EXHIBIT 10.3(e)(i)
OGDEN CORPORATION
RESTRICTED STOCK PLAN
INTRODUCTION
The purpose of this Plan is to enhance the profitability and value of
the Company for the benefit of its stockholders by enabling the Company to offer
Restricted Stock to key employees of the Company and any of its Affiliates,
thereby creating a means to raise the level of stock ownership by key employees
in order to attract, retain and reward such employees and strengthen the
mutuality of interests between such employees and the Company's stockholders.
ARTICLE I
DEFINITIONS
For purposes of this Plan, the following terms shall have the following
meanings:
I.1 "AFFILIATE" shall mean each of the following: (a) any Subsidiary;
(b) any Parent; (c) any corporation, trade or business (including, without
limitation, a partnership or limited liability company) which is directly or
indirectly controlled fifty percent (50%) or more (whether by ownership of
stock, assets or an equivalent ownership interest or voting interest) by the
Company or one of its Affiliates; and (d) any other entity in which the Company
or any of its Affiliates has a material equity interest and which is designated
as an "Affiliate" by resolution of the Committee.
I.2 "BOARD" shall mean the Board of Directors of the Company.
I.3 "CAUSE" shall mean (with regard to a Participant's Termination of
Employment with the Company or an Affiliate) a Participant's: (a) willful and
continued failure to devote the time, attention and effort necessary to
substantially perform his or her duties as an officer of the Employer (other
than any such failure resulting from Participant's incapacity due to physical or
mental illness); (b) unless corrected in all material respects by the
Participant within fifteen (15) days following written notification by the
Employer to the Participant that the Employer intends to terminate his or her
employment for the reasons set forth under this Section 1.3(b), materially
unsatisfactory performance of his or her duties for the Employer, provided,
however, that on or after a Change in Control, any event described under this
Section 1.3(b) shall not be considered a basis for Termination of Employment of
the Participant by the Employer for Cause; (c) a material breach of any
confidentiality, non-competition or non-solicitation provision of any other
agreement, arrangement or plan between the Employer and a Participant; (d) acts
of dishonesty; (e) gross negligence or gross misconduct with regard to the
Employer or their respective assets; (f) misappropriation or fraud with regard
to the Employer or their assets; (g) conviction of, or the pleading of guilty
or NOLO CONTENDERE to, a felony; (h) conviction of a crime involving, in the
sole discretion of the Committee, moral turpitude; or (i) a Participant's
Disability. A Termination of Employment for Cause shall mean a termination by
the Employer effected by written notice given within ninety (90) days of the
Employer's discovery of the Cause event.
I.4 "CHANGE IN CONTROL" shall have the meaning set forth in
Article VII.
I.5 "CODE" shall mean the Internal Revenue Code of 1986, as amended.
I.6 "COMMITTEE" shall mean a committee of the Board appointed from time
to time by the Board, which committee shall be intended to consist of two or
more non-employee directors, each of whom shall be, to the extent required by
Rule 16b-3 promulgated under Section 16(b) of the Exchange Act as then in effect
or any successor provisions, a "non-employee director" as defined in Rule 16b-3,
except that, if and to the extent that no Committee exists which has the
authority to administer the Plan, the functions of the Committee shall be
exercised by the Board. If for any reason the appointed Committee does not meet
the requirements of Rule 16b-3, such noncompliance with the requirements of Rule
16b-3 shall not affect the validity of the awards, grants, interpretations or
other actions of the Committee.
I.7 "COMMON STOCK" shall mean the common stock, $.50 par value per
share, of the Company.
I.8 "COMPANY" shall mean Ogden Corporation and any successor by merger,
consolidation or otherwise.
I.9 "DISABILITY" shall mean a permanent and total disability resulting
from a physical or mental condition of such severity and probable prolonged
duration whereby the Participant is entitled to and receives disability benefits
under the Federal Social Security Act or under the Employer's long-term
disability plan.
I.10 "EFFECTIVE DATE" shall mean February 10, 2000.
I.11 "ELIGIBLE EMPLOYEE" shall mean each key employee of the Employer.
I.12 "EMPLOYER" shall mean, with respect to a Participant, the Company
or any Affiliate which employs such Participant.
I.13 "EXCHANGE ACT" shall mean the Securities Exchange Act of 1934, as
amended.
I.14 "PARENT" shall mean any parent corporation of the Company within
the meaning of Section 424(e) of the Code.
I.15 "PARTICIPANT" shall mean an Eligible Employee to whom an award of
Restricted Stock has been made pursuant to this Plan.
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I.16 "PLAN" shall mean the Ogden Corporation Restricted Stock Plan.
I.17 "RESTRICTED STOCK" shall mean an award of shares of Common Stock
under the Plan that is subject to restrictions under Article V.
I.18 "RESTRICTION PERIOD" shall have the meaning set forth in
Subsection 5.3(a).
I.19 "RULE 16B-3" shall mean Rule 16b-3 under Section 16(b) of the
Exchange Act as then in effect or any successor provisions.
I.20 "SUBSIDIARY" shall mean any subsidiary of the Company as defined
in Section 424(f) of the Code.
I.21 "TERMINATION OF EMPLOYMENT" shall mean: (a) a termination of
employment (for reasons other than a military or personal leave of absence
granted by the Company or an Affiliate) of a Participant from the Company and
its Affiliates; or (b) when an entity which is employing a Participant ceases to
be an Affiliate, unless the Participant otherwise is, or thereupon becomes,
employed by the Company or another Affiliate.
I.22 "TRANSFER" or "TRANSFERRED" shall mean anticipate, alienate,
attach, sell, assign, pledge, encumber, charge or otherwise transfer.
ARTICLE II
ADMINISTRATION
II.1 THE COMMITTEE. The Plan shall be administered and interpreted by
the Committee.
II.2 AWARDS OF RESTRICTED STOCK. The Committee shall have full
authority to grant, pursuant to the terms of this Plan, awards of Restricted
Stock to Eligible Employees. In particular, the Committee shall have the
authority:
(a) to select the Eligible Employees to whom awards of
Restricted Stock may from time to time be granted hereunder;
(b) to determine whether and to what extent awards of
Restricted Stock are to be granted hereunder to one or more Eligible Employees;
(c) to determine the number of shares of Restricted Stock to
be covered by each award of Restricted Stock to an Eligible Employees; and
(d) to determine the terms and conditions, not inconsistent
with the terms of this Plan, of any award of Restricted Stock granted hereunder
to an Eligible Employee (including, but not limited to any restriction or
limitation, any vesting schedule or acceleration thereof, or any forfeiture
restrictions or waiver thereof, based on such factors, if any, as the Committee
shall determine, in its sole discretion).
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II.3 GUIDELINES. Subject to Article VIII hereof, the Committee shall
have the authority to adopt, alter and repeal such administrative rules,
guidelines and practices governing this Plan and perform all acts, including the
delegation of its administrative responsibilities, as it shall, from time to
time, deem advisable; to construe and interpret the terms and provisions of this
Plan and any award of Restricted Stock issued under this Plan (and any
agreements relating thereto); and to otherwise supervise the administration of
this Plan. The Committee may correct any defect, supply any omission or
reconcile any inconsistency in this Plan or in any agreement relating thereto in
the manner and to the extent it shall deem necessary to carry this Plan into
effect but only to the extent any such action would be permitted under the
applicable provisions of Rule 16b-3. The Committee may adopt special guidelines
and provisions for persons who are residing in, or subject to, the taxes of,
countries other than the United States to comply with applicable tax and
securities laws. To the extent applicable, this Plan is intended to comply with
the applicable requirements of Rule 16b-3 and shall be limited, construed and
interpreted in a manner so as to comply therewith.
II.4 DECISIONS FINAL. Any decision, interpretation or other action made
or taken in good faith by or at the direction of the Company, the Board or the
Committee (or any of its members) arising out of or in connection with the Plan
shall be within the absolute discretion of all and each of them, as the case may
be, and shall be final, binding and conclusive on the Company and all employees
and Participants and their respective heirs, executors, administrators,
successors and assigns.
II.5 PROCEDURES. If the Committee is appointed, the Board shall
designate one of the members of the Committee as chairman and the Committee
shall hold meetings, subject to the By-Laws of the Company, at such times and
places as it shall deem advisable. A majority of the Committee members shall
constitute a quorum. All determinations of the Committee shall be made by a
majority of its members. Any decision or determination reduced to writing and
signed by all the Committee members in accordance with the By-Laws of the
Company, shall be fully as effective as if it had been made by a vote at a
meeting duly called and held. The Committee shall keep minutes of its meetings
and shall make such rules and regulations for the conduct of its business as it
shall deem advisable.
II.6 DESIGNATION OF CONSULTANTS/LIABILITY.
(a) The Committee may designate employees of the Company and
professional advisors to assist the Committee in the administration of the Plan
and may grant authority to employees to execute agreements or other documents on
behalf of the Committee.
(b) The Company, the Board or the Committee may consult with
and employ such legal counsel, consultants and agents as it may deem desirable
for the administration of the Plan (who may be, legal counsel, a consultant or
agent of the Company) and may rely upon any opinion received from any such
counsel or consultant and any computation received from any such consultant or
agent. Expenses incurred by the Committee or Board in the engagement of any such
counsel, consultant or agent shall be paid by the Company and, if applicable, an
Affiliate. The Committee, its members and any person
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designated pursuant to paragraph (a) above shall not be liable for any action or
determination made in good faith with respect to the Plan. To the maximum extent
permitted by applicable law, no officer of the Company or an Affiliate or member
or former member of the Committee or of the Board shall be liable for any action
or determination made in good faith with respect to the Plan or any award of
Restricted Stock granted under it. To the maximum extent permitted by applicable
law and the Certificate of Incorporation and By-Laws of the Company or, if
applicable, an Affiliate, and to the extent not covered by insurance, each
officer and member or former member of the Committee or of the Board shall be
indemnified and held harmless by the Company or, if applicable, an Affiliate,
against any cost or expense (including reasonable fees of counsel reasonably
acceptable to the Company or, if applicable, an Affiliate) or liability
(including any sum paid in settlement of a claim with the approval of the
Company or, if applicable, an Affiliate), and advanced amounts necessary to pay
the foregoing at the earliest time and to the fullest extent permitted, arising
out of any act or omission to act in connection with the Plan, except to the
extent arising out of such officer's, member's or former member's own fraud or
bad faith. Such indemnification shall be in addition to any rights of
indemnification the officers, directors or members or former officers, directors
or members may have under applicable law or under the Certificate of
Incorporation or By-Laws of the Company or any Affiliate. Notwithstanding
anything else herein, this indemnification will not apply to the actions or
determinations made by an individual with regard to awards of Restricted Stock
granted to him or her under this Plan.
ARTICLE III
SHARE AND OTHER LIMITATIONS
III.1 SHARES TO BE DELIVERED. Shares to be issued under the Plan shall
be made available only from issued shares of Common Stock reacquired by the
Company and held in treasury. The aggregate number of shares of Common Stock
which may be issued under this Plan with respect to any award of Restricted
Stock shall not exceed 500,000 shares (subject to any increase or decrease
pursuant to Section 3.2). Notwithstanding the foregoing, if any shares of
Restricted Stock awarded under this Plan to a Participant are forfeited for any
reason, the number of forfeited shares of Restricted Stock shall again be
available for purposes of granting awards of Restricted Stock under the Plan.
III.2 ADJUSTMENTS UPON CERTAIN EVENTS.
(a) ADJUSTMENTS. The existence of the Plan and any award of
Restricted Stock granted hereunder shall not affect in any way the right or
power of the Board or the stockholders of the Company to make or authorize any
adjustment, recapitalization, reorganization or other change in the Company's
capital structure or its business, any merger or consolidation of the Company,
any issue of bonds, debentures, preferred or prior preference stocks ahead of or
affecting Common Stock, the dissolution or liquidation of the Company or any
Affiliate, any sale or transfer of all or part of the assets or business of the
Company and any Affiliate, or any other corporate act or proceeding.
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(b) CAPITAL STRUCTURE. In the event of (i) any such change in
the capital structure or business of the Company by reason of any stock dividend
or distribution, stock split or reverse stock split, recapitalization,
reorganization, merger, consolidation, spin-off, split-up, combination or
exchange of shares, distribution with respect to its outstanding Common Stock or
capital stock other than Common Stock, sale or transfer of all or part of its
assets or business, reclassification of its capital stock, or any similar change
affecting the Company's capital structure or business and (ii) the Committee
determines an adjustment is appropriate under the Plan, then the aggregate
number and kind of shares which thereafter may be issued under this Plan shall
be appropriately adjusted consistent with such change in such manner as the
Committee may deem equitable to prevent substantial dilution or enlargement of
the rights granted to, or available for, Participants under this Plan or as
otherwise necessary to reflect the change, and any such adjustment determined by
the Committee shall be binding and conclusive on the Company and all
Participants and employees and their respective heirs, executors,
administrators, successors and assigns.
(c) FRACTIONAL SHARES. Fractional shares resulting from
adjustment pursuant to Sections 3.2(a) or (b) shall be eliminated by rounding
down for fractions less than one-half (1/2) and rounding up for fractions equal
to or greater than one-half (1/2). No cash settlements shall be made with
respect to fractional shares eliminated by rounding.
ARTICLE IV
ELIGIBILITY
An award of Restricted Stock under this Plan may be granted only to key
employees of the Company or an Affiliate. Eligibility for the grant of an award
of Restricted Stock under this Plan and actual participation in this Plan shall
be determined by the Committee in its sole discretion.
ARTICLE V
AWARDS OF RESTRICTED STOCK
V.1 AWARDS OF RESTRICTED STOCK. Subject to Section 3.1 and this Article
V, shares of Restricted Stock may be issued to Eligible Employees under the
Plan. The Committee shall determine the eligible persons to whom, and the time
or times at which, grants of Restricted Stock will be made, the number of shares
to be awarded, the price (if any) to be paid by the recipient (subject to
Section 5.2), the time or times within which such award of Restricted Stock may
be subject to forfeiture and the rights to acceleration thereof (subject to
Section 5.3), and all other terms and conditions of the award of Restricted
Stock.
V.2 AWARDS OF RESTRICTED STOCK AND CERTIFICATES. The Eligible Employee
selected to become a Participant and to receive an award of Restricted Stock
shall not have any rights with respect to such award of Restricted Stock, unless
and until such Eligible Employee has delivered a fully executed copy of the
Restricted Stock award agreement evidencing the award of Restricted Stock to the
Company and has otherwise complied with the applicable terms and
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conditions of such award of Restricted Stock. At such time, the Eligible
Employee shall become a Participant hereunder. Restricted Stock granted under
this Article V shall also be subject to the following conditions:
(a) PURCHASE PRICE. The purchase price (if any) of Restricted
Stock shall be fixed by the Committee. The purchase price for shares of
Restricted Stock may be zero to the extent permitted by applicable law, and, to
the extent not so permitted, such purchase price may not be less than par value.
(b) AGREEMENT. Awards of Restricted Stock shall be evidenced
by an agreement entered into between the Company and the Eligible Employee. In
the event that the Eligible Employee is required to pay the purchase price for
Restricted Stock in accordance with Section 5.2(a), such agreement must be
accepted within a period of sixty (60) days (or such shorter period as the
Committee may specify at grant) after the award date by executing a Restricted
Stock award agreement and by paying the purchase price, if any.
(c) LEGEND. Each Participant receiving an award of Restricted
Stock under this Article V shall be issued a stock certificate in respect of
such shares of Restricted Stock, unless the Committee elects to use another
system, such as book entries by the transfer agent, as evidencing ownership of
an award of Restricted Stock. Such certificate shall be registered in the name
of such Participant, and shall bear an appropriate legend referring to the
terms, conditions, and restrictions applicable to such award of Restricted
Stock, substantially in the following form:
"The anticipation, alienation, attachment, sale, transfer,
assignment, pledge, encumbrance or charge of the shares of
stock represented hereby are subject to the terms and
conditions (including forfeiture) of the Ogden Corporation
(the "Company") Restricted Stock Plan and an Agreement entered
into between the registered owner and the Company dated
___________. Copies of such Plan and Agreement are on file at
the principal office of the Company."
(d) CUSTODY. If stock certificates are issued in respect of
shares of Restricted Stock, the Committee shall require that any stock
certificates evidencing such shares be held in custody by the Company until the
restrictions thereon shall have lapsed, and that, as a condition of any award of
Restricted Stock, the Participant shall have delivered a duly signed stock
power, endorsed in blank, relating to the Common Stock covered by such award of
Restricted Stock.
V.3 RESTRICTIONS AND CONDITIONS ON AWARDS OF RESTRICTED STOCK. The
shares of Restricted Stock awarded pursuant to this Plan shall be subject to
Article VI and the following restrictions and conditions:
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(a) RESTRICTION PERIOD; VESTING AND ACCELERATION OF VESTING.
The Participant shall not be permitted to Transfer shares of Restricted Stock
awarded under this Plan during the period or periods set by the Committee (the
"Restriction Period") commencing on the date of such award of Restricted Stock,
as set forth in the Restricted Stock award agreement and such agreement shall
set forth a vesting schedule and any events which would accelerate vesting of
the shares of Restricted Stock.
(b) RIGHTS AS STOCKHOLDER. Except as provided in this
subsection (b) and subsection (a) above and as otherwise determined by the
Committee, the Participant shall have, with respect to the shares of Restricted
Stock, all of the rights of a holder of shares of Common Stock of the Company
including, without limitation, the right to receive any dividends, the right to
vote such shares and, subject to and conditioned upon the vesting of shares of
Restricted Stock, the right to tender such shares. The Committee may, in its
sole discretion, determine at the time of grant that the payment of dividends
shall be deferred until, and conditioned upon, the expiration of the applicable
Restriction Period.
(c) LAPSE OF RESTRICTIONS. If and when the Restriction Period
expires without a prior forfeiture of the Restricted Stock subject to such
Restriction Period, the certificates for such shares shall be delivered to the
Participant. All legends shall be removed from said certificates at the time of
delivery to the Participant, except as otherwise required by applicable law.
V.4 TERMINATION OF EMPLOYMENT FOR RESTRICTED STOCK. Unless otherwise
determined by the Committee at grant or thereafter, upon a Participant's
Termination of Employment for any reason during the relevant Restriction Period,
all Restricted Stock subject to restriction shall be forfeited. Upon a
Participant's Termination of Employment by the Employer for Cause, all
Restricted Stock subject to restriction shall be forfeited.
ARTICLE VI
NON-TRANSFERABILITY
Shares of Restricted Stock may not be Transferred prior to the date on
which such shares are issued, or, if later, the date on which the Restriction
Period lapses. No award of Restricted Stock shall, except as otherwise
specifically provided by law or herein, be Transferable in any manner prior to
the date on which the applicable Restriction Period lapses, and any attempt to
transfer any share prior to the date on which the applicable Restriction Period
lapses shall be void, and no award of Restricted Stock shall in any manner be
liable for or subject to the debts, contracts, liabilities, engagements or torts
of any person who shall be entitled to such award, nor shall it be subject to
attachment or legal process for or against such person.
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ARTICLE VII
CHANGE IN CONTROL PROVISIONS
VII.1 BENEFITS. Upon the occurrence of a Change in Control of the
Company, except as otherwise provided by the Committee upon the grant of an
award of Restricted Stock, the restrictions to which any shares of Restricted
Stock granted to a Participant prior to the Change in Control are subject shall
lapse as if the applicable Restriction Period had ended upon such Change in
Control.
VII.2 CHANGE IN CONTROL. A "Change in Control" shall be deemed to have
occurred upon:
(a) the acquisition by any person or group (within the meaning
of Section 13(d)(3) or 14(d)(2) of the Exchange Act of beneficial ownership
(within the meaning of Rule 13d-3 under the Exchange Act) of twenty-five percent
(25%) or more of either (i) the then outstanding shares of common stock of the
Company or (ii) the combined voting power of the then outstanding voting
securities of the Company entitled to vote generally in the election of
directors, provided that the following acquisitions shall not constitute a
Change in Control: (i) any acquisition directly from the Company (excluding any
acquisition by virtue of the exercise of a conversion privilege), (ii) any
acquisition by the Company; (iii) any acquisition by any employee benefit plan
(or related trust) sponsored or maintained by the Company, or any corporation
controlled by the Company or (iv) any acquisition by any corporation pursuant to
a reorganization, merger or consolidation, if following such reorganization,
merger or consolidation the conditions described in clause (iii) of paragraph
(c) below are met.
(b) individuals who, as of the Effective Date, constitute the
Board (the "Incumbent Board") cease for any reason to constitute at least a
majority of the Board; provided, however, that any individual becoming a
director subsequent to the Effective Date, whose election, or nomination for
election by the Company stockholders, was approved by a vote of at least a
majority of the directors then comprising the Incumbent Board shall be
considered as though such individual were a member of the Incumbent Board, but
excluding, for this purpose, any such individual whose initial assumption of
office occurs as a result of an actual or threatened election contest with
respect to the election or removal of directors or other actual or threatened
solicitation of proxies or consents by or on behalf of a person other than the
Board; or
(c) the stockholders of the Company approve: (i) a plan of
complete liquidation of the Company; or (ii) an agreement for the sale or
disposition of all or substantially all the Company's assets; or (iii) a merger,
consolidation, or reorganization of the Company with or involving any other
corporation, limited liability entity or similar person, other than a merger,
consolidation, or reorganization that would result in the voting securities of
the Company outstanding immediately prior thereto continuing to represent
(either by remaining outstanding or by being converted into voting securities of
the surviving entity) at least seventy-five percent (75%) of the combined voting
power of the voting securities of the
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Company (or such surviving entity) outstanding immediately after such merger,
consolidation, or reorganization.
ARTICLE VIII
TERMINATION OR AMENDMENT OF THE PLAN
Notwithstanding any other provision of this Plan, the Board or the
Committee may at any time, and from time to time, amend, in whole or in part,
any or all of the provisions of the Plan, or suspend or terminate it entirely,
retroactively or otherwise; provided, however, that, unless otherwise required
by law or specifically provided herein, the rights of a Participant with respect
to an award of Restricted Stock granted prior to such amendment, suspension or
termination, may not be impaired without the consent of such Participant.
The Committee may amend the terms of any award of Restricted Stock
theretofore granted, prospectively or retroactively, but, subject to Article III
above or as otherwise specifically provided herein, no such amendment or other
action by the Committee shall impair the rights of any holder without the
holder's consent.
ARTICLE IX
UNFUNDED PLAN
This Plan is intended to constitute an "unfunded" plan for incentive
and deferred compensation. With respect to any payments as to which a
Participant has a fixed and vested interest but which are not yet made to a
Participant by the Company, nothing contained herein shall give any such
Participant any rights that are greater than those of a general creditor of the
Company.
ARTICLE X
GENERAL PROVISIONS
X.1 REPRESENTATION AND LEGEND. The Committee may require each person
receiving shares pursuant to an award of Restricted Stock under the Plan to
represent to and agree with the Company in writing that the Participant is
acquiring the shares without a view to distribution thereof. In addition to any
legend required by this Plan, the certificates for such shares may include any
legend which the Committee deems appropriate to reflect any restrictions on
Transfer.
All certificates for shares of Common Stock delivered under the Plan
shall be subject to such stock transfer orders and other restrictions as the
Committee may deem advisable under the rules, regulations and other requirements
of the Securities and Exchange Commission, any stock exchange upon which the
Common Stock is then listed or any national securities association system upon
whose system the Common Stock is then quoted, any applicable Federal or state
securities law, and any applicable corporate law, and the Committee may
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cause a legend or legends to be put on any such certificates to make appropriate
reference to such restrictions.
X.2 OTHER PLANS. Nothing contained in this Plan shall prevent the Board
from adopting other or additional compensation arrangements, subject to
stockholder approval if such approval is required and such arrangements may be
either generally applicable or applicable only in specific cases.
X.3 NO RIGHT TO EMPLOYMENT. Neither this Plan nor the grant of any
award of Restricted Stock hereunder shall give any Participant or other employee
any right with respect to continuance of employment by the Company or any
Affiliate, nor shall they be a limitation in any way on the right of the Company
or any Affiliate by which an employee is employed to terminate his or her
employment at any time.
X.4 WITHHOLDING OF TAXES. The Employer shall have the right to deduct
from any payment to be made to a Participant, or to otherwise require, prior to
the issuance or delivery of any shares of Common Stock or the payment of any
cash hereunder, payment by the Participant of, any federal, state or local taxes
required by law to be withheld. Upon the vesting of Restricted Stock, or upon
making an election under Code Section 83(b), a Participant shall pay all
required withholding to the Employer.
The Committee may permit any such statutory withholding obligation with
regard to any Participant to be satisfied by reducing the number of shares of
Common Stock otherwise deliverable or by delivering shares of Common Stock
already owned. Any fraction of a share of Common Stock required to satisfy such
tax obligations shall be disregarded and the amount due shall be paid instead in
cash by the Participant.
X.5 LISTING AND OTHER CONDITIONS.
(a) As long as the Common Stock is listed on a national
securities exchange or system sponsored by a national securities association,
the issue of any shares of Common Stock pursuant to an award of Restricted Stock
shall be conditioned upon such shares being listed on such exchange or system.
The Company shall have no obligation to issue such shares unless and until such
shares are so listed.
(b) If at any time counsel to the Company shall be of the
opinion that any sale or delivery of shares of Common Stock pursuant to an award
of Restricted Stock is or may in the circumstances be unlawful or result in the
imposition of excise taxes on the Company under the statutes, rules or
regulations of any applicable jurisdiction, the Company shall have no obligation
to make such sale or delivery, or to make any application or to effect or to
maintain any qualification or registration under the Securities Act of 1933, as
amended, or otherwise with respect to shares of Common Stock or awards of
Restricted Stock.
(c) Upon termination of any period of suspension under this
Section 10.5, any award of Restricted Stock affected by such suspension which
shall not then have expired
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or terminated shall be reinstated as to all shares available before such
suspension and as to shares which would otherwise have become available during
the period of such suspension.
X.6 GOVERNING LAW. This Plan shall be governed and construed in
accordance with the laws of the State of Delaware (regardless of the law that
might otherwise govern under applicable Delaware principles of conflict of
laws).
X.7 CONSTRUCTION. Wherever any words are used in this Plan in the
masculine gender they shall be construed as though they were also used in the
feminine gender in all cases where they would so apply, and wherever any words
are used herein in the singular form they shall be construed as though they were
also used in the plural form in all cases where they would so apply.
X.8 OTHER BENEFITS. No award of Restricted Stock payment under this
Plan shall be deemed compensation for purposes of computing benefits under any
retirement plan of the Company or any Affiliate nor affect any benefits under
any other benefit plan now or subsequently in effect under which the
availability or amount of benefits is related to the level of compensation.
X.9 COSTS. The Company shall bear all expenses included in
administering this Plan, including expenses of issuing Common Stock pursuant to
any award of Restricted Stock hereunder.
X.10 NO RIGHT TO SAME BENEFITS. The provisions of an award of
Restricted Stock need not be the same with respect to each Participant, and such
awards of Restricted Stock to individual Participants need not be the same in
subsequent years.
X.11 SECTION 16(b) OF THE EXCHANGE ACT. All transactions under the Plan
by persons subject to Section 16 of the Exchange Act involving shares of Common
Stock, including, without limitation, the grant of Restricted Stock and any
withholding of shares of Common Stock by the Employer in order to satisfy
required withholding, are intended to comply with all exemptive conditions under
Rule 16b-3. The Committee may establish and adopt written administrative
guidelines, designed to facilitate compliance with Section 16(b) of the Exchange
Act, as it may deem necessary or proper for the administration and operation of
the Plan and the transaction of business thereunder.
X.12 SEVERABILITY OF PROVISIONS. If any provision of the Plan shall be
held invalid or unenforceable, such invalidity or unenforceability shall not
affect any other provisions hereof, and the Plan shall be construed and enforced
as if such provisions had not been included.
X.13 HEADINGS AND CAPTIONS. The headings and captions herein are
provided for reference and convenience only, shall not be considered part of the
Plan, and shall not be employed in the construction of the Plan.
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ARTICLE XI
TERM OF PLAN
No award of Restricted Stock shall be granted pursuant to the Plan on
or after the tenth anniversary of the Effective Date Plan, but awards of
Restricted Stock granted prior to such tenth anniversary may extend beyond that
date.
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EXHIBIT 10.3(e)(i)
RESTRICTED STOCK AGREEMENT
THIS AGREEMENT, made as of the ____ day of ________, 2000, by
and between Ogden Corporation, a Delaware corporation with its principal office
at Two Pennsylvania Plaza, New York, NY 10121 (the "Company"), and ___________,
residing at _______________________ (the "Participant").
WHEREAS, the Compensation Committee of the Board of Directors
of the Company (the "Committee") adopted the Ogden Corporation Restricted Stock
Plan as of February 10, 2000 (the "Plan"); and
WHEREAS, the Committee has determined that the Participant
receive an award of Restricted Stock under the Plan on __________, 2000 (the
"Grant Date").
NOW, THEREFORE, the Company and the Participant agree as
follows:
1. GRANT OF SHARES.
Subject to the restrictions, terms and conditions of the Plan
and this Agreement, the Company hereby awards to the Participant _______________
(______) shares of the validly issued common stock of the Company, $.50 par
value per share (the "Shares"). To the extent required by law, the Participant
shall pay the Company the par value ($.50) for each Share awarded to the
Participant simultaneously with the execution of this Agreement. Pursuant to
Section 3 hereof, the Shares are subject to certain restrictions, which
restrictions shall expire in accordance with the provisions of Section 2 hereof.
While such restrictions are in effect, the Shares subject to such restrictions
shall be referred to herein as "Restricted Stock." Shares of common stock to be
issued pursuant to this Agreement shall be made available only from issued
shares of Common Stock reacquired by the Company and held in treasury.
2. VESTING. The Restricted Stock shall become vested and cease
to be Restricted Stock (but shall remain subject to the other terms of this
Agreement) as follows if the Participant has been continuously employed by the
Company or an Affiliate until such date:
Vesting Date Percentage of
Shares Vested
1st Anniversary of Grant
Date 50%
2nd Anniversary of Grant
Date 50%
There shall be no proportionate or partial vesting in the
periods prior to the applicable vesting dates and all vesting shall occur only
on the appropriate vesting date.
In addition, all shares shall become immediately vested and
cease to be Restricted Stock upon the earlier of the following to occur: (i) the
occurrence of a Change in Control; or (ii) the Participant's attainment of (a)
age 55 and completion of 15 years of service with the Company or any Affiliate
or (b) age 65.
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3. RESTRICTIONS ON TRANSFER. The Participant shall not sell,
negotiate, transfer, pledge, hypothecate, assign or otherwise dispose of the
Shares, except as set forth in the Plan or this Agreement. Any attempted sale,
negotiation, transfer, pledge, hypothecation, assignment or other disposition of
the Shares in violation of the Plan or this Agreement shall be void and of no
effect and the Company shall have the right to disregard the same on its books
and records and to issue "stop transfer" instructions to its transfer agent.
4. FORFEITURE. If the Participant's employment with the
Company or any Affiliate is terminated for any reason (other than a Termination
of Employment without Cause), including, without limitation, for disability or
for Cause during the relevant Restriction Period, the Participant shall forfeit
to the Company, without compensation other than repayment of any par value paid
for such shares of Restricted Stock, any and all unvested Restricted Stock.
5. RIGHTS AS A HOLDER OF RESTRICTED STOCK. From and after the
Grant Date, the Participant shall have the right to vote the Restricted Stock,
to receive and retain all regular cash dividends payable to holders of Shares of
record on and after the Grant Date (although such dividends will be treated, to
the extent required by applicable law, as additional compensation for tax
purposes), and to exercise all other rights, powers and privileges of a holder
of Shares with respect to the Restricted Stock, with the exceptions that (i) the
Participant shall not be entitled to delivery of the stock certificate or
certificates representing the Restricted Stock until the Restriction Period has
expired; (ii) the Company (or its designated agent) will retain custody of the
stock certificate or certificates representing the Restricted Stock and any
other property ("RS Property") issued in respect of the Restricted Stock,
including stock dividends during the Restriction Period; (iii) no RS Property
will bear interest or be segregated in separate accounts during the Restriction
Period; and (iv) the Participant shall not transfer the Restricted Stock during
the Restriction Period.
6. ADJUSTMENTS. In the event of (i) any stock dividend or
distribution, stock split or reverse stock split, recapitalization,
reorganization, merger, consolidation, spin-off, split-up, combination or
exchange of shares, distribution with respect to its outstanding Common Stock or
capital stock other than Common Stock, sale or transfer of all or part of its
assets or business, reclassification of its capital stock, or any similar change
affecting the Company's capital structure or business and (ii) the Committee
determines an adjustment is appropriate under the Plan, then the aggregate
number and kind of shares of Restricted Stock under this Agreement shall be
appropriately adjusted consistent with such change in such manner as the
Committee may deem equitable to prevent substantial dilution or enlargement of
the rights granted to, or available for, Participant under the Plan. Any such
adjustment determined by the Committee shall be binding and conclusive on the
Company and all Participants and employees and their respective heirs,
executors, administrators, successors and assigns.
7. TAXES; SECTION 83(b) ELECTION. The Participant
acknowledges, subject to the last sentence of this paragraph, that: (i) no later
than the date on which any Restricted Stock shall have become vested, the
Participant shall pay to the Employer, or make arrangements satisfactory to the
Employer regarding payment of, any Federal, state or local taxes of any kind
required by law to be withheld with respect to any Restricted Stock which shall
have become so vested; (ii) the Employer shall, to the extent permitted by law,
have the right to deduct from any payment of any kind otherwise due to the
Participant any Federal, state or local taxes of any kind required by law to be
withheld with respect to any Restricted Stock which shall have become so vested,
including that the Employer may, but shall not be required to, sell a number of
Shares sufficient to cover applicable withholding taxes; and (iii) in the event
that the Participant does not satisfy (i) above on a timely basis, the Employer
may, but shall not be required to, pay such required withholding and treat such
amount as a demand loan to you at the maximum rate permitted by law, with such
loan, at the Employer's sole discretion and provided the Employer so notifies
the
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Participant within 30 days of the making of the loan, secured by the Shares and
any failure by you to pay the loan upon demand shall entitle the Employer to all
of the rights at law of a creditor secured by the Shares. The Employer may hold
as security any certificates representing any Shares and, upon demand of the
Employer, the Participant shall deliver to the Employer any certificates in his
or her possession representing Shares together with a stock power duly endorsed
in blank. The Participant also acknowledges that it is his or her sole
responsibility, and not the Employer's to file timely and properly any election
under Section 83(b) of the Internal Revenue Code and any corresponding
provisions of state or local tax laws, if you wish to utilize such election.
8. LEGEND. In the event that a certificate evidencing
Restricted Stock is issued, the certificate representing the Shares shall have
endorsed thereon the following legends:
(a) "THE ANTICIPATION, ALIENATION, ATTACHMENT, SALE,
TRANSFER, ASSIGNMENT, PLEDGE, ENCUMBRANCE OR CHARGE OF THE SHARES OF STOCK
REPRESENTED HEREBY ARE SUBJECT TO THE TERMS AND CONDITIONS (INCLUDING
FORFEITURE) OF THE OGDEN CORPORATION (THE "COMPANY") RESTRICTED STOCK PLAN AND
AN AGREEMENT ENTERED INTO BETWEEN THE REGISTERED OWNER AND THE COMPANY DATED AS
OF THE ___ DAY OF ________, ____. COPIES OF SUCH PLAN AND AGREEMENT ARE ON FILE
AT THE PRINCIPAL OFFICE OF THE COMPANY."
(b) Any legend required to be placed thereon by
applicable blue sky laws or other law of any state or securities law.
Notwithstanding the foregoing, in no event shall the Company
be obligated to issue a certificate representing the Restricted Stock prior to
vesting as set forth in Section 2 hereof.
9. SECURITIES REPRESENTATIONS. The Shares are being issued to
the Participant and this Agreement is being made by the Company in reliance upon
the following express representations and warranties of the Participant.
The Participant acknowledges, represents and warrants that:
(a) the Shares are being acquired for your own
account and not with a view to, or for sale with, the distribution thereof, nor
with any present intention of distributing or selling any such Shares;
(b) the Participant has been advised that he or she
may be an "affiliate" within the meaning of Rule 144 under the Securities Act of
1933 (the "Act") and in this connection the Company is relying in part on the
Participant's representations set forth in this Section 9;
(c) if the Participant is deemed an affiliate within
the meaning of Rule 144 of the Act, the Shares must be held indefinitely by the
Participant unless an exemption from any applicable resale restrictions is
available or the Company files an additional registration statement (or a
"re-offer prospectus") with regard to such Shares and the Company is under no
obligation to continue in effect a Form S-8 Registration Statement or to
otherwise register the Shares (or to file a "re-offer prospectus");
(d) if the Participant is deemed an affiliate within
the meaning of Rule 144 of the Act, the Participant understands that the
exemption from registration under Rule 144 will not be available under current
law unless (i) a public trading market then exists for the Shares of the
Company, (ii) adequate information concerning the Company is then available to
the public, and (iii) other terms and
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conditions of Rule 144 or any exemption therefrom are complied with and that any
sale of the Shares may be made only in limited amounts in accordance with such
terms and conditions.
10. NOT AN EMPLOYMENT AGREEMENT. Neither the execution of this
Agreement nor the issuance of the Shares hereunder constitute an agreement by
the Employer to employ or to continue to employ the Participant during the
entire, or any portion of, the term of this Agreement, including but not limited
to any period during which any Restricted Stock is outstanding.
11. POWER OF ATTORNEY. The Company, its successors and
assigns, is hereby appointed the attorney-in-fact, with full power of
substitution, of the Participant for the purpose of carrying out the provisions
of this Agreement and taking any action and executing any instruments which such
attorney-in-fact may deem necessary or advisable to accomplish the purposes
hereof, which appointment as attorney-in-fact is irrevocable and coupled with an
interest. The Company, as attorney-in-fact for the Participant, may in the name
and stead of the Participant, make and execute all conveyances, assignments and
transfers of the Restricted Stock, other RS Property, Shares and property
provided for herein, and the Participant hereby ratifies and confirms all that
the Company, as said attorney-in-fact, shall do by virtue hereof. Nevertheless,
the Participant shall, if so requested by the Company, execute and deliver to
the Company all such instruments as may, in the judgment of the Company, be
advisable for this purpose.
12. UNCERTIFICATED SHARES. Notwithstanding anything else
herein, the Committee may, in its sole and absolute discretion and in accordance
with Section 158 of the Delaware General Corporation Law, subject to the terms
of the Plan, issue the Shares in the form of uncertificated shares. Such
uncertificated shares of Restricted Stock shall be credited to a book entry
account maintained by the Company (or its designee) on behalf of the
Participant. If thereafter certificates are issued with respect to such
uncertificated shares of Restricted Stock, such issuance and delivery of
certificates shall be in accordance with the applicable terms of this Agreement.
13. MISCELLANEOUS.
13.1 This Agreement shall inure to the benefit of and
be binding upon the parties hereto and their respective heirs, personal legal
representatives, successors, trustees, administrators, distributees, devisees
and legatees. The Company may assign to, and require, any successor (whether
direct or indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the business and/or assets of the Company or any Affiliate
by which you the Participant is employed to expressly assume and agree in
writing to perform this Agreement. Notwithstanding the foregoing, the
Participant may not assign this Agreement.
13.2 This award of Restricted Stock shall not affect
in any way the right or power of the Board of Directors or stockholders of the
Company to make or authorize any adjustment, recapitalization, reorganization or
other change in the Company's capital structure or its business, any merger or
consolidation of the Company, any issue of bonds, debentures, preferred or prior
preference stocks ahead of or affecting the Common Stock, the dissolution or
liquidation of the Company or any Affiliate, any sale or transfer of all or part
of its assets or business of the Company and any Affiliate and any other
corporate act or proceeding.
13.3 The Participant agrees that the award of the
Restricted Stock hereunder is special incentive compensation and that it, any
dividends paid thereon (even if treated as compensation for tax purposes) and
any other RS Property will not be taken into account as "salary" or
"compensation" or "bonus" in determining the amount of any payment under any
pension, retirement or profit-sharing plan of the Company or any life insurance,
disability or other benefit plan of the Company.
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13.4 No modification or waiver of any of the
provisions of this Agreement shall be effective unless in writing and signed by
the party against whom it is sought to be enforced.
13.5 This Agreement may be executed in one or more
counterparts, all of which taken together shall constitute one contract.
13.6 The failure of any party hereto at any time to
require performance by another party of any provision of this Agreement shall
not affect the right of such party to require performance of that provision, and
any waiver by any party of any breach of any provision of this Agreement shall
not be construed as a waiver of any continuing or succeeding breach of such
provision, a waiver of the provision itself, or a waiver of any right under this
Agreement.
13.7 The headings of the sections of this Agreement
have been inserted for convenience of reference only and shall in no way
restrict or modify any of the terms or provisions hereof.
13.8 The Company shall pay all fees and expenses
necessarily incurred by the Company in connection with the Plan and this
Agreement and will from time to time use its reasonable efforts to comply with
all laws and regulations which, in the opinion of counsel to the Company, are
applicable thereto.
13.9 All notices, consents, requests, approvals,
instructions and other communications provided for herein shall be in writing
and validly given or made when delivered, or on the second succeeding business
day after being mailed by registered or certified mail, whichever is earlier, to
the persons entitled or required to receive the same, at the addresses set forth
at the heading of this Agreement or to such other address as either party may
designate by like notice. Notices to the Company shall be addressed to the
Corporate Secretary.
13.10 This Agreement and the award hereunder is
subject to all the restrictions, terms and provisions of the Plan which are
incorporated herein by reference. In the event of an inconsistency between any
provision of the Plan and this Agreement, unless otherwise indicated, the terms
of the Plan shall control. The capitalized terms in this Agreement that are not
otherwise defined shall have the same meaning as set forth in the Plan.
13.11 By executing this Agreement and by paying the
price (if any) required hereunder within 60 days after the day and year first
above written, the award of Restricted Stock shall be accepted by the
Participant.
13.12 This Agreement shall be construed, interpreted
and governed and the legal relationships of the parties determined in accordance
with the internal laws of the State of Delaware without reference to rules
relating to conflicts of law.
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed as of the day and year first above written.
OGDEN CORPORATION
By_________________________________
(Title)
-----------------------------------
(Participant)
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ACKNOWLEDGMENT
STATE OF DELAWARE )
ss.:
COUNTY OF ___________ )
On this ____ day of ____, 2000 before me personally appeared
_____________ to me known to be the person described in and who executed the
foregoing agreement, and acknowledged that he or she executed the same as his or
her free act and deed.
-----------------------------------
Notary Public