GENCORP INC. 2009 EQUITY AND PERFORMANCE INCENTIVE PLAN Director Stock Appreciation Rights Agreement
Exhibit 10.4
GENCORP INC.
2009 EQUITY AND PERFORMANCE INCENTIVE PLAN
2009 EQUITY AND PERFORMANCE INCENTIVE PLAN
WHEREAS, (the “Rights Holder”) is a Director of GenCorp Inc. (the “Company”);
and
WHEREAS, the grant of stock appreciation rights to the Rights Holder has been duly authorized
by a resolution of the Corporate Governance and Nominating Committee (the “Committee”) of the Board
of Directors and by the Board of Directors (the “Board”) of the Company effective as of
, 20___(the “Date of Grant”).
NOW, THEREFORE, pursuant to the Company’s 2009 Equity and Performance Incentive Plan (the
“Plan”), the Company hereby grants to Rights Holder (___) Free-Standing
Appreciation Rights (“SAR”) pursuant to this Stock Appreciation Rights Agreement (the “Agreement”)
entitling Rights Holder to obtain, upon the exercise of SARs on the terms and conditions set forth
herein, a cash payment as determined herein.
1. Exercisability of SARs.
(a) Unless and until terminated as hereinafter provided, the SARs subject to this Agreement
will become exercisable, (i) to the extent of one-half of the total number of SARs granted, on the
date which is six months after the Date of Xxxxx, and (ii) with respect to the remaining one-half
of such SARs, on the date which is one year after the Date of Grant, on the condition that the
Rights Holder remains a Director of the Company on such dates. To the extent that the SARs will
have so become exercisable, the SARs may be exercised in whole or in part from time to time.
(b) Notwithstanding the provisions of Subsection (a) of this Section 1, the SARs will become
immediately exercisable in full upon the occurrence of a change in control of the Company. For
purposes of this Agreement, the term “change in control” will have the meaning given such term
under the Plan as in effect on the Date of Grant.
2. Exercise of SARs.
(a) SARs may be exercised only by delivery of a signed and dated SAR Exercise Form to the
Company in accordance with instructions provided therewith, which Exercise Form shall state the
number of SARs to be exercised. For all purposes, including the determination of applicable tax
reporting and withholding, the exercise date will be the date
entered next to the Rights Holder’s signature on the SAR Exercise Form (the “Exercise Date”).
The Company will not fill in the Exercise Date under any circumstances.
(b) The Exercise Date can be no earlier than the date the SAR Exercise Form is delivered to
the Company regardless of the method of delivery (i.e., by fax, by hand, by overnight courier,
etc.)
3. Payment of SAR Value.
(a) Upon the exercise of SARs in accordance with Section 2, the Company shall make a cash
payment for the SAR Value relating to such exercise to the Rights Holder.
(b) SAR Value shall be the product of (i) the number of Shares with respect to which the SAR
is exercised, and (ii) the excess of the Fair Market Value of a Share on the date of exercise over
$___(the “Xxxxx Xxxxx”).
(c) Fair Market Value shall mean the last sales price reported for the Shares on the
applicable date as reported on the principal national securities exchange in the United States on
which it is then traded or The NASDAQ Stock Market (if the Shares are so listed), or, if not so
listed, the mean between the closing bid and asked prices of publicly traded Shares in the
over-the-counter market, or, if such bid and asked prices shall not be available, as reported by
any nationally recognized quotation service selected by the Company, or as determined by the
Committee in a manner consistent with the provisions of the Code. If, however, the required
accounting standards used to account for the SARs granted to the Rights Holder are substantially
modified subsequent to the Effective Date of the Plan such that fair value accounting for such SARs
becomes required, the Committee shall have the ability to determine the SAR’s Fair Market Value
based on the relevant facts and circumstances.
4. Term of SARs.
(a) Exercisable SARs. SARs that have become exercisable will terminate on the date
which is seven years from the Date of Grant.
(b) SARs Not Yet Exercisable. SARs that have not become exercisable prior to the
termination of the Rights Holder’s service as a Director with the Company for any reason will
terminate on the date of termination of such service.
In the event that the Rights Holder’s service as a Director with the Company is terminated for
cause, all SARs will terminate as of the time of such termination, notwithstanding any other
provision of this Agreement.
5. Transferability.
(a) SARs may not be sold, transferred, pledged, assigned, or otherwise alienated or
hypothecated, except by will or the laws of descent and distribution or otherwise as required by
law and may be exercised during the lifetime of the Rights Holder only by the Rights Holder or the
Rights Holder’s guardian or legal representative acting on behalf of the Rights Holder in a
fiduciary capacity under state law and court supervision.
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(b) Notwithstanding the provisions of Section 5(a), SARs shall be transferable by a Rights
Holder without payment of consideration therefore by the transferee, to any one or more members of
the Rights Holder’s Immediate Family (“Immediate Family” as defined in Rule 16a-1(e) under the
Securities Exchange Act of 1934, as amended, or any successor rule to the same effect, as in effect
from time to time) (or to one or more trusts established solely for the benefit of such Rights
Holder and/or one or more members of the Rights Holder’s Immediate Family or to one or more
partnerships in which the only partners are such Rights Holder and/or members of the Rights Holder
‘s Immediate Family); provided, however, that (i) no such transfer shall be effective unless
reasonable prior notice thereof is delivered to the Company and such transfer is thereafter
effected in accordance with any terms and conditions that shall have been made applicable thereto
by the Company or the Board and (ii) any such transferee shall be subject to the same terms and
conditions hereunder as the Rights Holder. Following transfer, any such SARs shall continue to be
subject to the same terms and conditions as were applicable immediately prior to transfer, provided
that the term “Rights Holder” shall be deemed to refer to the transferee. In the event of
termination of service as a Director, Sections 1 and 4 shall continue to be applied with respect to
the original Rights Holder, following which the SARs shall be exercisable by the transferee only to
the extent, and for the period specified in this Agreement.
6 Adjustments. The Committee may make adjustments, consistent with Section 162(m) of
the Code and the Section 409A Rules, in the terms and conditions of, and the criteria included in,
this Agreement, in recognition of unusual or nonrecurring events (including, without limitation,
the events described in Section 4.4 of the Plan) affecting the Company or the financial statements
of the Company or of changes in applicable laws, regulations, or accounting principles, whenever
the Committee determines that such adjustments are appropriate in order to prevent unintended
dilution or enlargement of the benefits or potential benefits intended to be made available under
the Plan. The determination of the Committee as to the foregoing adjustments, if any, shall be
conclusive and binding on the Rights Holder under the Plan.
7. Taxes/Withholding.
(a) The Company will compute and report all taxes related to an exercise of SARs based upon
the Fair Market Value of the Shares on the Exercise Date. The amount of taxable income reported in
connection with a SAR exercise will not be affected by previous or subsequent market fluctuations.
(b) The Company will withhold all applicable federal, state, local, FICA, Social Security or
foreign taxes in connection with the exercise of SARs.
8. Section 409A. SARs granted hereunder may be amended from time to time as may be
necessary or appropriate to comply with the Section 409A Rules.
9. Retention Rights. The Plan and this Agreement will not confer upon the Rights
Holder any right with respect to the continuance of service as a Director with the Company and
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will
not interfere in any way with any right that the Company would otherwise have to terminate the
service of the Rights Holder as a Director at any time.
10. Relation to Other Benefits. Any economic or other benefit to the Rights Holder
under this Agreement will not be taken into account in determining any benefits to which the Rights
Holder may be entitled under any retirement or other benefit or compensation plan maintained by the
Company unless provided otherwise in any such plan.
11. Notices. Any notice necessary under this Agreement will be addressed to the
Company or the Committee at the principal executive office of the Company and to the Rights Holder
at the address appearing in the personnel records of the Company for such Rights Holder, or to
either party at such other address as either party may designate in writing to the other. Any such
notice will be deemed effective upon receipt thereof by the addressee.
12. Agreement Subject to the Plan. The SARs granted under this Agreement and all of
the terms and conditions hereof are subject to all of the terms and conditions of the Plan. In the
event of any inconsistency between this Agreement and the Plan, the terms of the Plan will govern.
13. Amendments. Any amendment to the Plan will be deemed to be an amendment to this
Agreement to the extent that the amendment is applicable hereto; provided, however, that no
amendment will adversely affect the rights of the Rights Holder under this Agreement without the
Rights Holder’s consent.
15. Severability. In the event that one or more of the provisions of this Agreement
is invalidated for any reason by a court of competent jurisdiction, any provision so invalidated
will be deemed to be separable from the other provisions hereof, and the remaining provisions
hereof will continue to be valid and fully enforceable.
16. Governing Law. This Agreement will be construed and governed in accordance with
the laws of the State of Ohio.
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17. Certain Defined Terms. In addition to the terms defined elsewhere herein, when
used in the Agreement, terms with initial capital letters have the meaning given such term under
the Plan, as in effect from time to time.
This Agreement is effective as of
the ___ day of , 20___.
| GENCORP INC. |
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| By: | ||||
| X. Xxxxx Xxxxx | ||||
| Interim Chief Executive Officer and Interim President |
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The undersigned Rights Holder hereby acknowledges receipt of an executed original of this
Stock Appreciation Rights Agreement and accepts the SARs subject to the applicable terms and
conditions of the Plan and the terms and conditions hereinabove set forth.
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