ARAMARK CORPORATION | ||
(Exact name of registrant as specified in charter) | ||
Delaware | 001-04762 | 95-2051630 |
(State or Other Jurisdiction of Incorporation) | (Commission File Number) | (IRS Employer Identification No.) |
1101 Market Street Philadelphia, Pennsylvania | 19107 | |
(Address of Principal Executive Offices) | Zip Code | |
Registrant's telephone, including area code:215-238-3000 | ||
N/A | ||
(Former name and former address, if changed since last report) |
Number | Description |
10.1 | Fourth Amended and Restated ARAMARK Holdings Corporation 2007 Management Stock Incentive Plan. |
10.2 | Form of Stock Option Award Agreement. |
10.3 | Form of Time-Based Restricted Stock Unit Award Agreement |
10.4 | Form of Restricted Stock Award Agreement |
10.5 | Form of Replacement Stock Option Award Agreement |
10.6 | Amendment dated June 25, 2013 to Employment Letter Agreement dated May 7, 2012 between ARAMARK Corporation and Eric J. Foss |
Date: June 26, 2013 | By: /s/ L. Frederick Sutherland |
Name: | L. Frederick Sutherland |
Title: | Executive Vice President and |
Number | Description |
10.1 | Fourth Amended and Restated ARAMARK Holdings Corporation 2007 Management Stock Incentive Plan. |
10.2 | Form of Stock Option Award Agreement. |
10.3 | Form of Time-Based Restricted Stock Unit Award Agreement |
10.4 | Form of Restricted Stock Award Agreement |
10.5 | Form of Replacement Stock Option Award Agreement |
10.6 | Amendment dated June 25, 2013 to Employment Letter Agreement dated May 7, 2012 between ARAMARK Corporation and Eric J. Foss |
Time Based Options | Vesting Date |
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[•] | [•] |
Grant Price: [•] | Number of Shares: [•] |
Date of Grant: [•] | Participant’s Account Number: [•] |
Grant Number: [•] | Expiration Date: [•] |
• | The Participant represents and warrants that (i) such party has full legal power, authority and right to execute and deliver, and to perform its obligations under, this Agreement, and (ii) this Agreement has been duly and validly executed and delivered by such party and constitutes a valid and binding agreement of such party enforceable against such party in accordance with its terms. |
• | The Participant’s knowledge and experience in financial and business matters are such that the Participant is capable of evaluating the merits and risks of the investment in the Option. |
• | The Participant has had an opportunity to examine all documents and ask questions and receive answers from the Company and Company’s representatives regarding the Company and the terms and conditions of the Option and the restrictions imposed on any Shares purchased upon exercise of the Option. |
• | The Participant is aware that the Option may be of no practical value, that any value it may have depends on its vesting and exercisability as well as an increase in the Fair Market Value of the underlying Shares to an amount in excess of the Option Price, and that any investment in common shares of a closely held corporation such as the |
• | The Participant has read and understands the restrictions and limitations set forth in the Stockholders Agreement, the Plan and this Agreement. |
• | The Participant has not relied upon any oral representation made to the Participant relating to the Option or the purchase of the Shares on exercise of the Option or upon information presented in any meeting or material relating to the Option or the Shares. |
• | All information which Participant has provided to the Company and the Company’s representatives concerning the Participant and Participant’s financial position is complete and correct as of the date of this Agreement. |
• | The Participant understands and acknowledges that, if and when the Participant exercises the Option, (a) any certificate evidencing the Shares (or evidencing any other securities issued with respect thereto pursuant to any stock split, stock dividend, merger or other form of reorganization or recapitalization) when issued shall bear any legends which may be required by applicable federal and state securities laws, and (b) except as otherwise provided in this Agreement or under the Stockholders Agreement or the Registration Rights Agreement (as such term is defined in the Stockholders Agreement), the Company has no obligation to register the Shares or file any registration statement under federal or state securities laws. |
(a) | By participating in the Plan or accepting any rights granted under it, the Participant consents to the collection and processing by the Company and its Affiliates of personal data relating to the Participant by the Company and its Affiliates and/or agents so that they can fulfill their obligations and exercise their rights under the Plan, issue certificates (if any), statements and communications relating to the Plan and generally administer and manage the Plan, including keeping records of participation levels from time to time. Any such processing shall be in accordance with the purposes and provisions of this data protection provision. References in this provision to the Company and its Affiliates include the Participant's employer. |
(b) | This consent is in addition to and does not affect any previous consent provided by the Participant to the Company or its Affiliates. |
(c) | In particular, the Participant expressly consents to the transfer of personal data about the Participant as described in paragraph (a) above by the Company and its Affiliates and/or agents. Data may be transferred not only within the country in which the Participant is based from time to time or within the EU or the European Economic Area² (“EEA”), but also worldwide, to other employees and officers of the Company and its Affiliates and/or agents and to the following third parties for the purposes described in paragraph (a) above: |
(d) | The processing (including transfer) of data described above is essential for the administration and operation of the Plan. Therefore, in cases where the Participant wishes to participate in the Plan, it is essential that his/her personal data are processed in the manner described above. At any time the Participant may withdraw his or her consent. |
Time Based Restricted Stock Units | Vesting Date |
[•] | [•] |
[•] | [•] |
[•] | [•] |
[•] | [•] |
Number of RSUs: [•] | Participant Account Number: [•] |
Date of Grant: [•] | Grant Number: [•] |
1. | Grant of RSUs. The Company hereby grants the number of Restricted Stock Units (“RSUs”) set forth on the Certificate of Grant of the Restricted Stock Units attached to this Agreement and made a part hereof (the “Certificate of Grant”) to the Participant, on the terms and conditions hereinafter set forth. This grant is made pursuant to the terms of the ARAMARK Holdings Corporation Fourth Amended and Restated 2007 Management Stock Incentive Plan (the “Plan”), which Plan, as amended from time to time, is incorporated herein by reference and made a part of this Agreement. Each RSU represents the unfunded, unsecured right of the Participant to receive a share of Common Stock, (as specified below) of the Company (each a “Share”), on the dates specified herein. Capitalized terms not otherwise defined herein shall have the same meanings as in the Plan. |
2. | Payment of Shares. |
(a) | The Company shall, subject to the remainder of this Agreement, transfer to the Participant a number of Shares of the Company equal to the number of RSUs granted to the Participant under this Agreement at such time as the Participant becomes vested in the right to such transfer (x) as set forth on the Certificate of Grant under “Vesting Date”, so long as the Participant remains employed with the Company or any of its Subsidiaries through such Vesting Date, or (y) as otherwise provided in Section 2(b) or (c) below (in whole Shares only with the Participant receiving a cash payment equal to the Fair Market Value of any fractional Share on or about the transfer date). In compliance with Section 409A of the Code, in no event shall any transfer occur later than March 15 of the calendar year following the calendar year in which the applicable vesting event occurs under this Agreement. |
(b) | Notwithstanding Section 2(a) of this Agreement, |
(i) | upon a Termination of Relationship as a result of the Participant’s death, Disability, or Retirement (each, a “Special Termination”), the installment of RSUs scheduled to vest on the next Vesting Date immediately following such Special Termination shall immediately become vested RSUs, and the remaining RSUs which are not then vested shall be forfeited; and |
(ii) | upon a Termination of Relationship for any reason other than as set forth in clause (i) above, all outstanding RSUs shall be forfeited and immediately cancelled. |
(c) | In the event of a Change of Control, the number of Shares equal to all outstanding RSUs hereunder shall be distributed to the Participant prior to the Change of Control; provided that the Committee may determine that, in lieu of Shares and/or fractional Shares, the Participant shall receive a cash payment equal to the Fair Market Value of such Shares (or fractional Shares, as the case may be) on such date. |
(d) | Upon each transfer of Shares in accordance with Sections 2(a), 2(b) or 2(c) of this Agreement, as applicable, RSUs with respect to which Shares have been transferred hereunder shall be extinguished on the relevant transfer dates. |
3. | Dividends. If on any date while RSUs are outstanding hereunder the Company shall pay any dividend on the Shares (other than a dividend payable in Shares), the number of RSUs granted to the Participant shall, as of such dividend payment date, be increased by a number of RSUs equal to: (a) the product of (x) the number of RSUs held by the Participant as of the related dividend record date, multiplied by (y) the per Share amount of any cash dividend (or, in the case of any dividend payable in whole or in part other than in cash, the per Share value of such dividend, as determined in good faith by the Committee), divided by (b) the Fair Market Value of a Share on the payment date of such dividend. In the case of any dividend declared on Shares that is payable in the form of Shares, the number of RSUs granted to the Participant shall be increased by a number equal to the product of (I) the aggregate number of RSUs that have been held by the Participant through the related dividend record date, multiplied by (II) the number of Shares (including any fraction thereof) payable as a dividend on a Share. Shares shall be transferred with respect to all additional RSUs granted pursuant to this Section 3 at the same time as Shares are transferred with respect to the RSUs to which such additional RSUs were attributable. |
4. | Adjustments Upon Certain Events. In the event of any event described in Article VII of the Plan occurring after the Date of Grant, the adjustment provisions (including cash payments) as provided for under Article VII of the Plan shall apply. The Company shall, concurrently with the closing of a Public Offering, register all Shares subject to RSUs by filing a Form S-8 with the U.S. Securities Exchange Commission. |
5. | Restriction on Transfer/Stockholders Agreement. The RSUs may not be transferred, pledged, assigned, hypothecated or otherwise disposed of in any way by the Participant, except (i) if permitted by the Board or the Committee, (ii) by will or the laws of descent and distribution or (iii) pursuant to beneficiary designation procedures approved by the Company, in each case in compliance with applicable laws. The RSUs shall not be subject to execution, attachment or similar process. Shares of Common Stock acquired pursuant to the vesting of RSUs hereunder will be subject to the Stockholders Agreement. Any attempted assignment, transfer, pledge, hypothecation or other disposition of the RSUs contrary to the provisions of this Agreement or the Stockholders Agreement shall be null and void and without effect. |
6. | Data Protection. The Participant consents to the processing (including international transfer) of personal data as set out in Exhibit A attached hereto for the purposes specified |
7. | Participant’s Employment. Nothing in this Agreement or in the RSU shall confer upon the Participant any right to continue in the employ of the Company or any of its Subsidiaries or interfere in any way with the right of the Company and its Subsidiaries, in their sole discretion, to terminate the Participant’s employment or to increase or decrease the Participant’s compensation at any time. |
8. | No Acquired Rights. In participating in the Plan, the Participant acknowledges and accepts that the Committee or the Board has the power to amend or terminate the Plan at any time and that the opportunity given to the Participant to participate in the Plan is entirely at the discretion of the Committee or the Board and does not obligate the Company or any of its Affiliates to offer such participation in the future (whether on the same or different terms). The Participant further acknowledges and accepts that such Participant’s participation in the Plan is outside the terms of the Participant’s regular contract of employment and is therefore not to be considered part of any normal or expected compensation and that the termination of the Participant’s employment under any circumstances whatsoever will give the Participant no claim or right of action against the Company or its Affiliates in respect of any loss of rights under this Agreement or the Plan that may arise as a result of such termination of employment. |
9. | No Rights of a Stockholder. The Participant shall not have any rights as a stockholder of the Company until the Shares in question have been registered in the Company’s register of stockholders. |
10. | Securities Law Representations. The Participant acknowledges that, unless and until the RSUs and the Shares are registered under the Securities Act on a Form S-8, the RSUs and the Shares are not being registered under the Securities Act, based, in part, on either (i) reliance upon an exemption from registration under Securities and Exchange Commission Rule 701 promulgated under the Securities Act or (ii) the fact that the Participant is an “accredited investor”(as defined under the Securities Act and the rules and regulations promulgated there under), and, in each of (i) and (ii) above, a comparable exemption from qualification under applicable state securities laws, as each may be amended from time to time. The Participant, by executing this Agreement, hereby agrees that the Participant shall make such representations as may be required to be made by the Participant upon any acquisition of Shares hereunder as set forth in the Stockholders Agreement, as such representations, if any, shall be required to be made at such time. The Participant further represents the following, as of the date hereof: |
• | The Participant represents and warrants that (i) such party has full legal power, authority and right to execute and deliver, and to perform its obligations under, this Agreement, and (ii) this Agreement has been duly and validly executed and delivered by such party and constitutes a valid and binding agreement of such party enforceable against such party in accordance with its terms. |
• | The Participant’s knowledge and experience in financial and business matters are such that the Participant is capable of evaluating the merits and risks of the investment in the Shares. |
• | The Participant has had an opportunity to examine all documents and ask questions and receive answers from the Company and Company representatives regarding the Company and the terms and conditions of the RSUs and the restrictions imposed on any Shares delivered upon vesting of the RSUs. |
• | The Participant acknowledges that he or she can afford to suffer a complete loss of his or her investment in the RSUs or the underlying Shares, that any value it may have depends on its vesting and that investment in common shares of a closely held corporation such as the Company is non-marketable, non-transferable and could require capital to be invested for an indefinite period of time, possibly without return, and at substantial risk of loss. |
• | The Participant has read and understands the restrictions and limitations set forth in the Stockholders Agreement, the Plan and this Agreement. |
• | The Participant has not relied upon any oral representation made to the Participant relating to the RSUs or upon information presented in any meeting or material relating to the RSUs or the underlying Shares delivered upon vesting of the RSUs. |
• | The Participant understands and acknowledges that, if and when the Shares are delivered upon vesting of the RSUs, (a) any certificate evidencing the Shares (or evidencing any other securities issued with respect thereto pursuant to any stock split, stock dividend, merger or other form of reorganization or recapitalization) when issued shall bear any legends which may be required by applicable federal and state securities laws, and (b) except as otherwise provided in this Agreement or under the Stockholders Agreement or the Registration Rights Agreement (as such term is defined in the Stockholders Agreement), the Company has no obligation to register the Shares or file any registration statement under federal or state securities laws. |
11. | Withholding. |
(a) | The Participant will pay, or make provisions satisfactory to the Company for payment of any federal, state, local and other applicable taxes required to be withheld in connection with any issuance or transfer of Shares under this Agreement and to take such action as may be necessary in the opinion of the Company to satisfy all obligations for the payment of such taxes. If Participant has not made payment for applicable taxes, such taxes shall be paid by withholding Shares from the issuance or transfer of Shares due under this Agreement, rounded down to the nearest whole Share, with the balance to be paid in cash or withheld from compensation or other amount owing to the Participant from the Company or any Affiliate, and the Company and any such Affiliate is |
(b) | If the Participant’s employment with the Company terminates prior to the issuance or transfer of any remaining Shares due to be issued or transferred to the Participant under this Agreement, the payment of any applicable withholding taxes with respect to any such issuance or transfer shall be made through the withholding of Shares from such issuance or transfer, rounded down to the nearest whole Share, with the balance to be paid in cash or withheld from compensation or other amount owing to the Participant from the Company or any Affiliate, as provided in Section 11(a) above. |
12. | Section 409A of the Code. In the event that it is reasonably determined by the Company that, as a result of the deferred compensation tax rules under Section 409A of the Code (and any related regulations or other pronouncements thereunder) (“the Deferred Compensation Tax Rules”), benefits that the Participant is entitled to under the terms of this Agreement may not be made at the time contemplated by the terms hereof or thereof, as the case may be, without causing Participant to be subject to tax under the Deferred Compensation Tax Rules, the Company shall, in lieu of providing such benefit when otherwise due under this Agreement, instead provide such benefit on the first day on which such provision would not result in the Participant incurring any tax liability under the Deferred Compensation Tax Rules; which day, if the Participant is a “specified employee” (within the meaning of the Deferred Compensation Tax Rules), may, in the event the benefit to be provided is due to the Employee’s “separation from service” (within the meaning of the Deferred Compensation Tax Rules) with the Company and its Subsidiaries, shall be the first day following the six-month period beginning on the date of such separation from service. In addition, each installment of Shares due hereunder shall constitute a “separate payment” within the meaning of the Deferred Compensation Tax Rules. |
13. | RSUs Subject to Plan. By entering into this Agreement, the Participant agrees and acknowledges that the Participant has received and read a copy of the Plan. All RSUs are subject to the Plan. In the event of a conflict between any term or provision contained herein and a term or provision of the Plan, the applicable terms and provisions of the Plan will govern and prevail. |
14. | Notices. All notices, claims, certifications, requests, demands and other communications hereunder shall be in writing and shall be deemed to have been duly given and delivered if personally delivered or if sent by nationally-recognized overnight courier, by telecopy, email or by registered or certified mail, return receipt requested and postage prepaid, addressed as follows: |
15. | Waiver of Breach. The waiver by either party of a breach of any provision of this Agreement must be in writing and shall not operate or be construed as a waiver of any other or subsequent breach. |
16. | Governing Law. THIS AGREEMENT WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT GIVING EFFECT TO ANY CHOICE OR CONFLICT OF LAW PROVISION OR RULE (WHETHER OF THE STATE OF DELAWARE OR ANY OTHER JURISDICTION) THAT WOULD CAUSE THE LAWS OF ANY JURISDICTION OTHER THAN THE STATE OF DELAWARE TO BE APPLIED. IN FURTHERANCE OF THE FOREGOING, THE INTERNAL LAW OF THE STATE OF DELAWARE WILL CONTROL THE INTERPRETATION AND CONSTRUCTION OF THIS AGREEMENT, EVEN IF UNDER SUCH JURISDICTION’S CHOICE OF LAW OR CONFLICT OF LAW ANALYSIS, THE SUBSTANTIVE LAW OF SOME OTHER JURISDICTION WOULD ORDINARILY APPLY. |
17. | Modification of Rights; Entire Agreement. The Participant’s rights under this Agreement and the Plan may be modified only to the extent expressly provided under this Agreement or under Article X or Article XIV of the Plan. This Agreement and the Plan (and the other writings referred to herein, including the Stockholders Agreement or the Registration Rights Agreement) constitute the entire agreement between the parties with respect to the |
18. | Severability. It is the desire and intent of the parties hereto that the provisions of this Agreement be enforced to the fullest extent permissible under the laws and public policies applied in each jurisdiction in which enforcement is sought. Accordingly, if any particular provision of this Agreement shall be adjudicated by a court of competent jurisdiction to be invalid, prohibited or unenforceable for any reason, such provision, as to such jurisdiction, shall be ineffective, without invalidating the remaining provisions of this Agreement or affecting the validity or enforceability of such provision in any other jurisdiction. Notwithstanding the foregoing, if such provision could be more narrowly drawn so as not to be invalid, prohibited or unenforceable in such jurisdiction, it shall, as to such jurisdiction, be so narrowly drawn, without invalidating the remaining provisions of this Agreement or affecting the validity or enforceability of such provision in any other jurisdiction. |
19. | Waiver of Jury Trial; Legal Fees. Each party hereto hereby irrevocably and unconditionally waives, to the fullest extent it may legally and effectively do so, trial by jury in any suit, action or proceeding arising hereunder or under any other agreement regarding any RSUs that may be granted to the Participant under the Plan after the date of this Agreement. In the event of any dispute regarding any term of the RSUs, the Company shall promptly reimburse the Participant for all legal fees and expenses the Participant incurs in connection with such dispute if the Participant prevails in such dispute on a substantial portion of the claims under such dispute. |
20. | FORFEITURE IF AGREEMENT NOT EXECUTED IN 90 DAYS. THIS AGREEMENT AND THE RSU SHALL AUTOMATICALLY TERMINATE AND SHALL BECOME NULL AND VOID AND BE OF NO FURTHER FORCE AND EFFECT, AND THE PARTICIPANT SHALL HAVE NO FURTHER RIGHTS UNDER THIS AGREEMENT, IF THE PARTICIPANT DOES NOT RETURN AN EXECUTED COUNTERPART TO THIS AGREEMENT TO THE COMPANY WITHIN 90 DAYS OF THE GRANT DATE. |
21. | Counterparts. This Agreement may be executed in one or more counterparts, and each such counterpart shall be deemed to be an original, but all such counterparts together shall constitute but one agreement. |
(a) | By participating in the Plan or accepting any rights granted under it, the Participant consents to the collection and processing by the Company and its Affiliates of personal data relating to the Participant by the Company and its Affiliates and/or agents so that they can fulfill their obligations and exercise their rights under the Plan, issue certificates (if any), statements and communications relating to the Plan and generally administer and manage the Plan, including keeping records of participation levels from time to time. Any such processing shall be in accordance with the purposes and provisions of this data protection provision. References in this provision to the Company and its Affiliates include the Participant's employer. |
(b) | This consent is in addition to and does not affect any previous consent provided by the Participant to the Company or its Affiliates. |
(c) | In particular, the Participant expressly consents to the transfer of personal data about the Participant as described in paragraph (a) above by the Company and its Affiliates and/or agents. Data may be transferred not only within the country in which the Participant is based from time to time or within the EU or the European Economic Area (“EEA”), but also worldwide, to other employees and officers of the Company and its Affiliates and/or agents and to the following third parties for the purposes described in paragraph (a) above: |
(d) | The processing (including transfer) of data described above is essential for the administration and operation of the Plan. Therefore, in cases where the Participant wishes to participate in the Plan, it is essential that his/her personal data are processed in the manner described above. At any time the Participant may withdraw his or her consent. |
Time Based Restricted Stock | Vesting Date |
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[•] | [•] |
[•] | [•] |
[•] [•] | [•] [•] |
Number of Restricted Shares: [•] | Participant Account Number: [•] |
Date of Grant: [•] | Grant Number: [•] |
1. | Grant of Restricted Stock. The Company hereby grants the number of shares of Common Stock (the “Shares” and such Shares subject to the vesting and other restrictions contained in this Agreement, the “Restricted Shares”) set forth on the Certificate of Grant of the Restricted Stock Award attached to this Agreement and made a part hereof (the “Certificate of Grant”) to the Participant, on the terms and conditions hereinafter set forth. This grant is made pursuant to the terms of the ARAMARK Holdings Corporation Fourth Amended and Restated 2007 Management Stock Incentive Plan (the “Plan”), which Plan, as amended from time to time, is incorporated herein by reference and made a part of this Agreement. Capitalized terms not otherwise defined herein shall have the same meanings as in the Plan. |
2. | Vesting of Shares. |
(a) | Subject to the remainder of this Agreement, the Restricted Shares granted to the Participant under this Agreement shall become vested and nonforfeitable, on each such date as set forth on the Certificate of Grant under “Vesting Date”, so long as the Participant remains employed with the Company or any of its Subsidiaries through such Vesting Date. |
(b) | Notwithstanding Section 2(a) of this Agreement, |
(i) | upon a Termination of Relationship as a result of the Participant’s death, Disability, or Retirement (each, a “Special Termination”), the installment of Restricted Shares scheduled to vest on the next Vesting Date immediately following such Special Termination shall immediately become vested and nonforfeitable Restricted Shares, and the remaining unvested Restricted Shares shall be forfeited; and |
(ii) | upon a Termination of Relationship for any reason other than as set forth in clause (i) above, all unvested Restricted Shares shall be forfeited and immediately cancelled. |
(c) | In the event of a Change of Control occurs prior to the date of a Termination of Relationship, all unvested Restricted Shares shall vest and become nonforfeitable. |
3. | Adjustments Upon Certain Events. In the event of any event described in Article VII of the Plan occurring after the Date of Grant, the adjustment provisions (including cash payments) as provided for under Article VII of the Plan shall apply. The Company shall, |
4. | Restriction on Transfer/Stockholders Agreement. The Restricted Shares may not be transferred, pledged, assigned, hypothecated or otherwise disposed of in any way by the Participant, except (i) if permitted by the Board or the Committee, (ii) by will or the laws of descent and distribution or (iii) pursuant to beneficiary designation procedures approved by the Company, in each case in compliance with applicable laws. The Restricted Shares shall not be subject to execution, attachment or similar process. The Restricted Shares granted hereunder will be subject to the Stockholders Agreement. Any attempted assignment, transfer, pledge, hypothecation or other disposition of the Restricted Shares contrary to the provisions of this Agreement or the Stockholders Agreement shall be null and void and without effect. |
5. | Data Protection. The Participant consents to the processing (including international transfer) of personal data as set out in Exhibit A attached hereto for the purposes specified therein and to any additional or different processes required by applicable law, rule or regulation. |
6. | Participant’s Employment. Neither this Agreement nor the grant of the Restricted Shares shall confer upon the Participant any right to continue in the employ of the Company or any of its Subsidiaries or interfere in any way with the right of the Company and its Subsidiaries, in their sole discretion, to terminate the Participant’s employment or to increase or decrease the Participant’s compensation at any time. |
7. | No Acquired Rights. In participating in the Plan, the Participant acknowledges and accepts that the Committee or the Board has the power to amend or terminate the Plan at any time and that the opportunity given to the Participant to participate in the Plan is entirely at the discretion of the Committee or the Board and does not obligate the Company or any of its Affiliates to offer such participation in the future (whether on the same or different terms). The Participant further acknowledges and accepts that such Participant’s participation in the Plan is outside the terms of the Participant’s regular contract of employment and is therefore not to be considered part of any normal or expected compensation and that the termination of the Participant’s employment under any circumstances whatsoever will give the Participant no claim or right of action against the Company or its Affiliates in respect of any loss of rights under this Agreement or the Plan that may arise as a result of such termination of employment. |
8. | No Rights of a Stockholder. The Participant shall be the record owner of the Restricted Shares until or unless such Restricted Shares are forfeited pursuant to the terms of this Agreement but, subject to the Stockholders Agreement, shall not have any rights as a stockholder of the Company with respect to such Restricted Shares; provided that any cash or in-kind dividends paid with respect to the Restricted Shares shall be accumulated by the Company and shall be paid to the Participant only when, and if, the Restricted Shares in respect of which such dividends were payable become vested pursuant to the terms of this Agreement. |
9. | Securities Law Representations. The Participant acknowledges that, unless and until the Restricted Shares are registered under the Securities Act on a Form S-8, the Restricted Shares are not being registered under the Securities Act, based, in part, on either (i) reliance upon an exemption from registration under Securities and Exchange Commission Rule 701 promulgated under the Securities Act or (ii) the fact that the Participant is an “accredited investor”(as defined under the Securities Act and the rules and regulations promulgated there under), and, in each of (i) and (ii) above, a comparable exemption from qualification under applicable state securities laws, as each may be amended from time to time. The Participant, by executing this Agreement, hereby agrees that the Participant shall make such representations as may be required to be made by the Participant upon any acquisition of Shares hereunder as set forth in the Stockholders Agreement, as such representations, if any, shall be required to be made at such time. The Participant further represents the following, as of the date hereof: |
• | The Participant’s knowledge and experience in financial and business matters are such that the Participant is capable of evaluating the merits and risks of the investment in the Restricted Shares. |
• | The Participant has had an opportunity to examine all documents and ask questions and receive answers from the Company regarding the terms and conditions of the Restricted Shares and the restrictions imposed on any Restricted Shares. |
• | The Participant acknowledges that he or she can afford to suffer a complete loss of his or her investment in the Restricted Shares, that any value it may have depends on its vesting and that investment in common shares of a closely held corporation such as the Company is non-marketable, non-transferable and could require capital to be invested for an indefinite period of time, possibly without return, and at substantial risk of loss. |
• | The Participant has read and understands the restrictions and limitations set forth in the Stockholders Agreement, the Plan and this Agreement. |
• | The Participant has not relied upon any oral representation made to the Participant relating to the Restricted Shares or upon information presented in any meeting or material relating to the Restricted Shares. |
• | The Participant understands and acknowledges that, (a) any certificate evidencing the Restricted Shares (or evidencing any other securities issued with respect thereto pursuant to any stock split, stock dividend, merger or other form of reorganization or recapitalization) when issued shall bear any legends which may be required by |
10. | Tax Withholding; Section 83(b) Election. |
(a) | The Participant will pay, or make provisions satisfactory to the Company for payment of any federal, state, local and other applicable taxes required to be withheld in connection with the vesting of all or any portion of the Restricted Shares as provided under Section 2 of this Agreement and to take such action as may be necessary in the opinion of the Company to satisfy all obligations for the payment of such taxes. If Participant has not made payment for applicable taxes prior to the vesting event applicable to the Restricted Shares, such taxes shall be paid by withholding Shares from the transfer of Shares due under this Agreement, rounded down to the nearest whole Share, with the balance to be paid in cash or withheld from compensation or other amount owing to the Participant from the Company or any Affiliate, and the Company and any such Affiliate is hereby authorized to withhold such amounts from any such issuance, transfer, compensation or other amount owing to the Participant. |
(b) | The Participant may make an election under Section 83(b) of the Code with respect to the Restricted Shares granted hereunder. The Participant should consult his or her tax advisor regarding consequences of such an election, as well as the receipt, vesting, holding and sale of Restricted Shares. In the event the Participant makes such an election, the Participant shall promptly notify the Company and furnish a copy of the completed election form. In the event Participant does not so notify the Company, the Company is hereby authorized, without liability to the Participant, to implement the provisions of Section 10(a) above in connection with the vesting of all or any portion of the Restricted Shares. |
11. | Restricted Shares Subject to Plan. By entering into this Agreement, the Participant agrees and acknowledges that the Participant has received and read a copy of the Plan. All Restricted Shares are subject to the Plan. In the event of a conflict between any term or provision contained herein and a term or provision of the Plan, the applicable terms and provisions of the Plan will govern and prevail. |
12. | Notices. All notices, claims, certifications, requests, demands and other communications hereunder shall be in writing and shall be deemed to have been duly given and delivered if personally delivered or if sent by nationally-recognized overnight courier, by telecopy, email or by registered or certified mail, return receipt requested and postage prepaid, addressed as follows: |
13. | Waiver of Breach. The waiver by either party of a breach of any provision of this Agreement must be in writing and shall not operate or be construed as a waiver of any other or subsequent breach. |
14. | Governing Law. THIS AGREEMENT WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT GIVING EFFECT TO ANY CHOICE OR CONFLICT OF LAW PROVISION OR RULE (WHETHER OF THE STATE OF DELAWARE OR ANY OTHER JURISDICTION) THAT WOULD CAUSE THE LAWS OF ANY JURISDICTION OTHER THAN THE STATE OF DELAWARE TO BE APPLIED. IN FURTHERANCE OF THE FOREGOING, THE INTERNAL LAW OF THE STATE OF DELAWARE WILL CONTROL THE INTERPRETATION AND CONSTRUCTION OF THIS AGREEMENT, EVEN IF UNDER SUCH JURISDICTION’S CHOICE OF LAW OR CONFLICT OF LAW ANALYSIS, THE SUBSTANTIVE LAW OF SOME OTHER JURISDICTION WOULD ORDINARILY APPLY. |
15. | Modification of Rights; Entire Agreement. The Participant’s rights under this Agreement and the Plan may be modified only to the extent expressly provided under this Agreement or under Article X or Article XIV of the Plan. This Agreement and the Plan (and the other |
16. | Severability. It is the desire and intent of the parties hereto that the provisions of this Agreement be enforced to the fullest extent permissible under the laws and public policies applied in each jurisdiction in which enforcement is sought. Accordingly, if any particular provision of this Agreement shall be adjudicated by a court of competent jurisdiction to be invalid, prohibited or unenforceable for any reason, such provision, as to such jurisdiction, shall be ineffective, without invalidating the remaining provisions of this Agreement or affecting the validity or enforceability of such provision in any other jurisdiction. Notwithstanding the foregoing, if such provision could be more narrowly drawn so as not to be invalid, prohibited or unenforceable in such jurisdiction, it shall, as to such jurisdiction, be so narrowly drawn, without invalidating the remaining provisions of this Agreement or affecting the validity or enforceability of such provision in any other jurisdiction. |
17. | Waiver of Jury Trial; Legal Fees. Each party hereto hereby irrevocably and unconditionally waives, to the fullest extent it may legally and effectively do so, trial by jury in any suit, action or proceeding arising hereunder or under any other agreement regarding any Restricted Shares that may be granted to the Participant under the Plan after the date of this Agreement. In the event of any dispute regarding any term of the Restricted Shares, the Company shall promptly reimburse the Participant for all legal fees and expenses the Participant incurs in connection with such dispute if the Participant prevails in such dispute on a substantial portion of the claims under such dispute. |
18. | Counterparts. This Agreement may be executed in one or more counterparts, and each such counterpart shall be deemed to be an original, but all such counterparts together shall constitute but one agreement. |
* * * * * This Restricted Stock Award Agreement between the Company and the Participant named on the Participant Master Signature Page hereto is dated and executed as of the date set forth on such Participant Master Signature Page. * * * * * |
(a) | By participating in the Plan or accepting any rights granted under it, the Participant consents to the collection and processing by the Company and its Affiliates of personal data relating to the Participant by the Company and its Affiliates and/or agents so that they can fulfill their obligations and exercise their rights under the Plan, issue certificates (if any), statements and communications relating to the Plan and generally administer and manage the Plan, including keeping records of participation levels from time to time. Any such processing shall be in accordance with the purposes and provisions of this data protection provision. References in this provision to the Company and its Affiliates include the Participant's employer. |
(b) | This consent is in addition to and does not affect any previous consent provided by the Participant to the Company or its Affiliates. |
(c) | In particular, the Participant expressly consents to the transfer of personal data about the Participant as described in paragraph (a) above by the Company and its Affiliates and/or agents. Data may be transferred not only within the country in which the Participant is based from time to time or within the EU or the European Economic Area (“EEA”), but also worldwide, to other employees and officers of the Company and its Affiliates and/or agents and to the following third parties for the purposes described in paragraph (a) above: |
(d) | The processing (including transfer) of data described above is essential for the administration and operation of the Plan. Therefore, in cases where the Participant wishes to participate in the Plan, it is essential that his/her personal data are processed in the manner described above. At any time the Participant may withdraw his or her consent. |
Time Based Options | Vesting Date |
[•] | [•] |
[•] | [•] |
[•] | [•] |
[•] | [•] |
[•] | [•] |
Grant Price: [•] | Number of Shares: [•] |
Date of Grant: [•] | Participant’s Account Number: [•] |
Grant Number: [•] | Expiration Date: [•] |
• | The Participant represents and warrants that (i) such party has full legal power, authority and right to execute and deliver, and to perform its obligations under, this Agreement, and (ii) this Agreement has been duly and validly executed and delivered by such party and constitutes a valid and binding agreement of such party enforceable against such party in accordance with its terms. |
• | The Participant’s knowledge and experience in financial and business matters are such that the Participant is capable of evaluating the merits and risks of the investment in the Option. |
• | The Participant has had an opportunity to examine all documents and ask questions and receive answers from the Company and Company’s representatives regarding the Company and the terms and conditions of the Option and the restrictions imposed on any Shares purchased upon exercise of the Option. |
• | The Participant is aware that the Option may be of no practical value, that any value it may have depends on its vesting and exercisability as well as an increase in the Fair Market Value of the underlying Shares to an amount in excess of the Option Price, and that any investment in common shares of a closely held corporation such as the Company is non-marketable, non-transferable and could require capital to be invested for an indefinite period of time, possibly without return, and at substantial risk of loss. |
• | The Participant has read and understands the restrictions and limitations set forth in the Stockholders Agreement, the Plan and this Agreement. |
• | The Participant has not relied upon any oral representation made to the Participant relating to the Option or the purchase of the Shares on exercise of the Option or upon information presented in any meeting or material relating to the Option or the Shares. |
• | All information which Participant has provided to the Company and the Company’s representatives concerning the Participant and Participant’s financial position is complete and correct as of the date of this Agreement. |
• | The Participant understands and acknowledges that, if and when the Participant exercises the Option, (a) any certificate evidencing the Shares (or evidencing any other securities issued with respect thereto pursuant to any stock split, stock dividend, merger or other form of reorganization or recapitalization) when issued shall bear any legends which may be required by applicable federal and state securities laws, and (b) except as otherwise provided in this Agreement or under the Stockholders Agreement or the Registration Rights Agreement (as such term is defined in the Stockholders Agreement), the Company has no obligation to register the Shares or file any registration statement under federal or state securities laws. |
* * * * * This Non-Qualified Stock Option Agreement between the Company and the Participant named on the Participant Master Signature Page hereto is dated and executed as of the date set forth on such Participant Master Signature Page. * * * * * |
(a) | By participating in the Plan or accepting any rights granted under it, the Participant consents to the collection and processing by the Company and its Affiliates of personal data relating to the Participant by the Company and its Affiliates and/or agents so that they can fulfill their obligations and exercise their rights under the Plan, issue certificates (if any), statements and communications relating to the Plan and generally administer and manage the Plan, including keeping records of participation levels from time to time. Any such processing shall be in accordance with the purposes and provisions of this data protection provision. References in this provision to the Company and its Affiliates include the Participant's employer. |
i. | already held in the Participant's records such as the Participant's name and address, ID number, payroll number, length of service and whether the Participant works full-time or part time; |
ii. | collected upon the Participant accepting the rights granted under the Plan (if applicable); and |
iii. | subsequently collected |
(b) | This consent is in addition to and does not affect any previous consent provided by the Participant to the Company or its Affiliates. |
(c) | In particular, the Participant expressly consents to the transfer of personal data about the Participant as described in paragraph (a) above by the Company and its Affiliates and/or agents. Data may be transferred not only within the country in which the Participant is based from time to time or within the EU or the European Economic Area (“EEA”), but also worldwide, to other employees and officers of the Company and its Affiliates and/or agents and to the following third parties for the purposes described in paragraph (a) above: |
i. | Plan administrators, transfer agents, auditors, brokers, agents and contractors of, and third party service providers to, the Company or its Affiliates such as |
ii. | regulators, tax authorities, stock or security exchanges and other supervisory, regulatory, governmental or public bodies as required by law; |
iii. | actual or proposed merger or acquisition partners or proposed assignees of, or those taking or proposing to take security over, the business or assets or stock of the Company or its Affiliates and their agents and contractors; |
iv. | other third parties to whom the Company or its Affiliates and/or agents may need to communicate/transfer the data in connection with the administration of the Plan, under a duty of confidentiality to the Company and its Affiliates; and |
v. | the Participant's family members, physicians, heirs, legatees and others associated with the Participant in connection with the Plan. |
(d) | The processing (including transfer) of data described above is essential for the administration and operation of the Plan. Therefore, in cases where the Participant wishes to participate in the Plan, it is essential that his/her personal data are processed in the manner described above. At any time the Participant may withdraw his or her consent. |
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