax obligation arises, less than or equal to the amount of the withholding obligation. The Company will not deliver the shares of Common Stock otherwise deliverable to you as a result of the vesting of Restricted Shares unless you remit (or in appropriate cases agree to remit) all withholding tax requirements relating to the Taxable Event.
The term “Mature Shares” as used herein shall mean shares of Common Stock for which the holder has good title, free and clear of all liens and encumbrances, and which such holder either (i) has held for at least six months or (ii) has purchased on the open market.
13. Notices. Any communication or notice required or permitted to be given hereunder shall be in writing, and, if to the Company, to its principal place of business, attention: Secretary, and, if to you, to the address as appearing on the records of the Company. Such communication or notice shall be deemed given if and when (a) properly addressed and posted by registered or certified mail, postage prepaid, or (b) delivered by hand.
14. Administration. The Board or the Committee, whichever shall then have authority to administer the Plan, shall interpret and construe the Plan and this Agreement, and their interpretations and determinations shall be conclusive and binding upon the parties hereto and any other person claiming an interest hereunder, with respect to any issue arising hereunder or thereunder.
15. Governing Law. The validity, construction and interpretation of this Agreement shall be governed by and determined in accordance with the laws of the State of Delaware.
16. Tax Consultation. Your signature on this Agreement means that you understand that you will incur tax consequences as a result of vesting or disposition of the Restricted Shares. You agree to consult with any tax consultants you think advisable in connection with the vesting of the Shares and acknowledge that you are not relying, and will not rely, on the Company for any tax advice.
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YOUNG BROADCASTING INC. |
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By: |
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▇▇▇▇▇ ▇. ▇▇▇▇▇▇ |
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Executive Vice President |
GRANTEE:
I accept the terms and conditions of my Restricted Shares award issued hereunder as set forth in this Agreement, subject to the terms and conditions of the Plan.
Dated as of , 20 .
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