EXHIBIT 10.16
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EXECUTION COPY
STOCK AWARD AGREEMENT
This Agreement (this "Agreement") by and between the Company and
Xxxxxxx Xxxxx (the "Executive") is made effective as of the 29th day of
September, 2000 (the "Closing Date") simultaneously with the consummation of the
transaction contemplated by the Agreement and Plan of Merger among Xxxxxxx,
Inc., Wilmar Industries, Inc. (the "Company") and BW Acquisition, Inc. dated as
of July 10, 2000.
WHEREAS, the Company desires to grant to the Executive the stock award
provided for herein (the "Stock Award") in partial compensation for the
performance of services to the Company, subject to the terms set forth herein
and in the Wilmar Industries, Inc. Amended and Restated Shareholders' Agreement,
dated as of September 29, 2000, as it may be subsequently amended (the
"Shareholders' Agreement"), among the Company, the Executive and the other
parties named therein. In the event of a conflict between the terms of this
Agreement and the Shareholders' Agreement, the provisions of the Shareholders'
Agreement shall govern.
NOW, THEREFORE, in connection with the mutual covenants hereinafter set
forth and for other good and valuable consideration, the parties hereto agree as
follows:
1. GRANT OF STOCK.
Subject to the terms and conditions of the Shareholders' Agreement and
the additional terms and conditions set forth in this Agreement, the Company
hereby grants to the Executive a Stock Award consisting 163,759 shares of senior
preferred stock, par value $0.01 per share (the "Preferred Stock"). The
Preferred Stock is subject to the provisions of the Shareholders' Agreement.
2. CERTIFICATES.
The certificates evidencing the Preferred Stock shall bear the legends
specified in Section 3.4 of the Shareholders' Agreement. In the case of the
Executive's death, such certificates will be delivered to the beneficiary
designated in writing by the Executive in the form annexed hereto as Exhibit A,
or, in the event no beneficiary has been chosen or such beneficiary has
pre-deceased the Executive or cannot be located within a reasonable amount of
time (as determined by the Board of Directors of the Company (the "Board")), to
the Executive's legatee or legatees, or to his personal representatives or
distributees, as the case may be. Any determination with respect to the delivery
of stock certificates in the event of Executive's death shall be made by the
Board and shall be final and binding and shall completely discharge the Company
from its obligation to deliver stock certificates hereunder.
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3. RIGHTS AS A SHAREHOLDER.
The Executive shall be the record owner of the Preferred Stock, and
entitled to all rights of a shareholder of the Company; PROVIDED, HOWEVER, that
the Preferred Stock shall be subject to the limitations on transfer and
encumbrance set forth herein and in the Shareholders' Agreement.
4. NON-TRANSFERABILITY.
No share of Preferred Stock may be assigned, alienated, pledged,
attached, sold or otherwise transferred or encumbered by the Executive except in
accordance with the applicable provisions of the Shareholders' Agreement and any
such purported assignment, alienation, pledge, attachment, sale, transfer or
encumbrance shall be void and unenforceable against the Company.
5. BINDING EFFECT.
This Agreement shall be binding upon the heirs, executors,
administrators and successors of the parties hereto.
6. GOVERNING LAW.
This Agreement shall be governed by, and construed and interpreted in
accordance with, the internal laws of the State of New Jersey without reference
to principles of conflict of laws.
7. HEADINGS.
Headings used herein are for convenience of reference only, do not
constitute a part of this Agreement and shall not be deemed to limit or affect
any of the provisions hereof.
8. SEVERABILITY.
To the extent any portion of this Agreement, or any portion of any
provision of this Agreement is held to be invalid, void or unenforceable by a
court of competent jurisdiction, such court shall substitute a valid,
enforceable provision that preserves, to the maximum lawful extent, the terms
and intent of this Agreement.
9. WITHHOLDING.
The Executive shall remit to the Company, in cash, the amount of
required tax withholding, if any.
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EXECUTED effective as of the day and year first written above.
WILMAR INDUSTRIES, INC.
By: /s/ Xxxxxxx Xxxxxxx
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Name: Xxxxxxx Xxxxxxx
Title: Senior Vice President
Executive
By:
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Xxxxxxx Xxxxx
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EXECUTED effective as of the day and year first written above.
WILMAR INDUSTRIES, INC.
By
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Name:
Title:
Executive
By: /s/ Xxxxxxx Xxxxx
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Xxxxxxx Xxxxx
EXHIBIT A
BENEFICIARY DESIGNATION FORM
WHEREAS, Xxxxxxx Xxxxx (the "Executive") has been granted an award of
163,759 shares of Senior Preferred Stock, par value $0.01 per share, of Wilmar
Industries, Inc. (the "Company") subject to the Shareholders' Agreement; and
WHEREAS, the Stock Award Agreement provides that if the Executive dies,
but the certificate representing such shares has not been transferred to the
Executive, then a designated beneficiary of the Executive is entitled to receive
such certificate.
NOW THEREFORE, the Executive hereby designates the individual listed
below as the designated beneficiary of the Preferred Stock.
_____________________________
Executive
Beneficiary's Name and Address:
_______________________________________
_______________________________________
_______________________________________
Relationship to Participant:
Dated: ______________________ _______________________________________
