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Exhibit 10.50
▇▇▇▇ NATIONAL CORPORATION
Restricted Stock Agreement
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THIS RESTRICTED STOCK AGREEMENT (as amended, modified or supplemented
from time to time, this "AGREEMENT") is made by and between ▇▇▇▇ National
Corporation, a Delaware corporation (the "COMPANY"), and ▇▇▇▇▇ ▇. ▇▇▇▇▇, an
individual residing in the State of Ohio (the "GRANTEE").
PRELIMINARY STATEMENTS:
A. The Grantee is an employee of ▇▇▇▇ National Group, Inc., a Delaware
corporation, ▇▇▇▇ Vision Corporation, a Delaware corporation, and Things
Remembered, Inc., a Delaware corporation; and
B. The execution of a restricted stock agreement in the form hereof has
been authorized by a resolution of the Special Compensation Committee (the
"COMMITTEE") of the Board of Directors of the Company (the "BOARD");
NOW, THEREFORE, in consideration of the Grantee's acceptance of
the terms and conditions of this Agreement, and subject to the terms of this
Agreement, the Company hereby grants to the Grantee 100,000 shares (together
with all other shares of Common Stock that become subject to this Agreement,
collectively, the "SHARES") of the Company's common stock, par value $.001 per
share ("COMMON STOCK"), 55,000 Shares (the "PLAN SHARES") of which are granted
pursuant to and are subject to the terms and conditions of the Company's 1998
Equity and Incentive Performance Plan (the "PLAN"),and 45,000 of which are to be
issued out of the Company's treasury solely pursuant to this Agreement (the
"NON-PLAN SHARES"):
AGREEMENT:
1. ISSUANCE OF COMMON STOCK. The Shares will be issued on the
date of this Agreement as fully paid and nonassessable shares and will be
represented by certificates registered in the name of the Grantee and bearing a
legend referring to the restrictions set forth in this Agreement.
2. RESTRICTION ON TRANSFER OF COMMON STOCK. The Shares may not
be transferred, sold, pledged, exchanged, assigned or otherwise encumbered or
disposed of by the Grantee, except to the Company, until they have become
nonforfeitable in accordance with Section 3 of this Agreement; PROVIDED,
HOWEVER, that the Grantee's interest in the Shares may be transferred at any
time by will or the laws of descent and distribution if the recipient of the
Shares enters into an agreement with the Company (in form and substance
acceptable to the Company) agreeing to be bound by the provisions of this
Agreement as if such transferee were the Grantee. Any purported transfer,
encumbrance or other disposition of the Shares that is in violation of this
Section 2 will be
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null and void, and the other party to any such purported transaction will not
obtain any rights to or interest in the Shares. When and as permitted by the
Plan, the Committee or the Board may waive the restrictions set forth in this
Section 2 with respect to all or any portion of the Shares granted under the
Plan.
3. VESTING OF COMMON STOCK. (a) Except as set forth in Section
4, the Non-Plan Shares are nonforfeitable. The Plan Shares will become
nonforfeitable upon the occurrence of the following:
Amount Nonforfeitable Date Nonforfeitable
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1/3 of the Plan Shares On the first date on or after March 1, 2002
on which the Stock Price has averaged at
least 133% of the Initial Price for a
continuous period of 21 consecutive Trading
Days ending on such date.
1/3 of the Plan Shares On the first date on or after March 1, 2002
on which the Stock Price has averaged at
least 167% of the Initial Price for a
continuous period of 21 consecutive Trading
Days ending on such date.
1/3 of the Plan Shares On the first date on or after March 1, 2002
on which the Stock Price has averaged at
least 200% of the Initial Price for a
continuous period of 21 consecutive Trading
Days ending on such date.
All Plan Shares not otherwise March 1, 2004.
Nonforfeitable
For purposes of this Agreement, the continuous employment of the Grantee with
the Company or a Subsidiary will not be deemed to have been interrupted, and the
Grantee will not be deemed to have ceased to be an employee of the Company or a
Subsidiary, by reason of the transfer of his employment among the Company and
its subsidiaries or a leave of absence approved by the Committee.
(b) Notwithstanding the provisions of Section 3(a), all of the
Shares will immediately become nonforfeitable if a Change in Control occurs
after the Grant Date. "CHANGE OF CONTROL" means if at any time any of the
following events has occurred:
(i) the Company merges itself, or is merged or
consolidated with, another corporation and as a
result of such merger or consolidation less than 51%
of the voting power of the then-outstanding voting
securities of the surviving corporation immediately
after such transaction are directly or indirectly
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beneficially owned in the aggregate by the former
stockholders of the Company immediately prior to such
transaction;
(ii) all or substantially all the assets accounted for on
the Consolidated Balance Sheet of the Company are
sold or transferred to one or more corporations or
persons, and as a result of such sale or transfer
less than 51% of the voting power of the
then-outstanding voting securities of such
corporation or person immediately after such sale or
transfer is directly or indirectly beneficially held
in the aggregate by the former stockholders of the
Company immediately prior to such transaction or
series of transactions;
(iii) a person, within the meaning of Section 3(a)(9) or
13(d)(13) (as in effect on the date of the award) of
the Securities Exchange Act of 1934, as amended (the
"EXCHANGE ACT"), becomes the beneficial owner (as
defined in Rule 13d-3 of the Securities and Exchange
Commission pursuant to the Exchange Act) of (i) 15%
or more but less than 35% of the voting power of the
then-outstanding voting securities of the Company
without prior approval of the Company's Board, or
(ii) 35% or more of the voting power of the
then-outstanding voting securities of the Company;
provided, however, that the -------- -------
foregoing does not apply to any such acquisition that
is made by (w) any Subsidiary of the Company (x) any
employee benefit plan of the Company or any
Subsidiary or (y) any person or group of which
employees of the Company or of any Subsidiary control
a greater than 25% interest unless the Board
determines that such person or group is making a
"hostile acquisition;"
(iv) a majority of the members of the Board or of any
Subsidiary are not Continuing Directors, where a
"CONTINUING DIRECTOR" is any member of the Board or,
with respect to a Subsidiary, of such Subsidiary who
(x) was a member of the Board or, with respect to a
Subsidiary, of such Subsidiary on the date of the
award or (y) was nominated for election or elected to
such Board with the affirmative vote of a majority of
the Continuing Directors who were members of such
Board at the time of such nomination or election.
(c) Notwithstanding the provisions of Section 3(a), all of the
Shares will immediately become nonforfeitable if the Grantee (i) dies or becomes
disabled (as defined in the Plan) while in the employ of the Company or a
Subsidiary after the Grant Date, or (ii) with the consent of the Board or the
Committee, retires after the Grant Date from the Company or a Subsidiary under a
retirement plan of the Company of any Subsidiary, or (iii) terminates his
employment following Constructive Termination (as such term is defined in
Section 15 hereof), or (iv) the Term of the Employment Agreement dated April 1,
1996 among the Grantee, the Company and certain Subsidiaries ends prior March 1,
2004 and no new employment agreement has been entered into, or (v) Grantee's
employment is terminated without cause.
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4. TERMINATION OF RIGHTS AND FORFEITURE OF COMMON STOCK.
Except for Shares that have become nonforfeitable, all of the Shares will be
forfeited if the Grantee ceases to be employed by the Company or a Subsidiary at
any time prior to the fifth anniversary of the Grant Date, unless the Committee
determines to provide otherwise at the time of the cessation of the Grantee's
employment. All of the Non-Plan Shares will be forfeited on the 31st day after
the Grant Date, if Grantee fails to comply with Section 14. In the event of a
forfeiture, any certificate(s) representing the Shares will be canceled.
5. DIVIDEND, VOTING AND OTHER RIGHTS. (a) Except as otherwise
provided in this Agreement, the Grantee will have all of the rights of a
stockholder with respect to the Shares, including the right to vote the Shares
and receive any dividends that may be paid thereon; provided, however, that any
additional shares of Common Stock or other securities that the Grantee may
become entitled to receive pursuant to a stock dividend, stock split,
combination of shares, recapitalization, merger, consolidation, separation or
reorganization or any other change in the capital structure of the Company will
be subject to the same restrictions as the Shares.
(b) Cash dividends, if any, and any other distributions paid
on the Shares will be sequestered by the Company until such time as such Shares
become nonforfeitable in accordance with Section 3 and will, to the extent
practicable, be deemed to be reinvested (at the Stock Price on the dividend
payment date) on an immediate basis in additional shares of Common Stock from
the Company's treasury, which will be subject to the same restrictions as the
underlying Shares granted under this Agreement. If Shares are forfeited pursuant
to Section 4, all dividends and other distributions, together with the earnings
thereon, with respect to such Shares will likewise be forfeited.
6. RETENTION OF STOCK CERTIFICATE(S) BY COMPANY. Any
certificates representing Shares will be held in custody by the Company together
with a stock power endorsed in blank by the Grantee with respect thereto, until
those shares have become nonforfeitable in accordance with Section 3.
7. Compliance with Law. The Company shall make reasonable
efforts to comply with all applicable federal, state and other applicable
securities laws; provided, however, notwithstanding any other provision of this
Agreement, the Company will not be obligated to issue any securities pursuant to
this Agreement if the issuance thereof would result in a violation of any such
law. Grantee acknowledges that Grantee is an executive officer of the Company,
has complete access to the Company's financial and other information, is fully
capable of making an investment decision concerning the Company's Common Stock
without assistance of third parties, and has no intention to distribute any of
the Shares to third parties.
8. Withholding Taxes. If the Company is required to withhold
any federal, state, local or foreign tax in connection with any issuance of
restricted or nonrestricted shares of Common Stock or other securities pursuant
to this Agreement, the Grantee shall pay the tax or make provisions that are
satisfactory to the Company for the payment thereof.
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9. RIGHT TO TERMINATE EMPLOYMENT. No provision of this
Agreement will limit in any way whatsoever any right that the Company or a
Subsidiary may otherwise have to terminate the employment of the Grantee at any
time.
10. RELATION TO OTHER BENEFITS. Any economic or other benefit
to the Grantee under this Agreement or the Plan shall not be taken into account
in determining any benefits to which the Grantee may be entitled under any
profit-sharing, retirement or other benefit or compensation plan maintained by
the Company or a Subsidiary and shall not affect the amount of any insurance
coverage available to any beneficiary under any insurance plan covering
employees of the Company or a Subsidiary.
11. AMENDMENTS. Any amendment to the Plan shall be deemed to
be an amendment to this Agreement to the extent that the amendment is applicable
hereto; provided, however, that no amendment shall adversely affect the rights
of the Grantee with respect to the Shares or other securities covered by this
Agreement without the Grantee's consent.
12. SEVERABILITY. In the event that one or more of the
provisions of this Agreement are invalidated for any reason by a court of
competent jurisdiction, any provision so invalidated will be deemed to be
separable from the other provisions hereof, and the remaining provisions hereof
will continue to be valid and fully enforceable.
13. GOVERNING LAW. This Agreement is made under, and will be
construed in accordance with, the laws of the State of Ohio without regard to
conflict of law principles of such state.
14. TAXES. Grantee will make a proper election under Section
83(b) of the Internal Revenue Code of 1986, as amended, no later than 30 days
after the date of this Agreement with respect to all of the Shares.
15. DEFINITIONS. As used in this Agreement, the following
terms have the following meanings:
"CONSTRUCTIVE TERMINATION" means a substantial, nonconsensual
adverse change in Grantee's employment duties.
"GRANT DATE" means the date of the Board or Committee action
awarding the Shares to the Grantee as indicated on the signature page of this
Agreement.
"INITIAL PRICE" means $15.45.
"STOCK PRICE" means the closing price of the Common Stock on
the principal exchange on which the Common Stock is traded.
"SUBSIDIARY" means any corporation (other than the Company) in
an unbroken chain of corporations beginning with the Company if each of such
corporations (or a group of corporations that themselves are Subsidiaries) other
than the last corporation in the unbroken chain owns stock
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possessing fifty percent or more of the total combined voting power of all
classes of stock in one of the other corporations in such chain.
"TRADING DAYS" means days on which the principal exchange on
which the Common Stock is traded is open for trading, regardless of whether
actual trading in the Common Stock occurs.
This Restricted Stock Agreement has been executed by the
parties at Cleveland, Ohio as of December 17, 1998.
▇▇▇▇ NATIONAL CORPORATION
By:
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Name:
Title:
/s/
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▇▇▇▇▇ ▇. ▇▇▇▇▇
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Addendum
to
Restricted Stock Agreement
between
▇▇▇▇ National Corporation
and
▇▇▇▇▇ ▇. ▇▇▇▇▇
dated
December 17, 1998
This Addendum ("Addendum") to Restricted Stock Agreement ("Restricted
Stock Agreement") between ▇▇▇▇ National Corporation ("Company") and ▇▇▇▇▇ ▇.
▇▇▇▇▇ ("Grantee") dated December 17, 1998 is made by Company and Grantee and is
a part of such Restricted Stock Agreement.
1. If and when Grantee should succeed ▇▇▇▇▇▇▇ ▇. ▇▇▇▇ as Chief
Executive Officer of the Company, the Company intends to grant Grantee an
additional 50,000 shares ("Additional Shares") of Company common stock, par
value $.001 per share ("Common Stock") on substantially the same terms and
conditions as the Shares granted pursuant to the Restricted Stock Agreement
except that:
(a) the date March 1, 2002 in Section 3 of the Restricted
Stock Agreement shall be changed to a date three (3)
years from the date of such future grant of
Additional Shares;
(b) the date March 1, 2004 in Section 3 of the Restricted
Stock Agreement shall be changed to a date five (5)
years from the date of such future grant of the
Additional Shares;
(c) "Initial Price" in Section 15 of the Restricted Stock
Agreement shall be defined to mean with respect to
the Additional Shares the closing price of the Common
Stock on the principal exchange on which the Common
Stock is traded on the date the Additional Shares are
granted in the future; and
(d) none of the terms of the restricted Stock Agreement
shall apply to the Additional Shares until such
Additional Shares are actually granted if and when
Grantee succeeds ▇▇▇▇▇▇▇ ▇. ▇▇▇▇ as Chief Executive
Officer of the Company.
This Addendum to Restricted Stock Agreement has been executed by the
parties at Cleveland, Ohio as of December 17, 1998.
▇▇▇▇ NATIONAL CORPORATION
By
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Name:
Title:
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▇▇▇▇▇ ▇. ▇▇▇▇▇
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