BORGWARNER INC. AMENDED AND RESTATED Restricted Stock Agreement For Non- Employee Directors
EXHIBIT
10.1
AMENDED
AND RESTATED
2004
STOCK INCENTIVE PLAN
For
Non-Employee Directors
THIS
Restricted Stock Agreement (the “Agreement”) dated as of [INSERT DATE], by and
between BORGWARNER INC., a Delaware corporation (the “Company”) and [NAME] (the
“Director”), is entered into as follows:
WITNESSETH:
WHEREAS,
the Company has established the BorgWarner Inc. Amended and Restated 2004 Stock
Incentive Plan (the “Plan”), a copy of which is attached hereto or which has
been previously provided to the Director;
WHEREAS,
the Corporate Governance Committee of the Board of Directors of the Company
has
recommended that the Director be granted shares of Restricted Stock pursuant
to
the terms of the Plan and the terms of this Agreement, and the Board of
Directors of the Company has approved such recommendation;
NOW
THEREFORE, in consideration of the foregoing and the mutual covenants
hereinafter set forth:
| 1. |
Award
of Restricted Stock.
The Company hereby awards to Director on this date, ____ shares of
its
common stock, par value $.01 (“Stock”), subject to the terms and
conditions set forth in the Plan and this Agreement (the
“Award”).
|
| 2. |
Issuance
of Share Certificates or Book Entry Record.
The Company shall, as soon as administratively feasible after execution
of
this Agreement by the Director, either (1) issue one or more certificates
in the name of the Director representing the shares of Restricted
Stock
covered by this Award, or (2) direct the Company’s transfer agent for the
Stock to make a book entry record showing ownership for the Restricted
Stock in the name of the Director, subject to the terms and conditions
of
the Plan and this Agreement.
|
| 3. |
Custody
of Share Certificates During the Restriction Period.
In the event that the Company issues one or more certificates for
the
Restricted Stock covered by this Award in lieu of book entry, during
the
Restriction Period described below:
|
| a. |
The
certificate or certificates shall bear the following
legend:
|
“The
transferability of this certificate and the shares of stock represented hereby
are subject to the terms and conditions (including forfeiture) of the 2004
Amended and Restated Stock Incentive Plan and a Restricted Stock Agreement.
Copies of such Plan and Restricted Stock Agreement are on file at the
headquarters offices of BorgWarner Inc.”
| b. |
The
certificates shall be held in custody by the Company until the
restrictions set forth herein shall have lapsed;
and
|
| c. |
As
a condition to receipt of this Award, the Director hereby authorizes
the
Company to issue such instructions to the transfer agent as the Company
may deem necessary or proper to comply with the intent and purposes
of
this Agreement and the Plan, including their provisions regarding
forfeiture, and that this paragraph shall be deemed to constitute
the
stock power, endorsed in blank, contemplated by Section 8(b) of the
Plan.
|
| 4. |
Terms
of the Plan Shall Govern.
The Award is made pursuant to, and is subject to the Plan, including,
without limitation, its provisions governing a Change in Control
and
Cancellation and Rescission of Awards. In the case of any conflict
between
the Plan and this Agreement, the terms of the Plan shall control.
Unless
otherwise indicated, all capitalized terms contained in this Agreement
shall have the meaning assigned to them in the
Plan.
|
| 5. |
Restriction
Period.
The Restriction Period for the Restricted Stock awarded to the Director
under this agreement shall commence with the date of this Agreement
set
forth above and shall end, for the percentage of the shares indicated
below, on the date when the Restricted Stock shall have vested in
accordance with the following
schedule:
|
Date Vested
Percentage
_______ ______%
During
the Restriction Period, the Director shall not be permitted to sell, assign,
transfer, pledge or otherwise encumber the Restricted Stock awarded
herein.
| 6. |
Shareholder
Rights.
Subject to the restrictions imposed by this Agreement and the Plan,
the
Director shall have, with respect to the Restricted Stock covered
by this
Award, all of the rights of a stockholder of the Company holding
Stock,
including the right to vote the shares and the right to receive any
cash
dividends.
|
| 7. |
Forfeiture
of Shares.
Upon the Director’s Termination of Employment during the Restriction
Period, all shares of Stock covered by this Award that remain subject
to
restriction shall be forfeited by the Director; provided however,
that in
the event of the Director’s Retirement during the Restriction Period, the
Compensation Committee shall have the discretion to waive, in whole
or in
part, any or all remaining restrictions with respect to any or all
of the
Restricted Stock covered by this
Award.
|
| 8. |
Change
in Control.
In the event of a Change in Control, the restrictions applicable
to any
shares of Stock covered by this Award shall lapse, and such shares
of
Stock shall become free of all restrictions and become fully vested
and
transferable.
|
| 9. |
Delivery
of Shares.
At the Director’s request, if and when the Restriction Period expires for
a share or shares of Restricted Stock without a prior forfeiture,
the
Company will deliver certificate(s) for such share(s) to the
Director.
|
| 10. |
Acquisition
of Shares For Investment Purposes Only.
By his or her signature hereto, the Director hereby agrees with the
Company as follows:
|
| a. |
The
Director is acquiring the shares of Stock covered by this Award for
investment purposes only and not with a view to resale or other
distribution thereof to the public in violation of the Securities
Act of
1933, as amended (the “1933 Act”), and shall not dispose of any of the
shares of the Stock in transactions which, in the opinion of counsel
to
the Company, violate the 1933 Act, or the rules and regulations
thereunder, or any applicable state securities or “blue sky”
laws;
|
| b. |
If
any of the shares of Stock covered by this Award shall be registered
under
the 1933 Act, no public offering (otherwise than on a national securities
exchange, as defined in the Exchange Act) of any such shares shall
be made
by the Director (or any other person) under such circumstances that
he or
she (or any other such person) may be deemed an underwriter, as defined
in
the 1933 Act; and
|
| c. |
The
Company shall have the authority to endorse upon the certificate
or
certificates representing the Stock covered by this Agreement such
legends
referring to the foregoing
restrictions.
|
| 11. |
No
Right to Continued Service.
Nothing contained in the Plan or this Agreement shall confer upon
the
Director any right to continue as a director of the
Company.
|
| 12. |
Withholding
of Taxes.
If applicable, no later than the date as of which an amount first
becomes
includible in the Director’s gross income for Federal income tax purposes,
the Director shall pay to the Company or make arrangements satisfactory
to
the Company regarding the payment of, any Federal, state, local,
or
foreign taxes of any kind required by law to be
withheld.
|
| 13. |
Governing
Law.
The Award made and actions taken under the Plan and this Agreement
shall
be governed by and construed in accordance with the laws of the State
of
Delaware without taking into account its conflict of laws
provisions.
|
| 14. |
Acceptance
of Award.
By the Director’s signature below, the Director accepts the terms of the
Award, as set forth in this Agreement and in the Plan. Unless the
Company
otherwise agrees in writing, this Agreement shall not be effective
as a
Restricted Stock Award if a copy of this Agreement is not signed
and
returned to the Company.
|
| 15. |
Binding
Effect.
Subject to the limitations stated above, this Agreement shall be
binding
upon and inure to the benefit of the parties’ respective heirs, legal
representatives, successors, and
assigns.
|
* * * * *
IN
WITNESS WHEREOF, BORGWARNER INC. and the Director have executed this Agreement
to be effective as of the date first written above.
By:
Title:
I
acknowledge receipt of a copy of the Plan (either as an attachment hereto or
that has been previously received by me) and that I have carefully read this
Agreement and the Plan. I agree to be bound by all of the provisions set forth
in this Agreement and the Plan.
Date Director
