Attached files
| file | filename |
|---|---|
| 10-K - FORM 10-K - ODYSSEY HEALTHCARE INC | d71444e10vk.htm |
| EX-21 - EX-21 - ODYSSEY HEALTHCARE INC | d71444exv21.htm |
| EX-32 - EX-32 - ODYSSEY HEALTHCARE INC | d71444exv32.htm |
| EX-31.1 - EX-31.1 - ODYSSEY HEALTHCARE INC | d71444exv31w1.htm |
| EX-31.2 - EX-31.2 - ODYSSEY HEALTHCARE INC | d71444exv31w2.htm |
| EX-23.1 - EX-23.1 - ODYSSEY HEALTHCARE INC | d71444exv23w1.htm |
| EX-10.11.2 - EX-10.11.2 - ODYSSEY HEALTHCARE INC | d71444exv10w11w2.htm |
Exhibit 10.10.4
RESTRICTED STOCK AWARD AGREEMENT
To: Date of Grant:
Number of Shares:
Odyssey Healthcare, Inc., a Delaware corporation (the “Company”), is pleased to grant you an
award (the “Plan Award”) consisting of an aggregate of ___ shares (the “Restricted Shares”) of the
Company’s authorized Common Stock, subject to the terms and conditions set forth in this Restricted
Stock Award Agreement (this “Award Agreement”) and the Odyssey Healthcare, Inc. 2001 Equity-Based
Compensation Plan (the “Plan”). The Plan Award is governed by the terms of this Award Agreement
and, where appropriate, the Plan. Any terms not defined herein shall have the meaning set forth in
the Plan.
This Award Agreement sets forth the terms of the agreement between you and the Company with
respect to the Restricted Shares. By accepting this Award Agreement, you agree to be bound by all
of the terms hereof.
1. Definitions. As used in this Award Agreement, the following terms have the meanings
set forth below:
(a) “Board” means the Company’s Board of Directors.
(b) “Business Day” means any day other than a Saturday, a Sunday or a day on which banking
institutions in the State of Texas are authorized or obligated by law or executive order to close.
(c) “Change in Control” means, notwithstanding the terms of the Plan or any provision herein
to the contrary, the occurrence of any of the following events:
(i) The agreement to acquire or a tender offer for beneficial ownership (within the meaning of
Rule 13d-3 promulgated under the Exchange Act) by any individual, entity or group (within the
meaning of section 13(d)(3) or 14(d)(2) of the Exchange Act), of 50% or more of either (x) the then
outstanding shares of Stock (the “Outstanding Stock”) or (y) the combined voting power of the then
outstanding voting securities of the Company entitled to vote generally in the election of
directors (the “Outstanding Company Voting Securities”); provided, however, that for purposes of
this subsection (i), the following acquisitions shall not constitute a Change in Control: (A) any
acquisition directly from the Company, (B) any acquisition by the Company, (C) any acquisition by
any employee benefit plan (or related trust) sponsored or maintained by the Company or any
corporation controlled by the Company or (D) any acquisition by any corporation pursuant to a
transaction which complies with clauses (A) and (B) of paragraph (iii) below; or
(ii) Individuals who constitute the Incumbent Board, which shall be defined as the individuals
who, as of the Date of Grant, constitute the Board and any other individual who becomes a director
of the Company after that date and whose election or appointment by the Board or nomination for
election by the Company’s stockholders was approved by a vote of at least a majority of the
directors then
comprising the Incumbent Board, but excluding, for this purpose, any such
individual whose initial assumption of office occurs as a result of an actual or threatened
election contest with respect to the election or removal of directors or other actual or threatened
solicitation of proxies or consents by or on behalf of a Person other than the Incumbent Board,
cease for any reason to constitute at least a majority of the Board; or
(iii) Consummation of a reorganization, merger or consolidation or sale or other disposition
of all or substantially all of the assets of the Company or an acquisition of assets of another
corporation (a “Business Combination”), in each case, unless, following such Business Combination,
(A) the Outstanding Stock and Outstanding Company Voting Securities immediately prior to such
Business Combination represent or are converted into or exchanged for securities which represent or
are convertible into more than 50% of, respectively, the then outstanding shares of common stock
and the combined voting power of the then outstanding voting securities entitled to vote generally
in the election of directors, as the case may be, of the corporation resulting from such Business
Combination (including, without limitation, a corporation which as a result of such transaction
owns the Company, or all or substantially all of the Company’s assets either directly or through
one or more subsidiaries) and (B) no Person (excluding any employee benefit plan (or related trust)
of the Company or the corporation resulting from such Business Combination) beneficially owns,
directly or indirectly, 20% or more of, respectively, the then outstanding shares of common stock
of the corporation resulting from such Business Combination or the combined voting power of the
then outstanding voting securities of such corporation except to the extent that such ownership of
the Company existed prior to the Business Combination; or
(iv) Approval by the stockholders of the Company of a complete liquidation or dissolution of
the Company.
(d) “Committee” shall mean the committee or sub-committee established by the Board to
administer part or all of the Plan.
(e) “Common Stock” means the common stock, par value $.001 per share, of the Company as
authorized from time to time.
(f) “Date of Grant” means .
(g) “Disability” means, as determined by the Board in its sole discretion exercised in good
faith, a physical or mental impairment of sufficient severity that either you are unable to
continue performing the duties you performed before such impairment or your condition entitles you
to disability benefits under any insurance or employee benefit plan of the Company or its
Subsidiaries and that impairment or condition is cited by the Company as the reason for termination
of your employment.
(h) “Exchange Act” means the Securities Exchange Act of 1934, as amended from time to time,
including rules thereunder and successor provisions and rules thereto.
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(i) “Person” means any person or entity of any nature whatsoever, specifically
including an individual, a firm, a company, a corporation, a partnership, a limited liability
company, a trust or other entity; a Person, together with that Person’s Affiliates and Associates
(as those terms are defined in Rule 12b-2 under the Exchange Act), and any Persons acting as a
partnership, limited partnership, joint venture, association, syndicate or other group (whether or
not formally organized), or otherwise acting jointly or in concert or in a coordinated or
consciously parallel manner (whether or not pursuant to any express agreement), for the purpose of
acquiring, holding, voting or disposing of securities of the Company with such Person, shall be
deemed a single “Person.”
(j) “Plan Award” has the meaning set forth in the first paragraph of the Award Agreement.
(k) “Subsidiary” means, with respect to any Person, any corporation or other entity of which a
majority of the voting power of the voting equity securities or equity interest is owned, directly
or indirectly, by that Person.
2. Escrow of Restricted Shares. The Company shall issue in your name a certificate or
certificates representing the Restricted Shares and retain that certificate or those certificates
until the restrictions on such Restricted Shares expire as described in Sections 5, 6, or 7 of this
Award Agreement or the Restricted Shares are forfeited as contemplated in Sections 4 and 7 of this
Award Agreement. You shall execute one or more stock powers in blank for those certificates and
deliver those stock powers to the Company. You hereby agree that the Company shall hold the
certificate or certificates representing the Restricted Shares and the related stock powers
pursuant to the terms of this Award Agreement until such time as such certificate or certificates
are either delivered to you or canceled pursuant to this Agreement.
3. Ownership of Restricted Shares. From and after the time that a certificate or
certificates representing the Restricted Shares has been issued in your name, you will be entitled
to all the rights of absolute ownership of the Restricted Shares, including the right to vote those
shares and to receive dividends thereon if, as, and when declared by the Board, subject, however,
to the terms, conditions and restrictions set forth in this Agreement.
4. Restrictions; Forfeiture. The Restricted Shares are restricted in that they may not
be sold, transferred or otherwise alienated or hypothecated until such restrictions are removed or
expire as described in Section 5, 6, or 7 of this Agreement. The Restricted Shares are also
restricted in the sense that they may be forfeited to the Company. You hereby agree that if the
Restricted Shares are forfeited, as provided in Section 7, the Company shall have the right to
deliver the certificate(s) representing the Restricted Shares to the Company’s transfer agent for
cancellation or, at the Company’s election, for transfer to the Company to be held by the Company
in treasury or any designee of the Company.
5. Expiration of Restrictions and Risk of Forfeiture. The restrictions on all of the
Restricted Shares granted pursuant to this Award Agreement will expire and become transferable and
nonforfeitable according to the schedule set forth in this Section 5, provided, however, that such
restrictions will expire on such dates only if you have been an Employee continuously from the Date
of Grant through the applicable vesting date.
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| Cumulative Percentage of Shares as | ||||
| On or After Each of the Following | to Which the Restricted Shares are | |||
| Vesting Dates | Transferable and Nonforfeitable | |||
First Anniversary of the Date of Grant |
25 | % | ||
Second Anniversary of the Date of Grant |
50 | % | ||
Third Anniversary of the Date of Grant |
75 | % | ||
Fourth Anniversary of the Date of Grant |
100 | % | ||
6. Adjustment Provisions.
(a) Recapitalization, Etc. In the event there is any change in the outstanding Common
Stock of the Company by reason of any reorganization, recapitalization, stock split, stock
dividend, combination of shares or otherwise, there shall be substituted for or added to each share
of Common Stock theretofore appropriated or thereafter subject, or which may become subject, to
this Plan Award, the number and kind of shares of stock or other securities into which each
outstanding share of Common Stock shall be so changed or for which each such share shall be
exchanged, or to which each such share shall be entitled, as the case may be. Adjustment under the
preceding provisions of this section will be made by the Committee, whose determination as to what
adjustments will be made and the extent thereof will be final, binding, and conclusive. No
fractional interest will be issued under the Plan on account of any such adjustment.
(b) Change in Control of the Company. In the event of any proposed Change in Control,
the Board shall take such action as it deems appropriate to effectuate the purposes of this Plan
Award and to protect you, which action may include, but without limitation, any one or more of the
following: (i) acceleration or change of the date of the lapse of restrictions applicable to this
Plan Award; (ii) arrangement with you for the payment of appropriate consideration to you for the
cancellation and surrender of the Plan Award; and (iii) in any case where equity securities other
than Common Stock of the Company are proposed to be delivered in exchange for or with respect to
Common Stock of the Company, arrangements providing that the Plan Award shall become a Plan Award
with respect to such other equity securities.
7. Termination of Employment.
(a) Termination Other Than Due to Death or Disability. Subject to Section 5, if your
employment relationship with Company or any of its Subsidiaries is terminated for any reason other
than due to your death or Disability, then that portion, if any, of this Plan Award for which
restrictions have not lapsed as of the date of termination shall become null and void; provided,
however, that the portion, if any, of this Plan Award for which restrictions have expired as of the
date of such termination shall survive such termination.
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(b) Death. Upon your death, the restriction period of the Restricted
Shares shall immediately be accelerated and the restrictions shall expire.
(c) Disability. If your employment relationship is terminated by reason of your
Disability, then the restriction period of the Restricted Shares shall immediately be accelerated
and the restrictions shall expire.
(d) Effect of Employment Agreement. Notwithstanding any provision herein to the
contrary, in the event of any inconsistency between this Section 7 and any employment agreement
entered into by and between you and the Company, the terms of the employment agreement shall
control.
8. Leave of Absence. With respect to the Plan Award, the Company may, in its sole
discretion, determine that if you are on leave of absence for any reason you will be considered to
still be in the employ of the Company, provided that rights to the Restricted Shares during a leave
of absence will be limited to the extent to which those rights were earned or vested when the leave
of absence began.
9. Delivery of Certificates of Stock. Promptly following the expiration of the
restrictions on the Restricted Shares as contemplated in Sections 5, 6, and 7 of this Award
Agreement, the Company shall cause to be issued and delivered to you or your designee a certificate
representing the number of Restricted Shares as to which restrictions have lapsed, free of any
restrictive legend relating to the lapsed restrictions, upon receipt by the Company of any tax
withholding as may be requested. The value of such Restricted Shares shall not bear any interest
owing to the passage of time.
10. Conditions to Delivery of Stock and Registration. Nothing herein shall require the
Company to issue any shares with respect to the Plan Award if (a) that issuance would, in the
opinion of counsel for the Company, constitute a violation of the Securities Act of 1933 or any
similar or superseding statute or statutes, any other applicable statute or regulation, or the
rules of any applicable securities exchange or securities association, as then in effect or (b) the
withholding obligation as provided in Section 15 has not been satisfied.
From time to time, the Board and appropriate officers of the Company shall and are authorized
to take whatever actions are necessary to file required documents with governmental authorities,
stock exchanges, and other appropriate Persons to make shares of Common Stock available for
issuance .
11. Furnish Information. You agree to furnish to the Company all information requested
by the Company to enable it to comply with any reporting or other requirement imposed upon the
Company by or under any applicable statute or regulation.
12. Remedies. The parties to this Award Agreement shall be entitled to recover from
each other reasonable attorneys’ fees incurred in connection with the enforcement of the terms and
provisions of this Award Agreement whether by an action to enforce specific performance or for
damages for its breach or otherwise.
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13. Information Confidential. As partial consideration for the granting of the
Plan Award hereunder, you hereby agree with the Company that you will keep confidential all
information and knowledge, except that which has been disclosed in any public filings required by
law, that you have relating to the terms and conditions of this Award Agreement; provided, however,
that such information may be disclosed as required by law and may be given in confidence to your
spouse, tax and financial advisors, or to a financial institution to the extent that such
information is necessary to secure a loan. In the event any breach of this promise comes to the
attention of the Company, it shall take into consideration that breach in determining whether to
recommend the grant of any future similar award to you, as a factor militating against the
advisability of granting any such future award to you.
14. Consideration. No restriction on the Restricted Shares shall lapse unless and
until you have performed services for the Company or any of its Subsidiaries that the Company
believes is equal to or greater in value than the par value of the Common Stock subject to this
Plan Award.
15. Payment of Taxes. The Company may from time to time, in its discretion, require
you to pay to the Company (or the Company’s Subsidiary if you are an employee of a Subsidiary of
the Company), the amount that the Company deems necessary to satisfy the Company’s or its
Subsidiary’s current or future obligation to withhold federal, state or local income or other taxes
that you incur as a result of the Plan Award. With respect to any required tax withholding, you may
(a) direct the Company to withhold from the shares of Common Stock to be issued to you the number
of shares necessary to satisfy the Company’s obligation to withhold taxes, that determination to be
based on the shares’ Fair Market Value, as defined in the Plan, at the time as of which such
determination is made; (b) deliver to the Company sufficient shares of Common Stock to satisfy the
Company’s tax withholding obligations, based on the shares’ Fair Market Value, as defined in the
Plan, at the time as of which such determination is made; or (c) deliver sufficient cash to the
Company to satisfy its tax withholding obligations. If you elect to use such a stock withholding
feature, you must make the election at the time and in the manner that the Company prescribes. The
Company may, at its sole option, deny your request to satisfy withholding obligations through
Common Stock instead of cash. In the event the Company subsequently determines that the aggregate
Fair Market Value, as defined in the Plan, of any shares of Common Stock withheld as payment of any
tax withholding obligation is insufficient to discharge that tax withholding obligation, then you
shall pay to the Company, immediately upon the Company’s request, the amount of that deficiency.
16. Right of the Company and Subsidiaries to Terminate Employment. Nothing contained
in this Award Agreement shall confer upon you the right to continue in the employ of the Company or
any Subsidiary, or interfere in any way with the rights of the Company or any Subsidiary to
terminate your employment at any time.
17. No Liability for Good Faith Determinations. The Company and the members of the
Board shall not be liable for any act, omission or determination taken or made in good faith with
respect to this Award Agreement or the Restricted Shares granted hereunder.
18. No Guarantee of Interests. The Board and the Company do not guarantee the Common
Stock of the Company from loss or depreciation.
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19. Company Records. Records of the Company or its Subsidiaries regarding your
period of employment, termination of employment and the reason therefor, leaves of absence,
re-employment, and other matters shall be conclusive for all purposes hereunder, unless determined
by the Company to be incorrect.
20. Company Action. Any action required of the Company shall be by resolution of its
Board or by a Person authorized to act by resolution of the Board.
21. Severability. If any provision of this Award Agreement is held to be illegal or
invalid for any reason, the illegality or invalidity shall not affect the remaining provisions
hereof, but such provision shall be fully severable and this Award Agreement shall be construed and
enforced as if the illegal or invalid provision had never been included herein.
22. Arbitration. You and the Company agree, upon written request of either you or the
Company, to the resolution by binding arbitration of all claims, demands, causes of action,
disputes, controversies or other matters in question (“Claims”), whether or not arising out of this
Award Agreement or your employment (or its termination), whether arising in contract, tort or
otherwise and whether provided by statute, equity or common law, that the Company may have against
you or that you may have against the Company or its parents, subsidiaries or affiliates, and each
of the foregoing entities’ respective officers, directors, employees or agents in their capacity as
such or otherwise, if such Claim is not resolved by the mutual written agreement between you and
the Company, or otherwise, within 30 days after notice of the dispute is first given. Claims
covered by this Section 22 include without limitation claims by you for breach of this Award
Agreement, wrongful termination, discrimination (based on age, race, sex, disability, national
origin, sexual orientation, or any other factor), harassment and retaliation. Any arbitration shall
be conducted in accordance with the Federal Arbitration Act (“FAA”) and, to the extent an issue is
not addressed by the FAA, with the then-current National Rules for the Resolution of Employment
Disputes of the American Arbitration Association (“AAA”) or such other rules of the AAA as are
applicable to the claims asserted. If a party refuses to honor its obligations under this Section
22, the other party may compel arbitration in either federal or state court. The arbitrators shall
apply the substantive law of Delaware (excluding choice-of-law principles that might call for the
application of some other jurisdiction’s law) or federal law, or both as applicable to the claims
asserted. The arbitrators shall have exclusive authority to resolve any dispute relating to the
interpretation, applicability or enforceability or formation of this Award Agreement (including
this Section 22), including any claim that all or part of the Award Agreement is void or voidable
and any claim that an issue is not subject to arbitration. The results of arbitration will be
binding and conclusive on the parties hereto. Any arbitrators’ award or finding or any judgment or
verdict thereon will be final and unappealable. All parties agree that venue for arbitration will
be in Dallas, Texas, and that any arbitration commenced in any other venue will be transferred to
Dallas, Texas, upon the written request of any party to this Award Agreement. In the event that an
arbitration is actually conducted pursuant to this Section 22, the party in whose favor the
arbitrator renders the award shall be entitled to have and recover from the other party all costs
and expenses incurred, including reasonable attorneys’ fees, reasonable costs and other reasonable
expenses pertaining to the arbitration and the enforcement thereof and such attorneys fees, costs
and other expenses shall become a part of any award, judgment or verdict. Any and all of the
arbitrators’ orders, decisions and awards may be enforceable in, and judgment upon any award
rendered by the arbitrators may be confirmed and
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entered by any federal or state court having jurisdiction. All arbitrations will have three
individuals acting as arbitrators: one arbitrator will be selected by you, one arbitrator will be
selected by the Company, and the two arbitrators so selected will select a third arbitrator;
provided that (a) you or the Company shall use reasonably diligent efforts to select its respective
arbitrator within 60 days after a matter is submitted to arbitration and (b) the parties (including
arbitrators) shall not be limited to selecting arbitrators from only the AAA’s lists of
arbitrators. Any arbitrator selected by a party will not be affiliated, associated or related to
the party selecting that arbitrator in any matter whatsoever. The arbitration hearing shall be
conducted within 60 days after the selection of the arbitrators. All privileges under state and
federal law, including attorney-client, work product and party communication privileges, shall be
preserved and protected. The decision of the majority of the arbitrators will be binding on all
parties. Arbitrations will be conducted in a manner so that the final decision of the arbitrators
will be made and provided to you and the Company no later than 120 days after a matter is submitted
to arbitration. All proceedings conducted pursuant to this agreement to arbitrate, including any
order, decision or award of the arbitrators, shall be kept confidential by all parties. YOU
ACKNOWLEDGE THAT BY SIGNING THIS AWARD AGREEMENT, YOU ARE WAIVING ANY RIGHT THAT YOU MAY HAVE TO A
JURY TRIAL OR A COURT TRIAL, OF ANY EMPLOYMENT-RELATED CLAIM ALLEGED BY YOU.
23. Notices. Whenever any notice is required or permitted hereunder, such notice must
be in writing and personally delivered or sent by mail. Any such notice required or permitted to be
delivered hereunder shall be deemed to be delivered on the date on which it is personally
delivered, or, whether actually received or not, on the third Business Day after it is deposited in
the United States mail, certified or registered, postage prepaid, addressed to the person who is to
receive it at the address which such person has theretofore specified by written notice delivered
in accordance herewith. The Company or you may change, at any time and from time to time, by
written notice to the other, the address which it or he had previously specified for receiving
notices.
The Company and you agree that any notices shall be given to the Company or to you at the
following addresses:
| Company: | 717 N. Harwood Suite 1500 Dallas, TX 75201 Attention: General Counsel |
||
| Holder: | At your current address as shown in the Company’s records. |
24. Waiver of Notice. Any person entitled to notice hereunder may waive such
notice in writing.
25. Successors. This Award Agreement shall be binding upon you, your legal
representatives, heirs, legatees and distributees, and upon the Company, its successors and
assigns.
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26. Headings. The titles and headings of Sections are included for convenience
of reference only and are not to be considered in construction of the provisions hereof.
27. Governing Law. All questions arising with respect to the provisions of this
Agreement shall be determined by application of the laws of the State of Texas except to the extent
Texas law is preempted by federal law. The obligation of the Company to sell and deliver Common
Stock hereunder is subject to applicable laws and to the approval of any governmental authority
required in connection with the authorization, issuance, sale, or delivery of such Common Stock.
28. Execution of Receipts and Releases. Any payment of cash or any issuance or
transfer of shares of Common Stock or other property to you, or to your legal representative, heir,
legatee or distributee, in accordance with the provisions hereof, shall, to the extent thereof, be
in full satisfaction of all claims of such Persons hereunder. The Company may require you or your
legal representative, heir, legatee or distributee, as a condition precedent to such payment or
issuance, to execute a release and receipt therefor in such form as it shall determine.
29. Amendment. This Award Agreement may be amended by the Board; provided, however,
that no amendment may decrease your rights inherent in this Plan Award prior to such amendment
without your express written consent.
30. The Plan. This Award Agreement is subject to all the terms, conditions,
limitations and restrictions contained in the Plan.
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IN WITNESS WHEREOF, the Company has caused this Award Agreement to be executed by
its duly authorized officer as of the Date of Grant first above written.
| By: | ||||
| Name: | ||||
| Title: | ||||
ACKNOWLEDGED AND AGREED:
| By: | ||||
| Name: | ||||