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Exhibit
10.76
RESTRICTED STOCK
AGREEMENT
FOR
EXECUTIVE
OFFICER
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
(“Employee”).
[ WHEREAS , the
Company and Employee entered into a certain
agreement [ DESCRIBE AGREEMENT ] dated
, 200 (as may be amended from time
to time, the “Employee Agreement”);
and
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 employees 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
Employee shares of Common Stock (such shares, the
“Shares”) in connection with and as consideration for
Employee’s various services to and for the benefit of the
Company (such grant, the “Award”):
and
WHEREAS , it is a
condition precedent to the Company’s making of the Award that
Employee 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 Employee, 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
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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.
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 [(including, without limitation, the
Performance-Based 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 Employee’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.
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“ 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 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 result of the acquisition of voting
securities by the Company which, by reducing the number of voting
securities then outstanding, increases the proportional number of
shares Beneficially Owned by the Subject Persons, provided that if
a Change in Control would occur (but for the operation of this
sentence) as a result of the acquisition of voting securities by
the Company, and after such share acquisition by the Company, the
Subject Person becomes the Beneficial Owner of any additional
voting securities which increases the percentage of the then
outstanding voting securities Beneficially Owned by the Subject
Person, then a Change in Control shall occur.
“ Code ”
means the Internal Revenue Code of 1986, as amended.
“ Committee
” means the Compensation Committee of the Board, which is
composed solely of independent directors, or another committee of
the Board composed solely of independent directors that is
appointed by the Board to administer this Agreement.
“ Dividends
” means all cash dividends (including shares of Common Stock
acquired through any dividend reinvestment program with respect to
regular cash dividends), except for liquidating
dividends.
“ Exchange Act
” means the Securities and Exchange Act of 1934, as
amended.
“ Fair Market
Value ” on any date means the closing price per share of
Common Stock on such date and, when used with reference to shares
of Common Stock for any period
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shall mean the average of the daily
closing prices per share of Common Stock for such period. If the
shares of Common Stock are listed or admitted to trading on a
national securities exchange, the closing price shall be the last
sale price, regular way, or, in case no such sale takes place on
such day, the average of the closing bid and asked prices, regular
way, in either case as reported in the principal consolidated
transaction reporting system with respect to securities listed or
admitted to trading on the New York Stock Exchange or, if the
shares of Common Stock are not listed or admitted to trading on the
New York Stock Exchange, as reported in the principal consolidated
transaction reporting system with respect to securities listed on
the principal national securities exchange on which the shares of
Common Stock are listed or admitted to trading or, if the shares of
Common Stock are not so listed on any national securities exchange,
as reported in the transaction reporting system applicable to
securities designated as a “national market system
security” or NASDAQ. If the shares of Common Stock are not so
listed, admitted to trading or designated, Fair Market Value shall
be as determined in good faith by the Board based on an opinion of
an independent investment banking firm with an established national
reputation with respect to the valuation of securities.
“ Forfeitable
Shares ” means any Shares with respect to which the
restrictions have not lapsed in accordance with the Schedule(s) set
forth in Annex 1[, including any Forfeitable Shares with Special
Risk].
[“ Forfeitable
Shares with Special Risk ” means Performance-Based Shares
(as defined in the Schedule(s) to Annex 1) with respect to which
the restrictions thereon have not lapsed in accordance with the
Schedule(s) set forth in Annex 1 on the applicable forfeiture date
for such Shares until such time as such Shares become
Non-Forfeitable Shares on a subsequent date as a result of either
the Board or the Committee (after consultation with Employee)
determining that such non-forfeiture of such Performance-Based
Shares is warranted due to the achievement of performance
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