EXHIBIT 10.5
HOWELL CORPORATION
RESTRICTED STOCK AGREEMENT
This Restricted Stock Agreement ("Agreement"), entered into on the ____
day of ___________, 2000 (the "Effective Date") which is the date on which the
Grant described below was approved by the Stock Option Committee of the Board of
Directors of Howell Corporation, is between Howell Corporation, a Delaware
corporation (the "Company"), and ____________________, (the "Employee").
WHEREAS, to carry out the purposes of the Howell Corporation Omnibus Stock
Awards and Incentive Plan (the "Plan"), shares of restricted Common Stock (as
defined below) are hereby granted to the Employee in accordance with this
Restricted Stock Agreement; and
WHEREAS, the Company and Employee agree as follows:
1. Award of Common Stock. The Company hereby grants (the "Grant") to
Employee _________ shares (the "Shares") of common stock, $1.00 par value, of
the Company ("Common Stock") which shall be subject to the restrictions on
transferability set forth in Section 2(d) herein (the "Restrictions") and to the
other provisions of this agreement.
2. Restricted Period.
(a) For a period of ____________ (___) years commencing on the
Effective Date (the "Restricted Period"), the Shares shall be subject to the
Restrictions and any other restrictions as set forth herein. The Restrictions
shall expire as to all of the Shares on _________________, the _________
anniversary of the Effective Date. The Shares which are subject to the
Restrictions shall hereinafter be referred to as "Restricted Shares." The Shares
which are no longer subject to the Restrictions as set forth in paragraphs (f)
or (g) below shall hereinafter be referred to as "Transferable Shares."
(b) The Company shall effect the issuance of the Shares out of
authorized but unissued shares of Common Stock or out of treasury shares of
Common Stock and shall also effect the issuance of a certificate or certificates
for the Shares. Each certificate issued for Restricted Shares to the Employee
shall be registered in Employee's name and shall be either deposited with the
Secretary of the Company or its designee in an escrow account or held by the
Secretary of the Company, at the election of the Company, together with stock
powers or other instruments of transfer appropriately endorsed in blank by
Employee (Employee hereby agreeing to execute such stock powers or other
instruments of transfer as requested by the Company). Such certificate or
certificates shall remain in such escrow account or with the Secretary of the
Company until the earlier to occur of (i) the termination of the Restricted
Period or (ii) the expiration of the Restrictions as set forth in paragraphs (f)
or (g) below. Certificates representing the Restricted Shares shall bear a
legend in substantially the following form:
<PAGE>
THE SHARES REPRESENTED BY THIS CERTIFICATE MAY BE TRANSFERRED ONLY IN
COMPLIANCE WITH THE CONDITIONS SPECIFIED IN THE RESTRICTED STOCK
AGREEMENT, DATED ____________________ BETWEEN HOWELL CORPORATION
("COMPANY") AND THE REGISTERED HOLDER OF THIS CERTIFICATE. A COPY OF THE
FORM OF SUCH AGREEMENT IS AVAILABLE FOR INSPECTION AT THE PRINCIPAL OFFICE
OF THE COMPANY AND WILL BE FURNISHED WITHOUT CHARGE TO THE REGISTERED
HOLDER OF SUCH CERTIFICATE UPON WRITTEN REQUEST.
The Company may place appropriate stop transfer instructions with respect to the
Restricted Shares with the transfer agent for the Common Stock. Upon Restricted
Shares becoming Transferable Shares, the Company shall effect, in exchange for
the legended certificates, the issuance and delivery of a certificate or
certificates for such Shares to the Employee free of the legend set forth above.
(c) The Employee shall, during the Restricted Period, have all of the
other rights of a stockholder with respect to the Shares including, but not
limited to, the right to receive dividends, if any, as may be declared on such
Restricted Shares from time to time, and the right to vote (in person or by
proxy) such Restricted Shares at any meeting of shareholders of the Company.
(d) The Restricted Shares and the right to vote the Restricted Shares
and to receive dividends thereon, may not be sold, assigned, transferred,
exchanged, pledged, hypothecated, or otherwise encumbered and no such sale,
assignment, transfer, exchange, pledge, hypothecation, or encumbrance, whether
made or created by voluntary act of Employee or any agent of Employee or by
operation of law, shall be recognized by, or be binding upon, or shall in any
manner affect the rights of, the Company or any agent or any custodian holding
certificates for the Restricted Shares during the Restricted Period, unless the
Restrictions have then expired pursuant to the provisions of paragraphs (f) or
(g) below. This provision shall not prohibit Employee from granting revocable
proxies in customary form to vote the Shares.
(e) If the status of employment (hereinafter referred to as
"employment") of Employee with the Company or its Affiliates (as defined in
Section 6 herein) shall terminate, prior to the expiration of the Restricted
Period, for any reason other than death or disability (as defined herein) or
after a Change in Control, then, in that event, any Restricted Shares
outstanding shall, upon such termination of employment, be forfeited by Employee
to the Company, without the payment of any consideration or further
consideration by the Company, and neither Employee nor any successors, heirs,
assigns, or legal representatives of Employee shall thereafter have any further
rights or interest in the Restricted Shares or certificates therefor, and
Employee's name shall thereupon be deleted from the list of the Company's
stockholders with respect to the Restricted Shares.
2
<PAGE>
(f) If the employment of Employee with the Company or its Affiliates
shall terminate by reason of death or disability, any Restrictions on the
Restricted Shares shall be deemed to have expired as to the Restricted Shares as
of the date of any such occurrence, and the Restricted Shares shall thereby be
Transferable Shares. For purposes of this Agreement, "disability" means the
inability of Employee to perform the essential requirements of his or her job
with or without reasonable accommodation.
(g) Upon the occurrence of a Change of Control (as defined herein),
any Restrictions on the Restricted Shares set forth in this Agreement shall be
deemed to have expired, and the Restricted Shares shall thereby be Transferable
Shares. "Change of Control" of the Company shall be conclusively deemed to have
occurred if (and only if) any of the following shall have taken place: (i) a
change in control is reported by the Company in response to Item 1 of Form 8-K
(or any successor item of Form 8-K or any similar item of any other report
required to be filed by the Company under the Securities Exchange Act of 1934,
as amended ("1934 Act")); (ii) any "person" (as such term is used in Sections
13(d) and 14(d)(2) of the 1934 Act) is or becomes the "beneficial owner" (as
defined in Rule 13d-3 under the 1934 Act), directly or indirectly, of securities
of the Company representing forty percent or more of the combined voting power
of the Company's then outstanding securities; or (iii) following the election or
removal of directors, a majority of the Board consists of individuals who were
not members of the Board two years before such election or removal, unless the
election of each director who was not a director at the beginning of such
two-year period has been approved in advance by directors representing at least
a majority of the directors then in office who were directors at the beginning
of the two-year period.
(h) If the employment of Employee with the Company shall terminate
prior to the expiration of the Restricted Period, and there exists a dispute
between Employee and the Company as to the satisfaction of the conditions to the
release of the Shares from the Restrictions hereunder or the terms and
conditions of the Grant, the Shares shall remain subject to the Restrictions
until the resolution of such dispute, regardless of any intervening expiration
of the Restricted Period, except that any dividends that may be payable to the
holders of record of Common Stock as of a date during the period from
termination of Employee's employment to the resolution of such dispute shall:
(1) to the extent to which such dividends would have been
payable to Employee on the Shares, be held by the Company as part of
its general funds, and shall be paid to or for the account of
Employee only upon, and in the event of, a resolution of such dispute
in a manner favorable to Employee, and
(2) be canceled upon, and in the event of, a resolution of such
dispute in a manner unfavorable to Employee.
3
<PAGE>
3. Taxes. To the extent that the receipt of the Restricted Shares,
Transferable Shares, or the lapse of any Restrictions results in income to
Employee for federal or state income tax purposes, Employee shall deliver to the
Company at the time of such receipt or lapse, as the case may be, such amount of
money or, if the Company so determines, shares of unrestricted Common Stock as
the Company may require to meet its obligation under applicable tax laws or
regulations, and, if Employee fails to do so, the Company is authorized to
withhold from any cash or Common Stock remuneration then or thereafter payable
to Employee any tax required to be withheld by reasons of such resulting
compensation income. Employee agrees to notify the Company promptly of any tax
election made by Employee with respect to the Shares.
4. Changes in Capital Structure. If the outstanding shares of Common Stock
shall at any time be changed or exchanged or augmented by declaration of a stock
dividend, stock split, combination of shares, merger, consolidation,
recapitalization or similar event, the Shares, being outstanding shares of
Common Stock, shall be treated in the same manner as all other issued and
outstanding shares. Any cash, property or securities into which the Shares are
so changed or exchanged or so augmenting the Shares or so issued in respect of
the Shares shall be subject to the Restrictions in the same manner as the
Shares.
5. Compliance With Securities Laws.
(a) Employee represents and warrants to the Company that Employee is
acquiring the Shares for his own account, for investment, and without a view to
any sale or distribution thereof in violation of any federal or state securities
laws. Employee understands that the grant of the Shares to Employee has not been
registered under the Securities Act of 1933, as amended, or the securities laws
of any state, and, accordingly, that in addition to the other restrictions
placed on the Shares by this Agreement, the Shares may not be offered, sold,
assigned, transferred, exchanged, pledged, hypothecated or otherwise encumbered
in absence of either (a) an effective registration statement under the
Securities Act of 1933, as amended, and applicable state securities laws or (b)
an opinion of counsel satisfactory to the Company that such registration is not
required.
(b) Employee agrees that the certificates representing the Shares
(whether the Shares are Restricted Shares or Transferable Shares) shall bear a
legend in substantially the following form:
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY STATE SECURITIES LAWS
AND, ACCORDINGLY, MAY NOT BE OFFERED, SOLD, ASSIGNED, TRANSFERRED,
EXCHANGED, PLEDGED, HYPOTHECATED OR OTHERWISE ENCUMBERED IN THE ABSENCE OF
EITHER (1) AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF
1933, AS AMENDED, AND APPLICABLE STATE SECURITIES LAWS OR (2) AN OPINION
OF COUNSEL SATISFACTORY TO HOWELL CORPORATION THAT SUCH REGISTRATION IS
NOT REQUIRED.
4
<PAGE>
(c) Upon the execution of this Agreement and receipt of any
certificates for the Shares pursuant to this Agreement, Employee (or Employee's
legal representative upon Employee's death or disability) will enter into such
additional written representations, warranties and agreements as the Company may
reasonably request in order to comply with applicable securities laws or with
this Agreement.
6. Employment Relationship. Employee shall be considered to be in the
employment of the Company as long as he remains as an employee of the Company or
its Affiliates. Any questions as to whether and when there has been a
termination of such employment, and the cause of such termination, shall be
determined by the Company, with the advice of the employing corporation (if an
Affiliate of the Company), and the Company's determination shall be final. For
purposes of this Agreement, "Affiliates" shall mean any "parent corporation" of
the Company and any "subsidiary corporation" of the Company within the meaning
of Sections 424(e) and (f), respectively, of the Internal Revenue Code of 1986,
as amended.
7. Binding Effect. The terms and conditions hereof shall, in accordance
with their terms, be binding upon, and inure to the benefit of, all successors
of Employee, including, without limitation, Employee's estate and the executors,
administrators, or trustees thereof, heirs and legatees, and any receiver,
trustee in bankruptcy, or representative of creditors of Employee. This
Agreement shall be binding upon and inure to the benefit of any successors to
the Company.
8. Notice. All notices, requests, demands and other communications given
under or by reason of this Agreement shall be in writing and shall be deemed
given when delivered in person or when mailed, by certified mail (return receipt
requested), postage prepaid, addressed as follows (or to such other address as a
party may specify by notice pursuant to this provision):
(a) To the Company:
Howell Corporation
Attention: Secretary
1111 Fannin, Suite 1500
Houston, Texas 77002
(b) To the Employee:
5
<PAGE>
9. Arbitration. Any dispute or controversy arising under or in connection
with this Agreement shall be settled by binding arbitration in Houston, Texas by
one arbitrator appointed in the manner set forth by the American Arbitration
Association. Any arbitration proceeding pursuant to this paragraph shall be
conducted in accordance with the Employment Dispute Resolution Rules of the
American Arbitration Association. Judgment may be entered on the arbitrators'
award in any court having jurisdiction.
10. Entire Agreement and Amendments. This Agreement contains the entire
agreement of the parties relating to the matters contained herein and supersedes
all prior agreements and understandings, oral or written, between the parties
with respect to the subject matter hereof. This Agreement may be changed only by
an agreement in writing signed by the party against whom enforcement of any
waiver, change, modification, extension or discharge is sought.
11. Separability. If any provision of the Agreement is rendered or
declared illegal or unenforceable by reason of any existing or subsequently
enacted legislation or by the decision of any arbitrator or by decree of a court
of last resort, the parties shall promptly meet and negotiate substitute
provisions for those rendered or declared illegal or unenforceable to preserve
the original intent of this Agreement to the extent legally possible, but all
other provisions of this Agreement shall remain in full force and effect.
12. Governing Law. The execution, validity,
interpretation, and performance of this Agreement shall be
governed by, and construed in accordance with, the laws of the
State of Delaware except to the extent pre-empted by federal law.
IN WITNESS WHEREOF, the Company has caused this Agreement to be duly
executed by one of its officers thereunto duly authorized, and Employee has
executed this Agreement, all as of the day and year first above written.
HOWELL CORPORATION
By: ___________________________
Authorized Officer
EMPLOYEE
_______________________________
Name: ________________________
6
