BORGWARNER INC. AMENDED AND RESTATED Restricted Stock Agreement For Employees
AMENDED
AND RESTATED
2004
STOCK INCENTIVE PLAN
For
Employees
THIS
Restricted Stock Agreement (the “Agreement”) dated as of _____________, by and
between BORGWARNER INC., a Delaware corporation (the “Company”) and
________________ (the “Employee”), is entered into as follows:
WITNESSETH:
WHEREAS,
the Company has established
the BorgWarner Inc. Amended and Restated 2004 Stock Incentive Plan, a copy
of
which is attached hereto or which has been previously provided to the
Employee;
WHEREAS,
the Compensation Committee of
the Board of Directors of the Company has determined that the Employee be
granted shares of Restricted Stock pursuant to the terms of the Plan and the
terms of this Agreement;
NOW
THEREFORE, in consideration of the
foregoing and the mutual covenants hereinafter set forth:
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1.
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Award
of Restricted Stock. The Company hereby awards to Employee
on this date, XXXXXXXX, 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”).
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2.
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Issuance
of Share Certificates or Book Entry Record. The Company
shall, as soon as administratively feasible after execution of this
Agreement by the Employee, either (1) issue one or more certificates
in
the name of the Employee 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 Employee, subject to the terms and conditions
of
the Plan and this Agreement.
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3.
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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:
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a.
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The
certificate or certificates shall bear the following
legend:
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“The
transferability of this certificate and the shares of stock represented
hereby are subject to the terms and conditions (including forfeiture)
of
the Amended and Restated 2004 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.”
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b.
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The
certificates shall be held in custody by the Company until the
restrictions set forth herein shall have lapsed;
and
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c.
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As
a condition to receipt of this Award, the Employee 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.
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4.
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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.
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5.
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Restriction
Period. The Restriction Period for the Restricted Stock
awarded to the Employee 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:
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Date Vested
Percentage
________________,
200_ #%
of the Awarded Shares
_________________,200_ 100%
of the Awarded Shares
During
the Restriction Period, the Employee shall not be permitted to sell, assign,
transfer, pledge or otherwise encumber the Restricted Stock awarded
herein.
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6.
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Shareholder
Rights. Subject to the restrictions imposed by this
Agreement and the Plan, the Employee 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. However, any cash dividends payable with respect to the
Restricted Stock covered by this Award shall be automatically reinvested
in additional Restricted Stock, based on the Restricted Stock’s Fair
Market Value as of the dividend payment date; the additional Restricted
Stock so awarded shall vest at the same time as the Restricted Stock
to
which it relates. Dividends payable with respect to the
Restricted Stock covered by this Award that are payable in Stock
shall
also be paid in the form of Restricted Stock and shall vest at the
same
time as the Restricted Stock to which it
relates.
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7.
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Death
or Disability; Forfeiture of
Shares.
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a.
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In
the event of the Employee’s Termination of Employment by reason of death
or Disability, the restrictions applicable to the Restricted Stock
granted
under this Agreement shall lapse and the Restricted Stock shall become
free of all restrictions and shall become fully vested and
transferable.
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b.
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Except
in the case of Employee’s Termination of Employment by reason of
Disability or the Employee’s Death, upon the Employee’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
Employee. However, if the Employee’s employment is
involuntarily terminated during the Restriction Period by the Company
(other than for Cause), or in the event of the Employee’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.
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8.
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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.
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9.
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Delivery
of Shares. At the Employee’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 Employee.
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10.
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Acquisition
of Shares For Investment Purposes Only. By his or her
signature hereto, the Employee hereby agrees with the Company as
follows:
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a.
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The
Employee 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;
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b.
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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 Employee (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
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c.
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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.
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11.
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No
Right to Continued Employment. Nothing contained in the
Plan or this Agreement shall confer upon the Employee any right to
continued employment nor shall it interfere in any way with the right
of
the Company or any subsidiary or Affiliate to terminate the employment
of
the Employee at any time.
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12.
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Withholding
of Taxes. No later than the date as of which an amount
first becomes includible in the Employee’s gross income for Federal income
tax purposes, the Employee 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.
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13.
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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.
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14.
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Acceptance
of Award. By the Employee’s signature below, the Employee
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.
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15.
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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.
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* * * * *
IN
WITNESS WHEREOF, BORGWARNER INC. and the Executive 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:_____________________ Employee:_______________________________
