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Exhibit
10.75
FORM OF RESTRICTED
STOCK AGREEMENT
FOR
NON-EMPLOYEE MEMBERS OF
THE BOARD OF DIRECTORS
This Restricted Stock
Agreement (“Agreement”) is made this
day of
, 200 , (the “Award
Date”) by and between MCG Capital
Corporation , a Delaware corporation (the
“Company”), and
(“Director”).
WHEREAS , in
accordance with an order of the Securities and Exchange Commission
(“SEC”) dated April 4, 2006 (Release
No. 27280) granting certain exemptive relief to the Company
regarding the issuance of restricted stock under and in accordance
with the Investment Company Act of 1940 (as amended), as well as
the approval of the Company’s Board of Directors dated
May 12, 2006 and the approval of Company’s Stockholders
dated June 12, 2006, the Company has adopted a Restricted
Stock Plan (as such plan is further defined below) that governs the
issuances of restricted stock from time to time to directors of the
Company; and
WHEREAS , on
September 22, 2006, the Company filed with the SEC a
registration statement on Form S-8 to register the shares of common
stock (par value $0.01 per share) of the Company (the “Common
Stock”) that are authorized for issuance under the Restricted
Stock Plan; and
WHEREAS , subject to
and in accordance with the terms and conditions of this Agreement
and the Restricted Stock Plan, the Company desires to grant to
Director shares of Common Stock (such shares, the
“Shares”) in connection with and as consideration for
Director’s service on the Company’s Board of Directors
during Director’s current term of office (such grant, the
“Award”); and
WHEREAS , it is a
condition precedent to the Company’s making of the Award that
Director enter into this Agreement with the Company concerning the
rights and restrictions of the Shares subject to the Award and any
additional agreements described herein that the Company may
require;
NOW, THEREFORE , in
consideration of the mutual covenants herein contained and for
other good and valuable consideration (the receipt and adequacy of
which are hereby acknowledged), and intending to be legally bound
hereby, the parties hereto hereby agree as follows:
I. OWNERSHIP OF SHARES
1.1 Awarded Shares .
The Company hereby awards to Director, effective as of the Award
Date, the number of Shares set forth on Annex 1. The Shares are
subject to certain restrictions and other terms and conditions set
forth herein, including without limitation, the forfeiture
restrictions set forth in Article IV hereof. The certificates
representing the Shares that are subject to forfeiture restrictions
under Article IV shall be held in escrow by the Corporate Secretary
of the Company as provided in, and in accordance with, Article
V.
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1.2 Lapse of
Restrictions . Subject to Sections 4.1, 4.2 and 4.3 hereof, the
forfeiture restrictions set forth herein shall lapse with respect
to the Shares in accordance with the Schedule(s) set forth on Annex
1.
1.3 Restrictive
Legends .
(a) In order to reflect the
restrictions on disposition of the Shares and the forfeiture
restrictions, the stock certificates representing the Shares will
be endorsed with the following restrictive legends:
“THE REGISTERED OWNER
OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE IS AN AFFILIATE,
AS DEFINED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
“ACT”), OF THE COMPANY AND MAY NOT TRANSFER THESE
SECURITIES EXCEPT (A) PURSUANT TO AN EXEMPTION FROM
REGISTRATION UNDER THE ACT, INCLUDING RULE 144 UNDER THE ACT, OR
(B) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
ACT.”
(b) Upon the lapse of the
applicable forfeiture restrictions, at Director’s request,
the Company shall issue replacement certificates representing such
Shares without the legend set forth in clause (a) of this
Section 1.3.
1.4 Definitions .
Whenever used in this Agreement, the following terms shall have the
meaning specified below unless the context clearly indicates to the
contrary.
“ Affiliate
” means, with respect to any Person, any other Person that,
directly or indirectly through one or more intermediaries,
controls, or is controlled by, or is under common control with,
such Person.
“ Beneficial
Ownership ” or “ Beneficially Owned ”
means ownership within the meaning of Rule 13d-3 promulgated under
the Exchange Act.
“ Board ”
means the Board of Directors of the Company.
“ Change in
Capitalization ” means any increase or reduction in the
number of shares of Common Stock, or any change in the shares of
Common Stock or exchange of shares of Common Stock for a different
number or kind of shares or other securities of the Company, by
reason of a reclassification, recapitalization, merger,
consolidation, reorganization, spin-off, split-up, issuance of
warrants or rights or debentures, stock dividend, stock split or
reverse stock split, cash dividend, property dividend, combination
or exchange of shares, change in corporate structure or
substantially similar event.
“ Change in
Control ” means the occurrence of any of the following
events:
(a) An acquisition in one or
more transactions (other than directly from the Company) of any
voting securities of the Company by any Person (as defined below)
immediately after which such Person has Beneficial Ownership of
fifty percent (50%) or more of
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the combined voting power of the
Company’s then outstanding voting securities; provided,
however, in determining whether a Change in Control has occurred,
voting securities which are acquired in a “Non-Control
Acquisition” (as hereinafter defined) shall not
constitute an acquisition which would cause a Change in Control. A
“Non-Control Acquisition” shall mean an
acquisition by (i) an employee benefit plan (or a trust
forming a part thereof) maintained by (A) the Company or
(B) any corporation or other Person of which a majority of its
voting power or its voting equity securities or equity interest is
owned, directly or indirectly, by the Company (a
“Subsidiary” ), (ii) the Company or its
Subsidiaries, or (iii) any Person in connection with a
“Non-Control Transaction” (as hereinafter
defined); or
(b) The individuals who, as
of the date hereof, are members of the Board (the
“Incumbent Board” ), cease for any reason to
constitute at least a majority of the members of the Board or,
following a Merger (as defined below), the board of directors of
the ultimate Parent Corporation (as defined below); provided,
however, that if the election, or nomination for election by the
Company’s common stockholders, of any new director was
approved by a vote of at least a majority of the Incumbent Board
(or, with respect to the directors who are not “
interested persons ” as defined in the Investment
Company Act of 1940, by a majority of the directors who are not
“ interested persons ” serving on the Incumbent
Board), such new director shall, for purposes of this Agreement, be
considered as a member of the Incumbent Board; provided further,
however, that no individual shall be considered a member of the
Incumbent Board if such individual initially assumed office as a
result of an actual or threatened solicitation of proxies or
consents by or on behalf of a Person other than the Board (a
“Proxy Contest” ) including by reason of any
agreement intended to avoid or settle any Proxy Contest;
or
(c) The consummation
of:
(i) A merger, consolidation
or reorganization involving the Company (a “ Merger
”) or an indirect or direct subsidiary of the Company, or to
which securities of the Company are issued, unless:
(A) the stockholders of the
Company, immediately before a Merger, own, directly or indirectly
immediately following the Merger, more than fifty percent
(50%) of the combined voting power of the outstanding voting
securities of (x) the corporation resulting from the Merger
(the “Surviving Corporation” ) if fifty percent
(50%) or more of the combined voting power of the then
outstanding voting securities of the Surviving Corporation is not
Beneficially Owned, directly or indirectly, by another Person or
group of Persons (a “Parent Corporation” ), or
(y) if there is one or more Parent Corporations, the ultimate
Parent Corporation, and
(B) the individuals who were
members of the Incumbent Board immediately prior to the execution
of the agreement providing for a Merger constitute at least a
majority of the members of the board of directors of (x) the
Surviving Corporation or (y) the ultimate Parent Corporation,
if the ultimate Parent Corporation, directly or indirectly, owns
fifty percent (50%) or more of the combined voting power of
the then outstanding voting securities of the Surviving
Corporation, and
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(C) no Person other than
(a) the Company, (b) any Subsidiary, (c) any
employee benefit plan (or any trust forming a part thereof)
maintained by the Company, the Surviving Corporation, any
Subsidiary, or the ultimate Parent Corporation, or (d) any
Person who, together with its Affiliates (as defined below),
immediately prior to a Merger had Beneficial Ownership of fifty
percent (50%) or more of the then outstanding voting
securities, owns, together with its Affiliates, Beneficial
Ownership of fifty percent (50%) or more of the combined
voting power of the then outstanding voting securities of
(x) the Surviving Corporation or (y) the ultimate Parent
Corporation;
(D) Each transaction
described in clauses (c)(i)(A) through (C) above shall herein
be referred to as a “Non-Control Transaction” ;
or
(ii) The direct or indirect
sale or other disposition of all or substantially all of the assets
of the Company to any Person (other than (A) a transfer to a
Subsidiary, (B) under conditions that would constitute a
Non-Control Transaction with the disposition of assets being
regarded as a Merger for this purpose, or (C) the distribution
to the Company’s stockholders of the stock of a Subsidiary or
any other assets).
Notwithstanding the foregoing, a Change
in Control shall not be deemed to occur solely because any Person
(the “Subject Person” ) acquired Beneficial
Ownership of more than the permitted amount of the then outstanding
voting securities as a
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