Genco Shipping & Trading Limited Executive Officer Restricted Stock Grant Agreement
Exhibit
10.19
Genco
Shipping & Trading Limited
THIS
AGREEMENT, made as of December 22, 2006, between GENCO SHIPPING
& TRADING LIMITED (the
“Company”) and Xxxxxx
Xxxxxx Xxxxxxxx
(the
“Participant”).
WHEREAS,
the Company has adopted and maintains the Genco Shipping
& Trading Limited 2005 Equity Incentive Plan (as amended and restated
effective December 21, 2005) (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 15,000
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 December 22, 2006.
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.
(a) Subject
to Section 4(b) hereof and the further provisions of this Agreement, a number
of
whole shares of Restricted Stock as close as possible to 25% of the total number
of shares granted hereunder shall vest on each of November 15, 2007, 2008,
2009
and 2010 (each such date, a “Vesting Date”).
(b) In
the
event of 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, the Restricted Stock
shall become vested in full on the date of such Change in Control.
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 all the
shares of Restricted Stock are vested for any reason other than a termination
by
the Company without cause (as defined in the Plan) or the Participant’s death or
disability (as defined in the Plan), all unvested shares of Restricted Stock,
together with any property received in respect of such shares, subject to and
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. 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 is terminated before all
the shares of Restricted Stock are vested by the Company without cause (as
defined in the Plan) or 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 which are not and have not become vested, 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 as follows:
(i) If
the
termination occurs prior to November 15, 2007, 25% of the number of shares
set
forth in Section 1 hereof multiplied by a fraction, the denominator of which
is
11 and the numerator of which is the number of completed months between the
date
hereof and the date such Service terminates. For the purposes of this paragraph,
a month shall be deemed completed on the 15th of such month.
(ii) If
the
termination occurs on or after November 15, 2007, 25% of the number of shares
set forth in Section 1 hereof multiplied by a fraction, the denominator of
which
is 12 and the numerator of which is the number of completed months between
the
immediately preceding November 15 and the date such Service terminates. For
the
purposes of this paragraph, a month shall be deemed completed on the 15th of
such month.
(7) Issuance
of Shares.
(a) Reasonably
promptly after the Grant Date, the Company shall issue and deliver to the
Participant stock certificates, registered in the name of the Participant,
evidencing the shares of Restricted Stock or shall instruct its transfer agent
to issue shares of Restricted Stock which shall be maintained in book entry
form
on the books of the transfer agent. The Restricted Stock, if certificated,
shall
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 AGREEMENT 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.”
If
the
Restricted Stock is in book entry form, it shall be subject to electronic coding
or stop order indicating that such shares of Restricted Stock are restricted
by
the terms of this Agreement and the Plan. Such legend, electronic coding or
stop
order shall not be removed until such shares of Restricted Stock
vest.
(b) Reasonably
promptly after any such shares of Restricted Stock vest pursuant to Section
4
hereof, (i) in the case of certificated shares, 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) certificates evidencing such shares of Restricted Stock
and
such other securities, free of the legend provided in Section 7(a) hereof and
(ii) in the case of book entry shares, the Company shall cause to be lifted
and
removed any electronic coding or stop order established pursuant to Section
7(a)
hereof.
(c) The
Company may require as a condition of the delivery of stock certificates or
the
removal of any electronic coding or stop order, 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 applicable shares. 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 or an appropriate book entry
is made on the books of the transfer agent reflecting the issuance thereof
pursuant to Section 7(a) hereof, and then only from the date such certificate
is
issued or such book entry is made. Upon the issuance of a stock certificate
or
the making of an appropriate book entry on the books of the transfer agent,
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 any shares, whether by means of stock certificates or
appropriate book entries, unless and until the Company is advised by its counsel
that the issuance of such shares 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 of shares of Common Stock
pursuant to the terms hereof, that the recipient of such shares make such
covenants, agreements and representations, and that any certificates bear such
legends and any book entries be subject to such electronic coding, 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, subject to
Section 2.7(e) of the Plan. 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, subject to Section
2.7(e) of the Plan. Unless the Board of Directors otherwise determines, such
securities shall bear the legend or be subject to the electronic coding or
stop
order set forth in Section 7(a) hereof.
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 in
the
employ or other service of the Company, or affect any right which the Company
may have to terminate such employment or 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.
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
17. 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.
18. 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.
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
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By:
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/s/
Xxxx X. Xxxxxxxxxx
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Name:
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Xxxx
X. Xxxxxxxxxx
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Title:
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Chief
Financial Officer
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/s/
Xxxxxx Xxxxxx Xxxxxxxx
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XXXXXX
XXXXXX XXXXXXXX
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