Exhibit 10.50
June 23, 2004
Dear ______________________:
I am pleased to inform you that the Compensation/Incentive Committee of
Chemed Corporation (the "Company"), has granted you _____ shares of the
Company's Capital Stock ("Capital Stock"), par value $1.00 per share, under the
2004 Stock Incentive Plan (the "Plan"). This letter evidences the issuance or
transfer of such shares to you today and sets forth the agreement under which
such shares (hereinafter sometimes called the "Restricted Shares") are being
issued or transferred to you.
1. The Restricted Shares are issued or transferred to you subject to
the following restrictions:
(a) As long as you are employed by the Company or a Subsidiary
(as defined in paragraph 9 below) and until the restrictions
set forth in this subparagraph (a) lapse in accordance with
paragraph 5, you will not, except as otherwise specifically
required or permitted by this Agreement, sell, exchange,
transfer, pledge, hypothecate or otherwise dispose of any of
the Restricted Shares or any interest therein.
(b) During your employment with the Company or a Subsidiary, you
will not, except as otherwise required or permitted by this
Agreement, sell, exchange, transfer, pledge, hypothecate or
otherwise dispose of any Restricted Shares, or any interest
therein, with respect to which the restrictions on transfer
herein imposed have not lapsed ("Non-vested Shares").
2. Upon the issuance or transfer to you of the Restricted Shares,
you shall for all purposes be a stockholder of record of the
Company with respect to the Restricted Shares and shall have all
rights of a holder of Capital Stock with respect to such shares
(including the right to vote such shares at any meeting of
holders of Capital Stock and the right to receive all dividends
paid with respect to such shares), subject only to the
restrictions imposed by paragraph 1 of this Agreement. To
evidence such restrictions and until such restrictions shall have
lapsed, the certificates or book entry for the Restricted Shares
shall carry a legend to the effect, in
form satisfactory to the Company's counsel, that they were issued
or transferred subject to, and may be sold or otherwise disposed
of only in accordance with, the terms of this Agreement.
3. Under Section 83(b) of the Internal Revenue Code, you may, within
30 days from the date of grant of the Restricted Shares, make an
election which would cause you to be taxed on the value of such
Shares based on their Fair Market Value (as defined in the Plan)
on the date of grant; otherwise, in the absence of such an
election, you will be taxed at the times of the lapse(s) on the
Restricted Shares, based on their Fair Market Value at the times
of the lapse(s).
4. In the event that, as the result of a stock dividend, stock
split, recapitalization, merger, consolidation, reorganization,
or other similar event, you shall, as the owner of Restricted
Shares, be entitled, under the provisions of the Plan or
otherwise, to new or additional or different shares or securities
as follows:
(a) such new or additional or different shares or securities
shall be deemed "Restricted Shares,"
(b) all the provisions of this Agreement relating to
restrictions and lapse of restrictions shall be applicable
thereto, and
(c) the certificates or other instruments or book entry
evidencing such new or additional or different shares or
securities shall bear the legend referred to in the third
sentence of paragraph 2. The foregoing restrictions shall
not apply to any fractional shares resulting from any such
event, or to any pre-emptive or other rights to purchase
securities to which you, as a holder of Restricted Shares,
may become entitled in connection with a public offering of
Capital Stock.
5. (a) The restrictions set forth in paragraph 1 above on the
transfer of the Restricted Shares shall lapse in full on
December 31, 2007 subject to all the then applicable
provisions of this Agreement.
(b) If your employment with the Company or a Subsidiary shall,
while you hold any Non-vested Shares, terminate for any
reason other than death, disability, retirement under a
retirement plan of the Company or a Subsidiary, termination
without cause or change in control of the Company such
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Non-vested Shares shall be forfeited by you. If your
employment with the Company or a Subsidiary shall, while you
hold any Non-vested Shares, terminate by reason of death,
disability, retirement under a retirement plan of the
Company or a Subsidiary, termination without cause, or
change in control of the Company, the restrictions on
transfer applicable to such Non-vested Shares shall lapse in
their entirety as of the effective date of such termination
of employment or change in control.
(c) If, as and when the restrictions lapse with respect to
Restricted Shares pursuant to this paragraph 5, there will
be delivered to you, promptly upon your request,
certificates free of any legend for a like number of shares
in exchange for the certificates or cancellation of the book
entry for such Restricted Shares bearing the legend referred
to in paragraph 2 of this Agreement.
6. Except as otherwise expressly required or permitted by this
Agreement, no right, benefit or interest in the Restricted Shares
or under this Agreement shall be subject to anticipation,
alienation, sale, assignment, encumbrance, charge, pledge or
hypothecation.
7. (a) Nothing in paragraph 1 or elsewhere in this Agreement shall
preclude a transfer to your legal representatives following
your death or a distribution to the persons provided for in
paragraph 7(b)(iii) or shall preclude you, upon not less
than thirty (30) days' advance written notice to the
Company, from making a gift of any Restricted Shares, or any
interest therein, (i) to one or more of your Immediate
Family Members, (ii) to a trust of which the beneficiary or
beneficiaries of the corpus or of the income, or both, is
either yourself or one or more of your Immediate Family
Members, or both, or (iii) to a corporation all of the stock
of which is owned by you or one or more of your Immediate
Family Members, or both. For the purpose of this provision,
an "Immediate Family Member" shall be deemed to be a spouse,
child, stepchild, grandchild, parent, brother or sister or
child of a brother or sister of yours, whether of the whole
or half blood, and whether the relationship arose by
adoption.
(b) the term "Donee," as used in this Agreement, shall be deemed
to mean (i) the person, or collectively, all the
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persons (including a trust or corporation), to whom a gift
permitted by paragraph 7(a) has been made by you, (ii) your
legal representatives following your death, and (iii) the
persons to whom Restricted Shares shall be distributed by
your legal representatives as the persons whom they believe
to be entitled thereto under your will, or, in case of
intestacy, under the laws relating to intestacy.
(c) In case of any gift, transfer or distribution to a Donee,
(i) the Restricted Shares so given, transferred or
distributed shall continue to be subject to all the
restrictions and other provisions of this Agreement, (ii)
the certificates for the Restricted Shares so given,
transferred or distributed shall bear the legend referred to
in paragraph 2 of this Agreement, and (iii) the Donee shall,
with respect to the Restricted Shares so given, transferred
or distributed, have all the powers and shall be required to
comply with all the restrictions and other provisions of
this Agreement requiring the taking, or refraining from
taking, of action to the same extent as you were immediately
prior to the making of such gift, transfer or distribution.
8. Any provision of this Agreement to the contrary, the Company may
take such steps as it believes necessary or desirable to obtain
sufficient funds from you to pay all taxes, if any, required by
law to be withheld in respect of the Restricted Shares including,
but not limited to, requiring payments to the Company by you or
on your behalf and/or taking deductions from amounts payable by
the Company to you or on your behalf.
9. As used in this Agreement, the term "Company or a Subsidiary"
shall mean the Company, its divisions and units, and all
corporations or other forms of business association of which
shares (or other ownership interests) having 50% or more of the
voting power regularly entitled to vote for directors (or
equivalent management) or regularly entitled to receive 50% or
more of the dividends (or their equivalents) paid on the Capital
Stock (or its equivalent) are owned or controlled, directly or
indirectly, by the Company.
10. Each of the parties hereto agrees to execute and deliver all
consents and other instruments and to take all other action
deemed necessary or desirable by counsel for the Company to carry
out each term of this Agreement. Without limiting the
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generality of the foregoing, you shall, if and when requested by
the Company, deposit any or all certificates for the Restricted
Shares, together with a stock power or other instrument of
transfer appropriately executed in blank, with a bank and under a
deposit agreement approved by the Company and, following such
deposit, certificates for the Restricted Shares shall no longer
carry the legend referred to in paragraph 2 of this Agreement,
and new certificates shall be issued in place thereof, in which
event, each of the parties agrees to give such instructions and
to deliver or refrain from delivering such notices to the bank
acting under such deposit agreement as may be necessary to carry
out each term of this Agreement, to the end that all property
deposited under such deposit agreement shall be paid,
transferred, released or otherwise disposed of in accordance with
the terms of this Agreement and each obligation thereunder. Each
party recognizes that the other party has no adequate remedy at
law for breach of this Agreement and recognizes, consents and
agrees that the other party shall be entitled to an injunction or
decree of specific performance directed to the other party and to
the bank acting under any such deposit agreement requiring that
the provisions of this Agreement be carried out.
11. (a) Any notice to the Company under or pursuant to this
Agreement shall be deemed to have been given if and when
delivered in person to the Secretary of the
Compensation/Incentive Committee or if and when mailed by
certified or registered mail to the Secretary of the
Compensation/Incentive Committee at 2600 Chemed Center, 255
East Fifth Street, Cincinnati, Ohio 45202, or such other
address as the Company may from time to time designate in
writing by notice to you given pursuant to paragraph 11(b)
hereof.
(b) Any notice to you under or pursuant to this Agreement shall
be deemed to have been given if and when delivered to you in
person or if and when mailed by certified or registered mail
to you at your address hereinabove given or such other
address as you may from time to time designate in writing by
notice to the Company given pursuant to paragraph 11(a)
above.
12. Notwithstanding any remedy provided for in this Agreement,
nothing in this Agreement shall preclude the Company from taking
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any other action or enforcing any other remedy available to the
Company.
13. This Agreement has been executed pursuant to the Plan of the
Company, and the Plan is hereby incorporated herein by reference.
14. This Agreement shall be binding upon and inure to the benefit of
(a) the Company, its successors and assigns, and (b) you, and to
the extent applicable, each Donee.
15. This Agreement has been executed, and it and the Restricted
Shares have been or are to be delivered, in accordance with the
laws of the State of Ohio, the state in which the Company
maintains its principal executive offices, and the validity,
interpretation, performance and enforcement of this Agreement
shall be governed by the laws of the State of Ohio.
Very truly yours,
CHEMED CORPORATION
Executed and agreed to By:
as of: ---------------------------------
Kevin J. McNamara
President and Chief Executive
- ---------------------------------------- Officer
Date: Date:
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