**Exhibit10.10**

 

**PIERREHOLDING CORP.**

**9990Princeton Road**

**Cincinnati,Ohio 45246**

 

**RESTRICTED STOCK AGREEMENT**

 

 

**                                  ,20  **

 

Name

Address

City, State ZIP

 

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

 

Dear                                :

 

In connection with your promotion to                            of Pierre Foods, Inc., the Board of Directors has agreed to issue to you             sharesof 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 meaningsset forth below:

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“Affiliate” of any particular Person shall meanany other Person controlling, controlled by or under common control with suchparticular Person, where “control” means the possession, directly orindirectly, 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 setforth in paragraph 5(a)(ii).

 

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

 

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

 

“Code” shall mean the Internal Revenue Code of1986, as amended, and any successor statute.

 

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

 

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

 

“Company” shall mean Pierre Holding Corp., aDelaware corporation.

 

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“Fair Market Value” of the Common Stock shallbe determined in good faith by the Committee taking into account all relevantfactors determinative of value (including the lack of liquidity of such CommonStock due to the Company’s status as a privately held corporation, but withoutregard to any discounts for minority interests).

 

“Independent Third Party” shall mean any Personwho, immediately prior to the contemplated transaction, does not own in excessof 5% of the Common Stock on a fully-diluted basis (a “5% Owner”), whois 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 anysuch 5% Owner or a trust for the benefit of such 5% Owner and/or such otherPersons.

 

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

 

“Original Cost” shall have the meaning setforth 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 orentity in its own or any representative capacity.

 

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

 

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

 

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

 

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

 

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

 

“Stockholders Agreement” shall mean thatcertain Stockholders Agreement dated June 30, 2004 between the Company andcertain of its stockholders.

 

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

 

“Subsidiary” shall mean, with respect to anyPerson, any corporation, limited liability company, partnership, association orother business entity of which (i) if a corporation, a majority of thetotal voting power of shares of stock entitled (without regard to theoccurrence of any contingency) to vote in the election of directors, managersor trustees thereof is at the time owned or controlled, directly or indirectly,by that Person, one or more Subsidiaries of that Person or a combinationthereof, or (ii) if a limited liability company, partnership, associationor other business entity, a majority of the partnership or other similarownership interest thereof is at the time owned or controlled, directly orindirectly, by any Person, one or more Subsidiaries of that person or acombination thereof.  For purposeshereof, a Person or Persons shall be deemed to have a majority ownershipinterest in a limited liability company, partnership, association or otherbusiness entity if such Person or Persons shall be allocated a majority oflimited liability company, partnership, association or other business entitygains or losses or shall be or shall control the managing general partner of suchlimited liability company, partnership, association or other business entity.

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

# 2.                                      Purchase of Restricted Shares.

 

### (a)           Uponexecution of this Agreement, you shall purchase            Restricted Shares from the Company for[$        ] per Share (the “OriginalCost”), which shares shall be subject to the vesting and forfeitureprovisions set forth in this Agreement. The Original Cost shall be paid by you by check payable to theCompany.  As soon as practicable afterthe execution of this Agreement, the Company shall direct that a stockcertificate representing the Restricted Shares be registered in your name andissued to you.  Such certificate shall beheld in the custody of the Company or its designee until such Restricted Sharesare no longer considered restricted and are released to you in accordance withparagraph 2(c).

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### (b)           Byexecuting this Agreement, you hereby irrevocably appoint the President, eachVice President, and the Secretary of the Company, and each of them, as yourtrue and lawful attorney-in-fact, with power (i) to sign in your name andon your behalf stock certificates and stock powers covering the RestrictedShares and such other documents and 

 

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### instruments as the Committee deems necessary or desirable to carry outthe terms of this Agreement, and (ii) to take such other action as theCommittee deems necessary or desirable to effectuate the terms of thisAgreement.  This power, being couple withan interest, is irrevocable.  You agreeto execute such stock powers and documents as may be reasonably requested fromtime to time by the Committee to effectuate the terms of this Agreement.

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### (c)           Assoon as practicable following the vesting of all Restricted Shares inaccordance with this Agreement, and upon satisfaction of all other applicableconditions with respect to the Restricted Shares, the Company shall deliver orcause to be delivered to you a certificate or certificates for the RestrictedShares.  Upon your written request to theCompany prior to the vesting of all Restricted Shares, the Company shalldeliver or cause to be delivered to you a certificate or certificatesrepresenting the number of vested Restricted Shares, if any, as of the date ofsuch request.

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### (d)           Within30 days following the date hereof, you shall make an effective election withthe Internal Revenue Service under Section 83(b) of the InternalRevenue Code and the regulations promulgated thereunder in the form of Annex Aattached hereto.

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### (e)           Allof your vested Restricted Shares shall be subject to, and shall be “StockholderShares” under the Stockholders Agreement and “Registrable Securities” under theRegistration Agreement, and shall be subject to restrictions on transfer andthe other provisions of such agreements; provided, however, that the repurchaserights 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 ofthe Restricted Shares to you in accordance with paragraph 2, you agree toexecute a joinder to each of the Stockholders Agreement and the RegistrationAgreement to evidence your becoming a party to such Agreements with respect tothe Restricted Shares.

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

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# 4.                                      Restrictions. You shall have all rights and privileges of a shareholder of the Companywith respect to the Restricted Shares, including the right to vote and receivedividends or other distributions with respect to the Restricted Shares, exceptthat the following restrictions shall apply:

 

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(i)            Youshall not be entitled to delivery of the certificate or certificates for theRestricted Shares until such Restricted Shares have vested and uponsatisfaction of all other applicable conditions;

 

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

 

(iii)          Allvested and unvested Restricted Shares shall be subject to repurchase by theCompany and/or MDCP in accordance with paragraph 5; and

 

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

 

# 5.                                      Repurchase of Restricted Shares.

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## (a)           Repurchaseof Restricted Shares.  If youremployment by the Company, Pierre Foods, Inc. or its Subsidiaries shallcease for any reason whatsoever, including but not limited to, upon your death,disability, resignation or termination with or without cause (such cessation ofservice a “Termination” and the date on which such cessation occursbeing referred to as the “Termination Date”), the Company and/or MDCPshall have the option to repurchase your unvested Restricted Shares (the “UnvestedShares”) and vested Restricted Shares (the “Vested Shares”), inaccordance with this paragraph 5(a), at the price determined in accordance withthe provisions of paragraph 5(c) (the option to purchase Unvested Sharesis referred to herein as the “Unvested Share Repurchase Option” and theoption to purchase Vested Shares is referred to herein as the “Vested ShareRepurchase Option”).

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## (i)            The Company mayelect to purchase all or any portion of your Restricted Shares by delivery of aRepurchase Notice to you (and with respect to Vested Shares, any other holder(s) ofVested Shares) within 30 days after the date that is six months after theapplicable Termination Date.  TheRepurchase Notice shall set forth the number of Vested Shares and/or UnvestedShares to be acquired from you and such other holder(s), the aggregateconsideration to be paid for such shares and the time and place for the closingof the transaction.  The number of VestedShares to be repurchased by the Company shall first be satisfied, to the extentpossible, from the Vested Shares held by you at the time of delivery of theRepurchase Notice.  If the number ofVested Shares then held by you is less than the total number of Vested Sharesthe Company has elected to purchase, then the Company shall purchase theremaining shares elected to be purchased from the other holders thereof, prorata according to the number of shares held by each such holder at the time ofdelivery of such Repurchase Notice (determined as close as practical to thenearest whole share).

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## (ii)           If for any reasonthe Company does not elect to purchase all of your Restricted Shares pursuantto the Vested Repurchase Option and/or the Unvested Repurchase Option, thenMDCP shall be entitled to exercise the Company’s Vested Repurchase Optionand/or Unvested Repurchase Option in the manner set forth in this paragraph5(a)(ii) for all or any portion of the number of Restricted Shares theCompany has not elected to purchase (the “Available Shares”).  As soon as practicable after the Company hasdetermined that there shall be Available Shares, but in any event within 30 

 

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## days after theapplicable expiration date in accordance with paragraph 5(a)(i), the Companyshall deliver written notice (the “Available Share Repurchase Notice”)to MDCP setting forth the number of Available Shares and the price for eachAvailable Share.  MDCP may elect topurchase any number of Available Shares by delivering written notice to theCompany within 45 days after receipt of the Available Share Repurchase Noticefrom the Company.  As soon aspracticable, and in any event within 15 days after the expiration of such45-day period, the Company shall notify you (and any other holder(s) ofVested Shares) as to the number of Restricted Shares being purchased from you(and such other holder(s) of Vested Shares) by MDCP (the “SupplementalRepurchase Notice”).  At the time theCompany delivers the Supplemental Repurchase Notice to you (and such otherholder(s) of Vested Shares), MDCP shall also receive written notice fromthe 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 thetransaction.  The number of UnvestedShares and Vested Shares to be repurchased hereunder shall be allocated amongthe Company and MDCP pro rata according to the number of shares of RestrictedStock to be purchased by each of them.

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## (b)           Closingof Repurchase of Restricted Shares. Any repurchase of Restricted Shares pursuant to this paragraph 5 shallbe closed at the Company’s executive offices within 45 days after the deliveryof the applicable Repurchase Notice or Supplemental Repurchase Notice referredto in paragraphs 5(a)(i) or 5(a)(ii), as applicable.  At the closing, the purchaser or purchasersshall pay the purchase price in the manner specified in paragraph 5(d) andyou and any other holder of Vested Shares being purchased shall deliver thecertificate or certificates representing such shares to the purchaser orpurchasers or their nominees, accompanied by duly executed stock powers.  Any purchaser of Restricted Shares under thisparagraph 5 shall be entitled to receive customary representations andwarranties from you and any other selling holders of Restricted Sharesregarding the sale of such shares (including representations and warrantiesregarding good title to such shares, free and clear of any liens orencumbrances).

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## (c)           PurchasePrice.  The purchase price per shareto be paid for Unvested Shares purchased by the Company and/or MDCP pursuant toparagraph 5(a) shall be the Original Cost (set forth in paragraph 2(a))for such Unvested Shares.  The purchaseprice per share to be paid for the Vested Shares purchased by the Companyand/or MDCP pursuant to paragraph 5(a) shall be the Fair Market Value ofsuch Vested Shares as of the time of the exercise of the Vested ShareRepurchase Option.

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## (d)           Mannerof Payment.  The Company shall paythe purchase price for all Unvested Shares repurchased pursuant to the UnvestedShare Repurchase Option by certified check or wire transfer to you.  If the Company elects to purchase all or anypart of the Vested Shares, including Vested Shares held by one or moretransferees, the Company shall pay for such shares: (i) first, bycertified check or wire transfer of funds to the extent such payment would notcause the Company to violate the General Corporation Law of the State ofDelaware and would not cause the Company or its Subsidiaries to breach anyagreement to which they are a party relating to the indebtedness for borrowedmoney or other material agreement; and (ii) thereafter, with asubordinated 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 otherwiseprohibited), shall have all principal payment due on the third anniversary ofthe date of issuance and shall be subordinated on terms and conditionssatisfactory to the holders of the Company’s or its Subsidiaries’ indebtednessfor borrowed money.  If MDCP elects topurchase 

 

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

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# 6.                                      Rights of Participants. Nothing in this Agreement shall interfere with or limit in any way theright of the Company, Pierre Foods, Inc., or its Subsidiaries to terminateyour employment at any time (with or without Cause), nor confer upon you anyright to continue in the employ of the Company, Pierre Foods, Inc., or anyof its Subsidiaries for any period of time or to continue you present (or anyother) rate of compensation, and in the event of the termination of youremployment (including, but not limited to, termination by the Company withoutCause), any Unvested Shares shall expire and be forfeited, except as otherwiseprovided herein.  Nothing in thisAgreement shall confer upon you any right to be selected again as a Planparticipant, and nothing the Plan or this Agreement shall provide for anyadjustment to the number of Restricted Shares upon the occurrence of subsequentevents except as specifically provided in the Plan.

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# 7.                                      Restrictions on Transfer.

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## (a)           OtherAgreements; Legends.  You agree thatany certificates evidencing the Restricted Shares shall bear the followinglegend and such other legend or legends as the Company deems necessary or desirablein connection with the restrictions on transfer applicable to such RestrictedShares under the Stockholders Agreement.

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“THE SECURITIES REPRESENTED BY THIS CERTIFICATE WEREORIGINALLY ISSUED AS OF                            ,20    , HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACTOF 1933, AS AMENDED (THE “ACT”), OR UNDER ANY STATE SECURITIES LAWS AND MAY NOTBE SOLD OR TRANSFERRED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENTUNDER THE ACT AND APPLICABLE STATE SECURITIES LAWS OR AN EXEMPTION FROMREGISTRATION THEREUNDER.  THE SECURITIESREPRESENTED BY THIS CERTIFICATE ARE ALSO SUBJECT TO CERTAIN TERMS ANDCONDITIONS (INCLUDING FORFEITURE) SET FORTH IN THAT CERTAIN RESTRICTED STOCKAGREEMENT DATED                                   ,20     BETWEEN                                      AND PIERRE HOLDING CORP., AND THAT CERTAIN STOCKHOLDERS AGREEMENT BETWEEN THECOMPANY AND CERTAIN STOCKHOLDERS OF THE COMPANY FROM TIME TO TIME A PARTYTHERETO.  A COPY OF EACH OF THESEAGREEMENTS MAY BE OBTAINED BY THE HOLDER HEREOF AT THE COMPANY’S PRINCIPALPLACE OF BUSINESS WITHOUT CHARGE.”

 

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

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# 8.                                      Conformity with Plan. This Agreement is intended to conform in all respects with, and issubject to all applicable provisions of the Plan (which is incorporated hereinby 

 

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# reference).  Inconsistenciesbetween this Agreement and the Plan shall be resolved in accordance with theterms of the Plan.  By executing andreturning a copy of this Agreement, you acknowledge your receipt of thisAgreement and the Plan and agree to be bound by all of the terms of this Agreementand the Plan.

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# 9.                                      Withholding of Taxes. The Company, Pierre Foods, Inc., or any of its Subsidiaries shallbe entitled to withhold from any amounts due and payable by the Company, PierreFoods, 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 tobe withheld in connection with the delivery or vesting of your RestrictedShares 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 acondition to the delivery or vesting, as applicable, of the Restricted Sharesthat you make arrangements satisfactory to the Company for the payment of thebalance of such taxes required to be withheld.

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# 10.                               Remedies.  Each partyhereto (and MDCP as third-party beneficiary) shall be entitled to enforce itsrights under this Agreement specifically, to recover damages by reason of anybreach of any provision of this Agreement and to exercise all other rightsexisting in its favor.  The partieshereto acknowledge and agree that money damages would not be an adequate remedyfor any breach of the provisions of this Agreement and that any party hereto (andMDCP as a third-party beneficiary) shall be entitled to specific performanceand/or injunctive relief (without posting bond or other security) from anycourt of law or equity of competent jurisdiction in order to enforce or preventany violation of the provisions of this Agreement.

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# 11.                               Amendment.  Except asotherwise provided herein, any provision of this Agreement may be amended orwaived only with the prior written consent of you and the Company; providedthat no provision of paragraph 5, 7, 10, or of this paragraph 11 (including thedefinitions of the defined terms used therein) may be amended or waived withoutthe prior written consent of MDCP.

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

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# 13.                               Severability. Whenever possible, each provision of this Agreement shall be interpretedin such manner as to be effective and valid under applicable law, but if anyprovision of this Agreement is held to be prohibited by or invalid underapplicable law, such provision shall be ineffective only to the extent of suchprohibition or invalidity, without invalidating the remainder of thisAgreement.

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

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

 

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

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

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If to the Company:

Pierre Holding Corp.

9990 Princeton Road

Cincinnati, Ohio 45246

Attn: Board of Directors

 

If to MDCP:

Madison Dearborn PartnersIV, L.P.

Three First NationalPlaza

Suite 3800

Chicago, IL 60602

Telephone:  312-895-1000

Attention:  Robin P. Selati

 

With a copy (which shallnot constitute notice) to :

 

Kirkland & EllisLLP

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 suchother person as the recipient party has specified by prior written notice tothe sending party.

 

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

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

 

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Please execute the extracopy of this Agreement in the space below and return it to the Company’sSecretary at its executive offices to confirm your understanding and acceptanceof the agreements contained in this Agreement.

 
|   | Very truly  yours,    |
|--------|-----------------------|
|   |                  |   |
|   | PIERRE HOLDING  CORP. |
|   |                  |
|   |                  |   |
|   | By                    |   |
|   |                  | Name: |
|   |                  | Title: |
|        |                       |  |  |

 

Enclosure:             (1)           Extra copy of this Agreement

 

The undersigned herebyacknowledges having read this Agreement and hereby agrees to be bound by allprovisions set forth herein.

 
|   |   |
|--------|--------|
|   | Name:  |
|   |   |
|   | Date:  |   |

 

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