Exhibit (d)(9)
▇▇▇▇▇▇▇ & ▇▇▇▇ FINANCIAL, INC.
RESTRICTED STOCK AWARD AGREEMENT
▇▇▇▇▇▇▇ & ▇▇▇▇ FINANCIAL, INC., a corporation organized and existing
under the laws of the state of Delaware (or any successor corporation) (the
"Company"), does hereby grant and give unto ((Name)) (the "Awardee"), an award
of restricted shares of Stock (the "Restricted Stock") upon the terms and
conditions hereinafter set forth (the "Award").
AUTHORITY FOR GRANT
1. STOCK INCENTIVE PLAN. The Restricted Stock is granted under the
provisions of the ▇▇▇▇▇▇▇ & ▇▇▇▇ Financial, Inc. 1998 Stock Incentive Plan, as
amended and restated (the "Plan"), and is subject to the terms and conditions
set forth in this Restricted Stock Award Agreement (the "Agreement") and not
inconsistent with the Plan. Capitalized terms used but not defined herein shall
have the meaning given them in the Plan, which is incorporated by reference
herein.
TERMS OF AWARD
2. NUMBER OF SHARES. In consideration of exchanging options for this
Award pursuant to the Company's Tender Offer dated February 12, 2003, the
Awardee is hereby granted ((Shares)) shares of Restricted StocK (the "Shares")
of the Company's Class A common stock, par value $.01 on March ___, 2003 (the
"Grant Date"), subject to repurchase of a portion thereof by the Company
pursuant to Section 12.
3. RESTRICTIONS. The Restricted Stock may not be sold, transferred,
pledged, assigned or otherwise alienated or hypothecated until its
restrictions are removed or expire as described in Sections 4, 5 or 6 of this
Agreement.
4. EXPIRATION OF RESTRICTIONS. The restrictions of the Restricted
Stock will expire as set forth in this Section 4, as of the expiration dates
set forth in this Section 4.
PERCENTAGE OF SHARES OF
WHICH RESTRICTIONS EXPIRE EXPIRATION DATE
------------------------- ---------------
33 1/3% March ___, 2005
33 1/3% March ___, 2006
33 1/3% March ___, 2007
TERMINATION OF AWARD
5. TERMINATION OF SERVICE ON THE BOARD. If an Awardee's service on the
Board terminates for any reason, the restrictions with respect to the Restricted
Stock which have not lapsed shall immediately expire and all shares of the
Restricted Stock shall be fully transferable.
6. CHANGE IN CONTROL OR POTENTIAL CHANGE IN CONTROL OF THE COMPANY. In
the event of a Change in Control, unless otherwise determined by the Committee
in writing after the Grant Date, but prior to the occurrence of such Change in
Control, or, in the event of a Potential
Change in Control, if and to the extent so determined by the Committee in
writing after the Grant Date (subject to any right of approval expressly
reserved by the Committee at the time of such determination): (a) the
restrictions with respect to the Restricted Stock shall expire and such
shares shall be deemed fully transferable; and (b) the value of the
outstanding Stock previously subject to restrictions, shall, to the extent
determined by the Committee at or after the Grant Date, be settled on the
basis of the Change in Control Price as of the date the Change in Control
occurs or Potential Change in Control is determined to have occurred, or such
other date as the Committee may determine prior to the Change in Control or
Potential Change in Control. In the sole discretion of the Committee, such
settlements may be made in cash or in stock, as shall be necessary to effect
the desired accounting treatment for the transaction resulting in the Change
in Control or Potential Change of Control.
GENERAL TERMS AND PROVISIONS
7. ADMINISTRATION OF AWARD. The Restricted Stock shall be maintained in
a book-entry account (the "Account") by and at the Company's transfer agent
until the restrictions associated with such Restricted Stock expire pursuant to
Sections 4, 5 or 6. The Awardee shall execute and deliver to the transfer agent
one or more stock powers in blank for the Restricted Stock. The Awardee hereby
agrees that the transfer agent shall maintain such Account and the related stock
power(s) pursuant to the terms of this Agreement until such restrictions expire
pursuant to Sections 4, 5 or 6.
8. OWNERSHIP OF RESTRICTED STOCK. From and after the time that the
Account representing the Restricted Stock has been activated, the Awardee will
be entitled to all the rights of absolute ownership of the Restricted Stock,
including the right to vote those shares and to receive dividends thereon if,
as, and when declared by the Board, subject, however, to the terms, conditions
and restrictions set forth in this Agreement. Dividends paid in stock of the
Company or stock received in connection with a Stock split with respect to the
Restricted Stock shall be subject to the same restrictions as on such Restricted
Stock. The shares of Restricted Stock subject to this Award are not eligible to
be enrolled in any dividend re-investment program until the restrictions thereon
lapse or expire.
9. ADJUSTMENT OF SHARES FOR RECAPITALIZATION, ETC. In the event there
is any change in the outstanding Stock of the Company by reason of any
reorganization, recapitalization, stock split, stock dividend, combination of
shares or otherwise, there shall be substituted for or added to each share of
Stock theretofore appropriated or thereafter subject, or which may become
subject, to this Award, the number and kind of shares of stock or other
securities into which each outstanding share of Stock shall be so changed or for
which each such share shall be exchanged, or to which each such share shall be
entitled, as the case may be. Adjustment under the preceding provisions of this
Section 9 will occur automatically upon any such change in the outstanding Stock
of the Company. No fractional interest will be issued under the Plan on account
of any such adjustment.
10. CONDITIONS TO DELIVERY OF STOCK AND REGISTRATION. Nothing herein
shall require the Company to issue or the transfer agent to deliver any shares
with respect to the Award if (a) that issuance would, in the opinion of counsel
for the Company, constitute a violation of the Securities Act of 1933, as
amended, or any similar or superseding statute or statutes, any other applicable
statute or regulation, or the rules of any applicable securities exchange or
securities
2
association, as then in effect; or (b) the withholding obligation as provided
in Section 12 of this Agreement has not been satisfied. From time to time,
the Board and appropriate officers of the Company are authorized to and shall
take whatever actions are necessary to file required documents with
governmental authorities, stock exchanges, and other appropriate persons to
make shares of Stock available for issuance.
11. NO LIMITATION ON EXCESS PARACHUTE PAYMENTS. The provisions of
Section 14 of the Plan regarding the payment of any "Excess Parachute
Payment" within the meaning of Section 280G(b)(1) of the Internal Revenue
Code of 1986, as amended, shall not apply to this Agreement.
12. PAYMENT OF TAXES. The Awardee will be responsible for payment of
all tax obligations arising in connection with the settlement of shares of
Restricted Stock pursuant to this Award. The Awardee may, upon election at the
time and in the manner prescribed by the Company, direct the Company to purchase
from the Awardee the number of shares of Restricted Stock issued pursuant to
this Award equal in value to the amount of the Awardee's applicable tax
obligation, based on the shares' Fair Market Value at the time such obligation
is incurred.
13. COMPANY RECORDS. Records of the Company or its Subsidiaries or
Affiliates regarding any period(s) of service on the Board, termination of
service and the reason therefor, and other matters shall be conclusive for
all purposes hereunder, unless determined by the Company to be incorrect.
14. NO LIABILITY FOR GOOD FAITH DETERMINATIONS. The members of the
Board and the Committee shall not be liable for any act, omission,
interpretation or determination taken or made in good faith with respect to this
Agreement or the Restricted Stock granted hereunder and all members of the Board
or the Committee and each and any officer or employee of the Company acting on
their behalf shall, to the extent permitted by law, be fully indemnified and
protected by the Company with respect to any such action, determination or
interpretation.
15. SEVERABILITY. If any provision of this Agreement is held to be
illegal or invalid for any reason, the illegality or invalidity shall not affect
the remaining provisions hereof, but such provision shall be fully severable and
this Agreement shall be construed and enforced as if the illegal or invalid
provision had never been included herein.
16. SUCCESSORS. This Agreement shall be binding upon the Awardee,
their legal representatives, heirs, legatees and distributees, and upon the
Company, its successors and assigns.
17. NOTICES. Any notices required by or permitted to be given to the
Company under this Agreement shall be made in writing and addressed to the
Secretary of the Company in care of the Company's Legal Department, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇. Any such notice shall be deemed to have
been given when received by the Company.
18. HEADINGS. The titles and headings herein are included for
convenience of reference only, do not constitute a part of this Agreement
and shall not be deemed to limit or affect any of the provisions hereof.
3
19. RULES OF CONSTRUCTION. This Agreement has been executed and
delivered by the Company in
Kansas and shall be construed and enforced in
accordance with the laws of said State, other than any choice of law rules
calling for the application of laws of another jurisdiction. Should there be any
inconsistency or discrepancy between the provisions of this Agreement and the
terms and conditions of the Plan under which this Award is granted, the
provisions in the Plan shall govern and prevail.
20. AMENDMENT. This Agreement may be amended by the Committee;
provided, however, that no amendment may decrease rights inherent in this Award
prior to such amendment without the express written consent of the parties
hereto. Notwithstanding the provisions of this Section 20, this Agreement may be
amended by the Committee to the extent necessary to comply with applicable laws
and regulations and to conform the provisions of this Agreement to any changes
thereto.
21. EFFECTIVE DATE. This Agreement has been executed this ____ day
of ___________, 2003, effective as of March ___, 2003.
▇▇▇▇▇▇▇ & ▇▇▇▇ FINANCIAL, INC.
By:
--------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇., Senior Vice
President and Chief Financial Officer
"Company"
--------------------------------------
((Name))
"Awardee"
4
Exhibit (d)(9)
STOCK POWER
FOR VALUE RECEIVED, ((Name)) does hereby assign and transfer unto
▇▇▇▇▇▇▇ & ▇▇▇▇ FINANCIAL, INC. (▇▇-▇▇▇▇▇▇▇) _________ shares of Class A common
stock of ▇▇▇▇▇▇▇ & ▇▇▇▇ Financial, Inc., a Delaware corporation, as granted on
March ___, 2003, as evidenced by the
Restricted Stock Award Agreement of even
date herewith and standing in the name of the undersigned on the books of
▇▇▇▇▇▇▇ & ▇▇▇▇ Financial, Inc. The undersigned does hereby appoint EquiServe
Trust Company, N.A. as attorney-in-fact to transfer the said stock on the books
of ▇▇▇▇▇▇▇ & ▇▇▇▇ Financial, Inc. with full power of substitution in the
premises.
Dated as of this ____ day of ____________, 2003.
------------------------------------
((Name))