Exhibit 10.28(b)
ATALANTA/SOSNOFF CAPITAL CORPORATION
1996 LONG TERM INCENTIVE PLAN
RESTRICTED STOCK AWARD AGREEMENT
AWARD AGREEMENT made as of this 17th day of September 1997 by and between
Atalanta/Sosnoff Capital Corporation, a Delaware corporation (the
"Corporation"), and Anthony G. Miller, Executive Vice President of the
Corporation (the "Participant").
RECITALS
WHEREAS, the Compensation and Stock Option Committee (the "Committee') of
the Board of Directors on September 17, 1997, granted to the Participant a
Restricted Stock Award (the "Award") of 175,000 shares (the "Restricted Shares")
of Common Stock, par value $0.01 per share, of the Corporation under the terms
and conditions of the Corporation's 1996 Long Term Incentive Plan (the "Plan")
and
WHEREAS, the Committee instructed the Corporation to embody the Restricted
Stock Award in an Award Agreement containing the terms and conditions determined
by the Committee consistent with the Plan and such other terms not inconsistent
therewith as determined by the Chairman of the Board of the Corporation.
NOW THEREFORE, this Agreement
WITNESSETH:
Section 1. Acceptance of the Award, Payment of Purchase Price.
The Participant hereby accepts the Award and agrees to be bound in all
respects by this Agreement and the Plan. In payment for the Award the
Participant hereby tenders payment in the amount of $1,750 in full payment of
the purchase price for the Award, the receipt whereof is hereby acknowledged by
the Corporation.
Section 2. Definitions
All terms not otherwise defined herein shall have the meanings ascribed to
them in the Plan. The following terms shall have the meanings set forth herein
for purposes of this Agreement:
A. "Award" shall mean the Award of Restricted Stock granted by the
Committee under the provisions of this Agreement.
B. "Cause" shall mean, in the context of termination of the employment of
the Participant, any person for any of the following events or
conditions as determined by the Board of Directors of the Corporation:
(i) such person's failure to perform, or negligence in the performance
of, his duties and responsibilities to the Corporation as a director
or officer or employee (other than by reason of death or disability),
(ii) fraud, embezzlement, the commission of a felony or other material
dishonesty with respect to the Corporation or any of its affiliates,
(iii) in the written opinion of counsel to
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the Corporation, the Participant's conduct shall require that the
Corporation answer "yes" to any of the "Disciplinary Questions" set
forth in Part I, Question 11 of Form ADV promulgated under the
Investment Advisers Act of 1940, as currently in effect or as
hereafter amended, and (iv) other conduct that is materially harmful
to the business, interests or reputation of the Corporation.
C. "Disability" shall mean with respect to the Participant the failure to
perform his duties as an employee of the Corporation or any subsidiary
or affiliate by reason of physical or emotional illness for a
consecutive period of six months or a non-consecutive period totalling
six months in any twelve month period. A Disability determination
shall be made by the Board of Directors of the Corporation on the
basis of competent medical advice from a physician or physicians
consulted by the Board.
D. "Change in Control" shall mean a Change in Control of a nature that
would be required to be reported in response to item I of a Current
Report on Form 8-K, as in effect on the date hereof, pursuant to
Section 13 or 15(d) of the Exchange Act; provided that, without
limitation, such a Change in Control shall be deemed to have occurred
at such time as (a) any person (as such term is used in Sections 13(d)
and 14(d) of the Exchange Act) is or becomes the "beneficial owner"
(as defined in Rule 13D-3 under the Exchange Act), directly or
indirectly, of securities of the Corporation representing twenty-five
(25%) percent or more of the
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combined voting power of the Corporation's outstanding securities
ordinarily having the right to vote at elections of directors other
than any such person that is an affiliate (as such term is defined in
Rule 12b-2 under the Exchange Act) on the effective date of the Award;
or (b) individuals who constitute the Board of Directors of the
Corporation on the date hereof (the "Incumbent Board") cease for any
reason to constitute at least one half of the members thereof,
provided that any person becoming a director subsequent to the date
hereof whose election or nomination for election by the Corporation's
stockholders was approved by a vote of a majority of the directors
comprising the Incumbent Board, shall be, for purposes of this clause
(b), considered as though he were a member of the Incumbent Board; or
(c) a sale by the Corporation of all or substantially all of its
assets or the liquidation of the Corporation. Notwithstanding anything
in the foregoing to the contrary, no Change in Control shall be deemed
to have occurred for purposes of this Agreement by virtue of any
transaction which results in the ownership by the Participant, or by a
group of persons, including the holders of a majority of the
outstanding Common Stock of the Corporation, directly or indirectly,
of a majority of the voting securities of any corporation which
acquires all or substantially all of the assets of the Corporation,
whether by way of merger, consolidation, sale of such assets or
otherwise.
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E. "Effective Date" shall mean with respect to any Award, the date on which
the Award is approved by the Committee.
F. "Involuntary Termination" shall mean termination of the Participant's
employment by reason of a Change in Control, death, Disability, termination
without cause or the death of Martin T. Sosnoff.
G. "Voluntary Termination" shall mean the termination of the Participant's
employment by reason of resignation or termination for Cause.
3. Rights as a Shareholder
3.1 Upon the Award of Restricted Stock to a Participant and from and after
the date of issuance of certificate(s) representing such Restricted Stock, such
Participant shall, subject to the restrictions set forth in Sections 3.2, 4 and
8 hereof (or in any promissory note and/or pledge agreement entered into
pursuant to this Agreement) have all of the rights of a shareholder with respect
to such Restricted Stock, including but not limited to: (a) the right to vote
the Restricted Shares and the right; (b) to receive all dividends paid thereon,
if any; and (c) subject to Section 3.2 hereof, to sell, transfer or otherwise
dispose of such Restricted Stock.
3.2 Subject to Sections 3.2(c), 4 and 8 hereof:
(a) If at any time on or after the Effective Date of this Award the
Participant, shall wish to transfer or otherwise dispose of (other than in
a transaction contemplated under Section 3.2(c) hereof) all or any portion
of such Participant's
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shares of Restricted Stock as to which the Corporation's right of
repurchase shall have lapsed pursuant to Sections 4 and 5 hereof, he shall
deliver written notice (the "Offer Notice") to the Corporation stating his
wish to make such transfer and the number of Restricted Shares he wishes to
be transferred (the "Offered Shares"), and certifying that such transfer
which he wishes to make is pursuant to a bona fide third party offer to
acquire the Offered Shares for consideration (a "Bona Fide Third-Party
Offer"). The Offer Notice shall further state the name of the person who
made the Bona Fide Third-Party Offer and the terms thereof, including a
description and a statement of the aggregate cash value of all
consideration, including any consideration other than cash (the "Offered
Price"). The Corporation shall have the irrevocable and exclusive right of
first refusal, as hereinafter provided, to purchase all (but not less than
all) of the Offered Shares at the Offered Price. Any exercise of the right
of first refusal to purchase the Offered Shares pursuant to this Section
3.2(a) shall be by a written notice (the "Acceptance Notice") delivered by
the Corporation to the Participant within 15 days after delivery by the
Participant of an Offer Notice. An Acceptance Notice shall fix a date for
the closing of such purchase (the "Closing Date"), which date shall be not
less than 10 and not more than 20 business days after the date on which the
Acceptance Notice is given.
(b) Failure to furnish the Acceptance Notice within the 15 day period
set forth in Section 3.2(a) shall constitute a waiver of the Corporation's
right of first refusal with respect to the Bona Fide Third-Party Offer
which may be accepted by the Participant provided that the sale of the
Offered Shares pursuant thereto is
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consummated in accordance with its terms within 30 days after the
expiration of such 15 day period.
(c) Notwithstanding the foregoing, the right of first refusal set
forth in Section 3.2(a) shall not apply to open-market transactions
effected on a national securities exchange or in the over-the-counter
market in Broker's Transactions as defined in Rule 144 under the Securities
Act of 1933, as amended, whether or not such Rule would otherwise be
applicable to such sale.
Section 4. Repurchase Option Upon Voluntary Termination
At any time prior to a Change in Control of the Corporation or in the case
of a Change in Control where the Participant does not agree to remain an
employee of the Corporation or its successor for a period of 18 months from the
effective date of such Change in Control under a binding agreement with the
Corporation or its successor in the same capacity at the same compensation level
as then in effect, the Corporation shall have the right to repurchase from a
Participant, upon written notice to such Participant, all or a part of the
following percentages of the number of Restricted Shares issued pursuant to this
Award made to the Participant upon Voluntary Termination of the Participant's
employment.
(i) 100%, provided such Voluntary Termination occurs prior to the
first anniversary of the Effective Date of the Award.
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(ii) 75%, provided such Voluntary Termination occurs on or after the
first anniversary but prior to the second anniversary of the Effective Date
of the Award.
(iii) 50%, provided such Voluntary Termination occurs on or after the
second anniversary but prior to the third anniversary of the Effective Date
of the Award.
(iv) 25%, provided such Voluntary Termination occurs on or after the
third anniversary but prior to the fourth anniversary of the Effective Date
of the Award.
In the event the Corporation elects to exercise its right, pursuant to the
preceding paragraph, to repurchase a percentage of the Restricted Shares issued
pursuant to this Award made to the Participant, the purchase price shall be the
aggregate price paid by the Participant for such Restricted Shares pursuant to
Section 1 of this Agreement. During such time Restricted Shares are subject to
the option to repurchase pursuant to this Section 4, such Restricted Shares may
not be sold, transferred or otherwise disposed of by the Participant.
Section 5. No Repurchase Option Upon Involuntary Termination
The Corporation shall not have the right to repurchase from a Participant
any Restricted Stock issued pursuant to this Award Agreement made to the
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Participant upon Involuntary Termination of the Participant's employment,
provided, however, that
(a) in the event the Involuntary Termination arises as a result of a
Change in Control, Participant shall have agreed with the Corporation or
its successor under a binding agreement to remain in the same capacity at
the same compensation level for a period of 18 months from the effective
date of the Change in Control, and
(b) in the event the Involuntary Termination arises as a result of the
death of Martin T. Sosnoff, Participant shall agree to serve the
Corporation under a binding agreement for a period from the date of such
death to the earliest to occur of (i) Participant's death, (ii)
Participant's Disability or (iii) a Change in Control.
Section 6. Payment of Taxes; Loan Agreement
The Participant shall be required to discharge any and all federal, state
and local taxes, if any, incurred as a result of his receipt of the Award and
any such taxes related to the lapse of the Corporation's right to purchase
Restricted Shares issued pursuant to the Award. The Corporation shall lend the
Participant, at his request, funds to defray such taxes on the following basis:
(a) If, and to the extent, that the earnings distributed to a
Participant attributable to the Restricted Shares (whether in the form of
dividends or other distributions to the Participant) after the payment of
his personal income taxes thereon (as determined by the Participant's
personal federal, state and local tax returns for the tax year in question)
are not sufficient to defray such Participant's personal tax liability
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as set forth in the Participant's returns arising solely from the taxable
compensation, if any, attributable to the grant of the Award of Restricted
Shares to the Participant or to the lapse of the Corporation's right to
repurchase the Restricted Shares of the Participant at such Participant's
cost in the applicable tax year, any such deficiency shall be loaned by the
Corporation to the Participant. Such loans shall be made at the
Participant's request at any time within 90 days from the date the
Corporation is required to withhold and deposit funds from the
Participant's cash compensation in respect of the tax liability associated
with Restricted Shares, and shall be adjusted, if necessary, based upon the
Participant's returns. Each such loan shall be evidenced by a note (in the
form annexed hereto as Exhibit A) maturing in four years from the date of
issue and shall bear simple interest, which shall accrue to maturity, at
the "applicable federal rate" as defined in Section 1274(d) of the Code.
Any such note shall be secured by a pledge of the portion of the Restricted
Shares to which such tax liability is attributable equal at the date of the
loan to the Fair Market Value of the Restricted Shares to the value thereof
under a pledge agreement (in the form annexed hereto as Exhibit B).
(b) The payment period for any such notes will be adjusted in the
following events.
(i) In the event the Participant's employment by the Corporation
terminates as a result of the death or Disability of such Participant,
no outstanding note shall have a payment period ending sooner than one
year
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from the date of such Participant's death or the determination of his
Disability, as applicable.
(ii) In the event Participant's employment by the Corporation
terminates as a result of Participant's voluntary resignation such
note shall have a payment period ending no sooner than (i) two years
from such voluntary resignation, if the Participant's Restricted
Shares are not subject to repurchase by the Corporation at such date
or (ii) the later of (A) two years from the date of such voluntary
resignation and (B) the date upon which the Participant's Restricted
Shares would have been no longer subject to the Corporation's right of
repurchase had such resigned Participant remained an employee of the
Corporation until the date upon which such Restricted Shares would
have been no longer subject to repurchase by the Corporation
hereunder.
(iii) In no event shall the payment period be longer than a
period ending on the date upon which the Participant sells his
Restricted Shares for cash.
(iv) The Participant may, at his option, apply Restricted Shares
at their fair market value to the repayment of principal or interest
on all or any part of a note, if such Restricted Shares, at the time
of such application, are not subject to repurchase by the Corporation.
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Section 7. Adjustment Upon Changes in Common Stock
In the event that there is any change in the Common Stock, through merger,
consolidation, reorganization, recapitalization or otherwise, or if there shall
be any dividend on the Common Stock payable in such Common Stock or if there
shall be a stock split, combination of shares or other changes in
Atalanta/Sosnoff Capital Corporation's capital structure, the number of shares
in the Award shall be appropriately adjusted by the Committee to reflect any
such changes. Neither the issuance of Common Stock for adequate consideration,
nor the issuance of rights or options with respect to the Common Stock or any
other stock based awards to employees of the Corporation under the Plan or a
comparable benefit plan shall be considered a change in Atalanta/Sosnoff Capital
Corporation's capital structure. No adjustment provided for in this Section 7
shall require the issuance of any fractional share.
Section 8. Compliance with Securities and Exchange Commission Requirements
No certificate for Restricted Shares awarded under this Agreement shall be
issued until the Corporation shall have taken such action, if any, as is then
required, in its opinion, in order to comply with the provisions of the
Securities Act of 1933, as amended, the Exchange Act, as amended, and any other
applicable laws, as well as with the requirements of any exchange on which the
Common Stock may, at the time, be listed. Such action may include, but is not
limited to, the registration of the Restricted Shares or the delivery to the
Corporation with respect to the Restricted
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Shares awarded to a Participant of a written representation by the Participant,
in form satisfactory to the Corporation, that it is the Participant's intention
to acquire the Restricted Shares for investment and not for resale. If such a
written representation is requested, the Corporation shall not be required to
transfer any shares to the Participant until the representation is received in
form satisfactory to the Corporation, and any certificate for Restricted Shares
issued upon receipt of such a representation shall bear a legend to the effect
that such shares have been acquired for investment and have not been registered
under the Securities Act of 1933, as amended, and may not be disposed of except
in compliance therewith.
Section 9. Conflicting Terms.
To the extent that there may be any conflict between any term or condition
of the Plan and term or condition of this Award Agreement, the term or condition
of this Award Agreement shall control.
Section 10. Legend.
Each certificate representing Restricted Shares awarded pursuant to this
Agreement shall bear a legend referring hereto and to the Plan and to the
restrictions on disposition contained herein and therein.
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Section 11. Shares Acquired for Investment.
The Participant hereby acknowledges that the Restricted Shares constituting
the Award have not been registered under the Securities Act of 1933, as amended,
or any applicable state securities law, and represent that he is acquiring the
Restricted Shares for his own account and not with a view to the distribution
thereof. He further acknowledges that he has been informed by the Corporation
that the certificate representing the Restricted Shares will bear a restrictive
legend to the following effect:
"The Shares represented by this Certificate have not been registered under
the Securities Act of 1933, as amended (the "Act"), and no disposition
thereof may be made in violation of the Act and the rules and regulations
promulgated thereunder and unless the Corporation shall have received an
opinion of counsel reasonably satisfactory to it that such disposition may
be effected without violating the Act."
Section 12. Continued Validity.
Participant agrees that in the event of invalidity of any part or provision
of the Plan, or this Award Agreement, such invalidity shall not affect the
validity of any other part or provision of the Plan, of this Agreement.
Section 13. Choice of Law.
This Award Agreement shall be construed and enforced in accordance with the
laws of the State of New York.
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Section 14. Notices and Deliveries
All notices hereunder shall be in writing. Any notices, payments, or
deliveries to the Corporation or the Committee shall be directed to the
Corporation or the Committee, as the case may be, at the following address:
Atalanta/Sosnoff Capital Corporation
101 Park Avenue
New York, New York 10178
Attention: Martin T. Sosnoff, Chairman
Any notices, payments or deliveries (other than to the Corporation or the Board)
shall be directed to the addressee at the address designated by said addressee
by notice to the Committee. The Corporation may designate a new address for
purposes of this Agreement by notice to the Participant. Any Participant or
beneficiary may designate a new address for the purposes of this Agreement by
notice to the Committee. If no address is designated by the Participant or
beneficiary, all notices may be sent to his last known address. Unless otherwise
specified herein, notices shall be delivered by hand or sent by registered or
certified mail, return receipt requested.
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Section 14. Binding Upon Heirs, Etc.
This Agreement shall be binding upon, and shall inure to the benefit of,
the Corporation, its successors and assigns, and each Participant, his heirs,
executors, administrators and legal representatives.
IN WITNESS WHEREOF, the Corporation and the Participant have executed this
Award Agreement as of the day first above written.
Atalanta/Sosnoff Capital Corporation
by: /s/ Martin T. Sosnoff
---------------------------------------
Martin T. Sosnoff
Chairman of the Board
/s/ Anthony G. Miller
---------------------------------------
Anthony G. Miller
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