HMH HOLDINGS (DELAWARE), INC. 2012 MANAGEMENT INCENTIVE PLAN TIME-BASED RESTRICTED STOCK AWARD NOTICE
Exhibit 10.35
Time-Based Vesting
HMH HOLDINGS (DELAWARE), INC.
2012 MANAGEMENT INCENTIVE PLAN
TIME-BASED RESTRICTED STOCK AWARD NOTICE
Houghton Mifflin Harcourt Company (formerly known as HMH Holdings (Delaware), Inc.) (the Company) has previously established the HMH Holdings (Delaware), Inc. 2012 Management Incentive Plan (the Plan) and, pursuant thereto, the Company desires to grant to the Person identified on Schedule I hereto (the Grantee) restricted shares of the Companys common stock , $0.01 par value per share (Common Stock and each share, a Share), as of [ ], 2015 (the Grant Date), subject to the terms and conditions set forth in this notice (Award Notice).
1. Award. Subject to the terms and conditions set forth herein and in the Plan, the Company hereby grants to the Grantee that number of restricted Shares (the Restricted Shares) as set forth on Schedule I attached hereto (the Award). The Award shall vest in accordance with Section 2 hereof.
2. Terms and Conditions.
(a) The Award shall be one hundred percent (100%) unvested as of the Grant Date. Except as otherwise provided in the Plan and this Award Notice, the Award shall vest and become non-forfeitable (and the restrictions thereupon shall lapse) in equal increments on each of the first, second and third anniversaries of the Grant Date (each, a Vesting Date), provided that the Grantee remains in continuous service with the Company or any of its Subsidiaries on the applicable Vesting Date.
(b) Except as otherwise provided in this Section 2, in the event that the Grantees continuous service is terminated by the Company or by the Grantee for any reason, the Grantee shall forfeit the unvested Award as of the Grantees termination date.
(c) In the event that the Grantees continuous service is terminated by the Company due to the Grantees Disability or due to the Grantees death, the unvested Award shall become immediately fully vested as of the Grantees termination date.
(d) Notwithstanding any provision herein to the contrary, (i) if the Committee has made a provision for the substitution, assumption, exchange or other continuation of the Award in connection with a Change in Control, then in the event that the Grantees continuous service is terminated by the Company other than for Cause, and other than due to death or Disability (which shall be governed by Section 2(c) above), within one (1) year following the occurrence of the Change in Control, the unvested Award shall become immediately fully vested; or (ii) if the Committee has not made a provision for the substitution, assumption, exchange or other continuation of the Award in connection with a Change in Control, then the unvested Award shall become fully vested immediately prior to the Change in Control.
(e) Dividends, if any, payable with respect to Restricted Shares that vest hereunder shall be distributed to the Grantee in cash or, at the sole discretion of the Committee, in Shares having a Fair Market Value equal to the amount of such dividends, within thirty (30) days following the applicable Vesting Date (or, if applicable, an earlier vesting date pursuant to Section 2(c) or 2(d) above, which, in such event, shall also be hereinafter referred to as the Vesting Date), and, if such Restricted Shares are forfeited, the Grantee shall have no right to such dividends.
(f) The Grantee shall pay to the Company promptly upon request, and in any event at the time the Grantee recognizes taxable income in respect of the Award, payment by the Grantee of any federal, state, local or other taxes that may be required to be withheld or paid in connection with the Award. At the sole discretion of the Committee, the Grantee may satisfy such withholding obligation (1) by allowing the Company to withhold whole Shares that would otherwise be delivered to the Grantee, having an aggregate Fair Market Value, determined as of the date the obligation to withhold or pay, equal to the minimum withholding taxes required in connection with the Award or by allowing the Company to withhold an amount of cash that would otherwise be payable to the Grantee, in the amount necessary to satisfy any such obligation; (2) by paying such obligation in cash; (3) by delivering Shares or (4) by any combination of the foregoing (1) through (3).
3. Non-Transferability. The Award is subject to the restrictions on transferability set forth in Section 9.3 of the Plan. In addition, the Grantee agrees to comply with any written holding requirement policy adopted by the Company for employees.
4. Rights as Shareholder. The Grantee shall be the record owner of the Restricted Shares unless and until such Restricted Shares are forfeited or sold or otherwise disposed of, and as record owner shall be entitled to all rights of a common stockholder of the Company, including, without limitation, voting rights, if any, with respect to the Restricted Shares.
5. Certificates. As a condition to the receipt of this Award, the Grantee shall deliver to the Company an escrow agreement and share powers, duly endorsed in blank, relating to the Restricted Shares. Certificates evidencing the Restricted Shares shall be issued by the Company and shall be registered in the Grantees name on the stock transfer books of the Company promptly after the date hereof, and shall be deposited, together with the share powers, with an escrow agent designated by the Committee (who may be the Companys transfer agent), and shall remain in the physical custody of such escrow agent at all times prior to, in the case of any particular Restricted Shares, the applicable Vesting Date.
6. Restrictive Legend. All certificates representing the Restricted Shares shall have affixed thereto a legend in substantially the following form, in addition to any other legends that may be required under federal or state securities laws:
TRANSFER OF THIS CERTIFICATE AND THE SHARES REPRESENTED HEREBY IS RESTRICTED PURSUANT TO THE TERMS OF THE HMH HOLDINGS (DELAWARE), INC. 2012 MANAGEMENT INCENTIVE PLAN AND A RESTRICTED STOCK AWARD NOTICE, BETWEEN HOUGHTON MIFFLIN HARCOURT COMPANY AND THE GRANTEE. A COPY OF SUCH PLAN AND AWARD NOTICE IS ON FILE AT THE PRINCIPAL EXECUTIVE OFFICES OF HOUGHTON MIFFLIN HARCOURT COMPANY.
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7. Adjustments. The Award is subject to adjustment pursuant to Section 3.2 of the Plan.
8. Applicable Securities Laws. Shares issued pursuant to the Award shall not be sold or transferred unless either they first shall have been registered under the Securities Act or, upon request by the Company, the Company first shall have been furnished with an opinion of legal counsel, reasonably satisfactory to the Company, to the effect that such sale or transfer is exempt from the registration requirements of the Securities Act.
9. Notice. Every notice or other communication relating to this Award Notice shall be in writing, and shall be mailed to or delivered to the party for whom it is intended at such address as may from time to time be designated by it in a notice mailed or delivered to the other party as herein provided; provided, that, unless and until some other address be so designated, all notices or communications by the Grantee to the Company shall be mailed or delivered to the Company at its principal executive office, and all notices or communications by the Company to the Grantee may be given to the Grantee personally or may be mailed to the Grantees address as recorded in the records of the Company or any Subsidiary.
10. Governing Law. This Award Notice shall be construed and interpreted in accordance with the laws of the State of Delaware without regard to its conflict of law principles.
11. Plan. The terms and provisions of the Plan are incorporated herein by reference, a copy of which has been provided or made available to the Grantee. In the event of a conflict or inconsistency between the terms and provisions of the Plan and the provisions of this Award Notice, the Plan shall govern and control. All capitalized terms not defined herein shall have the meaning ascribed to them as set forth in the Plan.
12. Interpretation. Any dispute regarding the interpretation of this Award Notice shall be submitted by the Grantee or the Company to the Committee for review. The resolution of such a dispute by the Committee shall be binding on the Company and the Grantee.
13. No Right to Continued Service. Nothing in this Award Notice shall be deemed by implication or otherwise to impose any limitation on any right of the Company or any Subsidiary to terminate the Grantees service.
14. Severability. Every provision of this Award Notice is intended to be severable and any illegal or invalid term shall not affect the validity or legality of the remaining terms.
15. Headings. The headings of the Sections hereof are provided for convenience only and are not to serve as a basis for interpretation of construction, and shall not constitute a part of this Award Notice.
16. Section 409A. It is intended that the Award be exempt from or comply with Section 409A of the Code and this Award Notice shall be interpreted consistent therewith.
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17. Clawback. To the extent required by applicable law (including, without limitation, Section 304 of the Sarbanes-Oxley Act and Section 954 of the Dodd-Frank Wall Street Reform and Consumer Protection Act) and/or the rules and regulations of NASDAQ or any other securities exchange or inter-dealer quotation service on which the Shares are listed or quoted, or if so required pursuant to a written policy adopted by the Company, this Award shall be subject (including on a retroactive basis) to clawback, forfeiture or similar requirements.
18. Successors. The terms of this Award Notice shall be binding upon and inure to the benefit of the Company, its successors and assigns, and the Grantee and the beneficiaries, executors, administrators, heirs and successors of the Grantee.
19. Entire Agreement. This Award Notice and the Plan contain the entire agreement and understanding of the parties hereto with respect to the subject matter contained herein and supersede all prior communications, representations and negotiations in respect thereof.
20. Counterparts. This Award Notice may be signed in counterparts, each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument.
[signature page follows]
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IN WITNESS WHEREOF, the Company has caused this Award Notice to be executed by its duly authorized representative and the Grantee has executed this Award Notice, effective as of the Grant Date.
HOUGHTON MIFFLIN HARCOURT COMPANY | ||
By: |
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Name: | William F. Bayers | |
Title: | Executive Vice President and General Counsel | |
GRANTEE | ||
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Name: |
SCHEDULE I
AWARD
GRANTEE | NUMBER OF RESTRICTED SHARES | |