exv10w4



 





Exhibit 10.4




RESTRICTED STOCK AWARD AGREEMENT

(NON-EMPLOYEE DIRECTOR AWARD)



To:                                          Date of Grant:                                          Number of Shares:                                         




     Odyssey Healthcare, Inc., a Delaware corporation (the “Company”), is pleased to grant you an
award (the “Plan Award”) consisting of an aggregate of                                 shares (the “Restricted Shares”)
of the Company’s authorized Common Stock, subject to the terms and conditions set forth in this
Restricted Stock Award Agreement (this “Award Agreement”) and the Odyssey Healthcare, Inc. 2001
Equity-Based Compensation Plan (the “Plan”). The Plan Award is governed by the terms of this Award
Agreement and, where appropriate, the Plan. Any terms not defined herein shall have the meaning
set forth in the Plan.



     This Award Agreement sets forth the terms of the agreement between you and the Company with
respect to the Restricted Shares. By accepting this Award Agreement, you agree to be bound by all
of the terms hereof.



     1. Definitions. As used in this Award Agreement, the following terms have the
meanings set forth below:



          (a) “Board” means the Company’s Board of Directors.




          (b) “Business Day” means any day other than a Saturday, a Sunday or a day on which banking
institutions in the State of Texas are authorized or obligated by law or executive order to close.




          (c) “Change in Control” means, notwithstanding the terms of the Plan or any provision herein
to the contrary, the occurrence of any of the following events:





          (i) The agreement to acquire or the completion of a tender offer for beneficial
ownership (within the meaning of Rule 13d-3 promulgated under the Exchange Act by any
individual, entity or group (within the meaning of section 13(d)(3) or 14(d)(2) of the
Exchange Act)) (a “Person”), of 50% or more of either (x) the then outstanding shares of
Stock (the “Outstanding Stock”) or (y) the combined voting power of the then outstanding
voting securities of the Company entitled to vote generally in the election of directors
(the “Outstanding Company Voting Securities”); provided, however, that for purposes of this
subsection (i), the following acquisitions shall not constitute a Change in Control: (A) any
acquisition directly from the Company, (B) any acquisition by the Company, (C) any
acquisition by any employee benefit plan (or related trust) sponsored or maintained by the
Company or any corporation controlled by the Company or (D) any acquisition by any
corporation pursuant to a transaction which complies with clauses (A), (B) and (C) of
paragraph (iii) below; or




          (ii) A majority of the members of the Board is replaced during any 12-month period by
directors whose appointment or election is not endorsed by a majority of the members
constituting the Board prior to the date of the appointment or election; or



 









 






          (iii) Consummation of a reorganization, merger or consolidation or sale or other
disposition of all or substantially all of the assets of the Company or an acquisition of
assets of another corporation (a “Business Combination”), in each case, unless, following
such Business Combination, (A) the Outstanding Stock and Outstanding Company Voting
Securities immediately prior to such Business Combination represent or are converted into or
exchanged for securities which represent or are convertible into more than 50% of,
respectively, the then outstanding shares of common stock and the combined voting power of
the then outstanding voting securities entitled to vote generally in the election of
directors, as the case may be, of the corporation resulting from such Business Combination
(including, without limitation, a corporation which as a result of such transaction owns the
Company, or all or substantially all of the Company’s assets either directly or through one
or more subsidiaries), (B) no Person (excluding any employee benefit plan (or related trust)
of the Company or the corporation resulting from such Business Combination) beneficially
owns, directly or indirectly, 20% or more of, respectively, the then outstanding shares of
common stock of the corporation resulting from such Business Combination or the combined
voting power of the then outstanding voting securities of such corporation except to the
extent that such ownership of the Company existed prior to the Business Combination and (C)
at least a majority of the members of the board of directors of the corporation resulting
from such Business Combination were members of the Board at the time of the execution of the
initial agreement, or of the action of the Board, providing for such Business Combination;
or




          (iv) Approval by the stockholders of the Company of a complete liquidation or
dissolution of the Company.



          (d) “Committee” shall mean the committee or sub-committee established by the Board to
administer part or all of the Plan.




          (e) “Common Stock” means the common stock, par value $.001 per share, of the Company as
authorized from time to time.




          (f) “Date of Grant” means the Date of Grant first above written.




          (g) “Exchange Act” means the Securities Exchange Act of 1934, as amended from time to time,
including rules thereunder and successor provisions and rules thereto.




          (h) “Person” means any person or entity of any nature whatsoever, specifically including an
individual, a firm, a company, a corporation, a partnership, a limited liability company, a trust
or other entity; a Person, together with that Person’s Affiliates and Associates (as those terms
are defined in Rule 12b-2 under the Exchange Act), and any Persons acting as a partnership, limited
partnership, joint venture, association, syndicate or other group (whether or not formally
organized), or otherwise acting jointly or in concert or in a coordinated or consciously parallel
manner (whether or not pursuant to any express agreement), for the purpose of acquiring, holding,
voting or disposing of securities of the Company with such Person, shall be deemed a single
“Person.”




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          (i) “Plan Award” has the meaning set forth in the first paragraph of the Award Agreement.




          (j) “Subsidiary” means, with respect to any Person, any corporation or other entity of which a
majority of the voting power of the voting equity securities or equity interest is owned, directly
or indirectly, by that Person.




     2. Escrow of Restricted Shares. The Company shall issue in your name a certificate or
certificates representing the Restricted Shares and retain that certificate or those certificates
until the restrictions on such Restricted Shares expire as described in Sections 5, 6, or 7 of this
Award Agreement or the Restricted Shares are forfeited as contemplated in Sections 4 and 7 of this
Award Agreement. You shall execute one or more stock powers in blank for those certificates and
deliver those stock powers to the Company. You hereby agree that the Company shall hold the
certificate or certificates representing the Restricted Shares and the related stock powers
pursuant to the terms of this Award Agreement until such time as such certificate or certificates
are either delivered to you or canceled pursuant to this Agreement.



     3. Ownership of Restricted Shares. From and after the time that a certificate or
certificates representing the Restricted Shares has been issued in your name, you will be entitled
to all the rights of absolute ownership of the Restricted Shares, including the right to vote those
shares and to receive dividends thereon if, as, and when declared by the Board, subject, however,
to the terms, conditions and restrictions set forth in this Agreement.



     4. Restrictions; Forfeiture. The Restricted Shares are restricted in that they may
not be sold, transferred or otherwise alienated or hypothecated until such restrictions are removed
or expire as described in Section 5, 6, or 7 of this Agreement. The Restricted Shares are also
restricted in the sense that they may be forfeited to the Company. You hereby agree that if the
Restricted Shares are forfeited, as provided in Section 7, the Company shall have the right to
deliver the certificate(s) representing the Restricted Shares to the Company’s transfer agent for
cancellation or, at the Company’s election, for transfer to the Company to be held by the Company
in treasury or any designee of the Company.



     5. Expiration of Restrictions and Risk of Forfeiture. The restrictions on all of the
Restricted Shares granted pursuant to this Award Agreement will expire and become transferable and
nonforfeitable on the first anniversary of the Date of Grant, provided, however, that such
restrictions will expire on such date only if you have been a non-employee director continuously
from the Date of Grant through the first anniversary of the Date of Grant.



     6. Adjustment Provisions.



          (a) Recapitalization, Etc. In the event there is any change in the outstanding Common
Stock of the Company by reason of any reorganization, recapitalization, stock split, stock
dividend, combination of shares or otherwise, there shall be substituted for or added to each share
of Common Stock theretofore appropriated or thereafter subject, or which may become subject, to
this Plan Award, the number and kind of shares of stock or other securities into which each
outstanding share of Common Stock shall be so changed or for which each such share shall be
exchanged, or to which each such share shall be entitled, as the case may be.




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Adjustment under the preceding provisions of this section will be made by the Committee, whose
determination as to what adjustments will be made and the extent thereof will be final, binding,
and conclusive. No fractional interest will be issued under the Plan on account of any such
adjustment.




          (b) Change in Control of the Company. In the event of any proposed Change in Control,
the Board shall take such action as it deems appropriate to effectuate the purposes of this Plan
Award and to protect you, which action may include, but without limitation, any one or more of the
following: (i) acceleration or change of the date of the lapse of restrictions applicable to this
Plan Award; (ii) arrangement with you for the payment of appropriate consideration to you for the
cancellation and surrender of the Plan Award; and (iii) in any case where equity securities other
than Common Stock of the Company are proposed to be delivered in exchange for or with respect to
Common Stock of the Company, arrangements providing that the Plan Award shall become a Plan Award
with respect to such other equity securities.




     7. Termination of Director Status. Subject to Section 5, if you cease to be a
non-employee director of the Company or any of its Subsidiaries for any reason, including but not
limited to your death or disability, then that portion, if any, of this Plan Award for which
restrictions have not lapsed as of the date of termination shall become null and void; provided,
however, that the portion, if any, of this Plan Award for which restrictions have expired as of the
date of such termination shall survive such termination.



     8. Leave of Absence. With respect to the Plan Award, the Company may, in its sole
discretion, determine that if you are on leave of absence for any reason you will be considered to
still be a non-employee director of the Company, provided that rights to the Restricted Shares
during a leave of absence will be limited to the extent to which those rights were earned or vested
when the leave of absence began.



     9. Delivery of Certificates of Stock. Promptly following the expiration of the
restrictions on the Restricted Shares as contemplated in Sections 5, 6, and 7 of this Award
Agreement, the Company shall cause to be issued and delivered to you or your designee a certificate
representing the number of Restricted Shares as to which restrictions have lapsed, free of any
restrictive legend relating to the lapsed restrictions. The value of such Restricted Shares shall
not bear any interest owing to the passage of time.



     10. Conditions to Delivery of Stock and Registration. Nothing herein shall require
the Company to issue any shares with respect to the Plan Award if (a) that issuance would, in the
opinion of counsel for the Company, constitute a violation of the Securities Act of 1933 or any
similar or superseding statute or statutes, any other applicable statute or regulation, or the
rules of any applicable securities exchange or securities association, as then in effect or (b) the
withholding obligation as provided in Section 15 has not been satisfied.



     From time to time, the Board and appropriate officers of the Company shall and are authorized
to take whatever actions are necessary to file required documents with governmental authorities,
stock exchanges, and other appropriate Persons to make shares of Common Stock available for
issuance.



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     11. Furnish Information. You agree to furnish to the Company all information
requested by the Company to enable it to comply with any reporting or other requirement imposed
upon the Company by or under any applicable statute or regulation.



     12. Remedies. The parties to this Award Agreement shall be entitled to recover from
each other reasonable attorneys’ fees incurred in connection with the enforcement of the terms and
provisions of this Award Agreement whether by an action to enforce specific performance or for
damages for its breach or otherwise.



     13. Information Confidential. As partial consideration for the granting of the Plan
Award hereunder, you hereby agree with the Company that you will keep confidential all information
and knowledge, except that which has been disclosed in any public filings required by law, that you
have relating to the terms and conditions of this Award Agreement; provided, however, that such
information may be disclosed as required by law and may be given in confidence to your spouse, tax
and financial advisors, or to a financial institution to the extent that such information is
necessary to secure a loan. In the event any breach of this promise comes to the attention of the
Company, it shall take into consideration that breach in determining whether to recommend the grant
of any future similar award to you, as a factor militating against the advisability of granting any
such future award to you.



     14. Consideration. No restriction on the Restricted Shares shall lapse unless and
until you have performed services for the Company or any of its Subsidiaries that the Company
believes is equal to or greater in value than the par value of the Common Stock subject to this
Plan Award.



     15. Continuation of Director Status. Nothing contained in this Award Agreement shall
confer upon you the right to continue as a non-employee director of the Company or any Subsidiary.



     16. No Liability for Good Faith Determinations. The Company and the members of the
Board shall not be liable for any act, omission or determination taken or made in good faith with
respect to this Award Agreement or the Restricted Shares granted hereunder.



     17. No Guarantee of Interests. The Board and the Company do not guarantee the Common
Stock of the Company from loss or depreciation.



     18. Company Records. Records of the Company or its Subsidiaries regarding your
service and other matters shall be conclusive for all purposes hereunder, unless determined by the
Company to be incorrect.



     19. Company Action. Any action required of the Company shall be by resolution of its
Board or by a Person authorized to act by resolution of the Board.



     20. Severability. If any provision of this Award Agreement is held to be illegal or
invalid for any reason, the illegality or invalidity shall not affect the remaining provisions
hereof, but such provision shall be fully severable and this Award Agreement shall be construed and
enforced as if the illegal or invalid provision had never been included herein.



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     21. Arbitration. You and the Company agree, upon written request of either you or the
Company, to the resolution by binding arbitration of all claims, demands, causes of action,
disputes, controversies or other matters in question (“Claims”), whether or not arising out of this
Award Agreement or your service (or its termination), whether arising in contract, tort or
otherwise and whether provided by statute, equity or common law, that the Company may have against
you or that you may have against the Company or its parents, subsidiaries or affiliates, and each
of the foregoing entities’ respective officers, directors, employees or agents in their capacity as
such or otherwise, if such Claim is not resolved by the mutual written agreement between you and
the Company, or otherwise, within 30 days after notice of the dispute is first given. Claims
covered by this Section 22 include without limitation claims by you for breach of this Award
Agreement, wrongful termination, discrimination (based on age, race, sex, disability, national
origin, sexual orientation, or any other factor), harassment and retaliation. Any arbitration
shall be conducted in accordance with the Federal Arbitration Act (“FAA”) and, to the extent an
issue is not addressed by the FAA, with the then-current National Rules for the Resolution of
Employment Disputes of the American Arbitration Association (“AAA”) or such other rules of the AAA
as are applicable to the claims asserted. If a party refuses to honor its obligations under this
Section 22, the other party may compel arbitration in either federal or state court. The
arbitrators shall apply the substantive law of Delaware (excluding choice-of-law principles that
might call for the application of some other jurisdiction’s law) or federal law, or both as
applicable to the claims asserted. The arbitrators shall have exclusive authority to resolve any
dispute relating to the interpretation, applicability or enforceability or formation of this Award
Agreement (including this Section 22), including any claim that all or part of the Award Agreement
is void or voidable and any claim that an issue is not subject to arbitration. The results of
arbitration will be binding and conclusive on the parties hereto. Any arbitrators’ award or finding
or any judgment or verdict thereon will be final and unappealable. All parties agree that venue for
arbitration will be in Dallas, Texas, and that any arbitration commenced in any other venue will be
transferred to Dallas, Texas, upon the written request of any party to this Award Agreement. In the
event that an arbitration is actually conducted pursuant to this Section 22, the party in whose
favor the arbitrator renders the award shall be entitled to have and recover from the other party
all costs and expenses incurred, including reasonable attorneys’ fees, reasonable costs and other
reasonable expenses pertaining to the arbitration and the enforcement thereof and such attorneys
fees, costs and other expenses shall become a part of any award, judgment or verdict. Any and all
of the arbitrators’ orders, decisions and awards may be enforceable in, and judgment upon any award
rendered by the arbitrators may be confirmed and entered by any federal or state court having
jurisdiction. All arbitrations will have three individuals acting as arbitrators: one arbitrator
will be selected by you, one arbitrator will be selected by the Company, and the two arbitrators so
selected will select a third arbitrator; provided that (a) you or the Company shall use reasonably
diligent efforts to select its respective arbitrator within 60 days after a matter is submitted to
arbitration and (b) the parties (including arbitrators) shall not be limited to selecting
arbitrators from only the AAA’s lists of arbitrators. Any arbitrator selected by a party will not
be affiliated, associated or related to the party selecting that arbitrator in any matter
whatsoever. The arbitration hearing shall be conducted within 60 days after the selection of the
arbitrators. All privileges under state and federal law, including attorney-client, work product
and party communication privileges, shall be preserved and protected. The decision of the majority
of the arbitrators will be binding on all parties. Arbitrations will be conducted in a manner so
that the final decision of the arbitrators will be



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made and provided to you and the Company no later than 120 days after a matter is submitted to
arbitration. All proceedings conducted pursuant to this agreement to arbitrate, including any
order, decision or award of the arbitrators, shall be kept confidential by all parties. YOU
ACKNOWLEDGE THAT BY SIGNING THIS AWARD AGREEMENT, YOU ARE WAIVING ANY RIGHT THAT YOU MAY HAVE TO A
JURY TRIAL OR A COURT TRIAL, OF ANY SERVICE-RELATED CLAIM ALLEGED BY YOU.



     22. Notices. Whenever any notice is required or permitted hereunder, such notice must
be in writing and personally delivered or sent by mail. Any such notice required or permitted to
be delivered hereunder shall be deemed to be delivered on the date on which it is personally
delivered, or, whether actually received or not, on the third Business Day after it is deposited in
the United States mail, certified or registered, postage prepaid, addressed to the person who is to
receive it at the address which such person has theretofore specified by written notice delivered
in accordance herewith. The Company or you may change, at any time and from time to time, by
written notice to the other, the address which it or he had previously specified for receiving
notices.



     The Company and you agree that any notices shall be given to the Company or to you at the
following addresses:



	 	 	 	 	 
	 

	 	Company:
	 	 717 N. Harwood
	 

	 	 	 	Suite 1500
	 

	 	 	 	Dallas, TX 75201
	 

	 	 	 	Attention: General Counsel
	 
	 	 	 	 
	 

	 	Holder:
	 	At your current address as shown in the Company’s records.






     23. Waiver of Notice. Any person entitled to notice hereunder may waive such notice
in writing.



     24. Successors. This Award Agreement shall be binding upon you, your legal
representatives, heirs, legatees and distributees, and upon the Company, its successors and
assigns.



     25. Headings. The titles and headings of Sections are included for convenience of
reference only and are not to be considered in construction of the provisions hereof.



     26. Governing Law. All questions arising with respect to the provisions of this
Agreement shall be determined by application of the laws of the State of Texas except to the extent
Texas law is preempted by federal law. The obligation of the Company to sell and deliver Common
Stock hereunder is subject to applicable laws and to the approval of any governmental authority
required in connection with the authorization, issuance, sale, or delivery of such Common Stock.



     27. Execution of Receipts and Releases. Any payment of cash or any issuance or
transfer of shares of Common Stock or other property to you, or to your legal representative, heir,
legatee or distributee, in accordance with the provisions hereof, shall, to the extent thereof,



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be in full satisfaction of all claims of such Persons hereunder. The Company may require you
or your legal representative, heir, legatee or distributee, as a condition precedent to such
payment or issuance, to execute a release and receipt therefor in such form as it shall determine.



     28. Amendment. This Award Agreement may be amended by the Board; provided, however,
that no amendment may decrease your rights inherent in this Plan Award prior to such amendment
without your express written consent.



     29. The Plan. This Award Agreement is subject to all the terms, conditions,
limitations and restrictions contained in the Plan.



[Signature Page Follows]




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     IN WITNESS WHEREOF, the Company has caused this Award Agreement to be executed by its duly
authorized officer as of the Date of Grant first above written.



	 	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	Name:
	 	 

	 	 
	 

	 	Title:
	 	 

	 	 
	 

	 	 	 	 

	 	 






ACKNOWLEDGED AND AGREED:




	 	 	 	 	 
	By:
	 	 	 	 
	Name:

	 	 

	 	 
	 

	 	 

	 	 







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