Genco Shipping & Trading Limited Director Restricted Stock Grant Agreement
Exhibit
10.13
Genco
Shipping & Trading Limited
THIS
AGREEMENT, made as of October 31, 2005, between GENCO SHIPPING
& TRADING LIMITED (the
“Company”) and ________________ (the “Participant”).
WHEREAS,
the Company has adopted and maintains the Genco Shipping
& Trading Limited 2005 Equity Incentive Plan (the “Plan”) to provide certain
key persons, on whose initiative and efforts the successful conduct of the
business of the Company depends, with incentives to: (a) enter into and remain
in the service of the Company, (b) acquire a proprietary interest in the success
of the Company, (c) maximize their performance and (d) enhance the long-term
performance of the Company;
WHEREAS,
the Plan provides that the Board of Directors of the Company (the “Board of
Directors”) shall administer the Plan and determine the key persons to whom
awards shall be granted and the amount and type of such awards; and
WHEREAS,
the Board of Directors has determined that the purposes of the Plan would be
furthered by granting the Participant an award under the Plan as set forth
in
this Agreement;
NOW,
THEREFORE, in consideration of the premises and the mutual covenants hereinafter
set forth, the parties hereto hereby agree as follows:
1. Grant
of Restricted Stock. Pursuant
to, and subject to, the terms and conditions set forth herein and in the Plan,
the Board of Directors hereby grants to the Participant 1,200 restricted shares
(the “Restricted Stock”) of common stock of the Company, par value $0.01 per
share (“Common Stock”).
2. Grant
Date. The
Grant Date of the Restricted Stock is October 31, 2005.
3. Incorporation
of Plan. All
terms, conditions and restrictions of the Plan are incorporated herein and
made
part hereof as if stated herein. If there is any conflict between the
terms and conditions of the Plan and this Agreement, the terms and conditions
of
the Plan, as interpreted by the Board of Directors, shall
govern. Except as otherwise provided herein, all capitalized terms
used herein shall have the meaning given to such terms in the Plan.
4. Vesting.
Subject
to the further provisions of this Agreement, the Restricted Stock shall vest
on
the earliest of (i) July 22, 2006, (ii) the date of the annual shareholders
meeting of the Company next following the date hereof (the “Annual Meeting
Date”) and (iii) the occurrence of a Change in Control, as defined in Section
3.8(a) of the Plan, as in effect on the date of such occurrence (each such
date,
the “Vesting Date”).
5. Restrictions
on Transferability.
Until a
share of Restricted Stock vests, the Participant shall not transfer the
Participant’s rights to such share of Restricted Stock or to any rights related
thereto. Any attempt to transfer unvested shares of Restricted Stock or any
rights related thereto, whether by transfer, pledge, hypothecation or otherwise
and whether voluntary or involuntary, by operation of law or otherwise, shall
not vest the transferee with any interest or right in or with respect to such
shares of Restricted Stock or such related rights.
6. Termination
of Service.
(a) In
the
event that the Participant’s Service with the Company terminates before the
Vesting Date for any reason other than the Participant’s death or disability (as
defined in the Plan), the Restricted Stock, together with any property received
in respect of such shares, as set forth in Section 9 hereof, shall be forfeited
as of the date such Service terminates, and the Participant promptly shall
return to the Company any certificates evidencing the Restricted Stock, together
with any cash dividends or other property received in respect of such shares.
For purposes hereof, “Service” means a continuous time period during which the
Participant is at least one of the following: an employee or a director of,
or a
consultant to, the Company.
(b) In
the
event that the Participant’s Service with the Company terminates before the
Vesting Date for reason of the Participant’s death or disability (as defined in
the Plan), a portion of the shares of Restricted Stock shall become vested
immediately prior to the date such Service terminates, and all other shares
of
Restricted Stock, together with any property received in respect of such shares,
as set forth in Section 9 hereof, shall be forfeited as of the date such Service
terminates, and the Participant promptly shall return to the Company any
certificates evidencing such shares, together with any cash dividends or other
property received in respect of such shares. The number of shares to become
vested immediately prior to the date such Service terminates shall be the number
of shares set forth in Section 1 hereof multiplied by a fraction, the
denominator of which is six and the numerator of which is the number of
completed months between the date hereof and the date such Service terminates.
7. Issuance
of Certificates.
(a) Reasonably
promptly after the Grant Date, the Company shall issue and deliver to the
Participant a stock certificate, registered in the name of the Participant,
evidencing the shares of Restricted Stock. Such certificate may bear the
following legend:
“THE
SALE, TRANSFER, ASSIGNMENT, PLEDGE, HYPOTHECATION ENCUMBRANCE OR OTHER DISPOSAL
OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO THE TERMS
OF
THE GENCO SHIPPING
& TRADING LIMITED 2005
EQUITY INCENTIVE PLAN AND A RESTRICTED STOCK GRANT 2AGREEMENT BETWEEN
GENCO SHIPPING
& TRADING LIMITED AND
THE
HOLDER OF RECORD OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE. NO TRANSFER
OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE IN CONTRAVENTION OF SUCH
PLAN
AND RESTRICTED STOCK GRANT AGREEMENT SHALL BE VALID OR EFFECTIVE. COPIES OF
SUCH
AGREEMENT MAY BE OBTAINED BY WRITTEN REQUEST MADE BY THE HOLDER OF RECORD OF
THE
CERTIFICATE TO THE SECRETARY OF GENCO SHIPPING
& TRADING LIMITED.”
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Such
legend shall not be removed from such certificate until such shares of
Restricted Stock vest.
(b) Reasonably
promptly after the Restricted Stock vests pursuant to Section 4 hereof, in
exchange for the surrender to the Company of the certificates evidencing the
Restricted Stock, delivered to the Participant under Section 7(a) hereof, and
the certificates evidencing any other securities received in respect of such
shares, if any, the Company shall issue and deliver to the Participant (or
the
Participant’s legal representative, beneficiary or heir) a certificate
evidencing such shares of Restricted Stock and such other securities, free
of
the legend provided in Section 7(a) hereof.
(c) The
Company may require as a condition of the delivery of stock certificates
pursuant to Section 7(b) hereof that the Participant remit to the Company an
amount sufficient in the opinion of the Company to satisfy any federal, state
and other governmental tax withholding requirements related to the vesting
of
the shares represented by such certificate. The Board of Directors, in its
sole
discretion, may permit the Participant to satisfy such obligation by
delivering shares of Common Stock or by directing the Company to withhold
from delivery shares
of
Common Stock, in either case valued at their Fair Market Value on the Vesting
Date with fractional shares being settled in cash.
(d) The
Participant shall not be deemed for any purpose to be, or have rights as, a
shareholder of the Company by virtue of the grant of Restricted Stock, except
to
the extent a stock certificate is issued therefor pursuant to Section 7(a)
hereof, and then only from the date such certificate is issued. Upon the
issuance of a stock certificate, the Participant shall have the rights of a
shareholder with respect to the Restricted Stock, including the right to vote
the shares, subject to the restrictions on transferability and the forfeiture
provisions, as set forth in this Agreement.
8. Securities
Matters.
The
Company shall be under no obligation to effect the registration pursuant to
the
Securities Act of 1933, as amended (the “1933 Act”) of any interests in the Plan
or any shares of Common Stock to be issued thereunder or to effect similar
compliance under any state laws. The Company shall not be obligated
to cause to be issued or delivered any certificates evidencing shares of Common
Stock pursuant hereto unless and until the Company is advised by its counsel
that the issuance and delivery of such certificates is in compliance with all
applicable laws, regulations of governmental authority and the requirements
of
any securities exchange on which shares of Common Stock are
traded. The Board of Directors may require, as a condition of the
issuance and delivery of certificates evidencing shares of Common Stock pursuant
to the terms hereof, that the recipient of such shares make such covenants,
agreements and representations, and that such certificates bear such legends,
as
the Board of Directors, in its sole discretion, deems necessary or
desirable. The Participant specifically understands and agrees that
the shares of Common Stock, if and when issued, may be “restricted securities,”
as that term is defined in Rule 144 under the 1933 Act and, accordingly, the
Participant may be required to hold the shares indefinitely unless they are
registered under such Act or an exemption from such registration is
available.
9. Dividends,
etc.
Any
cash dividends or other property (but not including securities) received by
a
Participant with respect to a share of Restricted Stock shall be returned to
the
Company in the event such share of Restricted Stock is forfeited. Any securities
received by a Participant with respect to a share of Restricted Stock as a
result of any dividend, recapitalization, merger, consolidation, combination,
exchange of shares or otherwise will not vest until such share of Restricted
Stock vests and shall be forfeited if such share of Restricted Stock is
forfeited. Unless the Board of Directors otherwise determines, such securities
shall bear the legend set forth in Section 7(a) hereof.
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10. Delays
or Omissions. No
delay or omission to exercise any right, power or remedy accruing to any party
hereto upon any breach or default of any party under this Agreement, shall
impair any such right, power or remedy of such party, nor shall it be construed
to be a waiver of any such breach or default, or an acquiescence therein, or
of
or in any similar breach or default thereafter occurring, nor shall any waiver
of any single breach or default be deemed a waiver of any other breach or
default theretofore or thereafter occurring. Any waiver, permit,
consent or approval of any kind or character on the part of any party of any
breach or default under this Agreement, or any waiver on the part of any party
or any provisions or conditions of this Agreement, must be in a writing signed
by such party and shall be effective only to the extent specifically set forth
in such writing.
11. Right
of Discharge Preserved.
Nothing
in this Agreement shall confer upon the Participant the right to continue as
a
director of or in other service of the Company, or affect any right which the
Company may have to terminate such service.
12. Integration. This
Agreement contains the entire understanding of the parties with respect to
its
subject matter. There are no restrictions, agreements, promises,
representations, warranties, covenants or undertakings with respect to the
subject matter hereof other than those expressly set forth
herein. This Agreement, including, without limitation, the Plan,
supersedes all prior agreements and understandings between the parties with
respect to its subject matter.
13. Counterparts. This
Agreement may be executed in two or more counterparts, each of which shall
be
deemed an original, but all of which shall constitute one and the same
instrument.
14. Governing
Law. This
Agreement shall be governed by and construed and enforced in accordance with
the
laws of the State of New York, without regard to the provisions governing
conflict of laws.
15. Obligation
to Notify.
If the
Participant makes the election permitted under Section 83(b) of the Internal
Revenue Code of 1986, as amended (that is, an election to include in gross
income in the year of transfer the amounts specified in Section 83(b)), the
Participant shall notify the Company of such election within 10 days of filing
notice of the election with the Internal Revenue Service and shall within the
same 10-day period remit to the Company an amount sufficient in the opinion
of
the Company to satisfy any federal, state and other governmental tax withholding
requirements related to such inclusion in Participant’s income. The Participant
should consult with his or her tax advisor to determine the tax consequences
of
acquiring the Restricted Stock and the advantages and disadvantages of filing
the Section 83(b) election. The Participant acknowledges that it is his or
her
sole responsibility, and not the Company’s, to file a timely election under
Section 83(b), even if the Participant requests the Company or its
representatives to make this filing on his or her behalf.
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16. Reduction
in Benefits.
Unless
the Participant and the Company agree otherwise in writing, in the event that
the Participant would incur an Excise Tax on any payments or benefits under
this
Agreement as a result of a Change of Control (or any other change described
in
Section 280G(b)(2) of the Code), the Company shall reduce the payments or
benefits to be paid to or granted to Participant hereunder to the greater of
(i)
the maximum amount payable to the Participant without the imposition of any
Excise Tax with respect to the Restricted Stock and (ii) the amount that yields
the Participant the greatest after-tax amount of benefits under this Agreement
after taking into account any Excise Tax imposed on Participant, whether due
to
payments and benefits under this Agreement or otherwise. “Excise Tax” means the
tax imposed by Section 4999 of the Code and any successor tax. The determination
of whether the Participants payments and benefits should be reduced and the
amount of any such reduction shall be made by independent counsel selected
by
the Participant and reasonably acceptable to the Company (“Independent
Counsel”). For purposes of such determination, (x) the total amount of payments
and benefits received by the Participant as a result of such Change in Control
(or such other change) shall be treated as “parachute payments” within the
meaning of Section 280G(b)(2) of the Code, and all “excess parachute payments”
within the meaning of Section 280G(b)(1) of the Code shall be treated as subject
to the Excise Tax, except to the extent that, in the opinion of Independent
Counsel, a payment or benefit hereunder (in whole or in part) does not
constitute a “parachute payment” within the meaning of Section 280G(b)(2) of the
Code and the Treasury Regulations under Section 280G of the Code (the
“Regulations”), or such “excess parachute payments” (in whole or in part) are
not subject to the Excise Tax; (y) the amount of the payments and benefits
hereunder that shall be treated as subject to the Excise Tax shall be equal
to
the lesser of (A) the total amount of such payments and benefits or (B) the
amount of “excess parachute payments” within the meaning of Section 280G(b)(1)
of the Code (after applying clause (x) hereof); and (z) the value of any noncash
benefits or any deferred payment or benefit shall be determined by Independent
Counsel in accordance with the principles of Sections 280G(d)(3) and (4) of
the
Code. All fees and expenses of Independent Counsel shall be borne by the
Company.
17. Participant
Acknowledgment. The
Participant hereby acknowledges receipt of a copy of the Plan. The
Participant hereby acknowledges that all decisions, determinations and
interpretations of the Board of Directors in respect of the Plan, this Agreement
and the Restricted Stock shall be final and conclusive.
[Signature
page follows]
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IN
WITNESS WHEREOF, the Company has caused this Agreement to be duly executed
by
its duly authorized officer, and the Participant has hereunto signed this
Agreement on his own behalf, thereby representing that he has carefully read
and
understands this Agreement and the Plan as of the day and year first written
above.
GENCO SHIPPING
& TRADING LIMITED
By:
___________________________________
Name:
Xxxxxx
Xxxxxx
Xxxxxxxx
Title:
President
_________________________________________
[Director]
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