Exhibit 10.6
EXECUTIVE OFFICER RESTRICTED
STOCK AWARD AGREEMENT
THIS EXECUTIVE OFFICER RESTRICTED
STOCK AWARD AGREEMENT (the “ Agreement ”) is
effective as of [
] [ ], 200[
] (the “ Grant Date
”), between Jackson Hewitt Tax Service Inc., a Delaware
corporation (the “ Company ”), and [PARTICIPANT]
(the “ Participant ”).
Pursuant to the Jackson Hewitt Tax
Service Inc. Amended and Restated 2004 Equity and Incentive Plan
(the “ Plan ”), the Compensation Committee of
the Board of Directors of the Company (the “ Committee
”) has determined that the Participant is to be granted a
restricted stock award (the “ Restricted Stock Award
”), on the terms and conditions set forth herein, and on the
terms and conditions set forth in the Plan, and hereby grants such
Restricted Stock Award. Capitalized terms used herein which are not
defined in this Agreement will have the meanings set forth in the
Plan. The Participant acknowledges that the Participant has
received a copy of the Plan Prospectus.
1. Number of Restricted
Shares .
Subject to the terms and conditions
of the Plan and the additional terms and conditions set forth in
this Agreement, the Company hereby grants to the Participant the
Restricted Stock Award consisting of [
] shares of the common stock of the Company (the “
Restricted Shares ”). The Restricted Shares shall vest
and become nonforfeitable in accordance with Section 2
hereof.
2. Vesting of the Restricted
Shares .
(a) The Restricted Shares shall vest
based on the achievement of the financial performance goals during
fiscal year 2009 as set forth on Exhibit A; provided, however, that
if the number of Restricted Shares would result in the issuance of
a fraction of a share, no fractional share shall be issued and
instead the number of Restricted Shares shall be increased or
decreased to the next whole number. The determination by the
Committee with respect to the financial performance levels achieved
by the Company during fiscal year 2009 and the number of Restricted
Shares that vests shall be made on a date not later than
July 31, 2009 (the “Performance Measurement
Date”). Any Restricted Shares that fail to meet the financial
performance goals set forth on Exhibit A shall be forfeited. The
Restricted Shares that have vested based on the achievement of the
financial performance goals are herein referred to as the
“Performance Vested Shares.” So long as Participant
continues to be employed by the Company, the Performance Vested
Shares shall vest and become nonforfeitable after one year from the
Grant Date as to one third of the Performance Vested Shares, after
two years from the Grant Date as to two thirds of the Performance
Vested and after three years from the Grant Date as to 100% of the
Performance Vested Shares; provided, however, that any fractional
Performance Vested Shares shall not vest, or be delivered, until
the final vesting event.
(b) If the Participant’s
service with the Company terminates or is terminated due to
(i) the Participant’s death; (ii) the Participant
becoming Disabled (as defined in the Participant’s employment
agreement); (iii) a Without Cause Termination (as defined in
the Participant’s employment agreement); or (iv) a
Constructive Discharge (as defined in the Participant’s
employment agreement),
the Performance Vested Shares will become
immediately and fully vested; provided, however, that if such
termination is prior to the Performance Measurement Date, then all
Restricted Shares will become immediately and fully vested. If the
Participant’s service with the Company terminates or is
terminated for any reason other than as set forth in the preceding
sentence, the Restricted Shares shall, to the extent not then
vested and not previously forfeited, be forfeited by the
Participant without consideration.
(c) Notwithstanding any other
provision of this Agreement to the contrary, in the event a Change
in Control occurs, the Performance Vested Shares shall immediately
become fully vested; provided, however, that if such Change in
Control is prior to the Performance Measurement Date, then all
Restricted Shares will immediately become fully vested, subject to
the terms of the Plan.
3. Certificates for the
Restricted Shares .
The Restricted Shares shall be held
in escrow in a restricted book entry account with the
Company’s transfer agent in the name of the Participant. Upon
vesting of the Restricted Shares, the Restricted Shares shall be
released into an unrestricted book entry account with the
Company’s transfer agent; provided, however, that a portion
of such Restricted Shares shall be surrendered in payment of
required withholding taxes in accordance with Section 10
below, unless the Company, in its sole discretion, establishes
alternative procedures for the payment of required withholding
taxes.
4. Rights as a Stockholder
.
The Participant shall be the record
owner of the Restricted Shares until or unless such Restricted
Shares are forfeited pursuant to Section 2 hereof, and as
record owner shall, except as otherwise provided herein, be
entitled to all rights of a common stockholder of the Company,
including, without limitation, voting rights with respect to the
Restricted Shares; provided that the Restricted Shares shall be
subject to the limitations on transfer and encumbrance set forth in
Section 7. The Participant shall be entitled to dividends or
other distributions paid or made on Restricted Shares but only as
and when the Restricted Shares become vested. Dividends paid on
Restricted Shares that have not yet vested will be held by the
Comp
