Exhibit 10.4
ALAMOSA HOLDINGS, INC.
AMENDED & RESTATED 1999 LONG TERM INCENTIVE PLAN
FORM OF RESTRICTED STOCK AGREEMENT
Name of Grantee: ______________
Maximum Number
Of Shares of
Restricted Stock: ______ shares of common stock, $0.01 par value,
of Alamosa Holdings, Inc. ("Shares"), subject to
achievement of Performance Goals.
Maximum Number
Of Shares of
Bonus Stock: ______ Shares, subject to achievement of
Performance Goals in excess of Expected
Performance.
Per Share Price: $____
Grant Date: _____
Performance Goals: Minimum Performance - $192,400,000
Expected Performance - $240,500,000
Exceptional Performance - $288,600,000
Vesting Dates Upon
Which Restrictions
Lapse: ________
________
* * * * * * * *
This Restricted Stock Agreement (this "Agreement") is
executed and delivered as of the Grant Date by and between Alamosa Holdings,
Inc. (the "Company") and the Grantee. The Grantee and the Company hereby agree
as follows:
1. The Company, pursuant to the Amended and Restated 1999 Long Term
Incentive Plan, as amended (the "Plan"), which is incorporated herein
by reference, and subject to the terms and conditions thereof, hereby
grants to the Grantee the above mentioned Shares of Restricted Stock
in exchange for a payment of $___ which represents payment of the par
value of the Shares of Restricted Stock.
2. From the Grant Date until the date on which all restrictions
applicable to Shares shall lapse, as indicated above (such period, a
"Restricted Period"), the Grantee may not sell, assign, transfer,
donate, pledge or otherwise dispose of Shares subject to a Restricted
Period. Each certificate representing Restricted Stock shall bear the
following legend:
On the face of the certificate:
"Transfer of this stock is restricted in accordance with
conditions printed on the reverse of this certificate."
On the reverse:
"The shares of stock evidenced by this certificate are
subject to and transferable only in accordance with that
certain Alamosa Holdings, Inc. 1999 Long Term Incentive Plan,
a copy of which is on file at the principal office of the
Company in Lubbock, Texas. No transfer or pledge of the
shares evidenced hereby may be made except in accordance with
and subject to the provisions of said Plan. By acceptance of
this certificate, any holder, transferee or pledgee hereof
agrees to be bound by all of the provisions of said Plan."
The Grantee shall be entitled to have such legend removed from such
certificate when all restrictions, as described herein, with respect
to the Shares of Restricted Stock covered thereby have lapsed.
3. The Company further grants to the Grantee the right to receive,
subject to the terms and conditions hereof, up to an aggregate of
_____ shares of the Company's common stock, free of restrictions, if
and to the extent the Expected Performance is exceeded (such
additional shares, "Bonus Stock"). As a condition to issuance of any
earned Bonus Stock, the Grantee shall be obligated to pay to the
Company an amount equal to the Per Share Price for each share of such
Bonus Stock.
4. Except as set forth below, the number of Shares of Restricted Stock
and Bonus Stock which shall become earned, subject to the vesting
restrictions described herein, shall be determined by the Company's
Effective Performance in relation to the Performance Goals, in
accordance with the following schedule:
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Level of Effective Performance Number of Shares Earned Number of Bonus Shares
Earned
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Less than or Equal to Minimum Performance 0 0
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Greater than Minimum Performance up to and
including Expected Performance
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Greater than Expected Performance up to and
including Exceptional Performance
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Greater than Exceptional Performance
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The Company's Effective Performance shall be calculated by multiplying
the Company's Operating Effectiveness Factor (derived from the table
on Attachment 1) by the Company's EBITDA, each as determined by the
Board of Directors of the Company (the "Board"), with respect to the
fiscal year ending on _____.
(a) Restricted Stock Pro-rated Vesting. In the event that the
Company's Effective Performance is greater than the Minimum
Performance but equal to or less than the Expected
Performance, the number of Shares of Restricted Stock which
shall become earned, subject to the vesting restrictions
described herein, shall be a number of Shares, rounded to the
nearest whole number, equal to the product of (i) _____
multiplied by (ii) a fraction, not to exceed one, the
numerator of which is the Company's Effective Performance
less the Minimum Performance and the denominator of which is
the Expected Performance less the Minimum Performance. Any
Shares of Restricted Stock that are not earned as of _____ in
accordance with this Section 4 shall be forfeited and
cancelled as of such date, the Per Share Price paid with
respect to such Shares shall be refunded to the Grantee, and
the Grantee shall have no rights with respect to any Shares
of Bonus Stock.
(b) Bonus Stock Grants. Subject to Sections 5 and 6 hereof, in
the event that the Company's Effective Performance is greater
than the Expected Performance and equal to or lesser than the
Exceptional Performance, the Company shall issue to Grantee,
subject to the terms hereof, a number of Shares, rounded to
the nearest whole number, equal to the product of (i) _____
multiplied by (ii) a fraction, not to exceed one, the
numerator of which is the Company's Effective Performance
less the Expected Performance and the denominator of which is
the Exceptional Performance less the Expected Performance.
Any Shares of Bonus Stock earned pursuant to this Section
4(b) shall be issued to the Grantee pro rata (rounded to the
nearest whole Share) in accordance with the percentages set
forth on Page 1, under "Vesting Dates Upon Which Restrictions
Lapse."
5. Except as set forth below, a percentage of the Shares of Restricted
Stock and shares of Bonus Stock, if any, earned in accordance with
Section 4 shall vest (in the case of Restricted Stock) or shall be
issued (in the case of Bonus Stock) on the Vesting Dates, provided the
Grantee is employed by, or providing services to, the Company on such
applicable Vesting Date. If the Grantee's employment with, or
provision of services to, the Company shall terminate for any reason
while Shares are subject to a Restricted Period, all Shares held by
the Grantee still subject to a Restricted Period (whether or not
earned under Section 4 hereof) shall be forfeited upon such
termination and the Per Share Price paid with respect to such Shares
shall be refunded to the Grantee, provided, however, that all Shares
of Restricted Stock shall be deemed earned and all restrictions
imposed on the Restricted Stock shall lapse immediately prior to
Grantee's termination of employment for "Good Reason" or if the
Grantee's employment is terminated by the Company without "Cause" or
by reason of the Grantee's death or "Disability" (each as defined in
Xxxxxxx's employment agreement with the Company entered into effective
_____); and provided, further, that no Shares of Bonus Stock shall be
deemed earned or vestd in connection with such a termination of
employment.
6. In the event that, prior to ______, 20__, there shall occur a Change
of Control, (i) as of immediately prior to such Change of Control, all
of the Restricted Shares shall be deemed fully earned at the Expected
Performance Level and (ii) as of immediately prior to such Change of
Control, the Grantee shall be issued a number of Bonus Stock Shares as
follows:
(a) If such Change of Control occurs during the first calendar
quarter of 20__, __ Bonus Stock Shares shall be deemed
earned;
(b) If such Change of Control occurs during the second calendar
quarter of 20__ and the Effective Performance for the period
from the beginning of 20__ through the end of the first
quarter of 20__ exceeds budgeted EBITDA for such period, a
number of Bonus Stock Shares shall be deemed earned, which
number shall be determined by multiplying (i) ____ by (ii) a
fraction, not to exceed one, the numerator of which is the
Company's Effective Performance for such first quarter
(capped at 120% of budgeted EBITDA for such period) less
budgeted EBITDA for such first quarter and the denominator of
which is 120% of budgeted EBITDA for such first quarter less
budgeted EBITDA for such period;
(c) If such Change of Control occurs during the third calendar
quarter of 20__ and the Effective Performance for the period
from the beginning of 20__ through the end of the second
quarter of 20__ exceeds budgeted EBITDA for such period, a
number of Bonus Stock Shares shall be deemed earned, which
number shall be determined by multiplying (i) _____ by (ii) a
fraction, not to exceed one, the numerator of which is the
Company's Effective Performance for such period (capped at
120% of budgeted EBITDA for such period) less budgeted EBITDA
for such period and the denominator of which is 120% of
budgeted EBITDA for such period less budgeted EBITDA for such
period.
(d) If such Change of Control occurs during the fourth calendar
quarter of 20__ and the Effective Performance for the period
from the beginning of 20__ through the end of the third
quarter of 20__ exceeds budgeted EBITDA for such period, a
number of Bonus Stock Shares shall be deemed earned, which
number shall be determined by multiplying (i) _____ by (ii) a
fraction, not to exceed one, the numerator of which is the
Company's Effective Performance for such period (capped at
120% of budgeted EBITDA for such period) less budgeted EBITDA
for such period and the denominator of which is 120% of
budgeted EBITDA for such period less budgeted EBITDA for such
period.
7. During the Restricted Period, the Grantee shall have the right to vote
Shares of Restricted Stock and to receive any dividends or
distributions paid on such Shares. The Grantee shall have no rights
with respect to Bonus Stock until such time as such shares have been
issued to the Grantee and the Per Share Price therefor has been paid
by the Grantee.
8. The Shares shall be appropriately adjusted to reflect any stock
dividend, stock split, combination or exchange of shares or other
change in capitalization with a similar substantive effect upon the
Plan or the Restricted Stock. The Board shall have the power and sole
discretion to determine the nature and amount of the adjustment to be
made, if any. Any adjustment so made shall be final and binding.
9. The obligation of the Company to deliver any stock under this
Agreement is specifically subject to all provisions of the Plan and
all applicable laws, rules, regulations and governmental and
stockholder approvals.
10. Any notice by the Grantee to the Company hereunder shall be in writing
and shall be deemed duly given only upon receipt thereof by the
Company at its principal offices. Any notice by the Company to the
Grantee shall be in writing and shall be deemed duly given if mailed
to the Grantee at the address last specified to the Company by the
Grantee.
11. The Grantee shall pay to the Company promptly upon request, and in any
event at the time the Grantee recognizes taxable income in respect of
the Restricted Shares (or if the Grantee makes an election under
Section 83(b) of the Internal Revenue Code of 1986, as amended (the
"Code"), in connection with such grant), an amount equal to the taxes
the Company determines it is required to withhold under applicable tax
laws with respect to the Restricted Shares. Such payment shall be made
in the form of cash, shares of Common Stock already owned (for at
least six months) or otherwise issuable upon the lapse of
restrictions, or in a combination of such methods, subject to the
terms of the Plan. If Shares otherwise issuable upon vesting of
Restricted Stock are used to pay withholding taxes, the value of such
shares shall not be in excess of the minimum statutorily required
withholding. The Grantee shall promptly notify the Company of any
election made pursuant to Section 83(b) of the Code. Xxxxxxx
acknowledges that it is Xxxxxxx's sole responsibility and not the
Company's to file timely the election under Section 83(b) of the Code,
in the event Grantee desires to make such election.
12. Grantee hereby grants to the Company a power of attorney to transfer
any Shares that are forfeited hereunder and shall execute any
documents requested by the Company in connection with such forfeiture
and transfer. Xxxxxxx agrees that any provisions regarding returns and
transfers of stock certificates with respect to forfeited Shares are
specifically performable by the Company in a court of equity or law.
13. This Agreement may be amended or modified at any time only by an
instrument in writing signed by each of the parties hereto.
14. This Agreement shall apply to and bind the Grantee and the Company and
their respective permitted assignees and transferees, heirs, legatees,
executors, administrators and legal successors.
15. Neither the grant of Restricted Stock and the Bonus Stock, this
Agreement nor any other action taken pursuant to this Agreement shall
constitute or be evidence of any agreement or understanding, express
or implied, that Grantee has a right to continue to provide services
as an officer, director, employee or consultant of the Company for any
period of time or at any specific rate of compensation.
16. The failure of the Company to enforce at any time any provision of
this Agreement shall in no way be construed to be a waiver of such
provision or of any other provision hereof.
17. The validity and construction of this Agreement shall be governed by
the laws of the State of Delaware (excluding any conflict of law, rule
or principle of Delaware law that might refer the governance,
construction or interpretation of this Agreement to the laws of
another state).
IN WITNESS WHEREOF, the Company has caused this Agreement to
be executed by a duly authorized representative and the Grantee has hereunto
set his hand as of the Grant Date.
ALAMOSA HOLDINGS, INC:
By:___________________________________
Name:
Title:
___________________________________
Grantee: ___________
