1
EXHIBIT 10.29
73
2
FIRST FINANCIAL MANAGEMENT CORPORATION
RESTRICTED STOCK AWARD AGREEMENT
This is an Agreement dated as of March 22, 1994, between First Financial
Management Corporation ("FFMC") and Patrick H. Thomas (the "Participant").
BACKGROUND:
The Participant is currently serving as Chairman of the Board, President and
Chief Executive Officer of FFMC. FFMC currently has in effect the First
Financial Management Corporation 1988 Incentive Stock Plan (the "Plan") which
provides for the grant of Restricted Stock Awards of shares of Common Stock,
$.10 par value, of FFMC (the "Common Stock") subject to certain restrictions as
an incentive for valued employees of FFMC and its subsidiaries. FFMC desires
to grant a Restricted Stock Award to the Participant as additional compensation
pursuant to his Employment Agreement dated as of March 22, 1994 (the
"Employment Agreement") and as an inducement to the continuation by the
Participant of his services to FFMC in the future.
AGREEMENT:
Pursuant to the Plan the parties hereto do hereby agree as follows:
1. FFMC hereby grants to the Participant a Restricted Stock Award of Four
Hundred Seventy-Two Thousand Five Hundred (472,500) shares of Common
Stock (the "Shares") subject to the terms of the Plan and this
Agreement.
2. The Shares are subject to the following restrictions:
a. No Shares may be sold, assigned, transferred,
exchanged, pledged, hypothecated, or otherwise
encumbered by the Participant, until such restrictions
have expired with respect to such Shares as provided
in paragraphs 3, 4 and 5.
b. If at any time the Participant's employment by FFMC
terminates prior to expiration of these restrictions
pursuant to paragraph 3 or 4 as to any Shares for any
reason which does not cause these restrictions to
expire as provided in paragraph 4, such Shares shall
immediately be forfeited to FFMC, and the Participant
shall have no further rights with respect thereto.
74
3
c. All dividends payable by FFMC on Shares subject to this award
shall be held by FFMC and paid to the Participant at such time
as the restrictions on such Shares expire.
3. Subject to the provisions of paragraph 5, the restrictions contained in
paragraph 2 shall expire on December 31, 1999 as to any shares earned
by the Participant for any of the years 1995 through 1999 determined as
follows:
a. Not more than 94,500 Shares shall be earned for any year.
b. The number of shares earned for any year shall be equal to
2.5% of FFMC's Pretax Income for such year divided by the Fair
Market Value of FFMC Common Stock. The Fair Market Value of
FFMC Common Stock shall be the average closing price for FFMC
Common Stock on the New York Stock Exchange for the last 10
business days of the calendar year.
c. A number of shares equal to the difference between 94,500 and
the number of shares which are earned for any year shall be
forfeited to FFMC as of the end of such year.
d. For purposes of this Agreement, Pretax Income shall be FFMC's
income before deduction or provision for income taxes for the
applicable calendar year computed by FFMC in accordance with
generally accepted accounting principles consistently applied
utilizing FFMC's methods of accounting in effect as of the
date of this Agreement, with the following qualifications or
adjustments:
(i) all gain or loss on the sale of business units or
subsidiaries by FFMC shall be excluded;
(ii) all restructuring charges incurred by FFMC shall
be excluded;
(iii) all costs incurred in connection with
pooling-of-interest combinations entered into by FFMC shall be
excluded;
(iv) all writedowns of goodwill or intangible assets
shall be excluded;
(v) all expenses incurred in connection with the
grant of restricted stock awards to the Participant or the
payment of any incentive bonus to the Participant shall be
excluded; and
(vi) pretax income (loss) from the operations of a
discontinued operation prior to the sale of such discontinued
operation shall be included.
Any disputes about the computation of Pretax Income will be resolved by
an independent accounting firm satisfactory to FFMC and the Participant.
75
4
4. Subject to the provisions of paragraph 5, the restrictions contained
in paragraph 2 with respect to any Shares that have not been previously
forfeited as provided herein shall expire on the earliest to occur of
any of the following:
a. Upon termination of the Participant's employment by FFMC by
reason of death or disability, or
b. The acquisition (other than from FFMC) by any person, entity
or "group," within the meaning of Section 13(d)(3) or 14(d)(2)
of the Exchange Act (excluding, for this purpose, any employee
benefit plan of FFMC or its subsidiaries which acquires
beneficial ownership of voting securities of FFMC) of
beneficial ownership (within the meaning of Rule 13d-3
promulgated under the Exchange Act) of 25% or more of either
the then outstanding shares of FFMC Common Stock or the
combined voting power of FFMC's then outstanding voting
securities entitled to vote generally in the election of
directors, or
c. The failure for any reason of individuals who constitute the
Incumbent Board to continue to constitute at least a majority
of the Board of Directors of FFMC, or
d. Approval by the stockholders of FFMC of a reorganization,
merger or consolidation, in each case, with respect to which
the shares of FFMC voting stock outstanding immediately prior
to such reorganization, merger or consolidation do not
constitute or become exchanged for or converted into more than
50% of the combined voting power entitled to vote generally in
the election of directors of the reorganized, merged or
consolidated company's then outstanding voting securities, or
a liquidation or dissolution of FFMC or of the sale of all or
substantially all of the assets of FFMC, or
e. Termination of Participant's employment under the Employment
Agreement as described in Section 5(b)(i) or (ii) of the
Employment Agreement; provided, however, that in the event of
such termination, the restrictions contained in paragraph 2
shall expire only with respect to the Shares which have been
earned, as determined pursuant to paragraph 3b, on or before
the date of such termination, or
f. Receipt by the Participant of written notice from the
Compensation Committee of the Board of Directors of FFMC (the
"Compensation Committee") that the restrictions have been
terminated.
For purposes of the Agreement, the "Incumbent Board" at any time shall
mean the persons who are then members of the Board of Directors of FFMC
and who (a) are members of the Board of Directors of FFMC as of the
date hereof, or (b) become members of the Board of Directors of FFMC
hereafter upon election, or nomination for election by FFMC's
shareholders, by a vote of at least a majority of the Incumbent Board
(other than an election or nomination of an individual whose initial
assumption of office
76
5
is in connection with an actual or threatened election contest relating
to the elections of the directors of FFMC, as such terms are used in
Rule 14(a)-11 of Regulation 14A promulgated under the Exchange Act).
5. Notwithstanding any other provision in this Agreement, the restrictions
contained in paragraph 2 with respect to any Shares shall not lapse
until such time as the Compensation Committee of FFMC has certified in
writing that all applicable requirements for expiration of the
restrictions with respect to such Shares, including the performance
criteria established pursuant to paragraph 3, have been satisfied. The
Compensation Committee shall not unreasonably withhold any such
certification.
6. For purposes of this Agreement, the Participant's employment by FFMC
shall be deemed to terminate at any time when he is no longer employed
by FFMC, a subsidiary of FFMC or any corporation or other entity which
owns 50% or more of the outstanding common stock of FFMC.
7. The Compensation Committee hereby consents to any Stock Surrender
Withholding Election (as defined in the Plan) hereafter made by the
Participant in accordance with the requirements of Section 9 of the
Plan, subject to the limitation contained in paragraph 8. At the
election of the Participant, "federal, state and local withholding tax
requirements" (as defined in Section 9 of the Plan) shall be deemed to
be any amount designated by the Participant which does not exceed his
estimated federal, state and local tax obligations associated with the
expiration of the restrictions on and the delivery of any Shares,
including FICA taxes to the extent applicable.
8. The Participant shall be entitled to satisfy estimated tax liabilities
in excess of actual federal, state and local withholding requirements
pursuant to a Stock Surrender Withholding Election only by the
surrender of Shares of FFMC Common Stock held by the Participant for at
least six months prior to delivery to FFMC.
9. The Participant agrees that a legend reflecting the restrictions
contained in this Agreement shall be placed on any certificate for
shares of FFMC stock subject to such restrictions.
77
6
10. All certificates issued for the Shares shall be held by the Secretary
of FFMC so long as the restrictions set forth in paragraph 2 have not
expired. Upon the expiration of such restrictions, the certificates
shall be delivered to the Participant. If this Agreement requires
forfeiture of the Shares to FFMC, the Secretary shall take appropriate
action to cancel the certificates and restore the Shares to authorized
but unissued shares of Common Stock.
11. Any shares of FFMC Common Stock or other securities of FFMC or any
other entity which are issued as a distribution on, or in exchange for,
the Shares or into which the Shares are converted as a result of a
recapitalization, stock dividend, distribution of securities, stock
split or combination of shares or a merger, consolidation of sale of
substantially all of the assets of FFMC shall be subject to the
restrictions set forth herein, which shall inure to the benefit of any
surviving or successor corporation which is the issuer of such
securities, unless such restrictions have expired in accordance with
the terms of this Agreement.
12. The Participant agrees not to file an election under Section 83(b) of
the Internal Revenue Code of 1986 with respect to the Shares.
13. This Agreement shall bind and inure to the benefit of the parties,
their heirs, personal representatives, successors in interest and
assigns.
Executed as of the day and year first above written.
FIRST FINANCIAL MANAGEMENT CORPORATION
By: /s/ Robert E. Coleman
-------------------------------------
Robert E. Coleman
Chairman of the Compensation Committee
PARTICIPANT
/s/ Patrick H. Thomas
---------------------
Patrick H. Thomas
78