Exhibit 10.13
NEW ENGLAND BUSINESS SERVICE, INC.
RESTRICTED STOCK AWARD AGREEMENT
(New England Business Service, Inc. Stock Compensation Plan)
Preamble
This restricted stock award agreement (the "Agreement") is made and
entered into as of August 6, 2002 (the "Date of Grant") by New England
Business Service, Inc. (the "Issuer") and _____________________ (the
"Executive"), a key employee of the Issuer or a Subsidiary/1/ of the Issuer
(hereunder individually and collectively referred to as the "Company").
1. Shares Subject to the Restricted Stock Award.
Pursuant to the provisions of the New England Business Service, Inc.
Stock Compensation Plan (the "Plan"), as in effect on the Date of Grant, the
Issuer hereby grants to the Executive a restricted stock award ("Restricted
Stock Award") of _____________ shares of its Stock (the "Awarded Shares"). The
Awarded Shares are being issued to the Executive in lieu of twenty-five percent
(25%) of the gross bonus awarded to the Executive for the fiscal year ended June
29, 2002 (the "Bonus Award") pursuant to the Annual Executive Bonus Plan of
the Issuer adopted by the Organization and Compensation Committee of the Board
for such fiscal year and are valued for purposes of this Agreement at $22.30
per share, the Fair Market Value of a share of Stock on the Date of Grant, in
accordance with and subject to all the terms and conditions of the Plan and
subject to the terms and conditions hereinafter set forth. The Plan and any
amendments are hereby incorporated by reference and made a part hereof.
2. Terms and Conditions of the Restricted Stock Award.
The issuance of Awarded Shares pursuant to the Restricted Stock Award
shall be subject to the following terms and conditions.
2.1 Withholding Taxes. Notwithstanding anything to the contrary in
Section 2.3(b), the Issuer's obligation to deliver vested Awarded Shares
pursuant to this Restricted Stock Award shall be subject to the Executive's
satisfaction of all applicable federal, state and local income and employment
tax withholding obligations. Without limiting the generality of the foregoing,
the Company shall have the right to deduct from payments of any kind otherwise
due to the Executive any federal, state or local taxes of any kind required by
law to be withheld with respect to any Awarded Shares issued pursuant to this
Restricted Stock Award. The Executive may satisfy such withholding obligations
by having the Company withhold vested and unrestricted Awarded Shares, or by
delivering to the Company already owned unrestricted shares of Stock, having a
Fair Market Value as of the date of delivery of such unrestricted shares equal
to the amount required to be withheld.
2.2 Vesting, Forfeiture or Early Vesting of Unvested Awarded Shares.
(a) Unless vested earlier or forfeited as provided in (b) or (c)
below, the Awarded Shares shall become vested in the Executive on the third
anniversary of the Date of Grant, and shall thereon be released from escrow and
delivered to the Executive, subject to the satisfaction of the condition set
forth in Section 2.1 above.
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/1/ Capitalized terms not otherwise defined herein are defined in Section 8
below.
(b) The Awarded Shares shall remain unvested and subject to the
restrictions of this Section 2.2 and Section 2.3 until the third anniversary of
the Date of Grant (the "Vesting Period"). If the Executive's Service terminates
during the Vesting Period, the following shall occur:
(i) if the Executive ceases to perform Service by reason of
death, Disability or Retirement, all Awarded Shares shall thereupon immediately
vest in the Executive (or in the case of death, in the person or persons to whom
the Awarded Shares pass by will or by the laws of descent and distribution) or
his permitted transferees pursuant to Section 2.3(a) and shall no longer be
subject to the restrictions of this Section 2.2 and Section 2.3 hereof.
(ii) If the Executive voluntarily terminates Service or his
Service is involuntarily terminated for "cause", as determined in good faith by
the Board or Committee (which determination shall be binding on both the Company
and the Executive and/or his permitted transferee(s) pursuant to Section
2.3(a)), the Awarded Shares shall thereupon be forfeited in their entirety to
the Issuer without any further action by the Issuer or the Executive and for no
consideration.
(iii) If the Executive's Service is involuntarily terminated
without cause, the Awarded Shares shall thereupon be forfeited in their entirety
to the Issuer without any further action by the Issuer or the Executive and for
no consideration; provided, however, that the Committee may, in its sole
discretion, waive the forfeiture of all or any portion of the Awarded Shares and
such shares shall thereupon immediately vest in the Executive and no longer be
subject to the restrictions of this Section 2.2 and Section 2.3 hereof.
(c) Notwithstanding any of the foregoing, if a Change in Control
occurs during the Vesting Period and prior to any forfeiture of all or any
portion of the Awarded Shares pursuant to this Section 2.2, all Awarded Shares
that were not forfeited by termination of the Executive's Service prior to the
occurrence of the Change in Control shall thereupon immediately vest in the
Executive and the restrictions of this Section 2.2 and Section 2.3 shall
terminate.
2.3 Restrictions on Transfer and Escrow of Unvested Awarded Shares;
Delivery of Vested Shares; Stockholder Rights. The Executive hereby agrees to
the following conditions:
(a) Awarded Shares which are not yet vested may not be sold,
hypothecated or otherwise disposed of by the Executive or anyone claiming
through him; provided, however, that Awarded Shares may be transferred by the
Executive, either directly or in trust, to one or more members of Executive's
Family, or to a family partnership or other entity for the exclusive benefit of
one or more members of Executive's Family if and only to the extent that (i) the
Executive notifies the Committee in writing of his desire to transfer Awarded
Shares and the Committee does not within thirty (30) days of such notification
advise the Executive in writing that such transfer will not be allowed and (ii)
such Family member or trust or family partnership for the benefit thereof
executes an agreement to be subject to all of the terms and conditions of this
Agreement.
(b) Awarded Shares which are not yet vested shall be held in escrow
by the Issuer. Upon the vesting of any Awarded Shares pursuant to Section 2.2
and the satisfaction of all obligations imposed by Section 2.1, the Issuer shall
promptly cause a certificate to be issued for
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the Awarded Shares (or portion thereof which has vested) and shall deliver such
certificate to the Executive or his permitted transferee(s) pursuant to Section
2.3(a).
(c) Subject to the terms hereof, the Executive shall have all the
rights of a stockholder with respect to the Awarded Shares while they are held
in escrow, and prior to their forfeiture pursuant to Section 2.2, including
without limitation, the right to vote the Awarded Shares, except as provided in
(d) below.
(d) Any dividends declared and paid with respect to the Awarded
Shares while they are held in escrow, and prior to their forfeiture pursuant to
Section 2.2, shall not be paid to the Executive but shall instead be
automatically reinvested in shares of Stock at the Fair Market Value of a share
of Stock on the date of such dividend payment, and such additional shares of
Stock shall be deemed additional Awarded Shares (granted, for purposes of
Section 2.2 only, on the Date of Grant) and shall be subject to the forfeiture
and other provisions of Section 2.2 and this Section 2.3.
2.4 Investment Representation. The Executive shall hold the Awarded
Shares for investment and not with a view to, or for resale in connection with,
any public distribution of such Shares, and if requested, shall deliver to the
Issuer an appropriate certification to that effect. This restriction shall
terminate upon the registration of such Shares under federal securities laws or
if, in the opinion of counsel for the Issuer, such Shares may be resold without
registration.
2.5 Provision of Information. The Issuer will furnish upon request of
the Executive copies of the certificate of incorporation of the Issuer, as
amended, and by-laws of the Issuer, as amended, and such publicly available
financial and other information concerning the Issuer and its business and
prospects as may be reasonably requested by the Executive in connection with the
issuance or purchase of Awarded Shares pursuant to this Agreement.
2.6 Compliance with the Plan. The Executive shall comply with all terms
and conditions of the Plan (a copy of which is attached hereto) and of this
Agreement. All decisions under, and interpretations of, the provisions of the
Plan and of this Agreement by the Board or by the Committee shall be final,
binding and conclusive upon the Company and its successors and assigns and upon
the Executive and anyone claiming through the Executive.
3. Right to Terminate.
Nothing contained in the Plan or in this Agreement shall restrict the
right of the Company to terminate the employment of the Executive at any time
and for any reason, with or without notice, or shall otherwise affect the terms
and conditions of the Executive's employment except as specifically provided in
either the Plan or in this Agreement.
4. Adjustment in Shares.
Appropriate adjustment shall be made by the Board or by the Committee
in the number and kind of the Awarded Shares issued pursuant to this Restricted
Stock Award to give effect to any stock dividends, stock splits, stock
combinations, recapitalizations and other similar changes in the capital
structure of the Issuer after the Date of Grant. In the event of a change of the
Stock resulting from a merger or similar reorganization as to which the Issuer
is the surviving corporation, or sale of all or substantially all of the assets
of Issuer to a corporation that does not result in a Change in Control, the
number and kind of the Awarded Shares issued pursuant to this
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Agreement shall be appropriately adjusted in such a manner as the Board or the
Committee shall deem equitable to prevent dilution or enlargement of the rights
granted hereunder.
5. Restrictions on Transfer of Stock.
The Awarded Shares shall be subject to any restrictions then in effect
pursuant to the certificate of incorporation or by-laws of the Issuer and to any
other restrictions or provisions attached hereto and made a part hereof or set
forth in any other contract or agreement binding on the Executive.
6. Notice Concerning Tax Matters.
The Company makes no representation about the tax treatment to the
Executive with respect to the receipt of the Restricted Stock Award or the
acquisition, holding or disposition of the Awarded Shares. The Executive is
urged to consult a professional tax adviser of his or her own choosing for
advice as to the tax consequences (including the application of Section 83 of
the Code) of receiving a Restricted Stock Award or of holding or selling Awarded
Shares issued pursuant to this Agreement.
7. Governing Law; Etc.
This Agreement shall be governed by, and construed and enforced in
accordance with, the laws of the State of Delaware, without giving effect to
principles of conflicts of law, and applicable federal law. This Agreement shall
be binding upon and inure to the benefit of the heirs and legal representatives
of the Executive and the successors and assigns of the Issuer, but shall not be
assigned by the Executive at any time, except as otherwise permitted by Section
2.3(a) hereof, without the prior written permission of the Issuer.
8. Definitions.
8.1 "Affiliate" has the meaning set forth in Rule 12b-2 promulgated
under Section 12 of the Exchange Act.
8.2 "Agreement" has the meaning defined in the Preamble above.
8.3 "Awarded Shares" has the meaning defined in Section 1 above.
8.4 "Beneficial Owner" has the meaning set forth in Rule 13d-3 under
the Exchange Act.
8.5 "Board" means the Board of Directors of the Issuer.
8.6 "Bonus Award" has the meaning set forth in Section 1 above.
8.7 "Change in Control" means the occurrence of any of the following
events:
(a) any Person is or becomes the Beneficial Owner, directly or
indirectly, of securities of the Issuer representing 35% or more of either the
then outstanding shares of common stock of the Issuer or the combined voting
power of the Issuer's then outstanding securities, excluding any Person who
becomes such a Beneficial Owner in connection with a transaction described in
subparagraph (c)(i) below;
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(b) the following individuals cease for any reason to constitute a
majority of the number of directors then serving: individuals who, on the date
hereof, constitute the Board and any new director (other than a director whose
initial assumption of office is in connection with an actual or threatened
election contest, including but not limited to a consent solicitation, relating
to the election of directors of the Issuer) whose appointment or election by the
Board of Directors or nomination for election by the Issuer's stockholders was
approved or recommended by a vote of at least two-thirds (2/3) of the directors
then in office who either were directors on the date hereof or whose
appointment, election or nomination for election was previously so approved or
recommended;
(c) there is consummated a merger or consolidation of the Issuer or
any direct or indirect Subsidiary of the Issuer with another corporation, other
than (i) a merger or consolidation which would result in the voting securities
of the Issuer outstanding immediately prior to such merger or consolidation
continuing to represent (either by remaining outstanding or by being converted
into voting securities of the surviving entity or any parent thereof) at least
60% of the combined voting power of the securities of the Issuer or such
surviving entity or any parent thereof outstanding immediately after such merger
or consolidation, or (ii) a merger or consolidation effected to implement a
recapitalization of the Issuer (or similar transaction) in which no Person is or
becomes the Beneficial Owner, directly or indirectly, of securities of the
Issuer (not including in the securities Beneficially Owned by such Person any
securities acquired directly from the Issuer of its Affiliates) representing 35%
or more of the combined voting power of the Issuer's then outstanding
securities; or
(d) the stockholders of the Issuer approve a plan of complete
liquidation or dissolution of the Issuer or there is consummated an agreement
for the sale or disposition by the Issuer of all or substantially all of the
Issuer's assets, other than a sale or disposition by the Issuer of all or
substantially all of the Issuer's assets to an entity, at least 60% of the
combined voting power of the voting securities of which are owned by
stockholders of the Issuer in substantially the same proportions as their
ownership of the Issuer immediately prior to such sale.
8.8 "Code" means the Internal Revenue Code of 1986, as heretofore and
hereafter amended, and the regulations promulgated thereunder.
8.9 "Committee" has the meaning defined in the Plan.
8.10 "Company" has the meaning defined in the Preamble above.
8.11 "Date of Grant" has the meaning defined in the Preamble above.
8.12 "Disability" has the meaning defined in Code Section 22(e)(3).
8.13 "Exchange Act" means the Securities Exchange Act of 1934, as
heretofore and hereafter amended.
8.14 "Executive" has the meaning defined in the Preamble above.
8.15 "Fair Market Value" means the last sales price per share of Stock
as reported on the New York Stock Exchange prior to the Date of Grant (or other
date on which such valuation is made) or if no price has been so reported within
one week prior to the Date of Grant (or other date on which such valuation is
made), fair market value shall be determined by a principal
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market maker for the Stock designated by the Committee (or if no such market
maker is designated, by the Board in its good faith business judgment).
8.16 "Family" means the Participant's: (i) spouse and lineal
descendants of such spouse; (ii) lineal descendants and the spouses of such
lineal descendants: (iii) lineal ancestors and the spouses of such lineal
ancestors; and (iv) siblings and the spouses and children of such siblings.
8.16 "Issuer" has the meaning defined in the Preamble above.
8.17 "Person" shall have the meaning given in Section 3(a)(9) of the
Exchange Act, as modified and used in Sections 13(d) and 14(d) thereof, except
that such term shall not include (a) the Issuer or any of its Subsidiaries, (b)
a trustee or other fiduciary holding securities under an employee benefit plan
of the Issuer or any of its Affiliates, (c) an underwriter temporarily holding
securities pursuant to an offering of such securities and (d) a corporation
owned, directly or indirectly, by the stockholders of the Issuer in
substantially the same proportions as their ownership of stock of the Issuer.
8.18 "Plan" has the meaning defined in Section 1 above.
8.19 "Restricted Stock Award" has the meaning defined in Section 1
above.
8.20 "Retirement" means the actual cessation of the Executive's
Services on or after the date that he attains age 62.
8.21 "Service" means the performance of work for the Company or a
Subsidiary as an employee.
8.22 "Stock" has the meaning defined in the Plan.
8.23 "Subsidiary" has the meaning defined in Code Section 424(f).
8.24 "Vesting Period" has the meaning defined in Section 2.2 above.
9. Amendments.
Any amendment to this Agreement, or waiver of any terms hereof, may be
made only pursuant to a writing executed by the Issuer and the Executive.
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IN WITNESS WHEREOF, the undersigned have executed this Agreement under
seal as of the date first appearing above.
EXECUTIVE
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Signature
Address of Executive:
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NEW ENGLAND BUSINESS SERVICE, INC.
CORPORATE SEAL By:________________________________
Name:
Title:
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