Exhibit 10.31
ALLMERICA FINANCIAL CORPORATION
RESTRICTED STOCK AGREEMENT
This Restricted Stock Agreement (the "Agreement") is made as of this
30th day of January, 1998, by and between ALLMERICA FINANCIAL CORPORATION, a
Delaware corporation (the "Company"), and __________________ ("the
Participant").
P R E A M B L E
WHEREAS, pursuant to the terms of the Allmerica Financial Corporation
Long Term Stock Incentive Plan (the "Plan"), the Committee (as defined in the
Plan) has agreed to give to the Participant subject to the terms and conditions
of the Plan and this Agreement, one share of the Company's common stock (the
"Match Shares") for each share of common stock that the Participant purchases on
the open market between February 11 and March 13, 1998 (the "Open Market
Shares"), receives through the conversion of some or all of his future Long Term
Incentive Compensation Payments (the "Converted Shares"), and/or purchases on
the terms and conditions set forth below from the Plan on or before March 13,
1998 at a price of $52.625 per share (the "Plan Shares") up to an aggregate
maximum of ______ shares (the Open Market Shares, the Converted Shares and the
Plan Shares hereinafter in the aggregate referred to as the "Acquired Shares");
WHEREAS, notwithstanding the acquisition of Open Market Shares and/or
Converted Shares, the Participant may acquire, on the terms and conditions set
forth below, up to ______ Plan Shares at a price of $52.625; and,
WHEREAS, the Match Shares will be subject to certain restrictions on
sale and transfer and other terms and conditions as set forth in this Agreement.
NOW, THEREFORE, for and in consideration of the foregoing and the
mutual covenants and promises hereinafter set forth, and for other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
1. Transfer of Match Shares. The Company will transfer to Participant
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a certificate representing the Match Shares in an amount equal to the Acquired
Shares, provided the Participant has delivered to the Company the following:
a) a fully executed copy of this Agreement;
b) a check in the amount of $_________ which check represents
the sum of $52.625 times the number of shares the Participant will purchase from
the Plan. The Participant has elected to purchase ______ shares from the Plan.
All Plan Shares will be considered Acquired Shares and be subject to the
provisions of paragraph 3. Thus, even if Participant has acquired Converted
Shares and/or Open Market Shares, Plan Shares will be considered Acquired Shares
before Converted Shares or Open Market Shares are considered Acquired Shares. To
the extent Plan Shares do not equal the maximum Match Share award, Participant
may allocate Converted Shares and/or Open Market Shares as Acquired Shares;
c) if Converted Shares are to be counted as Acquired Shares, a
fully executed copy of a certain Allmerica Financial Corporation Converted Stock
Agreement dated January 30, 1998 signed by the Participant in connection with
the Converted Shares; and/or
d) if Open Market Shares are to be counted as Acquired Shares,
evidence acceptable to the Company that the Participant has acquired Open Market
Shares and the amount of the Open Market Shares acquired.
Based upon the foregoing, the Participant shall receive a certificate
representing _______ Match Shares.
2. Vesting and Company's Right to a Return of the Match Shares.
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(a) Vesting. The Match Shares shall be one hundred (100%)
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percent vested on the date the Participant has completed three (3) additional
years of active service with the Company or one of its subsidiaries or
affiliates (the Company and its subsidiaries and affiliates hereinafter referred
to as "Allmerica"). The three (3) years of additional active service will
commence on the date of this Agreement and be determined pursuant to the terms
of this Agreement.
(b) Termination. Upon the termination of Participant's
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employment with Allmerica for whatever reason, whether with or without cause,
for good reason or otherwise, any non-vested Match Shares shall be returned to
the Company for no consideration.
(c) Retirement. In the event that the Participant retires prior to
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the Match Shares becoming vested, the Match Shares shall be returned to the
Company for no consideration. Retirement for purposes of this Agreement shall
have the same meaning as it does in the Plan. However, the pro rata vesting
provision in the event of retirement or early retirement as set forth in Section
7(d) of the Plan is not applicable to the Match Shares.
(d) Disability. In the event Participant is placed in a long
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term disability status (as such term is defined in the Plan) then any time
during which Participant is in such status shall not be counted in determining
whether Participant has provided the required amount of active service for
purpose of vesting of the Match Shares. Notwithstanding any provision in the
Plan to the contrary, if the Participant's employment with Allmerica is
terminated due to disability before the Match Shares are fully vested, the
Participant shall return to the Company, for no consideration, the Match Shares.
(e) Death. In the event Participant dies prior to the Match Shares
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becoming fully vested, the Company's right to have the Match Shares returned to
the Company for no consideration shall lapse. Thus, notwithstanding any
provisions to the contrary in this Agreement, in the event of Participant's
death, the Match Shares shall become fully vested.
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(f) The sale of any portion of the Match Shares. In the event
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Participant sells, transfers or encumbers all or any portion of the Match Shares
before such shares are fully vested, the Match Shares shall be returned to the
Company for no consideration. The Participant agrees to inform the Company in
the event the Match Shares, or any portion thereof, are sold, transferred or
encumbered prior to such shares becoming fully vested.
(g) Change of Control. As stated in the Plan, in the event of a
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Change of Control (as defined in the Plan), the Match Shares shall be fully
vested.
3. Proof of Ownership. Annually the Participant shall deliver to the
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Company proof that the Participant has not sold, transferred or encumbered at
the end of each anniversary of the date Participant received the Match Shares
from the Company evidence that Participant owns directly and without any liens
or encumbrances the Match Shares and the Acquired Shares. This requirement to
deliver proof of ownership of the Match Shares and the Acquired Shares shall
continue until the Match Shares are fully vested. If Participant fails to
deliver proof that he still owns in his own account the Match Shares and the
Acquired Shares, then the Company shall, at its option, be entitled to have the
Match Shares returned to the Company for no consideration. The Company shall
have this right in the event Participant fails to deliver within thirty (30)
days of the respective anniversary evidence that Participant still owns the
Match Shares and the Acquired Shares. Evidence of ownership of the Match Shares
and the Acquired Shares shall be fulfilled by delivering to the Company a
certification in the form of Exhibit A attached hereto.
Notwithstanding the foregoing, the Participant may encumber the
Open Market Shares and the Plan Shares by giving a security interest in such
shares to a lender who finances in whole or in part the Participant's
acquisition of the Open Market Shares and/or the Plan Shares. Such purchase
money financing will not be a violation of the terms and conditions of this
Agreement. Participant shall, at the request of the Company, deliver copies of
such financing to the Company.
The Company and the Participant hereby acknowledged that the
Participant and the Company have entered into one or more Deferral Agreements
deferring, or under certain circumstances, deferring the Participant's receipt
of the Match Shares (the "Deferral Agreement"). As long as the Deferral
Agreement is in effect, the Participant does not need to deliver Exhibit A to
one Company but shall deliver Exhibit B.
4. Shares Received in Certain Corporate Transactions. The terms of
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this Agreement shall apply to any stock or securities received by Participant in
exchange for the Match Shares pursuant to a plan of merger, consolidation,
recapitalization or reorganization of the Company. The terms of this Agreement
shall also apply to any security received as a result of a stock split or stock
dividend with respect to the Match Shares and such securities shall become Match
Shares pursuant to the terms of this Agreement.
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5. Stock Legend. The Company and Participant agree that all
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certificates representing the Match Shares that at any time are subject to the
provisions of this Agreement will have endorsed upon them in bold-faced type a
legend in substantially the following form:
RESTRICTIONS ON THE OWNERSHIP RIGHTS OF THE STOCK REPRESENTED BY THIS
CERTIFICATE HAVE BEEN IMPOSED PURSUANT TO A RESTRICTED STOCK AGREEMENT
DATED JANUARY 30, 1998. A COPY OF THE RESTRICTED STOCK AGREEMENT IS ON
FILE AT THE PRINCIPAL OFFICE OF THE COMPANY AND WILL BE FURNISHED
WITHOUT CHARGE TO THE HOLDER OF THIS CERTIFICATE UPON RECEIPT BY THE
COMPANY AT ITS PRINCIPAL PLACE OF BUSINESS OF A WRITTEN REQUEST FROM
THE HOLDER REQUESTING SUCH COPY.
The Company and the Participant agree that as long as the Deferral
Agreement is in effect, the Participant will not receive a certificate
representing the Match Shares.
6. Notices. Any notice required to be given hereunder will be deemed
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to be duly given on the date of delivery if delivered in person or on the date
of mailing if mailed by registered or certified mail, postage prepaid, return
receipt requested, to the party or parties that are to receive such notice at
the addresses indicated on the signature page of this Agreement. The address of
Participant or the Company may be changed only by giving written notice to the
other party of such change of address.
7. Taxes. To the extent the lapse of restrictions results in the
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receipt of compensation by Participant for tax purposes, the Company shall
withhold from any cash compensation then or thereafter payable to Participant
any tax required to be withheld by reason thereof. To the extent the Company
determines that such cash compensation is or may be insufficient to fully
satisfy such withholding requirement, Participant shall deliver to the Company
cash in an amount determined by the Company to be sufficient to satisfy any such
withholding requirement. The Company will not deliver to the Participant an
unrestricted certificate for any Shares until the Participant delivers to the
Company cash sufficient to satisfy all withholding requirements imposed on the
Company or a subsidiary of the Company. Notwithstanding the foregoing with the
consent of the Company, the Participant may sell fully vested Match Shares in an
amount necessary to satisfy the Participant's withholding requirement provided
the proceeds from such sale are delivered directly to the Company to satisfy
Participant's withholding requirements.
8. Stock Power and Retention of Certificates. The Company may require
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Participant to execute and deliver to the Company a stock power in blank with
respect to non-vested Match Shares and may, in its sole discretion, determine to
retain possession of or escrow the certificate for the non-vested Match Shares.
The Company shall have the right, in its sole discretion, to exercise such stock
power in the event that the Company becomes entitled to the non-vested Match
Shares pursuant to the terms of this Agreement. Notwithstanding retention of
such certificate by the Company, Participant shall have all rights (including
dividend and voting rights) with respect to the non-vested Match Shares
represented by such certificate.
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The Company and the Participant agree that as long as the Deferral
Agreement is in effect, the provisions of this paragraph are not applicable.
9. Entire Agreement; Counterparts. This Agreement contains the entire
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understanding between the parties concerning the subject contained in this
Agreement. Except for the Agreement, there are no representations, agreements,
arrangements, or understandings, oral or written, between or among the parties
hereto, relating to the subject matter of this Agreement, that are not fully
expressed herein. This Agreement may be signed in one or more counterparts, all
of which shall be considered one and the same agreement.
10. Further Assurances. Each party to this Agreement agrees to perform
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all further acts and to execute and deliver all further documents as may be
reasonably necessary to carry out the intent of this Agreement.
11. Severability. In the event that any of the provisions, or portions
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thereof, of this Agreement are held to be unenforceable or invalid by any court
of competent jurisdiction, the validity and enforceability of the remaining
provisions, or portions thereof, will not be affected, and such unenforceable
provisions shall be automatically replaced by a provision as similar in terms as
may be valid and enforceable.
12. Construction. Whenever used in this Agreement, the singular number
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will include the plural, and the plural number will include the singular, and
the masculine or neuter gender shall include the masculine, feminine, or neuter
gender. The headings of the Sections of this Agreement have been inserted for
purposes of convenience and shall not be used for interpretive purposes.
13. Governing Law. This Agreement shall be governed by and construed in
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accordance with the laws of the State of Delaware.
14. Successors. The provisions of this Agreement will benefit and will
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be binding upon the assigns, successors in interest, personal representatives,
estates, heirs and legatees of each of the parties hereto.
15. Specific Performance. Each of the parties hereto acknowledges and
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agrees that in the event of any breach of this Agreement, the nonbreaching
parties would be irreparably harmed and could not be made whole by monetary
damages. Each of the parties hereto accordingly agrees to waive the defense in
any action for injunction or specific performance that a remedy at law would be
adequate and that the parties hereto, in addition to any other remedy to which
they may be entitled at law or in equity, shall be entitled to an injunction or
to compel specific performance of this Agreement.
16. Amendment. This Agreement may only be amended by the written
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consent of all of the parties to this Agreement at the time of such amendment.
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17. Facsimile Signature. The Company may execute this Agreement by
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means of a facsimile signature.
IN WITNESS WHEREOF, the parties hereto have entered into this Agreement
as of the date first above written.
ADDRESS: ALLMERICA FINANCIAL CORPORATION
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ By:
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ----------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Title: Vice President
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ADDRESS:
Participant
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Exhibit A
MATCH SHARE AND ACQUIRED SHARE CERTIFICATION
I, ______________________________, hereby certify to Allmerica Financial
Corporation (the "Company") that the Match Shares and the Acquired Shares (as
such terms are defined in the certain Restricted Stock Agreement between the
Company and the undersigned dated January 30, 1998) are still owned directly by
me and that during the period following my acquisition of such Shares I have not
transferred or encumbered in any manner the Match Shares or any Converted Shares
which are considered Acquired Shares (as defined in the Agreement). I also
hereby certify that the Open Market Shares, if any, that I have and the Plan
Shares are still owned directly by me and such shares are not encumbered, except
to the extent I pledged such shares as security for a loan that was used to
acquire the Open Market Shares and/or the Plan Shares.
This Certification is given under the penalties of perjury.
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Participant
Date:
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Exhibit B
PLAN SHARE CERTIFICATION
I, ______________________________, hereby certify to Allmerica Financial
Corporation (the "Company") that the Plan Shares (as such term is defined in the
certain Restricted Stock Agreement between the Company and the undersigned dated
January 30, 1998) are still owned directly by me and that during the period
following my acquisition of such Shares I have not transferred or encumbered the
Plan Shares except to the extent I pledged such shares as security for a loan
that was used to acquire the Plan Shares.
This Certification is given under the penalties of perjury.
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Participant
Date:
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