Exhibit
10.10


 


PIERRE
HOLDING CORP.


9990
Princeton Road


Cincinnati,
Ohio 45246


 


RESTRICTED STOCK AGREEMENT


 


 


                                  ,
20  


 


Name


Address


City, State ZIP


 


Re:                             Purchase of Restricted Stock in Pierre
Holding Corp. (the “Company”)


 


Dear
                                :


 


In connection with your promotion to
                            
of Pierre Foods, Inc., the Board of Directors has agreed to issue to you
             shares
of Common Stock of the Company at a purchase price of [$      ]
per share, under the Pierre Holding Corp. 2008 Restricted Stock Plan (the “Plan”),
and in accordance with the terms of this Agreement (the “Restricted Shares”).


 


1.                                      Definitions. 
For the purposes of this Agreement, the following terms shall have the meanings
set forth below:


 


“Affiliate” of any particular Person shall mean
any other Person controlling, controlled by or under common control with such
particular Person, where “control” means the possession, directly or
indirectly, of the power to direct the management and policies of a Person,
whether through the ownership of voting securities, by contract or otherwise.


 


“Available Shares” shall have the meaning set
forth in paragraph 5(a)(ii).


 


“Available Shares Repurchase Notice” shall have
the meaning set forth in paragraph 5(a)(ii).


 


“Board” shall mean the Board of Directors of
the Company.


 


“Code” shall mean the Internal Revenue Code of
1986, as amended, and any successor statute.


 


“Committee” shall mean the Compensation
Committee of the Board, or if no such committee is in existence, the Board
itself.


 


“Common Stock” shall mean the Company’s Common
Stock, par value $0.01 per share, or, in the event that the outstanding Common
Stock is hereafter changed into or exchanged for different stock or securities
of the Company, such other stock or securities.


 


“Company” shall mean Pierre Holding Corp., a
Delaware corporation.


 

















 


“Fair Market Value” of the Common Stock shall
be determined in good faith by the Committee taking into account all relevant
factors determinative of value (including the lack of liquidity of such Common
Stock due to the Company’s status as a privately held corporation, but without
regard to any discounts for minority interests).


 


“Independent Third Party” shall mean any Person
who, immediately prior to the contemplated transaction, does not own in excess
of 5% of the Common Stock on a fully-diluted basis (a “5% Owner”), who
is not controlling, controlled by or under common control with any such 5%
Owner and who is not the spouse or descendant (by birth or adoption) of any
such 5% Owner or a trust for the benefit of such 5% Owner and/or such other
Persons.


 


“MDCP” shall mean Madison Dearborn Capital
Partners IV, L.P. and its Affiliates.


 


“Original Cost” shall have the meaning set
forth in paragraph 2(a).


 


“Person” shall mean a natural person,
partnership (whether general or limited), limited liability company, trust,
estate, association, corporation, custodian, nominee or any other individual or
entity in its own or any representative capacity.


 


“Pierre Foods, Inc.” shall mean Pierre
Foods, Inc., a North Carolina corporation and Subsidiary of the Company.


 


“Public Sale” shall mean any sale of Common
Stock to the public pursuant to an offering registered under the Securities Act
or to the public through a broker, dealer or market maker pursuant to the
provisions of Rule 144 adopted under the Securities Act.


 


“Registration Agreement” shall mean that
certain Registration Agreement dated as of June 30, 2004 between the
Company and certain Investors (as defined therein).


 


“Restricted Shares” shall mean the
              
shares of Common Stock purchased by you in accordance with paragraph 2(a) of
this Agreement and any Common Stock issued to you by way of stock dividend or
stock split or in connection with any conversion, merger, consolidation or
recapitalization or other reorganization affecting the Restricted Shares.  Restricted Shares shall continue to be
Restricted Shares in the hands of any holder other than you (except for the
Company or MDCP and, to the extent that you are permitted to transfer
Restricted Shares pursuant to the Stockholders Agreement, purchasers pursuant
to a public offering under the Securities Act), and each such transferee
thereof shall succeed to the rights and obligations of a holder of Restricted
Shares hereunder.


 


“Sale of the Company” shall mean the sale of
the Company to an Independent Third Party or group of Independent Third Parties
pursuant to which such party or parties acquire (i) capital stock of the
Company possessing the voting power under normal circumstances (without regard
to the occurrence of any contingency) to elect a majority of the Company’s
board of directors (whether by merger, consolidation or sale or transfer of the
Company’s capital stock) or (ii) all or substantially all of the Company’s
assets determined on a consolidated basis.


 


“Stockholders Agreement” shall mean that
certain Stockholders Agreement dated June 30, 2004 between the Company and
certain of its stockholders.


 

















 


“Securities Act” shall mean the Securities Act
of 1933, as amended, and any successor statute.


 


“Subsidiary” shall mean, with respect to any
Person, any corporation, limited liability company, partnership, association or
other business entity of which (i) if a corporation, a majority of the
total voting power of shares of stock entitled (without regard to the
occurrence of any contingency) to vote in the election of directors, managers
or trustees thereof is at the time owned or controlled, directly or indirectly,
by that Person, one or more Subsidiaries of that Person or a combination
thereof, or (ii) if a limited liability company, partnership, association
or other business entity, a majority of the partnership or other similar
ownership interest thereof is at the time owned or controlled, directly or
indirectly, by any Person, one or more Subsidiaries of that person or a
combination thereof.  For purposes
hereof, a Person or Persons shall be deemed to have a majority ownership
interest in a limited liability company, partnership, association or other
business entity if such Person or Persons shall be allocated a majority of
limited liability company, partnership, association or other business entity
gains or losses or shall be or shall control the managing general partner of such
limited liability company, partnership, association or other business entity.


 


“Supplemental Repurchase Notice” shall have the
meaning set forth in paragraph 5(a)(ii).


 


“Termination” shall have the meaning set forth
in paragraph 5(a).


 


“Termination Date” shall have the meaning set
forth in paragraph 5(a).


 


“Unvested Shares” shall have the meaning set
forth in paragraph 5(a).


 


“Unvested Share Repurchase Option” shall have
the meaning set forth in paragraph 5(a).


 


“Vested Shares” shall have the meaning set
forth in paragraph 5(a).


 


“Vested Share Repurchase Option” shall have the
meaning set forth in paragraph 5(a).


 


2.                                      Purchase of Restricted Shares.


 


(a)           Upon
execution of this Agreement, you shall purchase
            
Restricted Shares from the Company for
[$        ] per Share (the “Original
Cost”), which shares shall be subject to the vesting and forfeiture
provisions set forth in this Agreement. 
The Original Cost shall be paid by you by check payable to the
Company.  As soon as practicable after
the execution of this Agreement, the Company shall direct that a stock
certificate representing the Restricted Shares be registered in your name and
issued to you.  Such certificate shall be
held in the custody of the Company or its designee until such Restricted Shares
are no longer considered restricted and are released to you in accordance with
paragraph 2(c).


 


(b)           By
executing this Agreement, you hereby irrevocably appoint the President, each
Vice President, and the Secretary of the Company, and each of them, as your
true and lawful attorney-in-fact, with power (i) to sign in your name and
on your behalf stock certificates and stock powers covering the Restricted
Shares and such other documents and 


 

















 


instruments as the Committee deems necessary or desirable to carry out
the terms of this Agreement, and (ii) to take such other action as the
Committee deems necessary or desirable to effectuate the terms of this
Agreement.  This power, being couple with
an interest, is irrevocable.  You agree
to execute such stock powers and documents as may be reasonably requested from
time to time by the Committee to effectuate the terms of this Agreement.


 


(c)           As
soon as practicable following the vesting of all Restricted Shares in
accordance with this Agreement, and upon satisfaction of all other applicable
conditions with respect to the Restricted Shares, the Company shall deliver or
cause to be delivered to you a certificate or certificates for the Restricted
Shares.  Upon your written request to the
Company prior to the vesting of all Restricted Shares, the Company shall
deliver or cause to be delivered to you a certificate or certificates
representing the number of vested Restricted Shares, if any, as of the date of
such request.


 


(d)           Within
30 days following the date hereof, you shall make an effective election with
the Internal Revenue Service under Section 83(b) of the Internal
Revenue Code and the regulations promulgated thereunder in the form of Annex A
attached hereto.


 


(e)           All
of your vested Restricted Shares shall be subject to, and shall be “Stockholder
Shares” under the Stockholders Agreement and “Registrable Securities” under the
Registration Agreement, and shall be subject to restrictions on transfer and
the other provisions of such agreements; provided, however, that the repurchase
rights of the Company and MDCP in paragraph 5 hereof shall not be considered a
“Transfer” for purposes of Section 3 of the Stockholders Agreement.  As a condition to the Company’s issuance of
the Restricted Shares to you in accordance with paragraph 2, you agree to
execute a joinder to each of the Stockholders Agreement and the Registration
Agreement to evidence your becoming a party to such Agreements with respect to
the Restricted Shares.


 


3.                                      Vesting.  Your
Restricted Shares shall vest as follows: Between the date of this Agreement and
                      ,
20    , provided you are continuously employed by the
Company, Pierre Foods, Inc. or its Subsidiaries from the date of this
Agreement through the date of determination, your Restricted Shares will vest
on a daily pro rata basis such that, on the date of determination, the amount
of your Restricted Shares which shall have vested as of that date shall be
equal to (rounded to the nearest whole share) the product of (A)           
multiplied by (B) a fraction, the numerator of which shall be the
number of calendar days from the date of this Agreement through the date of
determination, inclusive, and the denominator of which shall be [1,460].  Notwithstanding the foregoing, if you have been
continuously employed by the Company, Pierre Foods, Inc. or its
Subsidiaries from the date of this Agreement until a Sale of the Company or
until your Restricted Shares are transferred in a Public Sale, the portion of
your Restricted Shares which has not become vested at the date of such event
and which is transferred in such event shall vest immediately prior to the
consummation of the Sale of the Company or a Public Sale, as applicable.


 


4.                                      Restrictions. 
You shall have all rights and privileges of a shareholder of the Company
with respect to the Restricted Shares, including the right to vote and receive
dividends or other distributions with respect to the Restricted Shares, except
that the following restrictions shall apply:


 

















 


(i)            You
shall not be entitled to delivery of the certificate or certificates for the
Restricted Shares until such Restricted Shares have vested and upon
satisfaction of all other applicable conditions;


 


(ii)           Restricted
Shares may not be sold, transferred or assigned or subject to any encumbrance,
pledge or charge or disposed of for any reason until such Restricted Shares
have vested;


 


(iii)          All
vested and unvested Restricted Shares shall be subject to repurchase by the
Company and/or MDCP in accordance with paragraph 5; and


 


(iv)          Any
attempt to dispose of any Restricted Shares or any interest in such shares in a
manner contrary to this Agreement shall be void and of no effect.


 


5.                                      Repurchase of Restricted Shares.


 


(a)           Repurchase
of Restricted Shares.  If your
employment by the Company, Pierre Foods, Inc. or its Subsidiaries shall
cease for any reason whatsoever, including but not limited to, upon your death,
disability, resignation or termination with or without cause (such cessation of
service a “Termination” and the date on which such cessation occurs
being referred to as the “Termination Date”), the Company and/or MDCP
shall have the option to repurchase your unvested Restricted Shares (the “Unvested
Shares”) and vested Restricted Shares (the “Vested Shares”), in
accordance with this paragraph 5(a), at the price determined in accordance with
the provisions of paragraph 5(c) (the option to purchase Unvested Shares
is referred to herein as the “Unvested Share Repurchase Option” and the
option to purchase Vested Shares is referred to herein as the “Vested Share
Repurchase Option”).


 


(i)            The Company may
elect to purchase all or any portion of your Restricted Shares by delivery of a
Repurchase Notice to you (and with respect to Vested Shares, any other holder(s) of
Vested Shares) within 30 days after the date that is six months after the
applicable Termination Date.  The
Repurchase Notice shall set forth the number of Vested Shares and/or Unvested
Shares to be acquired from you and such other holder(s), the aggregate
consideration to be paid for such shares and the time and place for the closing
of the transaction.  The number of Vested
Shares to be repurchased by the Company shall first be satisfied, to the extent
possible, from the Vested Shares held by you at the time of delivery of the
Repurchase Notice.  If the number of
Vested Shares then held by you is less than the total number of Vested Shares
the Company has elected to purchase, then the Company shall purchase the
remaining shares elected to be purchased from the other holders thereof, pro
rata according to the number of shares held by each such holder at the time of
delivery of such Repurchase Notice (determined as close as practical to the
nearest whole share).


 


(ii)           If for any reason
the Company does not elect to purchase all of your Restricted Shares pursuant
to the Vested Repurchase Option and/or the Unvested Repurchase Option, then
MDCP shall be entitled to exercise the Company’s Vested Repurchase Option
and/or Unvested Repurchase Option in the manner set forth in this paragraph
5(a)(ii) for all or any portion of the number of Restricted Shares the
Company has not elected to purchase (the “Available Shares”).  As soon as practicable after the Company has
determined that there shall be Available Shares, but in any event within 30 


 

















 


days after the
applicable expiration date in accordance with paragraph 5(a)(i), the Company
shall deliver written notice (the “Available Share Repurchase Notice”)
to MDCP setting forth the number of Available Shares and the price for each
Available Share.  MDCP may elect to
purchase any number of Available Shares by delivering written notice to the
Company within 45 days after receipt of the Available Share Repurchase Notice
from the Company.  As soon as
practicable, and in any event within 15 days after the expiration of such
45-day period, the Company shall notify you (and any other holder(s) of
Vested Shares) as to the number of Restricted Shares being purchased from you
(and such other holder(s) of Vested Shares) by MDCP (the “Supplemental
Repurchase Notice”).  At the time the
Company delivers the Supplemental Repurchase Notice to you (and such other
holder(s) of Vested Shares), MDCP shall also receive written notice from
the Company setting forth the number of shares the Company is entitled to purchase,
the aggregate purchase price and the time and place of the closing of the
transaction.  The number of Unvested
Shares and Vested Shares to be repurchased hereunder shall be allocated among
the Company and MDCP pro rata according to the number of shares of Restricted
Stock to be purchased by each of them.


 


(b)           Closing
of Repurchase of Restricted Shares. 
Any repurchase of Restricted Shares pursuant to this paragraph 5 shall
be closed at the Company’s executive offices within 45 days after the delivery
of the applicable Repurchase Notice or Supplemental Repurchase Notice referred
to in paragraphs 5(a)(i) or 5(a)(ii), as applicable.  At the closing, the purchaser or purchasers
shall pay the purchase price in the manner specified in paragraph 5(d) and
you and any other holder of Vested Shares being purchased shall deliver the
certificate or certificates representing such shares to the purchaser or
purchasers or their nominees, accompanied by duly executed stock powers.  Any purchaser of Restricted Shares under this
paragraph 5 shall be entitled to receive customary representations and
warranties from you and any other selling holders of Restricted Shares
regarding the sale of such shares (including representations and warranties
regarding good title to such shares, free and clear of any liens or
encumbrances).


 


(c)           Purchase
Price.  The purchase price per share
to be paid for Unvested Shares purchased by the Company and/or MDCP pursuant to
paragraph 5(a) shall be the Original Cost (set forth in paragraph 2(a))
for such Unvested Shares.  The purchase
price per share to be paid for the Vested Shares purchased by the Company
and/or MDCP pursuant to paragraph 5(a) shall be the Fair Market Value of
such Vested Shares as of the time of the exercise of the Vested Share
Repurchase Option.


 


(d)           Manner
of Payment.  The Company shall pay
the purchase price for all Unvested Shares repurchased pursuant to the Unvested
Share Repurchase Option by certified check or wire transfer to you.  If the Company elects to purchase all or any
part of the Vested Shares, including Vested Shares held by one or more
transferees, the Company shall pay for such shares: (i) first, by
certified check or wire transfer of funds to the extent such payment would not
cause the Company to violate the General Corporation Law of the State of
Delaware and would not cause the Company or its Subsidiaries to breach any
agreement to which they are a party relating to the indebtedness for borrowed
money or other material agreement; and (ii) thereafter, with a
subordinated promissory note of the Company. 
Such subordinated promissory note shall bear interest at the rate of 5%
per annum (which shall be payable annually in cash unless otherwise
prohibited), shall have all principal payment due on the third anniversary of
the date of issuance and shall be subordinated on terms and conditions
satisfactory to the holders of the Company’s or its Subsidiaries’ indebtedness
for borrowed money.  If MDCP elects to
purchase 


 

















 


all or any portion of the Available Shares, MDCP shall pay for that
portion of such Available Shares by certified check or wire transfer of funds.


 


6.                                      Rights of Participants. 
Nothing in this Agreement shall interfere with or limit in any way the
right of the Company, Pierre Foods, Inc., or its Subsidiaries to terminate
your employment at any time (with or without Cause), nor confer upon you any
right to continue in the employ of the Company, Pierre Foods, Inc., or any
of its Subsidiaries for any period of time or to continue you present (or any
other) rate of compensation, and in the event of the termination of your
employment (including, but not limited to, termination by the Company without
Cause), any Unvested Shares shall expire and be forfeited, except as otherwise
provided herein.  Nothing in this
Agreement shall confer upon you any right to be selected again as a Plan
participant, and nothing the Plan or this Agreement shall provide for any
adjustment to the number of Restricted Shares upon the occurrence of subsequent
events except as specifically provided in the Plan.


 


7.                                      Restrictions on Transfer.


 


(a)           Other
Agreements; Legends.  You agree that
any certificates evidencing the Restricted Shares shall bear the following
legend and such other legend or legends as the Company deems necessary or desirable
in connection with the restrictions on transfer applicable to such Restricted
Shares under the Stockholders Agreement.


 


“THE SECURITIES REPRESENTED BY THIS CERTIFICATE WERE
ORIGINALLY ISSUED AS OF
                            ,
20    , HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE “ACT”), OR UNDER ANY STATE SECURITIES LAWS AND MAY NOT
BE SOLD OR TRANSFERRED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT
UNDER THE ACT AND APPLICABLE STATE SECURITIES LAWS OR AN EXEMPTION FROM
REGISTRATION THEREUNDER.  THE SECURITIES
REPRESENTED BY THIS CERTIFICATE ARE ALSO SUBJECT TO CERTAIN TERMS AND
CONDITIONS (INCLUDING FORFEITURE) SET FORTH IN THAT CERTAIN RESTRICTED STOCK
AGREEMENT DATED                                   ,
20     BETWEEN
                                      
AND PIERRE HOLDING CORP., AND THAT CERTAIN STOCKHOLDERS AGREEMENT BETWEEN THE
COMPANY AND CERTAIN STOCKHOLDERS OF THE COMPANY FROM TIME TO TIME A PARTY
THERETO.  A COPY OF EACH OF THESE
AGREEMENTS MAY BE OBTAINED BY THE HOLDER HEREOF AT THE COMPANY’S PRINCIPAL
PLACE OF BUSINESS WITHOUT CHARGE.”


 


(b)           Opinion
of Counsel.  You may not sell,
transfer or dispose of any Restricted Shares (except pursuant to an effective
registration statement under the Securities Act) without first delivering to
the Company an opinion of counsel reasonably acceptable in form and substance
to the Company that registration under the Securities Act or any applicable
state securities law is not required in connection with such transfer.


 


8.                                      Conformity with Plan. 
This Agreement is intended to conform in all respects with, and is
subject to all applicable provisions of the Plan (which is incorporated herein
by 


 

















 


reference).  Inconsistencies
between this Agreement and the Plan shall be resolved in accordance with the
terms of the Plan.  By executing and
returning a copy of this Agreement, you acknowledge your receipt of this
Agreement and the Plan and agree to be bound by all of the terms of this Agreement
and the Plan.


 


9.                                      Withholding of Taxes. 
The Company, Pierre Foods, Inc., or any of its Subsidiaries shall
be entitled to withhold from any amounts due and payable by the Company, Pierre
Foods, Inc., or any of its Subsidiaries to you, the amount of any federal,
state, local or other tax which, in the opinion of the Company, is required to
be withheld in connection with the delivery or vesting of your Restricted
Shares or the receipt of dividends thereon. 
To the extent that the amounts available to the Company, Pierre Foods, Inc.,
or any of its Subsidiaries for such withholding are insufficient, it shall be a
condition to the delivery or vesting, as applicable, of the Restricted Shares
that you make arrangements satisfactory to the Company for the payment of the
balance of such taxes required to be withheld.


 


10.                               Remedies.  Each party
hereto (and MDCP as third-party beneficiary) shall be entitled to enforce its
rights under this Agreement specifically, to recover damages by reason of any
breach of any provision of this Agreement and to exercise all other rights
existing in its favor.  The parties
hereto acknowledge and agree that money damages would not be an adequate remedy
for any breach of the provisions of this Agreement and that any party hereto (and
MDCP as a third-party beneficiary) shall be entitled to specific performance
and/or injunctive relief (without posting bond or other security) from any
court of law or equity of competent jurisdiction in order to enforce or prevent
any violation of the provisions of this Agreement.


 


11.                               Amendment.  Except as
otherwise provided herein, any provision of this Agreement may be amended or
waived only with the prior written consent of you and the Company; provided
that no provision of paragraph 5, 7, 10, or of this paragraph 11 (including the
definitions of the defined terms used therein) may be amended or waived without
the prior written consent of MDCP.


 


12.                               Successors and Assigns. 
Except as otherwise expressly provided herein, all covenants and
agreements contained in this Agreement by or on behalf of any of the parties
hereto shall bind and inure to the benefit of the respective successors and
permitted assigns of the parties hereto whether so expressed or not.


 


13.                               Severability. 
Whenever possible, each provision of this Agreement shall be interpreted
in such manner as to be effective and valid under applicable law, but if any
provision of this Agreement is held to be prohibited by or invalid under
applicable law, such provision shall be ineffective only to the extent of such
prohibition or invalidity, without invalidating the remainder of this
Agreement.


 


14.                               Counterparts. 
This Agreement may be executed simultaneously in two or more
counterparts, each of which shall constitute an original, but all of which
taken together shall constitute one and the same Agreement.


 


15.                               Descriptive Headings. 
The descriptive headings of this Agreement are inserted for convenience
only and do not constitute a part of this Agreement.


 

















 


16.                               Governing Law. 
All questions concerning the construction, validity and interpretation
of this Agreement shall be governed by the internal law, and not the law of
conflicts, of Delaware.


 


17.                               Notices.  All notices,
demands or other communications to be given or delivered under or by reason of
the provisions of this Agreement shall be in writing and shall be deemed to
have been given when delivered personally or mailed by certified or registered
mail, return receipt requested and postage prepaid, to the recipient.  Such notices, demands and other
communications shall be sent to you at the then current address of record in
the Company’s files and to the Company and MDCP at the addresses indicated
below:


 


If to the Company:


Pierre Holding Corp.


9990 Princeton Road


Cincinnati, Ohio 45246


Attn: Board of Directors


 


If to MDCP:


Madison Dearborn Partners
IV, L.P.


Three First National
Plaza


Suite 3800


Chicago, IL 60602


Telephone:  312-895-1000


Attention:  Robin P. Selati


 


With a copy (which shall
not constitute notice) to :


 


Kirkland & Ellis
LLP


200 East Randolph Drive


Chicago, IL 60601


Telecopy:  (312) 861-2200


Attention:  Michael D. Paley


 


or to such other address or to the attention of such
other person as the recipient party has specified by prior written notice to
the sending party.


 


18.                               Third Party Beneficiary. 
The Company and you acknowledge that MDCP is a third-party beneficiary
under this Agreement.


 


19.                               Entire Agreement. 
This Agreement constitutes the entire understanding between you and the
Company, and supersede all other agreements, whether written or oral, with
respect to the acquisition by you of Restricted Shares.


 

















 


Please execute the extra
copy of this Agreement in the space below and return it to the Company’s
Secretary at its executive offices to confirm your understanding and acceptance
of the agreements contained in this Agreement.


 


	
   

  	
  Very truly
  yours,

  
	
   

  	
   

  	
   

  
	
   

  	
  PIERRE HOLDING
  CORP.

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
				



 


Enclosure:             (1)           Extra copy of this Agreement


 


The undersigned hereby
acknowledges having read this Agreement and hereby agrees to be bound by all
provisions set forth herein.


 


	
   

  	
   

  
	
   

  	
  Name:

  
	
   

  	
   

  
	
   

  	
  Date: