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EXHIBIT 10.57
RESTRICTED STOCK AGREEMENT
THIS RESTRICTED STOCK AGREEMENT (the "Agreement") is entered into as
of the ________ day of ______________, ____________, by and between U.S. Can
Corporation, a Delaware corporation (the "Company" or "US Can"), and
_______________________________, a member of the Board of Directors of the
Company (the "Director").
WHEREAS, the Company adopted the U.S. Can Corporation 1997 Equity
Incentive Plan (the "Plan") by vote of its Board of Directors on February 20,
1997.
WHEREAS, the Board of Directors of the Company desires to carry out
the purpose of the Plan and pay all or part of the Director's annual retainer by
awarding the Director restricted shares of its Common Stock, $.01 par value (the
"Common Stock"), as hereinafter provided.
NOW, THEREFORE, in consideration of the mutual covenants hereinafter
set forth and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. Award of Restricted Stock. The Company hereby awards to the
Director ______________ restricted shares of Common Stock (the "Restricted
Stock") on the terms and conditions set forth herein and in the Plan.
2. Vesting of Restricted Stock. Subject to the other terms and
provisions of this Agreement, the Restricted Stock shall vest at the end of the
period beginning as of the date hereof and ending on
____________________________________. All Restricted Stock shall become fully
vested
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on the date set forth above unless there is a Change of Control (as defined
below) involving the Company, in which case the Restricted Stock shall vest as
of the date such Change of Control is consummated.
As used herein: "Change of Control" shall mean any one or more of
the following: the acquisition by any individual, entity or group (within the
meaning of Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934,
as amended (the "Exchange Act")) of fifteen percent (15%) or more of the then
outstanding shares of common stock of the Company (the "Outstanding Common
Stock"), a merger or consolidation of the Company in which the Company does not
survive as an independent public company, a sale of all or substantially all of
the assets of the Company or a liquidation or dissolution of the Company;
provided, however, that the following acquisitions shall not constitute a Change
of Control for the purposes of this subsection (a): (i) any acquisition directly
from the Company or (ii) any acquisition by any employee benefit plan (or
related trust) sponsored or maintained by the Company.
3. Termination And Forfeiture of Restricted Stock. The Director
acknowledges receipt of the provisions of the Plan, attached hereto as Exhibit
A, and further agrees that, in the event the Director is removed by the
shareholders from the Board of Directors of the Company with cause, or the
Director voluntarily resigns, effective prior to completion of the vesting of
the Restricted Stock awarded to the Director under this Agreement, all unvested
Restricted Stock shall be forfeited to the Company and shall not be or become
the property of the Director.
4. Adjustments of and Changes in Common Stock. The Board shall make
or provide for adjustments in the number of shares of Common Stock covered
hereby and in the kind
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of shares covered hereby, as the Board may determine is equitably required to
prevent dilution or enlargement of the rights of the Director that otherwise
would result from (a) any stock dividend, stock split, combination of shares,
recapitalization, or other change in the capital structure of the Company, (b)
any merger, consolidation, spin-off, split-off, spin-out, split-up,
reorganization, partial or complete liquidation, or other distribution of assets
or issuance of rights or warrants to purchase securities, or (c) any other
corporate transaction or event having an effect similar to any of the foregoing;
provided, further, however, that any adjustment which by reason of this Section
4 is not required to be made currently will be carried forward and taken into
account in any subsequent adjustment. In the event of any such transaction or
event, the Board may provide in substitution for any or all shares outstanding
hereunder such alternative consideration as it may determine to be equitable in
the circumstances and may require in connection therewith the surrender of all
shares so replaced.
5. Transferability of Restricted Stock. The Restricted Stock awarded
under the Plan shall be transferable by the Director in accordance with
applicable laws and regulations, provided that, until such Restricted Stock has
vested, the Director will (i) notify the Company in writing as to the identity
of the transferee and the effective date of such transfer, if known, and (ii)
demonstrate to the Company's reasonable satisfaction that said transferee has
agreed to abide by all of the terms and conditions of this Agreement with
respect to such Restricted Stock. During the period of any substantial risk of
forfeiture, the Restricted Stock shall not be assigned, pledged or hypothecated
for any purpose whatsoever and is not subject, in whole or in part, to
execution, attachment or similar process. Any attempted assignment, pledge or
hypothecation shall be void and of no effect.
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6. Termination Events. In the event of termination of the Director's
service on the Board of Directors by reason of (i) permanent and total
disability within the meaning of Section 22 (e)(3) of the Code, or (ii) death
prior to completion of the vesting of the Restricted Stock awarded to the
Director under this Agreement, the Restricted Stock shall vest upon the date of
death or the effective date of termination for the event described in clause (i)
above. In the event the Director retires prior to the vesting of any shares of
Restricted Stock awarded hereunder, at its option, the Company may, but is under
no obligation to, accelerate the vesting of all or part of such shares.
7. Rights Relating to Restricted Stock. This award of Restricted
Stock shall constitute an immediate transfer of the ownership of Common Shares
to the Director in consideration of the performance of services; provided, the
Company or its agent will retain possession of the Restricted Stock until fully
vested. The Director shall have the voting rights provided for in the 1997
Equity Incentive Plan, as amended from time to time.
8. Administration. The Restricted Stock shall vest in accordance
with such administrative regulations as the Board of Directors shall from time
to time adopt, to the extent not inconsistent with Section 422 of the Code.
9. Laws. The Restricted Stock and this Agreement shall be construed,
administered and governed under the laws of the State of Delaware, United States
of America, without regard to its conflict of law principles, and to the extent
not inconsistent with Section 422 of the Code and the regulations issued
thereunder.
10. General. The Company shall, at all times during which the
Restricted Stock is outstanding, pay all original issue and transfer taxes with
respect to the issuance and transfer
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of Common Stock pursuant hereto, shall pay all other necessary fees and expenses
incurred by the Company in connection therewith, and shall use its best efforts
to comply with all laws and regulations which, in the opinion of the Company or
counsel for the Company, shall be applicable thereto.
11. Taxes. Nothing contained herein shall be construed as a
representation as to an Director's tax treatment by federal, state or local
taxing entities and no representation is made by the Company as to the continued
existence, if any, of a beneficial tax treatment of any Restricted Stock awarded
hereunder. Each Director should consult his/her individual tax consultant as to
any Restricted Stock awarded hereunder.
12. Notices. All notices and other communications under this
Agreement shall be in writing and shall be deemed given when delivered
personally, one day after sent by recognized overnight or other expedited
delivery service, or five (5) days after deposit in the United States mail,
postage prepaid, registered or certified mail, return receipt requested, to the
parties at the following addresses (or to such other address as a party may have
specified by notice duly given to the other party in accordance with this
provision):
If to the Director:
At the Director's then current business or residence address as
shown on the records of the Company, with a copy to such other
person as the Director may have specified by notice duly given to
the Company in accordance with this provision.
If to the Company:
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United States Can Company
000 Xxxxxxxx Xxxxx
Xxx Xxxxx, Xxxxxxxx 00000
Attention: Vice President, Human Resources
With a copy to:
Xxxx & Xxxxxxx
000 X. Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000-0000
Attention: Xxxxxxxx X. Xxxxxxx, Esq.
13. Headings. The section headings of this Agreement are for
reference only and are to be given no effect in the construction or
interpretation of this Agreement.
14. Severability. If any part or provision of this Agreement shall
be declared invalid or unenforceable by a court of competent jurisdiction, said
provision or part shall be ineffective to the extent of such invalidity or
unenforceability only, without in any way affecting the remaining parts or
provisions of this Agreement.
15. Waiver. Any party may waive compliance by another party with any
of the provisions of this Agreement. No waiver of any provision shall be
construed as a waiver of any other provision. Any waiver must be in writing.
16. Binding Effect; Assignment. This Agreement shall be binding on
and inure to the benefit of the parties and their respective successors and
permitted assigns. Nothing in this Agreement shall create or be deemed to create
any third party beneficiary rights in any person or entity (including any
Director or person engaged by the Company in any capacity) not a party to this
Agreement. The Company will require any successor (whether direct or indirect,
by merger,
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purchase, consolidation or otherwise) of the Company to make an express
assumption of the obligations hereunder and cause any successor (whether direct
or indirect, by merger, purchase, consolidation or otherwise) of the Company to
agree to perform all parts and provisions under this Agreement in the same
manner and to the same extent that the Company would be required to perform it
if no such succession had taken place.
17. Counterparts. This Agreement may be signed in any number of
counterparts and all such counterparts shall be read together and construed as
but one and the same document.
18. Fractional Shares. In connection with this award, the Company
shall have no obligation to issue any fractional share of Common Stock. The
Company will pay in cash to the Director an amount equivalent to the value of
any fractional share the Director would otherwise be entitled to receive.
19. Acknowledgment. BEFORE SIGNING HEREUNDER, THE DIRECTOR SHOULD
READ AND THOROUGHLY REVIEW THE PLAN ATTACHED HERETO AS EXHIBIT A. BY SIGNING
HEREUNDER, THE DIRECTOR ACKNOWLEDGES RECEIPT OF THE PLAN AND REPRESENTS THAT
THE DIRECTOR HAS READ AND THOROUGHLY REVIEWED THE PLAN.
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IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement on the date first written above.
U.S. CAN CORPORATION
By:______________________________
Name:
Title:
Director
_________________________________
_________________________________
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SCHEDULE OF AWARDS
On October 23, 1997, each of the following non-employee directors, or his
designee firm, was awarded 443 restricted shares of Common Stock, vesting April
24, 1998:
Xxxxxx Xxxxxx, Xxxxxxxx Xxxxxx, Xxxx Xxxxxxxxx, Xxxxxxx Xxxx, Xxxxxxxxx Xxxxx,
Xxxxxx Xxxxxxxx and Xxxxxxx Xxxxxxxxx.
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