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Exhibit 4.4
Form "A"
SENIOR EXECUTIVE OFFICER RESTRICTED SHARE AGREEMENT
UNDER THE MEDUSA CORPORATION 1991 LONG-TERM INCENTIVE PLAN
BETWEEN MEDUSA CORPORATION AND
[Fill-in: Participant]
DATED AS OF MAY 8, 1995
In recognition of the valued services performed by [Fill-in: Participant] (the
"Participant") for Medusa Corporation and its subsidiaries and as an incentive
for continued employment, Medusa Corporation, (the "Corporation"), through the
Organization and Compensation Committee of its Board of Directors (the
"Committee"), has determined to award to the Participant [Fill-in: Total
Shares] restricted shares (the "Restricted Shares") under the terms of the 1991
Long-Term Incentive Plan of Medusa Corporation (the "Plan") (a copy of which is
attached hereto and made a part hereof).
As a condition to such award and pursuant to Section 7.01(a) of the Plan, the
Corporation and the Participant hereby enter into this Restricted Share
Agreement with respect to the award of Performance Restricted Shares (as
defined below), and the award of SERP-Equivalent Restricted Shares (as defined
below), and agree to the terms and conditions set forth hereafter.
1. DEFINITIONS.
For purposes of this Agreement, and for purposes of interpreting the
terms of the Plan, the following terms shall have the following
meanings:
a. "CEMENT INDUSTRY PEER GROUP INDEX" shall mean the index which
reflects the cumulative total return (the fair market value plus
the dividends and distributions) for the Restriction Period of
the following cement companies, Giant Cement Holding, Inc.,
Lafarge Corporation, Lone Star Industries, Puerto Rican Cement
Co., Inc., Southdown Inc. and Texas Industries, weighted on the
basis of the market capitalization of such cement companies.
b. "CHANGE IN CONTROL" shall have the meaning set forth in Section
2.07 of the Plan.
c. "FAIR MARKET VALUE" shall mean "Fair Market Value" as defined in
Section 2.16 of the Plan.
d. "GRANT PRICE" shall mean $24.375 per share which is the average
of the high and low quoted sales prices of the Common Shares of
Medusa Corporation ("Medusa Shares"), as reported in the New York
Stock Exchange Composite Transactions ("Average Price") on May 8,
1995 (the "Start Date"). In the event that there is an increase
in the number of issued Medusa Shares by reason of stock
dividends distributions, recapitalizations, or split-ups, the
Grant Price shall promptly after such
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event be decreased in proportion to such increase in issued
Medusa Shares that occurred as a result of such event.
Conversely, in case the issued Medusa Shares shall be combined
into a smaller number of Medusa Shares, the Grant Price shall be
promptly after such event increased in proportion to such
decrease in issued Medusa Shares that has occurred as a result of
such event. In the event of any merger, consolidation,
reorganization, liquidation in part or in whole, spinoff,
spinout, or extraordinary distribution or dividend on Medusa
Shares whether in cash, debt obligations of the Corporation or
other personal property of any kind, the Committee may make such
adjustment in the Grant Price as the Committee in its reasonable
discretion deems appropriate.
e. "MEDUSA TOTAL RETURN" shall mean, with respect to Performance
Restricted Shares, the total return on the Medusa Shares at any
time during the five year period commencing on the Start Date and
ending on the final Test Date and shall be calculated as follows:
Medusa Total Return = B/A-1
A = the Grant Price
B = C x D
C = the Average Price on the Test Date
D = The number of Medusa Shares that
would have been owned on the Test
Date assuming one such Medusa Share
had been owned on the Start Date and
all dividends and distributions,
whether in cash, in kind, or in debt
or equity securities of the
Corporation, subsequent to the Start
Date had been reinvested in Medusa
Shares.
For the purpose of calculating "D":
(a) the amount of each dividend shall be assumed
to have been reinvested by acquiring Medusa
Shares at their average price on the relevant
ex-dividend date;
(b) the amount of a dividend paid in marketable
securities (such as spin-offs of subsidiary
stock) shall be deemed to be the average
price of such securities in the relevant
market therefor on the relevant ex-dividend
date;
(c) the amount of a dividend paid other than in
cash or marketable securities, shall be
deemed to be the fair market value of the
asset transferred as of the relevant
ex-dividend date;
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(d) no allowance shall be made for tax or
transaction costs.
f. "PERFORMANCE LAPSE PERCENTAGE" (as used in Section 3 below) is
the percentage of the Performance Restricted Shares for which the
Performance Restrictions lapse, which percentage is in proportion
to the percentage (in 1% increments) occurring within a range
from 101% to 110% by which the Medusa Total Return exceeds the
cumulative total return of the Cement Industry Peer Group. In
other words, if the Medusa Total Return exceeds the peer group by
only 101%, then the Performance Restrictions shall lapse on only
10% of Performance Restricted Shares tested on that Test Date (a
"Partial Lapse"), and, if the exceedance is 110% or higher, the
Performance Restrictions shall lapse on all of the Performance
Restricted Shares tested on that Test Date. In the event of a
Partial Lapse, the Performance Restricted Shares which were
tested and for which the Performance Restrictions did not lapse,
shall be retested on subsequent Test Dates (as applicable) during
the Restriction Period.
g. "PERFORMANCE RESTRICTED SHARES" shall mean that portion of the
Restricted Shares awarded by the Committee to the Participant
which are performance-restricted.
h. "PERMANENT TOTAL DISABILITY", as provided in Section 2.33 of the
Plan, shall be determined in each case, by the Committee in its
sole discretion.
i. "RESTRICTION PERIOD" shall mean a period commencing on the date
of the award on May 8, 1995, the Start Date, and ending five
years later on May 8, 2000. (Except in the case of
SERP-Equivalent Restricted Shares which shall vest on May 8, 2000
and shall remain Restricted so long thereafter, as the
Participant is an employee of the Corporation.)
j. "RETIREMENT" shall have the following meaning:
(i) for the purpose of the Performance Restricted Shares,
"Retirement", for Senior Executive Officers, shall mean "Normal
Retirement Date" as defined in Section 2.21 of the Plan, which is
retirement at any date; (it is not limited to retirement at age
65; by action of the Board on May 9, 1994);
(ii) for the purpose of the SERP-Equivalent Restricted
Shares, "Retirement" shall mean age 62; in such cases "Normal
Retirement Date" shall be the first day of the month following a
Participant attaining age 62.
k. "SENIOR EXECUTIVE" shall mean the Chairman or the President of
the Company.
l. "SERP-EQUIVALENT RESTRICTED SHARES" shall mean that portion of
the Restricted Shares awarded by the Committee to the Participant
which are time-restricted.
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m. "TEST DATE" shall mean, with respect to one-fifth of the
Performance Restricted Shares, the following five dates, May 9,
1996, May 8, 1997, May 8, 1998, May 8, 1999 and May 8, 2000 or
the next business day thereafter if the New York Stock Exchange
is not open on such date, or the day on which a Change in Control
occurs.
2. AWARD OF PERFORMANCE RESTRICTED SHARES.
Pursuant to the provisions of the Plan and this Agreement and by the
authority of the Committee:
a. The Corporation hereby awards [Fill-in: PRS Shares] Performance
Restricted Shares to the Participant.
b. When the Restrictions on the Performance Restricted Shares lapse
for any reason, the Corporation shall also pay to the Participant
at the time when the Restrictions on the Performance Restricted
Shares lapse, a separate cash amount equal to:
(1) the federal, state and local income tax and golden
parachute excise tax (if any) payable with respect to the
lapse of the Performance Restrictions (as defined below),
divided by
(2) one (1) minus the total effective federal, state and local
income and excise tax rate applicable as a result of the
lapse of the Performance Restrictions.
3. PERFORMANCE RESTRICTED SHARE; RESTRICTIONS AND RIGHTS.
a. During the Restriction Period, the Performance Restricted Shares
are subject to forfeiture and may not be sold, transferred,
assigned or pledged (the "Performance Restrictions"). The
Performance Restrictions shall automatically lapse, based upon
the actual Performance Lapse Percentage calculated as of the
following Test Dates:
(1) With respect to up to one-fifth of the Performance
Restricted Shares hereunder, if on the Test Date for the
period from May 8, 1995 to May 9, 1996, both of the
following tests shall be met: (a) the Fair Market Value
shall exceed the Grant Price, and (b) the Medusa Total
Return shall exceed the cumulative total return of the
Cement Industry Peer Group Index for the period from May
8, 1995 to May 9, 1996.
(2) With respect to up to two-fifths of the Performance
Restricted Shares hereunder, if on the Test Date for the
period from May 8, 1995 to May 8, 1997, both of the
following tests shall be met: (a) the Fair Market Value
shall exceed the Grant Price, and (b) the Medusa Total
Return shall exceed the cumulative total return of the
Cement Industry Peer Group Index for the period from May
8, 1995 to May 8, 1997.
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(3) With respect to up to three-fifths of the Performance
Restricted Shares hereunder, if on the Test Date for the
period from May 8, 1995 to May 8, 1998, both of the
following tests shall be met: (a) the Fair Market Value
shall exceed the Grant Price, and (b) the Medusa Total
Return shall exceed the cumulative total return of the
Cement Industry Peer Group Index for the period from May
8, 1995 to May 8, 1998.
(4) With respect to up to four-fifths of the Performance
Restricted Shares hereunder, if on the Test Date for the
period from May 8, 1995 to May 8, 1999, both of the
following tests shall be met: (a) the Fair Market Value
shall exceed the Grant Price, and (b) the Medusa Total
Return shall exceed the cumulative total return of the
Cement Industry Peer Group Index for the period from May
8, 1995 to May 8, 1999.
(5) With respect to up to all of the Performance Restricted
Shares hereunder, if on the Test Date for the period from
May 8, 1995 to May 8, 2000, both of the following tests
shall be met: (a) the Fair Market Value shall exceed the
Grant Price, and (b) the Medusa Total Return shall exceed
the cumulative total return of the Cement Industry Peer
Group Index for the period from May 8, 1995 to May 8,
2000.
(6) In the event of the Participant's Retirement, death, a
Change in Control, or in the event that the Committee
determines that the Participant has experienced a
Permanent Total Disability: or
(7) As may be otherwise provided under the terms of the Plan.
At the end of the Restriction Period, all Performance Restricted
Shares as to which the Performance Restrictions shall not have
lapsed by reason of the operation of clauses (1) through (7) of
the foregoing subsection shall be forfeited and the Participant
shall be required to return all applicable Performance Restricted
Share certificates to the Corporation.
b. During the Restriction Period, the Participant shall be entitled
to all other rights as a shareholder of the Corporation,
including the right to vote the Performance Restricted Shares and
receive dividends and other distributions thereon, with share
dividends subject however to the same restrictions as the
Performance Restricted Shares.
4. AWARD OF SERP-EQUIVALENT SHARES.
Pursuant to the provisions of the Plan, as authorized by the Board on
March 27, 1995, this Agreement and by the authority delegated by the
Board to the Committee, the Corporation hereby awards [Fill-in: SERP
Shares] SERP-Equivalent Restricted Shares to the Participant, which is
the number of Restricted Shares actuarially determined to provide a
benefit to the Participant which is supplemental to the benefit
provided under the Medusa Corporation Pension Plan for Certain Covered
Employees, assuming fifteen
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(15) years service, with Retirement (at age 62), and reflecting the
Participant's base compensation and compensation under the Corporation
Annual Incentive Plan from date of hire to the Participant's Normal
Retirement Date, averaged over the highest five consecutive calendar
years during the last ten years prior to Retirement.
5. SERP-EQUIVALENT RESTRICTED SHARES; RESTRICTIONS AND RIGHTS.
a. VESTING.
(1) Unless the Committee waives the vesting requirements, the
SERP-Equivalent Restricted Shares are forfeitable if the
Participant ceases to remain an employee of the
Corporation for five years, namely until May 8, 2000.
(2) Provided, nonetheless, that the SERP-Equivalent Restricted
Shares shall vest upon the Participant attaining age 62.
(4) The SERP-Equivalent Shares shall also vest in the event of
the Participant's death, a Change of Control or in the
event that the Committee determines that the Participant
has experienced a Permanent Total Disability.
(5) The SERP-Equivalent Shares may also vest as may otherwise
be provided under the terms of the Plan.
If the Participant leaves the employ of the Corporation prior to
the vesting of the SERP-Equivalent Shares by reason of the
operation of clauses (1) through (5) of the foregoing subsection,
the SERP-Equivalent Shares shall be forfeited and the Participant
shall be required to return all applicable SERP-Equivalent
Restricted Share certificates to the Corporation.
b. POST-VESTING RESTRICTIONS.
(1) During the post-vesting Restriction Period, the
SERP-Equivalent Restricted Shares may not be sold,
transferred, assigned or pledged. Such restrictions shall
lapse when the Participant is no longer an employee of the
Corporation (the "SERP- Equivalent Restrictions").
(2) The presence of post-vesting restrictions shall not
prevent the Participant from transferring a sufficient
number of SERP- Equivalent Restricted Shares for the
purpose of generating the cash required to pay the taxes
due upon vesting, at which time the Corporation may, but
is not required to, assume the Participant's tax
obligation in return for the surrender of the number of
SERP-Equivalent Restricted Shares which is equivalent to
the Fair Market Value of such tax obligation.
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(3) Upon the request of a Participant who is employed by the
Corporation, the Committee may at any time exercise its
authority to allow the transfer of any or all
SERP-Equivalent Restricted Shares in order for the
Participant to diversify his or her retirement asset
portfolio.
(4) The SERP-Equivalent Restrictions also lapse in the event
of the Participant's death, a Change of Control or in the
event that the Committee determines that the Participant
has experienced a Permanent Total Disability.
(5) The SERP-Equivalent Restrictions may also lapse as may
otherwise be provided under the terms of the Plan.
If the Participant leaves the employ of the Corporation prior to
the Participant's Normal Retirement Date, and prior to the
occurrence of any of the events described above in clause 4 of
the foregoing subsection, then the restrictions on the SERP-
Equivalent Shares shall, nonetheless, not lapse until the
Participant's Normal Retirement Date.
c. During the Restriction Period, the Participant shall be entitled
to all other rights as a shareholder of the Corporation,
including the right to vote the SERP-Equivalent Restricted Shares
and receive dividends and other distributions thereon, with share
dividends subject however to the same restrictions as the
SERP-Equivalent Restricted Shares.
6. SHARE CERTIFICATES.
Each share certificate evidencing an award of Restricted Shares shall
be registered in the name of the Participant, and shall bear an
appropriate legend referring to the terms, conditions and restrictions
applicable to such award substantially in the following form (the
"Legend"):
"The transferability of this certificate and the shares
represented hereby are subject to the terms and conditions
(including forfeiture) of the 1991 Long-Term Incentive Plan of
Medusa Corporation and an Agreement entered into between the
registered owner and Medusa Corporation. Copies of such Plan and
Agreement are on file and may be obtained upon request without
charge from the offices of the Secretary of Medusa Corporation,
P.O. Box 5668, Cleveland, Ohio 44101."
7. TERMINATION OF EMPLOYMENT.
Except as provided in Sections 3 and 5 of this Restricted Share
Agreement and Section 7.02(a) of the Plan, the termination of
Participant's employment during the Restriction Period (or prior to
vesting, in the case of the SERP-Equivalent Restricted Shares) shall
result in the forfeiture of all Restricted Shares as to which the
Performance Restrictions have not lapsed or the SERP- Equivalent
Shares which have not vested, and the Participant shall be required to
return all applicable share certificates to the Corporation.
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8. COVENANTS.
a. The Participant agrees to be bound by all terms and provisions of
the Plan as contained in Exhibit A, which is attached hereto,
receipt of a copy of which is acknowledged by the Participant's
signature below, and all such provisions shall be deemed a part
of this Agreement for all purposes.
b. The Participant agrees to provide the Corporation, when and if
requested, with any information or documentation which the
Corporation believes necessary or advisable in connection with
the administration of the Plan, including data required to assure
compliance with the requirements of the Securities and Exchange
Commission, of any stock exchange upon which the Restricted
Shares are then listed, or of any applicable federal, state or
other law.
9. NO COVENANT OF EMPLOYMENT.
Neither the execution and delivery hereof nor the granting of any
award evidenced hereby shall constitute, or be evidence of, any
agreement or understanding, express or implied, on the part of the
Corporation or its subsidiaries to employ the Participant for any
specific period.
10. INTERPRETATION AND ADMINISTRATION OF PLAN AND AGREEMENT.
a. In the event of any conflict between the terms herein and those
of the Plan, the provisions of the Plan shall prevail.
b. The Committee shall have full authority and discretion, subject
only to the terms of the Plan, to decide all matters relating to
the interpretation or administration of the Plan and this
Agreement thereunder, and all such action by the Committee shall
be final, conclusive, and binding upon the Corporation and the
Participant. The Committee shall have full authority and
discretion to modify at any time the vesting and/or the
Restriction Period (as well as any schedule of installments for
the lapse thereof), the Performance Restrictions or the
SERP-Equivalent Restrictions, the other terms and conditions of
this Agreement, the Legend and any other instrument evidencing
this award, provided that no such modification shall increase the
benefit under such award beyond that which the Committee could
have originally granted at the time of the award, or shall impair
the rights of the Participant under such award except in
accordance with the Plan, or any applicable agreement or
applicable law, or with the consent of the Participant.
This Restricted Share Agreement is deemed to be issued in, the award
evidenced hereby is deemed to be granted in, and both shall be
governed by the laws of the State of Ohio.
11. ENTIRE AGREEMENT.
There have been no representations made to the Participant other than
those contained herein.
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12. DELIVERY.
All certificates for Restricted Shares 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 Restricted Shares are then listed and any
applicable federal or state securities law, and the Committee may
cause a legend or legends to be put on any such certificates to make
appropriate reference to such restrictions.
The Committee may adopt rules which provide that the certificates
evidencing the Restricted Shares may be held in custody by a bank or
other institution, or that the Corporation may itself hold the
Restricted Shares in custody until the restrictions thereon shall have
lapsed and may require, as a condition of any award, that the
Participant shall have delivered a stock power endorsed in blank
relating to the Restricted Shares covered by such award.
13. AMENDMENT.
The terms of this Agreement shall be subject to the terms of the Plan
as the Plan may be amended from time-to-time by the Board of Directors
of the Corporation unless any Plan amendment by its terms or by its
clear intent is inapplicable to this Agreement.
14. NOTICE.
Any notice to the Corporation provided for in this Agreement shall be
in writing and addressed to the Secretary of the Corporation, and any
notice to the Participant shall be in writing and addressed to the
Participant at the address contained in payroll records at the time or
to such other address designated in writing by the Participant.
Medusa Corporation
By:____________________________________
George E. Uding, Jr., President
Participant
By:____________________________________
[Fill-in: Participant]
Signed this ____ day of May, 1995
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