Exhibit 10.9
RESTRICTED STOCK
1998 - DBR
1990 RJR NABISCO HOLDINGS CORP.
LONG-TERM INCENTIVE PLAN
RESTRICTED STOCK PROGRAM
RESTRICTED STOCK AGREEMENT
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DATE OF GRANT: January 15, 1998
W I T N E S S E T H
1. GRANT OF RESTRICTED STOCK. Pursuant to the provisions of the 1990
Long-TermIncentive Plan and the Restricted Stock Program (collectively, the
"Plan") RJR Nabisco HoldingsCorp. (the "Company") on the above date has granted,
and this agreement evidences the grant to
David B. Rickard (THE "GRANTEE")
subject to the terms and conditions which follow and the terms and conditions of
the Plan, a total of
20,000 SHARES
of Common Stock of the Company ("Common Stock"). A copy of the Plan is attached
and made a part of this agreement with the same effect as if set forth in the
agreement itself. All capitalized terms used below shall have the meaning set
forth in the Plan, unless the context requires a different meaning.
2. RECEIPT AND DELIVERY OF STOCK. The Grantee waives receipt from the
Company of a certificate or certificates representing the shares of Common Stock
granted hereunder, registered in his name and bearing a legend evidencing the
restrictions imposed on such Common Stock by this agreement. The Grantee
acknowledges and agrees that the Company shall retain custody of such
certificate or certificates until the restrictions imposed by Paragraph 3 on the
Common Stock granted hereunder lapse. Concurrently with the execution of this
agreement, the Grantee has delivered to the Company an irrevocable stock power
endorsed in blank.
3. RESTRICTIONS ON TRANSFER OF STOCK. The Common Stock granted hereunder
may not be sold, tendered, assigned, transferred, pledged or otherwise
encumbered prior to the earliest of:
(i) January 15, 2003, for 100% of the shares;
(ii) the date of the Grantee's death, for 100% of the shares;
(iii) the date of the Grantee's Disability, as defined in RJR Nabisco Inc.'s
Long Term Disability Plan, for 100% of the shares; or
(iv) the date of a Change of Control.
In the event of the involuntary termination of the Grantee's employment
with the Company or a subsidiary without "Cause" or for "Good Reason" (each as
defined and applied in the Grantee's Employment Agreement) (as "Involuntary
Termination"), the Grantee will be vested in a number of shares of Restricted
Stock which is equal to the product of (i) the total number of shares of
Restricted Stock granted to the Grantee pursuant to this Agreement and (ii) a
fraction, the numerator of which is number of whole or partial months between
the Date of Grant and the Grantee's Severance Date (as defined in Section 4) and
the denominator of which is 60. Notwithstanding the foregoing sentence, if the
Involuntary Termination occurs after the Company pays a dividend or makes a
distribution to all holders of Common Stock of the capital stock of any
subsidiary of the Company, which subsidiary represents all or substantially all
of the Company's interest in either of its two principal lines of business as of
the date hereof, the Grantee will be vested in 100% of the shares.
At the time the restrictions imposed by this Section 3 shall lapse, the
appropriate number of shares of Common Stock shall be delivered to the Grantee
without a restrictive legend on any Common Stock certificate.
4. FORFEITURE OF STOCK. The Common Stock upon which restrictions still
exist following the Grantee's Severance Date shall never become transferable by
the Grantee or anyone claiming through him and the Grantee shall forfeit all
right, title and interest in and to such Common Stock along with the right to
any dividends paid thereon and the Common Stock granted hereunder shall revert
to the Company. "Severance Date" means termination from active employment; it
does not mean the termination of pay and benefits at the end of a period of
salary continuation (or other form of severance pay or pay in lieu of salary).
The Committee or its agent shall act promptly to record forfeitures pursuant to
this paragraph on the stock transfer books of the Company.
5. DIVIDENDS. If the Grantee is a shareholder of record on any applicable
record date, he shall receive any dividends on the Common Stock granted
hereunder when paid regardless of whether the restrictions imposed by Paragraph
3 hereof have lapsed.
6. VOTING. If the Grantee is a shareholder of record on any applicable
record date, he shall have the right to vote the Common Stock granted hereunder
regardless of whether the restrictions imposed by Paragraph 3 hereof have
lapsed.
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7. NO RIGHT TO EMPLOYMENT. The execution and delivery of this agreement
and the granting of Common Stock hereunder shall not constitute or be evidence
of any agreement or understanding, express or implied, on the part of the
Company or its subsidiaries to employ the Grantee for any specific period or in
any particular capacity and shall not prevent the Company or its subsidiaries
from terminating the Grantee's employment at any time with or without Cause.
8. REGISTRATION. The Common Stock granted hereunder may be offered and
sold by the Grantee only if such stock is registered for resale under the
Securities Act of 1933 (the " 1933 Act") as amended, or if an exemption from
registration under such Act is available. The Company has no obligation to
effect such registration. By executing this agreement, the Grantee (i) agrees
not to offer or sell the Common Stock granted hereunder unless and until such
stock is registered for resale under the 1933 Act or an exemption from
registration is available, (ii) represents that he accepts such Common Stock for
his own account for investment and not with a view to, or for sale in connection
with, the distribution of any part thereof and (iii) agrees that he or his
beneficiary, on request, will be obligated to repeat these representations in
writing prior to any future delivery of such Common Stock.
9. CHANGE IN COMMON STOCK OR CORPORATE STRUCTURE.
a) If at any time the number or nature of outstanding shares of Common
Stock of the Company shall be increased or changed as the result of any spinoff,
stock dividend, subdivision or reclassification of shares, the number or nature
of shares of Common Stock subject to this Agreement after such an event shall be
increased or changed in the same proportion or manner as the outstanding number
of shares of Common Stock is increased or changed, or if the number of
outstanding shares of Common Stock shall at any time be decreased as the result
of any combination or reclassification of shares, the number of shares of Common
Stock subject to this Agreement after such an event shall be decreased in the
same proportion as the outstanding number of shares of Common Stock is
decreased.
b) In the event the Company shall at any time be consolidated with or
merged into any other corporation and holders of the Company's Common Stock
receive common shares of the resulting or surviving corporation, there shall be
an adjustment to the shares of Common Stock subject to this Agreement after such
an event, and in place of the shares so subject, a stock equivalent shall be
determined by multiplying the number of common shares of stock given in exchange
for a share of Common Stock upon such consolidation or merger, by the number of
shares of Common Stock subject to this Agreement. If in such a consolidation or
merger, holders of the Company's Common Stock shall receive any consideration
other than common shares of the resulting or surviving corporation, the
Committee shall determine the appropriate change in shares held pursuant to this
Agreement after such an event; provided, however, such change shall not be to
the detriment of the Executive.
10. APPLICATION OF LAWS. The granting of Common Stock hereunder shall be
subject to all applicable laws, rules and regulations and to such approvals of
any governmental agencies as may be required.
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11. TAXES. Any taxes required by federal, state or local laws to be
withheld by the Company on the Grant or the delivery of Common Stock hereunder
shall be paid to the Company by the Grantee by the time such taxes are required
to be paid or deposited by the Company. The Grantee hereby authorizes the
conversion to cash by the Company of a sufficient amount of Common Stock to
satisfy the withholding prior to the delivery of Common Stock.
12. NOTICES. Any notices required to be given hereunder to the Company
shall be addressed to The Secretary, RJR Nabisco Holdings Corp., 1301 Avenue of
the Americas, New York, NY 10019-6013, and any notice required to be given
hereunder to the Grantee shall be sent to the Grantee's address as shown on the
records of the Company.
13. GRANTEE. In consideration of the grant, the Grantee specifically
agrees that the Committee shall have the exclusive power to interpret the Plan
and this Agreement and to adopt such rules for the administration,
interpretation and application of the Plan and Agreement as are consistent
therewith and to interpret or revoke any such rules. All actions taken and all
interpretation and determinations made by the Committee shall be final,
conclusive, and binding upon the Grantee, the Company and all other interested
persons. No member of the Committee shall be personally liable for any action,
determination or interpretation made in good faith with respect to the Plan or
the Agreement. The Committee may delegate its interpretive authority to an
officer or officers of the Company.
IN WITNESS WHEREOF, the Company, by its duly authorized officer, and the
Grantee have executed this agreement as of the Date of Grant first above
written.
RJR NABISCO HOLDINGS CORP.
By:
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Authorized Signatory
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Grantee
Grantee's Taxpayer Identification Number:
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Grantee's Home Address:
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