Exhibit 10.191
THE ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ CORPORATION
1992 STOCK INCENTIVE PLAN
RESTRICTED SHARES AWARD AGREEMENT
THIS AGREEMENT is entered into between The ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Corporation, a
Delaware corporation (the "Company") and xxxxxxxxxxxxx (the "Employee").
WITNESSETH:
WHEREAS, the Company has adopted The ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Corporation 1992 Stock
Incentive Plan (the "Plan"), which provides for the granting of restricted
shares of Common Stock of the Company ("Restricted Shares") to key employees of
the Company and its Subsidiaries; and
WHEREAS, the Compensation Committee of the Board of Directors of the
Company (the "Committee"), which is responsible for the administration of the
Plan, has authorized the granting of an award of Restricted Shares to the
Employee, effective as of GRANT DATE; and
WHEREAS, this Agreement is prepared in conjunction with and pursuant to the
terms of the Plan and, although all of the terms of the Plan and the definitions
used in this Plan have not been set forth herein, such terms and definitions are
incorporated herein and made a part hereof by reference, and, except as
otherwise expressly stated herein, the provisions of the Plan shall govern any
interpretation of this Agreement; and
WHEREAS, the Employee has accepted the grant of Restricted Shares and
agreed to the terms and conditions hereinafter stated;
NOW, THEREFORE, the Employee and the Company agree to the provisions set
forth in the Agreement. The Employee signifies agreement with all of the terms
and conditions of this Agreement by failing to provide written objection to the
Company to any of the terms hereunder within 30 days of receipt of this
Agreement, and in any event by accepting any dividends paid with respect to the
Restricted Shares granted hereunder.
1. Grant of Restricted Shares. The Company hereby grants to the Employee,
as a separate incentive in connection with his or her employment and not in lieu
of any salary or other cash compensation for his or her services, an award of
xxxxxx Restricted Shares, effective GRANT DATE, subject to all the terms and
conditions in this Agreement and the Plan.
2. Restriction on Transfer. The Restricted Shares awarded pursuant to this
Agreement shall be issued in the name of The Employee and held by the Secretary
of the Company as escrow agent (the "Escrow Agent"), and, except to the extent
specifically provided herein, shall not be sold, transferred, otherwise disposed
of, pledged or otherwise hypothecated until the date such Restricted Shares
become vested pursuant to paragraph 3 hereof (the "Restriction on Transfer").
The Company may instruct the transfer agent for its Common Stock to place a
legend on the certificates representing the Restricted Shares or otherwise note
its records as to the restrictions on transfer set forth in this Agreement and
the Plan. The certificate or certificates representing such shares shall be
delivered by the Escrow Agent to The Employee only after the shares become
vested on the date specified in paragraph 3 and after all other terms and
conditions in this Agreement have been satisfied. Notwithstanding the foregoing,
to the extent specifically permitted by the Plan, the Restricted Shares may be
transferred by gift, subject to the Restriction on Transfer and the vesting
conditions set forth herein.
3. Vesting of Shares. The Restricted Shares awarded by this Agreement shall
become vested as follows: Effective as of the date hereof (the "Grant Date"),
the Restricted Shares shall be 0% vested. If the Employee is employed for a
continuous period beginning on the date hereof and ending on the third
anniversary of the Grant Date, 50% of the Restricted Shares shall become vested.
If the Employee shall continue to be employed for a continuous period ending on
the fourth anniversary of the Grant Date, an additional 50% of the Restricted
Shares shall become vested, so that at such time all of the Restricted Shares
subject to this Agreement shall be then vested. Notwithstanding the foregoing,
in the event of the Employee's death or Disability, 100% of the Restricted
Shares shall be then vested, and in the event of the Employee's Retirement after
the second anniversary of the Grant Date, 100% of the Restricted Shares shall be
then vested. For purposes of this Agreement, Retirement shall mean a termination
of employment of the Employee at any time after the Employee (i) has attained
fifty (50) years of age, and (ii) has completed seven (7) years of service, as
determined pursuant to the terms of the ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Profit Sharing and
Employee Stock Ownership Plan. Notwithstanding the foregoing, however, the
accrual of vesting pursuant to this paragraph is contingent upon the Employee's
satisfactory job performance, and the Company may, in its sole discretion, upon
notice to the Employee, suspend or delay the vesting of the Restricted Shares
hereunder for any period of time in the event that the Company determines,
within its sole discretion, that the Employee's performance is unsatisfactory.
Moreover, the continued accrual of vesting pursuant to this paragraph shall be
suspended during the period of time in which the Optionee is on a leave of
absence of more than six months for any reason other than (i) medical reasons,
(ii) pregnancy disability, (iii) a leave qualifying under the Family and Medical
Leave Act, or (iv) workers' compensation. Moreover, if at the time of the Grant,
the Employee is working a part-time work schedule of less than 30 hours per
week, and such part-time work schedule is expected to continue for a period of
at least one year from the date such part-time work schedule commenced, all
vesting dates will be delayed by one year. In addition, if subsequent to the
time of Grant, the Employee changes to a part-time work schedule of less than 30
hours per week, and such part-time work schedule is expected to continue for at
least one year, all future vesting dates not yet reached at the time of the
change will be delayed by one year. Upon the vesting of Restricted Shares
hereunder, the certificate or certificates representing such Restricted Shares
shall be delivered to the Employee.
4. Change in Control. Upon the determination of the Committee that a Change
in Control of the Company has occurred, or in the event of the liquidation or
dissolution of the Company, the Restricted Shares shall become fully vested and
the Restriction on Transfer shall be lifted, notwithstanding any other provision
of this Agreement, and the certificate or certificates representing such
Restricted Shares shall be delivered to the Employee.
5. Discretion of Committee. The Committee may decide, in its absolute
discretion, to lift at any time the Restriction on Transfer or to accelerate the
vesting of the Restricted Shares, and the certificate or certificates
representing such Restricted Shares shall be delivered to the Employee.
6. Delivery of Shares to Estate of Deceased Employee. Any distribution or
delivery to be made to the Employee under this Agreement shall, if the Employee
is then deceased, be made to the Employee's estate in accordance with the terms
of Section 7.5 of the Plan.
7. Conditions to Issuance of Shares. The Restricted Shares deliverable to
the Employee may be either previously authorized but unissued shares or issued
shares which have been reacquired by the Company. The Company shall not be
required to issue any certificate or certificates for Restricted Shares
hereunder prior to fulfillment of all of the following conditions:
(a) The admission of such shares to listing on all stock exchanges on
which such class of stock is then listed;
(b) The completion of any registration or other qualification of such
shares under any State or federal law or under the rulings or regulations of the
Securities and Exchange Commission or any other governmental regulatory body,
which the Committee shall, in its absolute discretion, deem necessary or
advisable;
(c) The obtaining of any approval or other clearance from any State or
federal governmental agency, which the Committee shall, in its absolute
discretion, determine to be necessary or advisable; and
(d) The lapse of such reasonable period of time following the date of
the grant of the Restricted Shares as the Committee may establish from time to
time for reasons of administrative convenience.
Neither the Employee nor any person claiming under or through the Employee
shall be, or have any of the rights or privileges of, a stockholder of the
Company in respect of any Restricted Shares deliverable hereunder unless and
until certificates representing such shares shall have been issued, recorded on
the records of the Company or its transfer agents or registrars, and delivered
to the Employee or the Escrow Agent. Except as provided in paragraph 8, after
such issuance, recordation and delivery, the Employee shall have all rights of a
stockholder of the Company with respect to voting such Restricted Shares and
receipt of dividends and distributions on such Restricted Shares.
8. Certain Adjustments to Shares. In the event that as a result of a stock
dividend, stock split, reclassification, recapitalization, combination of shares
or the adjustment in capital stock of the Company or otherwise, or as a result
of a merger, consolidation, spin-off or other reorganization, the Company's
Common Stock shall be increased, reduced or otherwise changed, and by virtue of
any such change the Employee shall in his or her capacity as owner of Restricted
Shares which have been awarded to him or her (the "Prior Shares") be entitled to
new or additional or different shares or securities (other than rights or
warrants to purchase securities), such new or additional or different shares or
securities shall thereupon be considered to be Restricted Shares and shall be
subject to all of the conditions and restrictions which were applicable to the
Prior Shares pursuant to the Plan. If the Employee receives rights or warrants
with respect to any Prior Shares, such rights or warrants may be held or
exercised by the Employee, provided that until such exercise any such rights or
warrants and after such exercise any shares or other securities acquired by the
exercise of such rights or warrants shall be considered to be Restricted Shares
and shall be subject to all of the conditions and restrictions which were
applicable to the Prior Shares pursuant to the Plan. The Committee in its
absolute discretion at any time may lift the Restriction on Transfer of all or
any portion of such new or additional shares of stock or securities, rights or
warrants to purchase securities or shares or other securities acquired by the
exercise of such rights or warrants.
9. Contribution of Par Value to Capital of the Company. Notwithstanding the
provisions of Section 7.2 of the Plan, the Company will contribute to the
capital of the Company on behalf of the Employee, as an Award recipient, an
amount equal to the par value of the Restricted Shares issued to the Employee
hereunder.
10. Tax Withholding. To the extent required by applicable federal, state,
local or foreign law, the Employee shall make arrangements satisfactory to the
Company for the satisfaction of any withholding tax obligations that arise by
reason of the awarding or vesting of the Restricted Shares hereunder, or by
reason of any election made by the Employee pursuant to Section 83(b) of the
Internal Revenue Code, and no Share certificates shall be issued to the Employee
unless such obligation is satisfied.
11. Plan Shall Control. This Agreement is subject to all the terms and
provisions of the Plan. In the event of a conflict between any provisions of
this Agreement and any provisions of the Plan, the provisions of the Plan shall
govern. Terms used in this Agreement that are not defined in this Agreement
shall have the meaning set forth in the Plan.
12. Powers of the Committee. The Committee shall have the power to
interpret and construe the Plan and this Agreement and to adopt such rules for
the administration, interpretation and application of the Plan as are consistent
therewith and to interpret or revoke any such rules. All actions taken and all
interpretations and determinations made by the Committee in good faith shall be
final and binding upon the Employee, the Employee's estate, the Company and all
other interested persons. No member of the Committee shall be personally liable
for any action, determination or interpretation made in good faith with respect
to the Plan or this Agreement.
13. No Effect on Other Benefit Plans. Nothing herein contained shall affect
the Employee's right to participate in and receive benefits under and in
accordance with the then current provisions of any pension, insurance or other
Employee welfare plan or program of the Company or any Subsidiary.
14. Nonassignability. So long as the Restriction on Transfer is in effect,
except to the extent specifically permitted by this Agreement, the Restricted
Shares herein granted and the rights and privileges conferred hereby shall not
be transferred, assigned, pledged or hypothecated in any way (whether by
operation or law or otherwise) and shall not be subject to sale under execution,
attachment or similar process. Upon any attempt to transfer, assign, pledge,
hypothecate or otherwise dispose of such award or any right or privilege
conferred hereby, contrary to the provisions hereof, or upon any attempted sale
under any execution, attachment or similar process upon the rights and
privileges conferred hereby, such award and the rights and privileges conferred
hereby shall immediately become null and void.
15. Successors and Assigns. Subject to the limitation on the
transferability of the Restricted Shares contained herein, this Agreement shall
be binding upon and inure to the benefit of the heirs, legatees, legal
representatives, successor and assigns of the Employee and the Company.
16. Notices. Any notice to be given to the Company under the terms of this
Agreement shall be addressed to the Company, in care of its Secretary, at ▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, or at such other address as
the Company may hereafter designate in writing. Any notice to be given to the
Employee shall be addressed to the Employee at the address set forth beneath the
Employee's signature hereto, or at such other address as the Employee may
hereafter designate in writing. Any such notice shall be deemed to have been
duly given if and when enclosed in a properly sealed envelope, addressed as
aforesaid, registered or certified and deposited, postage and registry fee
prepaid, in a United States post office.
17. Severability. In the event that any provision of this Agreement shall
be held invalid or unenforceable, such provision shall be severable from, and
such invalidity or unenforceability shall not be construed to have any effect
on, the remaining provisions of this Agreement.
18. Governing Law. This Agreement shall be construed in accordance with the
laws of the State of California.