RESTRICTED SHARE AGREEMENT
2012 Award
Restricted Share
TRIMAS CORPORATION
2002 LONG TERM EQUITY INCENTIVE PLAN
TriMas Corporation (“Company”), as permitted by the TriMas Corporation 2002 Long Term Equity Incentive Plan (“Plan”), hereby grants to the individual listed below (“Grantee”), a Restricted Share Award (“Award”) for the number of shares of the Company’s Common Stock set forth below (“Restricted Shares”), subject to the terms and conditions of the Plan and this Restricted Share Agreement (“Agreement”).
Unless otherwise defined in this Agreement or in Appendix A to this Agreement, the terms used in this Agreement have the same meaning as defined in the Plan. The term “Service Provider” as used in this Agreement means an individual actively providing services to the Company or a Subsidiary or Affiliate of the Company.
I. NOTICE OF RESTRICTED SHARE AWARD
Grantee: | [specify Grantee’s name] |
Date of Agreement: | [month and day], 2012 |
Grant Date: | [month and day], 2012 |
Number of Restricted Shares in Award: | [number of shares] |
II. AGREEMENT
X. Xxxxx of Restricted Shares. The Company hereby grants to the Grantee (who, pursuant to this Award is a Participant in the Plan) the number of Restricted Shares set forth above. The Restricted Shares granted under this Agreement are payable only in shares of Common Stock of the Company. Notwithstanding anything to the contrary anywhere else in this Agreement, the Restricted Shares in this Award are subject to the terms, definitions and provisions of the Plan, which are incorporated by reference into this Agreement.
1. Vesting. The Restricted Shares will vest in three equal installments on the first three anniversaries (each respective one-, two- and three-year period, a “Restriction Period”) of the Grant Date, subject to Grantee’s continued status as a Service Provider through the end of each such Restriction Period.
2. Rights as Stockholder. Except for the potential forfeitability of the
Restricted Shares before the lapse of restrictions set forth in Section A.1 above, the Grantee has all rights of a stockholder (including voting and dividend rights) commencing on the date of the Company’s book entry evidencing the grant of Restricted Shares under this Agreement. With respect to any dividends that are paid with respect to your Restricted Shares between the date of this Agreement and the end of any applicable Restriction Period, such dividends (whether payable in cash or shares) shall be subject to the same restrictions as your Restricted Shares, including any forfeiture provisions described in Section 4 below.
3. Adjustments. In the event of any stock dividend, reclassification, subdivision or combination, or similar transaction affecting the Restricted Shares covered by this Award, the rights of the Grantee will be adjusted as provided in Section 4 of the Plan.
4. Termination of Services; Forfeiture. Notwithstanding any other provision of this Agreement:
(a) Voluntary Termination; Termination for Cause. Any unvested Restricted Shares subject to this Award will be canceled and forfeited if the Grantee voluntarily terminates the Grantee’s services with the Company or a Subsidiary or Affiliate of the Company (other than for Good Reason as provided in paragraph (d) below), or if the Grantee’s services are involuntarily terminated by the Company or a Subsidiary or Affiliate of the Company for Cause.
(b) Death; Disability. If the Grantee ceases to be a Service Provider prior to the end of any Restriction Period as a result of Grantee’s death or “Disability” (as defined in Appendix A, attached hereto), the Grantee shall fully vest in the Restricted Shares subject to this Award.
(c) Qualifying Termination. If the Grantee has a “Qualifying Termination” (as defined in Appendix A, attached hereto) within three years following a Change in Control, the Grantee shall fully vest in the Restricted Shares subject to this Award.
(d) Other than For Cause; Good Reason. If the Grantee’s services are terminated by the Company or a Subsidiary or Affiliate of the Company other than for Cause, or if the Grantee terminates his services with the Company or a Subsidiary or Affiliate of the Company for “Good Reason” (as defined in Appendix A, attached hereto) the Grantee shall vest in a pro-rata portion of the Grantee’s unvested Restricted Shares, with the pro-rata amount calculated by (x) multiplying the total number of Restricted Shares subject to this Award, by a fraction with (i) a numerator equaling the number of whole calendar months that have elapsed from the Grant Date to the date of the Grantee’s termination, and (ii) a denominator equal to 36, and then (y) subtracting the number of Restricted Shares that have already vested under this Award.
(e) Retirement. If the Grantee ceases to be a Service Provider as a result of Xxxxxxx’s “Retirement” (as defined in Appendix A, attached hereto) prior to the end of any
Restriction Period, the Committee may, in its discretion, determine to vest a portion of the Grantee’s unvested Restricted Shares, with such pro-rata amount to be calculated by (x) multiplying the total number of Restricted Shares subject to this Award, by a fraction with (i) a numerator equaling the number of whole calendar months that have elapsed from the Grant Date to the date of the Grantee’s Retirement, and (ii) a denominator equal to 36, and then (y) subtracting the number of Restricted Shares that have already vested under this Award.
Any Restricted Shares that do not vest in accordance with this Section A.4 shall be canceled and forfeited as of the date of the Grantee’s termination. Further, the Company retains the right to accelerate the vesting of all or a portion of the Restricted Shares subject to this Award, in which event a similar pro-ration determination as provided in the previous sentence will be apply.
B. Other Terms and Conditions.
1. Non-Transferability of Award. Except as described below, this Award and the Restricted Shares subject to this Award may not be sold, pledged, assigned, hypothecated, transferred, or disposed of in any manner other than by will or by the laws of descent or distribution. Notwithstanding the foregoing, with the consent of the Committee, in its sole discretion, the Grantee may assign or transfer this Award and its underlying Restricted Shares to a Permitted Assignee, if the Permitted Assignee is bound by and subject to all terms and conditions of the Plan and this Agreement, and the Permitted Assignee executes an agreement satisfactory to the Company evidencing these obligations. The terms of this Award are binding on the executors, administrators, heirs, successors and assigns of the Grantee.
2. Withholding. Grantee authorizes the Company to withhold from the shares of Common Stock to be delivered as payment the number of shares needed to satisfy any applicable income and employment tax withholding obligations, or Grantee agrees to tender sufficient funds to satisfy any applicable income and employment tax withholding obligations in connection with the vesting of the Restricted Shares under this Award.
3. Dispute Resolution. Grantee and the Company agree that any disagreement, dispute, controversy, or claim arising out of or relating to this Agreement, its interpretation, validity, or the alleged breach of this Agreement, will be settled exclusively and, consistent with the procedures specified in this Section B.3, irrespective of its magnitude, the amount in controversy, or the nature of the relief sought, in accordance with the following:
(a) Negotiation. In the event of any dispute, controversy, claim, question or disagreement arising from or relating to this Agreement or the breach of this Agreement, the Grantee and the Company will use their best efforts to settle the dispute, claim, question or disagreement. To this effect, they will consult and negotiate with each other in good faith and, recognizing their mutual interests, attempt to reach a just and equitable solution satisfactory to both parties.
(b) Arbitration. If the Grantee and the Company do not reach a solution within a period of 30 days, then, upon written notice by the Grantee to the Company or the Company to the Grantee, all disputes, claims, questions, controversies, or differences will be submitted to arbitration administered by the American Arbitration Association (the “AAA”) in accordance with the provisions of its Employment Arbitration Rules (the “Arbitration Rules”).
(1) Arbitrator. The arbitration will be conducted by one arbitrator skilled in the arbitration of executive employment matters. The parties to the arbitration will jointly appoint the arbitrator within 30 days after initiation of the arbitration. If the parties fail to appoint an arbitrator as provided above, an arbitrator with substantial experience in executive employment matters will be appointed by the AAA as provided in the Arbitration Rules. The Company will pay all of the fees, if any, and expenses of the arbitrator and the arbitration, unless otherwise determined by the arbitrator. Each party to the arbitration will be responsible for his/its respective attorneys fees or other costs of representation.
(2) Location. The arbitration will be conducted in Oakland County, Michigan.
(3) Procedure. At any oral hearing of evidence in connection with the arbitration, each party or its legal counsel will have the right to examine its witnesses and cross-examine the witnesses of any opposing party. No evidence of any witness may be presented in any form unless the opposing party or parties has the opportunity to cross-examine the witness, except under extraordinary circumstances in which the arbitrator determines that the interests of justice require a different procedure.
(4) Decision. Any decision or award of the arbitrator is final and binding on the parties to the arbitration proceeding. The parties agree that the arbitration award may be enforced against the parties to the arbitration proceeding or their assets wherever they may be found and that a judgment upon the arbitration award may be entered in any court having jurisdiction.
(5) Power. Nothing contained in this Agreement may be deemed to give the arbitrator any authority, power, or right to alter, change, amend, modify, add to, or subtract from any of the provisions of this Agreement.
The provisions of this Section survive the termination or expiration of this Agreement, are binding on the Company’s and Xxxxxxx’s respective successors, heirs, personal representatives, designated beneficiaries and any other person asserting a claim described above, and may not be modified without the consent of the Company. To the extent arbitration is required, no person asserting a claim has the right to resort to any federal, state or local court or administrative agency concerning the claim unless expressly provided by federal statute, and the decision of the arbitrator is a complete defense to any action or proceeding instituted in any tribunal or agency with respect
to any dispute, unless precluded by federal statute.
4. Code Section 409A. Without limiting the generality of any other provision of this Agreement, Sections 7(m) and 7(n) of the Plan pertaining to Code Section 409A are hereby explicitly incorporated into this Agreement.
5. No Continued Right as Service Provider. Nothing in the Plan or in this Agreement confers on the Grantee any right to continue as a Service Provider of the Company or any Subsidiary or Affiliate of the Company, or may interfere with or restrict in any way the rights of the Company or any Subsidiary or Affiliate of the Company, which are hereby expressly reserved, to discharge the Grantee at any time for any reason whatsoever, with or without Cause, except to the extent expressly provided otherwise in a written employment agreement between the Grantee and the Company or any Subsidiary or Affiliate of the Company.
6. Effect on Other Benefits. In no event will the value, at any time, of the Restricted Shares or any other payment or right to payment under this Agreement be included as compensation or earnings for purposes of any other compensation, retirement, or benefit plan offered to employees of, or other Service Providers to, the Company or any Subsidiary or Affiliate of the Company unless otherwise specifically provided for in such plan.
7. Governing Law. This Agreement is governed by and construed in accordance with the laws of the State of Michigan, notwithstanding conflict of law provisions.
(Signature Page Follows)
This Agreement may be executed in two or more counterparts, each of which is deemed an original and all of which constitute one document.
TRIMAS CORPORATION
Dated: [month and date], 2012 | By: Name: Xxxxxx X. Xxxxxxx Xxxxx: Vice President, General Counsel and Corporate Secretary |
XXXXXXX ACKNOWLEDGES AND AGREES THAT NOTHING IN THIS RESTRICTED SHARE AGREEMENT, NOR IN THE COMPANY’S 2002 LONG TERM EQUITY INCENTIVE PLAN, WHICH IS INCORPORATED INTO THIS AGREEMENT BY REFERENCE, CONFERS ON GRANTEE ANY RIGHT WITH RESPECT TO CONTINUATION AS A SERVICE PROVIDER OF THE COMPANY OR ANY PARENT OR ANY SUBSIDIARY OR AFFILIATE OF THE COMPANY, NOR INTERFERES IN ANY WAY WITH XXXXXXX’S RIGHT OR THE COMPANY’S RIGHT TO TERMINATE GRANTEE’S SERVICE PROVIDER RELATIONSHIP AT ANY TIME, WITH OR WITHOUT CAUSE AND WITH OR WITHOUT PRIOR NOTICE.
BY CLICKING THE “ACCEPT” BUTTON BELOW, XXXXXXX ACKNOWLEDGES RECEIPT OF A COPY OF THE PLAN AND REPRESENTS THAT THE GRANTEE IS FAMILIAR WITH THE TERMS AND PROVISIONS OF THE PLAN. GRANTEE ACCEPTS THIS RESTRICTED SHARE AWARD SUBJECT TO ALL OF THE TERMS AND PROVISIONS OF THIS AGREEMENT. GRANTEE HAS REVIEWED THE PLAN AND THIS AGREEMENT IN THEIR ENTIRETY. XXXXXXX AGREES TO ACCEPT AS BINDING, CONCLUSIVE AND FINAL ALL DECISIONS OR INTERPRETATIONS OF THE COMMITTEE UPON ANY QUESTIONS ARISING UNDER THE PLAN OR THIS AWARD.
GLOSSARY
For purposes of this Agreement:
“Cause” means, unless otherwise provided in an applicable written agreement with the Company or a Subsidiary or Affiliate of the Company, (i) a Grantee’s conviction of or plea of guilty or nolo contendere to a crime constituting a felony under the laws of the United States or any State thereof or any other jurisdiction in which the Company or its Subsidiaries or Affiliates conduct business; (ii) a Grantee’s willful misconduct in the performance of his or her duties to the Company or a Subsidiary or Affiliate of the Company and failure to cure such breach within 30 days following written notice thereof from the Company; (iii) a Grantee’s willful failure or refusal to follow directions from the Board (or direct reporting executive) and failure to cure such breach within 30 days following written notice thereof from the Board; (iv) a Grantee’s breach of fiduciary duty to the Company or a Subsidiary or Affiliate of the Company for personal profit. Any failure by the Company or a Subsidiary or Affiliate of the Company to notify a Grantee after the first occurrence of an event constituting Cause shall not preclude any subsequent occurrences of such event (or a similar event) from constituting Cause.
“Change in Control” means (i) the dissolution or liquidation of the Company or a merger, consolidation, or reorganization of the Company with one or more other entities in which the Company is not the surviving entity, (ii) a sale of substantially all of the assets of the Company to another person or entity which does not constitute a “related person” to the Company, as such term is defined in the U. S. Treasury Regulations issued in connection with Code Section 409A, or (iii) any transaction (including without limitation a merger or reorganization in which the Company is the surviving entity) which results in any person or entity (other than persons who are stockholders or Affiliates immediately prior to the transaction) owning more than 50% of the combined voting power of all classes of stock of the Company.
“Disability” means a Participant’s physical or mental condition resulting from any medically determinable physical or mental impairment that rends such Participant incapable of engaging in any substantial gainful employment and that can be expected to result in death or that has lasted or can be expected to last for a continuous period of not less than 365 days. Notwithstanding the foregoing, a Participant shall not be deemed to be Disabled as a result of any condition that:
(a) was contracted, suffered, or incurred while such Participant was engaged in, or resulted from such Participant having engaged in, a felonious activity;
(b) resulted from an intentionally self-inflicted injury or an addiction to drugs, alcohol, or substances which are not administered under the direction of a licensed physician as part of a medical treatment plan; or
(c) resulted from service in the Armed Forces of the United States for which such Participant received or is receiving a disability benefit or pension from the United States, or from service in the armed forces of any other country irrespective of any disability benefit or pension.
“Good Reason” means:
• | A material and permanent diminution in the Grantee’s duties or responsibilities; |
• | A material reduction in the aggregate value of base salary and bonus opportunity or material reduction in the aggregate value of other benefits provided to the Grantee by the Company; or |
• | A permanent reassignment of the Grantee to another primary office, or relocation of the Company’s office of more than 35 miles from current office location. |
The Grantee must notify the Company of the Grantee’s intention to invoke termination for Good Reason within 90 days after the Grantee has knowledge of such event and provide the 30 days’ opportunity for cure, or such event shall not constitute Good Reason. The Grantee may not invoke termination for Good Reason if Cause exists at the time of such termination.
“Qualifying Termination” means a termination of the Grantee’s services with the Company or a Subsidiary or Affiliate of the Company for any reason other than:
• | death; |
• | Disability; |
• | Cause; or |
• | A termination of Services by the Grantee without Good Reason, (as defined above). |
“Retirement” means termination of Service with the consent of the Committee on or after age 55, or any other definition established by the Company’s Compensation Committee, in its discretion, either in any Award or in writing after the grant of any Award, provided that the definition of Retirement with respect to the timing of payment (and not merely vesting) of any Award subject to Code Section 409A cannot be changed after the Award is granted.
