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EXHIBIT 10.21
LMI AEROSPACE, INC.
RESTRICTED STOCK AGREEMENT
THIS AGREEMENT, is made as of the 27th day of April 1998, between LMI
AEROSPACE, INC., a Missouri corporation (the "Corporation"), and XXXXXXXX X.
XXXXXXX ("XxXxxxx").
RECITALS
A. The Corporation has elected to award XxXxxxx 10,000 shares of common
stock ($0.02 par value) of the Corporation as an inducement to become employed
as an officer of the Corporation and to work for the success of the Corporation
and its subsidiaries.
X. XxXxxxx has also purchased from Xxxxxx X. Xxxx ("Saks") 30,000 shares
of common stock ($0.02 par value) of the Corporation pursuant to the terms of a
certain Stock Purchase Agreement of even date herewith (the "Saks Stock").
C. All of the common stock acquired by XxXxxxx pursuant to this Agreement
is referred to collectively as the Restricted Stock.
X. XxXxxxx is willing to accept the Restricted Stock subject to the terms
of this Agreement.
E. In consideration of the premises and the mutual agreements and
covenants contained herein, the parties hereto agree as follows:
TERMS OF AGREEMENT
1. BONUS STOCK AWARD. The Corporation hereby grants and awards to
XxXxxxx, subject to the conditions and restrictions set forth in this
Agreement, the Restricted Stock as a bonus for LeGrand's agreement to become a
full time employee of the Corporation and to serve as its Chief Operating
Officer. Based on an independent appraisal of the Corporation, the Corporation
and XxXxxxx agree that the fair market value of the Restricted Stock is $20.00
per share. In addition, as further consideration, the Corporation will pay on
behalf of XxXxxxx all taxes, federal, state and local, payable by XxXxxxx as a
result of the award to him of the Restricted Stock, including all taxes payable
by XxXxxxx as a result of payment of taxes by the Corporation on behalf of
XxXxxxx pursuant to this sentence. Such obligation on the part of the
Corporation to pay taxes on behalf of XxXxxxx will not apply to any taxes
subsequently payable by XxXxxxx with respect to the Restricted Stock.
2. RESTRICTIONS ON TRANSFER. Subject to the exceptions and limitations
set forth elsewhere herein, none of the shares of Restricted Stock or the rights
relating thereto may be sold, assigned, transferred, pledged, hypothecated or
otherwise disposed of by XxXxxxx, and
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XxXxxxx agrees not to sell, assign, transfer, pledge, hypothecate or otherwise
dispose of such Restricted Stock or rights, during a period of restriction
extending from the date hereof and ending on April 30, 2000 ("Period of
Restriction"). At the time of the earlier of (i) the expiration of the Period
of Restriction or (ii) a "Change of Control" as defined in Section 9 (the
"Termination Date"), such restriction on transfer shall lapse and the Restricted
Stock, if not previously forfeited pursuant to Section 3 of this Agreement, will
become subject to (i) a right of first refusal pursuant to Section 4 of this
Agreement, and (ii) such limitations on transfer, if any, as may exist under
applicable law, the Shareholder Agreement between XxXxxxx and the Corporation,
the Voting Trust Agreement dated November 11, 1996 or any other agreement
binding upon XxXxxxx.
3. POSSIBLE FORFEITURE OF RESTRICTED STOCK PRIOR TO TERMINATION DATE. If
XxXxxxx ceases to be employed by the Corporation or any of its Subsidiaries for
any reason (whether voluntarily or involuntarily) other than his death or
disability prior to the Termination Date, XxXxxxx shall immediately forfeit all
of the Restricted Stock, and the full ownership of such Restricted Stock shall
thereupon revert to the Corporation. XxXxxxx shall have no further rights under
this Agreement with respect to the Restricted Stock after forfeiture of the
Restricted Stock.
4. RIGHT OF FIRST REFUSAL. In consideration of the agreement of Saks to
sell the Saks Stock to XxXxxxx, contemporaneously herewith XxXxxxx gives Saks a
right of first refusal with respect to the Restricted Stock. After the
Termination Date if XxXxxxx shall receive a bona fide written offer from a third
party to purchase some or all of the Restricted Stock at a specified purchase
price and upon specified terms and conditions (the "Third Party Offer"), XxXxxxx
shall promptly give written notice and a copy of such offer to Saks (the "Third
Party Notice"). Saks shall have an option, but not the obligation, to purchase
the Restricted Stock which is subject to the Third Party Offer, which option may
be exercised within ten (10) days of the receipt by Saks of the Third Party
Notice by giving notice of such exercise to XxXxxxx ("Notice of Exercise of
Option"). If Saks elects to purchase the Restricted Stock which is subject to
the Third Party Offer, the closing shall take place no later than twenty (20)
days after the Notice of Exercise of Option at the offices of the Corporation.
The purchase price per share of the Restricted Stock shall be either (i)
seventy-five percent (75%) of the traded market value on the date of the Third
Party Notice if the stock of the Corporation is publicly traded, or (ii) one
hundred twenty-five percent (125%) of the book value per share of the
Corporation's stock determined as of the end of the Corporation's fiscal year
preceding the Third Party Notice if the stock of the Corporation is privately
held, as the case may be, multiplied by the number of shares of Restricted Stock
to be purchased. The purchase price shall be paid by cashier's check. As used
herein the term "book value" shall have its generally accepted meaning for
accounting purposes and shall be determined by the firm of independent certified
public accountants employed by the Corporation. If Saks does not elect to
purchase the Restricted Stock which is subject to the Third Party Offer, the
Restricted Stock may be sold pursuant to the Third Party Offer, subject to the
restrictions contained in this Agreement and such limitations on transfer, if
any, as may exist under applicable law or any other agreement binding upon
XxXxxxx.
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5. CERTIFICATES. One or more certificates representing the Restricted
Stock will be held by the Corporation or by its transfer agent, together with a
stock power to be executed by XxXxxxx in favor of the Corporation, until the
Termination Date, at which time a certificate or certificates for such
Restricted Stock will be issued to XxXxxxx. The certificates shall bear a legend
indicating that the shares of Restricted Stock are subject to the terms of this
Agreement.
6. DIVIDENDS AND VOTING. During the Period of Restriction with respect to
the Restricted Stock and until any subsequent transfer or forfeiture thereof by
XxXxxxx, XxXxxxx shall be treated as the sole beneficial owner of the Restricted
Stock, having all rights of a common stockholder of the Corporation with respect
thereto, except as otherwise may be set forth in this Agreement. Specifically,
(i) XxXxxxx shall be entitled to receive all dividends, payable in stock, in
cash or in kind, or other distributions, declared on or with respect to any
Restricted Stock as of a record date that occurs during the Period of
Restriction and prior to any transfer or forfeiture of such Restricted Stock,
provided that any such dividends payable in equity securities of the Corporation
or its affiliates, including Common Stock, any series of Preferred Stock, or any
warrants, options or rights to purchase any of the foregoing, shall be received
and held by XxXxxxx subject to the same restrictions on transfer and the same
conditions regarding forfeiture as apply to the Restricted Stock with respect to
which such dividends are paid, and (ii) XxXxxxx shall be entitled to exercise
all voting rights with respect to the Restricted Stock, if the record date for
the exercise of such voting rights occurs during the Period of Restriction and
prior to any transfer or forfeiture of the Restricted Stock. In the event of
forfeiture of the Restricted Stock by XxXxxxx, he shall not be required to
return to the Corporation any dividends or distributions previously paid to
XxXxxxx with respect to the Restricted Stock.
7. DESIGNATION OF BENEFICIARY. XxXxxxx may designate a person or persons
to receive the Restricted Stock, in the event of the death of XxXxxxx. Such
designation must be made upon forms supplied by and delivered to the Corporation
and may be revoked in writing. If XxXxxxx fails effectively to designate a
beneficiary, LeGrand's estate will be deemed to be the beneficiary of XxXxxxx
with respect to the Restricted Stock.
8. ADJUSTMENTS. In the event of any change in the outstanding shares of
common stock by reason of any stock dividend or stock split, recapitalization,
merger, sale, consolidation, spinoff, reorganization, combination, issuance of
stock rights or warrants, exchange of shares, or other similar corporate change,
an appropriate adjustment will be made by the Corporation to the number of
shares of Restricted Stock, the rights to which were previously awarded hereby,
consistent with equitable considerations; provided, however, that if the
Corporation shall deliver additional shares of common stock or other securities
for consideration, no such adjustment shall be made. No such adjustment may
materially change the value of benefits available to XxXxxxx as a result of the
prior award of the Restricted Stock.
9. CHANGE IN CONTROL. Notwithstanding anything to the contrary set forth
elsewhere in this Agreement, in the event of a "Change in Control" of the
Corporation, as defined below, all restrictions on transfer of the Restricted
Stock (other than the right of first
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refusal provided for in Section 4 hereof) then in effect pursuant to Section 2
or any other provision of this Agreement shall lapse and cease to be effective,
as of the date of such Change in Control.
A Change in Control shall be deemed to have occurred as of the first date
that (a) any individual, corporation (other than the Corporation), partnership,
trust, association, pool, syndicate, or any other entity or any group of persons
acting in concert (other than any of the foregoing that is controlled by or
under common control with the Corporation) becomes the beneficial owner, as that
concept is defined in Rule 13d-3 promulgated by the Securities and Exchange
Commission under the Securities Exchange Act of 1934, as amended, as the result
of any one or more securities transactions (including gifts and stock
repurchases but excluding transactions described in subdivision (C), below), of
securities of the Corporation then possessing thirty-five percent (35%) or more
of the voting power for the election of directors of the Corporation, or (b)
"approved directors" shall constitute less than a majority of the entire Board
of Directors of the Corporation, with "approved directors" defined to mean the
members of such Board as of the Date of Grant and any subsequently elected
members of such Board who shall be nominated or approved by a majority of the
approved directors on the Board prior to such election, or, (c) the Corporation
shall have entered into a binding agreement for a Sale of the Corporation, as
defined below, and shall have received all required corporate, regulatory and
other approvals for consummating such transaction. For purposes of subdivision
(c) of the preceding sentence, "Sale of the Corporation" shall mean (i) any
consolidation, merger or stock-for-stock-exchange involving the Corporation or
the securities of the Corporation in which the holders of voting securities of
the Corporation immediately prior to the consummation of such transaction will
own, as a group, immediately after such consummation, voting securities of the
Corporation (or, if the Corporation is not to survive such transaction, voting
securities of the corporation that issues securities to such holders in such
transaction) having less than fifty percent (50%) of the total voting power in
an election of directors of the Corporation (or such other corporation),
excluding any securities of any such other corporation owned by any members of
such group prior to such transaction and any securities to be received in such
transaction by any members of such group which represent disproportionate
percentage increases in their shareholdings vis-a-vis the other members of such
group, or (ii) any sale, lease, exchange or other transfer (in one transaction
or a series of related transactions), of all, or substantially all, of the
assets of the Corporation to a party which is not controlled by or under common
control with the Corporation.
10. EFFECT ON EMPLOYMENT. The grant of the Restricted Stock and rights
thereto provided for herein shall not confer upon XxXxxxx any right to continue
in the employment of the Corporation or its Subsidiaries or to continue to
perform services for the Corporation or its Subsidiaries and shall not in any
way interfere with the right of the Corporation or its Subsidiaries to terminate
the services of XxXxxxx as an employee or officer at any time.
11. WITHHOLDING. To the extent that the grant of the Restricted Stock
granted hereunder may obligate the Corporation to pay withholding taxes on
behalf of XxXxxxx, the Corporation will pay the minimum amount of such
withholding taxes then due and will (i) withhold such amount from LeGrand's
wages or other payments due to XxXxxxx, or (ii) apply
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to such payment funds then delivered by XxXxxxx to the Corporation for such
purpose, or (iii) withhold from the Restricted Stock then distributed to XxXxxxx
(and the certificate or certificates representing such distributed shares of
Restricted Stock) a number of shares of Restricted Stock otherwise then
distributable to XxXxxxx having a fair market value on the date such shares of
Restricted Stock are granted equal to the amount of such payment, in which event
XxXxxxx shall have no further rights to such withheld shares of Restricted
Stock.
12. APPLICABLE LAW. This Agreement will be governed by and construed in
accordance with the laws of the State of Missouri.
13. EXECUTION OF AGREEMENT. In order to obtain all rights under this
Agreement, XxXxxxx must sign and return this Agreement to the Corporation prior
to, or simultaneously with, the delivery of the Restricted Stock by the
Corporation to XxXxxxx. If XxXxxxx fails to sign and return this Agreement to
the Corporation, the award of Restricted Stock provided for herein shall be
deemed void and never to have been granted.
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The parties hereto have executed this Agreement as of the date first above
written.
LMI AEROSPACE, INC.
By: /s/ Xxxxxx X. Xxxx
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(Authorized Officer)
/s/ Xxxxxxxx X. XxXxxxx
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Xxxxxxxx X. XxXxxxx
Xxxxxx X. Xxxx has executed this Agreement as of the date first above
written solely for the purpose of accepting the right of first refusal given to
him by XxXxxxx pursuant to Section 4 of this Agreement.
/s/ Xxxxxx X. Xxxx
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Xxxxxx X. Xxxx
