BUILDERS FIRSTSOURCE, INC. 2007 INCENTIVE PLAN RESTRICTED STOCK AWARD AGREEMENT
Exhibit 10.17
THIS RESTRICTED STOCK AWARD AGREEMENT, (the
“Agreement”), dated as of (the “Grant
Date”), is made by and between Builders FirstSource, Inc.,
a Delaware corporation (the “Company”),
and (the
“Grantee”).
WHEREAS, the Company has adopted the Builders FirstSource, Inc.
2007 Incentive Plan (as amended from time to time, the
“Plan”), pursuant to which the Company may grant
shares of Stock that are restricted as to transfer (shares so
restricted hereinafter referred to as “Restricted
Stock”);
WHEREAS, the Company desires to grant to the Grantee the number
of shares of Restricted Stock provided for herein;
NOW, THEREFORE, in consideration of the recitals and the mutual
agreements herein contained, the parties hereto agree as follows:
Section 1. Grant
of Restricted Stock Award
(a) Grant of Restricted Stock. The
Company hereby grants to the
Grantee shares
of Restricted Stock on the terms and conditions set forth in
this Agreement and as otherwise provided in the Plan.
(b) Incorporation of Plan. The provisions
of the Plan are hereby incorporated herein by reference. Except
as otherwise expressly set forth herein, this Agreement shall be
construed in accordance with the provisions of the Plan and any
capitalized terms not otherwise defined in this Agreement shall
have the definitions set forth in the Plan. The Committee shall
have final authority to interpret and construe the Plan and this
Agreement and to make any and all determinations thereunder, and
its decision shall be binding and conclusive upon the Grantee
and his/her
legal representative in respect of any questions arising under
the Plan or this Agreement. Notwithstanding anything else
contained herein or in the Plan, the Company agrees that in the
event of a “going private” or similar transaction (a
“Going Private Transaction”) that results in the
Company’s common stock ceasing to be listed on a national
securities exchange or quotation system, the shares of
Restricted Stock awarded to Grantee shall be treated in the same
manner as other shares of Restricted Stock under the Plan,
including with respect to offers to purchase, merger
consideration, tax payments (including discretionary or special
bonuses in respect of tax obligations related to the Restricted
Stock), etc.; provided, however, that nothing shall permit an
early release of the Restricted Stock or any cash or other
consideration payable for or on such Restricted Stock (the
“Going Private Consideration”) prior to the date the
restrictions on the Restricted Stock normally would have lapsed
absent any Going Private Transaction (the “Normal Vesting
Date”). If any Going Private Consideration is payable, such
Going Private Consideration shall be held in escrow by the
Company for Grantee until the Normal Vesting Date, subject to
forfeiture pursuant to the terms of Section 2(e) hereof.
If, as a result of a Going Private Transaction, Grantee is
subject to any tax on the Going Private Consideration, upon
written request by Grantee, along with such supporting
information the Company reasonably requests, the Company will
release from such escrow cash or marketable securities, if any
and to the extent thereof, in an amount sufficient to cover
taxes payable by Grantee on the Restricted Shares or Going
Private Consideration that are payable on or before the date the
Normal Vesting Date.
Section 2. Terms
and Conditions of Award
The grant of Restricted Stock provided in Section 1(a)
shall be subject to the following terms, conditions and
restrictions:
(a) Ownership of Shares. Subject to the
restrictions set forth in the Plan and this Agreement, the
Grantee shall possess all incidents of ownership of the
Restricted Stock granted hereunder, including the right to
receive dividends with respect to such Stock and the right to
vote such Stock.
(b) Restrictions. Restricted Stock, and
any interest therein, may not be sold, assigned, transferred,
pledged, hypothecated or otherwise disposed of prior to the
lapse of restrictions set forth in this Agreement
applicable thereto as set forth in Section 2(d). The
Committee may, in its discretion, cancel all or any portion of
any outstanding restrictions prior to the expiration of the
periods provided under Section 2(d).
(c) Certificate; Restrictive Legend. The
Grantee agrees that any certificate issued for Restricted Stock
prior to the lapse of any outstanding restrictions relating
thereto shall be inscribed with the following legend:
This certificate and the shares of stock represented hereby are
subject to the terms and conditions, including forfeiture
provisions and restrictions against transfer (the
“Restrictions”), contained in the Builders
FirstSource, Inc. 2007 Incentive Plan and an agreement entered
into between the registered owner and Builders FirstSource, Inc.
Any attempt to dispose of these shares in contravention of the
Restrictions, including by way of sale, assignment, transfer,
pledge, hypothecation or otherwise, shall be null and void and
without effect.
(d) Lapse of Restrictions. Except as may
otherwise be provided herein, the restrictions on transfer set
forth in Section 2(b) shall lapse on the second anniversary
of the Grant Date, so long as (i) the Grantee continues to
serve as a consultant of the Company pursuant to the terms of
the Consulting Agreement (the “Consulting Agreement”)
dated as of the date hereof between Grantee and the Company and
(ii) provided the Grantee has not violated any of the terms
of the Consulting Agreement, including without limitation the
provisions of Article 5 thereof.
Upon the lapse of restrictions relating to Restricted Stock, the
Company shall issue to the Grantee or the Grantee’s
personal representative a stock certificate representing
the shares
of Stock, free of the restrictive legend described in
Section 2(c). If certificates representing such Restricted
Stock shall have theretofore been delivered to the Grantee, such
certificates shall be returned to the Company, complete with any
necessary signatures or instruments of transfer prior to the
issuance by the Company of such unlegended shares of Stock.
(e) Cessation of Service. In the event
that the Grantee’s service to the Company, as a consultant
of the Company pursuant to the Consulting Agreement, ceases
prior to the lapsing of restrictions with respect to the
Restricted Stock granted hereunder (other than as a result of a
termination thereof by the Company without Cause (as defined in
the Consulting Agreement)), the Restricted Stock held by the
Grantee shall be immediately forfeited as of the date of such
cessation of service. A cessation of service described in the
foregoing sentence shall be deemed to include, without
limitation, any violation of the terms of the restrictive
covenants by Grantee contained in Article 5 of the
Consulting Agreement, regardless of whether the Company elects
to terminate the Consulting Agreement.
Restricted Stock forfeited pursuant to this Section 2(e)
shall be transferred to, and reacquired by, the Company without
payment of any consideration by the Company, and neither the
Grantee nor any of the Grantee’s successors, heirs,
assigns, personal representatives or Permitted Transferees shall
thereafter have any further rights or interests in such shares
or certificates. If certificates containing restrictive legends
shall have theretofore been delivered to the Grantee (or
his/her
legatees, personal representative or Permitted Transferee), such
certificates shall be returned to the Company, complete with any
necessary signatures or instruments of transfer.
(g) Income Taxes. 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
Restricted Stock (or, if the Grantee makes an election under
Section 83(b) of the Code, in connection with such grant),
an amount equal to the taxes the Company determines it is
required to withhold under applicable tax laws with respect to
the Restricted Stock. Such payment shall be made in the form of
cash, shares of Stock already owned by the Grantee for at least
six months prior to such lapse of restrictions, shares of
Restricted Stock upon the lapse of restrictions, or in a
combination of such methods. The Grantee shall promptly notify
the Company of any election made pursuant to Section 83(b)
of the Code.
Section 3. Miscellaneous
(a) Notices. Any notice by the Grantee to
the Company hereunder shall be in writing and shall be deemed
duly given only upon receipt thereof by the General Counsel of
the Company at its principal offices. Any notice by
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the Company to the Grantee shall be in writing and shall deemed
duly given if mailed or sent by overnight service to the Grantee
at the address last specified to the Company by the Grantee,
Grantee’s residence or Grantee’s address appearing on
the books of the Company.
(b) No Right to Continued
Service. Nothing in the Plan or in this Agreement
shall confer upon the Grantee any right to continue to serve as
a consultant of the Company.
(c) Bound by Plan and Company Policy. By
signing this Agreement, the Grantee (i) acknowledges that
Grantee has received a copy of the Plan and has had an
opportunity to review the Plan, (ii) agrees to be bound by
all the terms and provisions of the Plan and (iii) agrees
not to sell any Restricted Stock at a time when any law, rule,
regulation or Company Policy prohibits a sale.
(d) Successors. The terms of this
Agreement shall be binding upon and inure to the benefit of the
Company, its successors and assigns, and of the Grantee and the
beneficiaries, executors, administrators, heirs and successors
of the Grantee.
(e) Invalid Provision. The invalidity or
unenforceability of any particular provision thereof shall not
affect the other provisions hereof, and this Agreement shall be
construed in all respects as if such invalid or unenforceable
provision had been omitted.
(f) Modifications. No change,
modification or waiver of any provision of this Agreement shall
be valid unless the same be in writing and signed by the parties
hereto.
(g) Entire Agreement. This Agreement and
the Plan contain the entire agreement and understanding of the
parties hereto with respect to the subject matter contained
herein and therein and supersede all prior communications,
representations and negotiations in respect thereto.
(h) Governing Law. This Agreement and the
rights of the Grantee hereunder shall be construed and
determined in accordance with the laws of the State of Delaware,
other than the conflicts of law provisions thereof.
(i) Headings. The headings of the
Sections hereof are provided for convenience only and are not to
serve as a basis for interpretation or construction, and shall
not constitute a part, of this Agreement.
(j) Counterparts. This Agreement may be
executed in counterparts, each of which shall be deemed an
original, but all of which together shall constitute one and the
same instrument.
(k) Confidentiality. By signing this
Agreement, Grantee agrees to keep confidential and not to
disclose to any person or entity (other than his potential
employers, financing sources, and legal, financial, and tax
advisors) information concerning the Company’s Restricted
Stock, the number of shares of Restricted Stock covered by this
Agreement or any transactions between the Grantee and the
Company pursuant to this Agreement, except as required by
applicable law or to the extent otherwise publicly disclosed by
the Company.
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IN WITNESS WHEREOF, this Agreement has been executed and
delivered by the parties hereto as of
the day
of , .
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| Its: |
| GRANTEE: |
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