EXHIBIT 10.34
ALLMERICA FINANCIAL CORPORATION
RESTRICTED STOCK AGREEMENT
This Restricted Stock Agreement (the "Agreement") is made as of this 26th
day of May, 1998, by and between ALLMERICA FINANCIAL CORPORATION, a Delaware
corporation (the "Company"), and Robert P. Restrepo, Jr. ("the Participant").
P R E A M B L E
WHEREAS, pursuant to the terms of the Allmerica Financial Corporation Long
Term Stock Incentive Plan (the "Plan"), the Committee (as defined in the Plan)
has agreed to give to the Participant subject to the terms and conditions of the
Plan and this Agreement, 6,000 shares of the Company's common stock (the
"Shares");
WHEREAS, the Shares will be subject to certain restrictions on sale and
transfer and other terms and conditions as set forth in this Agreement; and
WHEREAS, the Shares are subject to the terms of a certain Deferral
Agreement between the Company and the Participant dated May 26, 1998 (the
"Deferral Agreement").
NOW, THEREFORE, for and in consideration of the foregoing and the mutual
covenants and promises hereinafter set forth, and for other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the
parties hereto agree as follows:
1. Transfer of Stock. Subject to and in accordance with the terms of the
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Deferral Agreement, the Company will transfer to Participant a certificate
representing the Shares.
2. Vesting and Company's Right to a Return of the Shares.
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(a) Vesting. The Shares shall be one hundred (100%) percent vested on
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the date the Participant has completed three (3) additional years of active
service with the Company or one of its subsidiaries or affiliates (the Company
and its subsidiaries and affiliates hereinafter referred to as "Allmerica").
The three (3) years of additional active service will commence on the date of
this Agreement and be determined pursuant to the terms of this Agreement.
(b) Termination. Upon the termination of Participant's employment
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with Allmerica for whatever reason, whether with or without cause, for good
reason or otherwise, any non-vested Shares shall be returned to the Company for
no consideration.
(c) Retirement. In the event that the Participant retires prior to
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the Shares becoming vested, the Company shall be entitled to have the non-vested
Shares shall be returned to the Company for no consideration. Retirement for
purposes of this Agreement shall have the same meaning as it does in the Plan.
However, the pro rata vesting provision in the event of retirement or early
retirement as set forth in Section 7(d) of the Plan shall not be applicable.
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(d) Disability. In the event Participant is placed in a long term
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disability status (as such term is defined in the Plan) then any time during
which Participant is in such status shall not be counted in determining whether
Participant has provided the required amount of active service for purpose of
vesting of the Shares. In addition, if the Participant's employment
relationship with Allmerica is terminated due to disability, the Participant
shall return to the Company, for no consideration, any non-vested Shares.
(e) Death. In the event Participant dies prior to the Shares becoming
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Fully Vested, the Company's right to have the Shares returned to the Company for
no consideration shall lapse. Thus, notwithstanding any provisions to the
contrary in this Agreement, in the event of Participant's death, the Shares
shall become Fully Vested.
(f) The sale of any portion of the Shares. In the event Participant
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sells, transfers or encumbers all or any portion of the non-vested Shares, the
non-vested Shares shall be returned to the Company for no consideration. The
Participant agrees to inform the Company in the event the non-vested Shares, or
any portion thereof, are sold, transferred or encumbered.
3. Proof of Ownership. Annually the Participant shall deliver to the
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Company proof that the Participant has not sold, transferred or encumbered at
the end of each anniversary of the date Participant received the Shares from the
Company evidence that Participant owns directly and without any liens or
encumbrances the non-vested Shares. This requirement to deliver proof of
ownership of the non-vested Shares shall continue until the Shares are Fully
Vested. If Participant fails to deliver proof that he still owns in his own
account the non-vested Shares, then the Company shall, at its option, be
entitled to have the non-vested Shares returned to the Company for no
consideration. The Company shall have this right in the event Participant fails
to deliver within thirty (30) days of the respective anniversary evidence that
Participant still owns the non-vested Shares. Evidence of ownership of the non-
vested Shares shall be fulfilled by delivering to the Company a certification in
the form of Exhibit A attached hereto.
As long as the Deferral Agreement is in effect, the Participant does not need to
deliver Exhibit A to the Company.
4. Shares Received in Certain Corporate Transactions. The terms of this
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Agreement shall apply to any stock or securities received by Participant in
exchange for the Shares pursuant to a plan of merger, consolidation,
recapitalization or reorganization of the Company. The terms of this Agreement
shall also apply to any security received as a result of a stock split or stock
dividend with respect to the Shares and such securities shall become Shares
pursuant to the terms of this Agreement.
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5. Stock Legend. The Company and Participant agree that all certificates
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delivered to the Participant representing the Shares that at any time are
subject to the provisions of this Agreement will have endorsed upon them in
bold-faced type a legend in substantially the following form:
RESTRICTIONS ON THE OWNERSHIP RIGHTS OF THE STOCK REPRESENTED BY THIS
CERTIFICATE HAVE BEEN IMPOSED PURSUANT TO A RESTRICTED STOCK AGREEMENT
DATED MAY 26, 1998. A COPY OF THE RESTRICTED STOCK AGREEMENT IS ON FILE AT
THE PRINCIPAL OFFICE OF THE COMPANY AND WILL BE FURNISHED WITHOUT CHARGE TO
THE HOLDER OF THIS CERTIFICATE UPON RECEIPT BY THE COMPANY AT ITS PRINCIPAL
PLACE OF BUSINESS OF A WRITTEN REQUEST FROM THE HOLDER REQUESTING SUCH
COPY.
The Company and the Participant agree that as long as the Deferral
Agreement is in effect, the Participant will not receive a certificate
representing the Shares.
6. Notices. Any notice required to be given hereunder will be deemed to
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be duly given on the date of delivery if delivered in person or on the date of
mailing if mailed by registered or certified mail, postage prepaid, return
receipt requested, to the party or parties that are to receive such notice at
the addresses indicated on the signature page of this Agreement. The address of
Participant or the Company may be changed only by giving written notice to the
other party of such change of address.
7. Taxes. To the extent the lapse of restrictions results in the receipt
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of compensation by Participant for tax purposes, the Company shall withhold from
any cash compensation then or thereafter payable to Participant any tax required
to be withheld by reason thereof. To the extent the Company determines that
such cash compensation is or may be insufficient to fully satisfy such
withholding requirement, Participant shall deliver to the Company cash in an
amount determined by the Company to be sufficient to satisfy any such
withholding requirement. The Company will not deliver to the Participant an
unrestricted certificate for any Shares until the Participant delivers to the
Company cash sufficient to satisfy all withholding requirements imposed on the
Company or a subsidiary of the Company. Notwithstanding the foregoing with the
consent of the Company, the Participant may sell fully vested Shares in an
amount necessary to satisfy the Participant's withholding requirement provided
the proceeds from such sale are delivered directly to the Company to satisfy
Participant's withholding requirements. If Participant makes the election
authorized by (S)83(b) of the Internal Revenue Code of 1986, as amended,
Participant shall submit to the Company a copy of the statement filed by
Participant to make such election and, if necessary, deliver to the Company cash
in an amount determined by the Company to be due to satisfy any withholding
requirements as a result of the (S)83(b) election.
8. Stock Power and Retention of Certificates. The Company may require
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Participant to execute and deliver to the Company a stock power in blank with
respect to the non-vested Shares and may, in its sole discretion, determine to
retain possession of or escrow the certificate for the non-vested Shares. The
Company shall have the right, in its sole discretion, to exercise such stock
power
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in the event that the Company becomes entitled to the non-vested Shares pursuant
to the terms of this Agreement. Notwithstanding retention of such certificates
by the Company, Participant shall have all rights (including dividend and voting
rights) with respect to the non-vested Shares represented by such certificates.
9. Entire Agreement; Counterparts. This Agreement contains the entire
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understanding between the parties concerning the subject contained in this
Agreement. Except for the Agreement, there are no representations, agreements,
arrangements, or understandings, oral or written, between or among the parties
hereto, relating to the subject matter of this Agreement, that are not fully
expressed herein. This Agreement may be signed in one or more counterparts, all
of which shall be considered one and the same agreement.
10. Further Assurances. Each party to this Agreement agrees to perform
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all further acts and to execute and deliver all further documents as may be
reasonably necessary to carry out the intent of this Agreement. The Participant
must deliver to the Company a letter certifying the source of Participant's
income (the "Side Letter") prior to receipt of the Shares. Failure to adhere to
the terms of the Side Letter may affect Participant's right to freely sell fully
vested Shares.
11. Severability. In the event that any of the provisions, or portions
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thereof, of this Agreement are held to be unenforceable or invalid by any court
of competent jurisdiction, the validity and enforceability of the remaining
provisions, or portions thereof, will not be affected, and such unenforceable
provisions shall be automatically replaced by a provision as similar in terms as
may be valid and enforceable.
12. Construction. Whenever used in this Agreement, the singular number
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will include the plural, and the plural number will include the singular, and
the masculine or neuter gender shall include the masculine, feminine, or neuter
gender. The headings of the Sections of this Agreement have been inserted for
purposes of convenience and shall not be used for interpretive purposes.
13. Governing Law. This Agreement shall be governed by and construed in
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accordance with the laws of the State of Delaware.
14. Successors. The provisions of this Agreement will benefit and will be
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binding upon the assigns, successors in interest, personal representatives,
estates, heirs and legatees of each of the parties hereto.
15. Specific Performance. Each of the parties hereto acknowledges and
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agrees that in the event of any breach of this Agreement, the nonbreaching
parties would be irreparably harmed and could not be made whole by monetary
damages. Each of the parties hereto accordingly agrees to waive the defense in
any action for injunction or specific performance that a remedy at law would
be adequate and that the parties hereto, in addition to any other remedy to
which they may be entitled at law or in equity, shall be entitled to an
injunction or to compel specific performance of this Agreement.
16. Amendment. This Agreement may only be amended by the written consent
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of all of
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the parties to this Agreement at the time of such amendment.
17. Facsimile Signature. The Company may execute this Agreement by means
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of a facsimile signature.
IN WITNESS WHEREOF, the parties hereto have entered into this Agreement as
of the date first above written.
ADDRESS: ALLMERICA FINANCIAL CORPORATION
440 Lincoln Street By:
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Worcester, MA 01653 Name: Bruce C. Anderson
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Title: Vice President
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ADDRESS:
6 Kenmore Road
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Bloomfield CT 06002 Participant Robert P. Restrepo, Jr.
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Exhibit A
CERTIFICATION
I, Robert P. Restrepo, Jr., hereby certify to Allmerica Financial Corporation
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(the "Company") that the non-vested Shares (as that term is defined in the
certain Restricted Stock Agreement between the Company and the undersigned dated
May 26, 1998) are still owned directly by me and that during the period
following my acquisition of the Shares I have not transferred or encumbered in
any manner the non-vested Shares, and that such Shares as of the date of this
Certification are owned directly by me without any encumbrances of any kind.
This Certification is given under the penalties of perjury.
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Participant: Robert P. Restrepo, Jr.
Date:
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