DealerTrack Holdings, Inc. Form of Restricted Stock Agreement
Exhibit 10.1
Form of Restricted Stock Agreement
THIS AGREEMENT, dated [ ], [200 ] (the “Award Date”), is made between
DealerTrack Holdings, Inc., a Delaware corporation hereinafter referred to as the
“Company,” and [ ], an employee of the Company or a Subsidiary of the Company,
hereinafter referred to as the “Participant.”
1. Definitions. All capitalized terms used in this Agreement without definition
shall have the meanings ascribed in the Company’s 2005 Incentive Award Plan, as amended from time
to time (the “Plan”).
2. Award of Restricted Stock.
(a) Award. In consideration of the Participant’s agreement to remain in the employ of
the Company, and for other good and valuable consideration which the Committee has determined
exceeds the aggregate par value of the shares of Common Stock subject to the Award (as defined
below), as of the Award Date, the Company issues to the Participant the Award described in this
Agreement (the “Award”). The number of shares of Restricted Stock subject to the Award is
set forth on the signature page hereof.
(b) Restricted Stock Form. At the sole discretion of the Committee, the Restricted
Stock will be issued in either (i) uncertificated form, with the Restricted Stock recorded in the
name of the Participant in the books and records of the Company’s transfer agent, and upon the
lapsing or removal of all Restrictions, the Company shall cause certificates representing the
shares to be issued to the Participant; or (ii) certificate form pursuant to the terms of Sections
(3)(d) and (5).
(c) Plan. The Award granted hereunder is subject to the terms and provisions of the
Plan, including without limitation, Article 11 thereof.
3. Restrictions.
(a) Forfeiture. Any Award which is not vested upon the Participant’s termination of
employment or January 31, 2010 (the “Vesting Date”), whichever is earlier, shall thereupon be
forfeited immediately and without any further action by the Company. For purposes of this
Agreement, “Restrictions” shall mean the restrictions on sale or other transfer set forth
in Section 6 and the exposure to forfeiture set forth in this Section 3(a).
(b) Vesting and Lapse of Restrictions. Subject to Sections 3(a) and 3(c), the Award
shall vest and Restrictions shall lapse with respect to the number of shares of Restricted Stock
determined below, provided that the Participant remains continuously employed in active service by
the Company from the Award Date through the Vesting Date, and provided, further, that the Committee
shall make a certification no later than the Vesting Date as to the extent to which the performance
objectives set forth below have been attained:
(i) 16.67% of shares of Restricted Stock subject to the Award (rounded down to the next whole
number of shares), if the Company’s EBITDA attains at least $[ ] by December 31, 2007;
(ii) an additional 16.67% of shares of Restricted Stock subject to the Award (rounded down to
the next whole number of shares), if the Company’s EBITDA attains at least $[ ] by December
31, 2008;
(iii) an additional 16.67% of shares of Restricted Stock subject to the Award (rounded down to
the next whole number of shares), if the Company’s EBITDA attains at least $[ ] by December
31, 2009;
(iv) an additional 16.67% of shares of Restricted Stock subject to the Award (rounded down to
the next whole number of shares), if the Aggregate Value of the Company’s outstanding Stock on
December 31, 2007 is at least $[ ];
(v) an additional 16.67% of shares of Restricted Stock subject to the Award (rounded down to
the next whole number of shares), if the Aggregate Value of the Company’s outstanding Stock on
December 31, 2008 is at least $[ ]; and
(vi) an additional 16.67% of shares of Restricted Stock subject to the Award (rounded down to
the next whole number of shares), if
the Aggregate Value of the Company’s outstanding Stock on December 31, 2009 is at least
$[ ].
(vii) If any EBITDA or market capitalization goal set forth above is not achieved by a
measurement date specified above, but the EBITDA or market capitalization goal of a later
measurement date is met, then, subject to the Participant’s employment on the Vesting Date, the
restrictions shall lapse with respect to the specified shares on the later measurement date as well
as the specified shares on the earlier measurement date.
(c) For purposes hereof, “EBITDA” shall mean earnings before interest, taxes, depreciation and
amortization. If prior to December 31, 2009, the Company acquires a new business from a third
party (a “New Business”), then the Company’s EBITDA for the calendar year in which the New Business
is acquired, shall be increased by the Pro-Rata New Business Additional EBITDA and each subsequent
calendar year through 2009, shall be increased by the New Business Additional EBITDA. “New
Business Additional EBITDA” shall mean the EBITDA for the New Business for the trailing 4 complete
calendar quarters immediately preceding the acquisition. “Pro-Rata New Business Additional EBITDA”
shall mean New Business EBITDA multiplied by a fraction, the numerator of which is the number of
whole months remaining in the calendar year subsequent to the date the New Business is acquired and
the denominator of which is 12.
(d) For purposes hereof, the Aggregate Value of the Company’s outstanding Stock on a
measurement date shall be determined by multiplying the number of shares of Stock outstanding on
such date by the Market Value. The Market Value as of any measurement date shall be based on the
average closing market price of the Stock for the ten consecutive trading days immediately
preceding the measurement date.
(e) Acceleration of Vesting.
(i) Notwithstanding Sections 3(a) and 3(b): Upon the occurrence of a Change in Control
of the Company prior to the Vesting Date, the restrictions shall automatically lapse with respect
to all shares of Restricted Stock.
(ii) Notwithstanding Sections 3(a) and 3(b), if the Participant’s employment with the
Company terminates before the Vesting Date on account of death or Disability, the restrictions
shall automatically lapse with respect to a number of shares
of Restricted Stock determined by
multiplying the number of shares of Restricted Stock that is the subject of this Award by a
fraction, the numerator being the number of months (including partial) from the Award Date to the
date of termination of employment and the denominator being 41; provided, however, that the
Committee reserves the right to accelerate vesting in full in such an event. Disability for
purposes hereof shall mean a physical or mental impairment that substantially limits a major life
activity of the Participant and renders the Participant unable to perform the essential functions
of his position with the Company even with reasonable accommodation (that does not impose an undue
hardship on the Company) and which has lasted at least (i) 60 consecutive days, (ii) the balance of
the Participant’s entitlement to leave, if any, under the Family and Medical Leave Act, or similar
statute, or (iii) the balance of any election period under the Company’s long term disability
program (without regard to whether Participant is awarded benefits under such program), whichever
is longer.
(f) Legend. Certificates representing shares of Restricted Stock issued pursuant to
this Agreement shall, until all Restrictions lapse or shall have been removed and new certificates
are issued pursuant to Section 3(g), bear the following legend:
“THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO CERTAIN VESTING
REQUIREMENTS AND MAY BE SUBJECT TO FORFEITURE UNDER THE TERMS OF THAT CERTAIN RESTRICTED
STOCK AGREEMENT, DATED [ ] [ ], [200 ], BY AND BETWEEN DEALERTRACK HOLDINGS,
INC. AND THE REGISTERED OWNER OF SUCH SHARES, AND SUCH SHARES MAY NOT BE, DIRECTLY OR
INDIRECTLY, OFFERED, TRANSFERRED, SOLD, ASSIGNED, PLEDGED, HYPOTHECATED OR OTHERWISE
DISPOSED OF UNDER ANY CIRCUMSTANCES, EXCEPT PURSUANT TO THE PROVISIONS OF SUCH AGREEMENT.”
(g) Issuance of Certificates; Tax Withholding.
(i) Subject to Section 3(g)(ii), upon the vesting of the shares of Restricted Stock as
provided in Section 3(b), the Company shall cause new certificates to be issued with respect to
such vested shares and delivered to the Participant or his legal representative, free from the
legend provided for in
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Section 3(d) and any of the other Restrictions. Such vested shares shall cease to be
considered Restricted Stock subject to the terms and conditions of this Agreement.
(ii) Notwithstanding Section 3(g)(i), no such new certificate shall be delivered to the
Participant or his legal representative unless and until the Participant or his legal
representative shall have paid to the Company the full amount of all federal and state withholding
or other taxes applicable to the taxable income of Participant resulting from the grant of
Restricted Stock or the lapse or removal of the Restrictions.
(h) Section 83(b) Election. Participant understands that Section 83(a) of the Code
taxes as ordinary income the difference between the amount, if any, paid for the shares of Common
Stock and the Fair Market Value of such shares at the time the Restrictions on such shares lapse.
Participant understands that, notwithstanding the preceding sentence, Participant may elect to be
taxed at the time of the Award Date, rather that at the time the Restrictions lapse, by filing an
election under Section 83(b) of the Code (an “83(b) Election”) with the Internal Revenue
Service within 30 days of the Award Date. In the event Participant files an 83(b) Election,
Participant will recognize ordinary income in an amount equal to the difference between the amount,
if any, paid for the shares of Common Stock and the Fair Market Value of such shares as of the
Award Date. Participant further understands that an additional copy of such 83(b) Election form
should be filed with his federal income tax return for the calendar year in which the date of this
Agreement falls. Participant acknowledges that the foregoing is only a summary of the effect of
United States federal income taxation with respect to the award of Restricted Stock hereunder, and
does not purport to be complete. PARTICIPANT FURTHER ACKNOWLEDGES THAT THE COMPANY IS NOT
RESPONSIBLE FOR FILING THE PARTICIPANT’S 83(b) ELECTION, AND THE COMPANY HAS DIRECTED PARTICIPANT
TO SEEK INDEPENDENT ADVICE REGARDING THE APPLICABLE PROVISIONS OF THE CODE, THE INCOME TAX LAWS OF
ANY MUNICIPALITY, STATE OR FOREIGN COUNTRY IN WHICH PARTICIPANT MAY RESIDE, AND THE TAX
CONSEQUENCES OF PARTICIPANT’S DEATH.
5. Escrow. The Secretary of the Company or such other escrow holder as the Committee may
appoint shall retain physical custody of the certificates representing Restricted Stock until all
of the Restrictions lapse or shall have been removed; in no
event shall the Participant retain
physical custody of any certificates representing unvested Restricted Stock issued to him.
6. Restricted Stock Not Transferable. No Restricted Stock or any interest or right therein
or part thereof shall be liable for the debts, contracts or engagements of the Participant or his
successors in interest or shall be subject to disposition by transfer, alienation, anticipation,
pledge, encumbrance, assignment or any other means whether such disposition be voluntary or
involuntary or by operation of law by judgment, levy, attachment, garnishment or any other legal or
equitable proceedings (including bankruptcy), and any attempted disposition thereof shall be null
and void and of no effect; provided, however, that this Section 6 shall not prevent transfers by
will or by applicable laws of descent and distribution.
7. Rights as Stockholder. Except as otherwise provided herein, upon delivery of the shares
of Restricted Stock to the escrow holder pursuant to Section 5, the Participant shall have all the
rights of a stockholder with respect to said shares, subject to the Restrictions herein, including
the right to vote the shares and to receive all dividends or other distributions paid or made with
respect to the shares of Restricted Stock; provided, however, that at the discretion of the
Company, and prior to the delivery of shares of Restricted Stock, the Participant may be required
to execute a stockholders agreement in such form as shall be determined by the Company.
8. Not a Contract of Employment. Nothing in this Agreement or in the Plan shall confer
upon the Participant any right to continue in the employ of the Company or any of its Subsidiaries
or shall interfere with or restrict in any way the rights of the Company or its Subsidiaries, which
are hereby expressly reserved, to discharge the Participant at any time for any reason whatsoever,
with or without cause, except as may otherwise be provided by any written agreement entered into by
and between the Company and the Participant.
9. Governing Law. The laws of the State of Delaware shall govern the interpretation,
validity, administration, enforcement and performance of the terms of this Agreement regardless of
the law that might be applied under principles of conflicts of laws.
10. Conformity to Securities Laws. The Participant acknowledges that the Plan and this
Agreement are intended to conform to the extent necessary with all provisions of the Securities Act
of 1933, as amended, and the Securities Exchange Act of 1934, as amended (the “Exchange
Act”), and any and
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all regulations and rules promulgated thereunder by the Securities and Exchange Commission,
including without limitation Rule 16b-3 under the Exchange Act. Notwithstanding anything herein to
the contrary, the Plan shall be administered, and the Awards are granted, only in such a manner as
to conform to such laws, rules and regulations. To the extent permitted by applicable law, the
Plan and this Agreement shall be deemed amended to the extent necessary to conform to such laws,
rules and regulations.
11. Amendment, Suspension and Termination. The Awards may be wholly or partially amended
or otherwise modified, suspended or terminated at any time or from time to time by the Committee or
the Board, provided, that, except as may otherwise be provided by the Plan, neither the amendment,
suspension nor termination of this Agreement shall,
without the consent of the Participant, alter
or impair any rights or obligations under any Award.
12. Notices. Notices required or permitted hereunder shall be given in writing and shall
be deemed effectively given upon personal delivery or upon deposit in the United States mail by
certified mail, with postage and fees prepaid, addressed to the Participant to his address shown in
the Company records, and to the Company at its principal executive office.
13. Conflict with Employment Agreement. In the event of any conflict between this
Agreement and the Participant’s Employment Agreement with the Company, including any acceleration
provisions that differ in terms, this Agreement shall control. For great clarity, this Award is
not subject to accelerated vesting in any prior Employment Agreement.
* * * * *
The Participant represents that he has read this Agreement and the Plan and is familiar with
the terms and provisions of each. The Participant acknowledges that the Award is issued pursuant
to, and is subject to the terms and conditions of, the Plan, and the Participant will be bound by
the terms of the Plan as if it were set forth verbatim in this Agreement. The Participant agrees
to comply with all rules the Company may establish with respect to the Plan. The Participant
further acknowledges and agrees that this Agreement (and the Plan) constitutes the entire agreement
between the parties with respect to the Award and that this Agreement (and the Plan) supersedes any
and all prior agreements, whether written or oral, between the parties with respect to the Award.
By execution of this Agreement, the Participant agrees to comply with the terms and conditions
of the Company’s Stock Ownership and Retention Program, as in effect from time to time, and
acknowledges that failure to comply with the Stock Ownership and Retention Program may result in
penalties to the Participant.
IN WITNESS WHEREOF, this Agreement has been executed and delivered by the parties hereto as of
the date first set forth above.
| DEALERTRACK HOLDINGS, INC. | PARTICIPANT | |||||||
By: |
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Name: |
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Title: |
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| Residence Address: | ||||||||
| «XXXXXX0» | ||||||||
| «XXXXXX0» | ||||||||
| «CITY», «STATE» «ZIP» | ||||||||
| «COUNTRY» | ||||||||
| Aggregate number of shares of | ||||||||
| Restricted Stock subject to the | ||||||||
| Award: | ||||||||
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