AFTERMARKET TECHNOLOGY CORP. RESTRICTED STOCK AGREEMENT
Exhibit
10.4
THIS
RESTRICTED STOCK AGREEMENT (this “Agreement”) is entered into as of the Date of
Award indicated below by and between Aftermarket Technology Corp., a Delaware
corporation (the “Company”), and the person named below as Holder.
WHEREAS,
Holder is a member (a “Director”) of the Company’s Board of Directors (the
“Board”); and pursuant to the Company’s Stock Incentive Plan indicated below
(the “Plan”), the Board, on the recommendation of the Company’s Compensation and
Human Resources Committee (the “Committee”), has approved the award to Holder of
shares of the common stock, par value $0.01 per share, of the Company (the
“Common Stock”), on the terms and conditions set forth herein;
NOW,
THEREFORE, in consideration of the foregoing recitals and the covenants set
forth herein, the parties hereto hereby agree as follows:
1. Award;
Vesting.
The
Company hereby awards to Holder, and Holder hereby accepts, as of the Date
of
Award, the number of shares of Common Stock indicated below (the “Restricted
Stock”) for the purchase price per share, if any, indicated below. The
Restricted Stock shall be subject to all of the terms and conditions set forth
in this Agreement, including the restrictions imposed pursuant to Section 2
hereof.
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Holder:
_____________________________
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Date
of
Award: ___________, 200__
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Number
of shares of Restricted Stock:
_____________
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Purchase
Price
per share: none
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Vesting
Schedule:
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__________
shares
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on
___________, 200___
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__________
shares
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on
___________, 200___
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__________
shares
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on
___________, 200___
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Stock
Incentive Plan:
______________
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Holder
must be a Director on the date the Restricted Stock would otherwise vest
pursuant to the above Vesting Schedule.
2. Restrictions.
Unvested
Restricted Stock (i) shall not be sold, exchanged, assigned, transferred,
conveyed, gifted, or otherwise disposed of in any way at any time and (ii)
shall
not be pledged, encumbered, or otherwise hypothecated in any way at any time
and
shall not be subject to execution, attachment, or similar legal process. Any
attempt to sell, transfer, pledge, encumber, hypothecate, or otherwise dispose
of any unvested shares of Restricted Stock shall be null and void and without
legal force or effect.
3. Acceleration
of Vesting.
(a) Death
or Permanent Disability.
If
Holder ceases to be a Director because of his or her death or Permanent
Disability (as defined in Attachment A hereto), all then unvested
Restricted Stock shall vest on the date Holder ceases to be a
Director.
(b) Termination
Without Cause Within 18 Months After a Change of Control.
If
Holder ceases to be a Director because he or she is Terminated without Cause
(as
defined in Attachment A hereto) within 18 months after a Change of Control
(as defined in Attachment A hereto), all then unvested Restricted Stock
shall vest on the date Holder ceases to be a Director.
(c) Other.
In
addition, the Board (or the Committee acting in the Board’s place), in its sole
discretion, may accelerate the vesting of the Restricted Stock at any time
and
for any reason.
4. Forfeiture
of Restricted Stock.
Except
as provided in Section 3, if Holder ceases to be a Director for any reason
or no reason, any Restricted Stock that has not yet vested as of the date that
Holder ceases to be a Director shall be immediately forfeited and canceled.
In
that event, the Company shall reimburse Holder for the cash consideration,
if
any, paid by Holder for such forfeited Restricted Stock.
5. Payment
of Withholding Taxes.
(a) If
the
Company becomes obligated to withhold an amount on account of any federal,
state
or local tax imposed as a result of the grant or sale of the Restricted Stock
to
Holder pursuant to this Agreement (such as in the case of Holder's election
under Section 83(b) of the Internal Revenue Code) or the termination of the
restrictions imposed upon the Restricted Stock hereunder including, without
limitation, any federal, state or other income tax, or any FICA, state
disability insurance tax or other employment tax (the date upon which the
Company becomes so obligated being the “Withholding Date”), then Holder shall
pay such amount (the “Withholding Liability”) to the Company on the Withholding
Date by one or a combination of the following means as Holder may
elect:
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(i)
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delivering
cash or check payable to the Company;
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(ii)
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delivering
already-owned shares of Common Stock (free and clear of any pledge,
commitment, lien, claim or other encumbrance) having an aggregate
fair
market value (as defined in the Plan) as of the Withholding Date
equal to
the Withholding Liability to be so paid, provided that the Company
is not
then prohibited by law or any instrument or agreement from purchasing
or
acquiring such shares of Common Stock;
and/or
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(iii)
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withholding
from the shares of Common Stock otherwise to be released to Holder
upon
the vesting thereof a number of shares having an aggregate fair market
value (as defined in the Plan) as of the Withholding Date equal to
the
Withholding Liability to be so
paid.
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Notwithstanding
the foregoing, Holder may not elect to deliver already-owned shares under clause
(ii) above or have shares withheld under clause (iii) above (x) if the
Board (or the Committee acting in the Board’s place) decides otherwise,
(y) the Company is then prohibited by law or any instrument or agreement
from purchasing or acquiring such shares, or (z) to the extent that the
fair market value (as defined in the Plan) of such shares would exceed the
Company’s minimum statutory withholding obligation (based on minimum statutory
withholding rates for federal and state tax purposes, including payroll taxes,
that are applicable to Holder’s supplemental taxable income relating to the
Restricted Stock).
(b) If
Holder's Withholding Liability is not otherwise satisfied pursuant to (a) above,
then the Company shall have the right to withhold and deduct from any
compensation or other amounts otherwise due to Holder an amount necessary to
satisfy such Withholding Liability. Furthermore, the Company shall have the
right to deduct and withhold any such applicable taxes from, or in respect
of,
any dividends or other distributions paid on or in respect of the Restricted
Stock. All taxes, if any, in respect of the grant of the Restricted Stock or
any
other payments hereunder shall be solely Holder's responsibility and shall
be
paid by Holder. Holder will notify the Company of his or her intention to make
an election under Section 83(b) of the Code at least five (5) business days
before making such election.
(c) The
Board
(or the Committee acting in the Board’s place), in its sole discretion, may
impose any additional conditions under subsections (a) and/or (b) as may be
required to comply with Section 16(b) of the Securities Exchange Act of 1934
(including any rules promulgated thereunder). The Board (or the Committee acting
in the Board’s place) shall have sole discretion to approve or disapprove any
Withholding Liability payment election made by Holder and may adopt such rules
and regulations as are consistent with and necessary to implement the
foregoing.
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6. Escrow.
(a) Until
a
share of Restricted Stock vests, (i) the record address of Holder as the holder
of record of such share shall be c/o the Secretary of the Company at the address
of the Company’s principal executive office, and (ii) the share will be kept in
a restricted account maintained with the Company’s stock transfer
agent.
(b) From
and
after the date upon which a share of Restricted Stock vests, Holder shall be
entitled (provided that Holder shall have paid the Withholding Liability to
the
Company pursuant to Section 5 hereof) to receive a stock certificate
representing such share (together with any cash, property and/or securities
comprising all or any part of such Restricted Stock as provided in Section
7
hereof).
7. Voting;
Dividends; Certain Corporate Transactions.
(a) Subject
to the provisions of the Plan and this Agreement, Holder shall have all of
the
powers, preferences, and rights of a holder of Common Stock with respect to
the
Restricted Stock. Holder shall be entitled to exercise all voting rights with
respect to the Restricted Stock and to receive all regular cash dividends paid
with respect thereto. Any stock dividends paid in respect of shares of unvested
Restricted Stock shall be treated as additional Restricted Stock and shall
be
subject to the same restrictions and other terms and conditions that apply
to
the shares of unvested Restricted Stock with respect to which such stock
dividends are paid. Holder agrees and understands that nothing contained in
this
Agreement provides, or is intended to provide, any protection against potential
future dilution of Holder's stockholder interest in the Company for any reason,
except as may otherwise be provided in the Plan.
(b) In
the
event that the outstanding securities of any class then comprising the
Restricted Stock are increased, decreased or exchanged for or converted into
cash, property and/or a different number or kind of securities, or cash,
property and/or securities are distributed in respect of such outstanding
securities, in either case as a result of a reorganization, merger,
consolidation, recapitalization, restructuring, reclassification, spin-off,
spin-out, dividend (other than a regular cash dividend) or other distribution,
stock split, reverse stock split or the like, then, unless the Board (or the
Committee acting in the Board’s place) shall determine otherwise, the term
“Restricted Stock” shall, from and after the date of such event, include such
cash, property and/or securities so distributed in respect of the Restricted
Stock, or into or for which the shares of Restricted Stock are so increased,
decreased, exchanged or converted.
8. Securities
Laws.
Holder
represents to the Company that the resale of the shares of Common Stock issued
pursuant to this Agreement shall be subject to, and shall comply with, any
applicable requirements of federal and state securities laws, rules, and
regulations (including, without limitation, the provisions of the Securities
Act
of 1933, the Securities Exchange Act of 1934 and the respective rules and
regulations promulgated thereunder) and any other law, rule, or regulation
applicable thereto, as such laws, rules, and regulations may be amended from
time to time.
9. Plan.
The
Restricted Stock is granted pursuant to the Plan, as in effect on the Date
of
Grant, and is subject to all the terms and conditions of the Plan, as the same
may be amended from time to time; provided,
however,
that no
such amendment shall deprive Holder, without his or her consent, of the
Restricted Stock or of any of Holder's rights under this Agreement. The
interpretation and construction by the Board (or the Committee acting in the
Board’s place) of the Plan, this Agreement and such rules and regulations as may
be adopted by the Board (or the Committee acting in the Board’s place) for the
purpose of administering the Plan shall be final and binding upon Holder. Until
the Restricted Stock vests in full, the Company shall, upon written request
therefor, send a copy of the Plan, in its then-current form, to
Holder.
10. Successors
and Assigns.
This
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective heirs, executors, administrators, legal representatives,
guardians, beneficiaries, successors and assigns.
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11. Notices.
All
notices and other communications required or permitted to be given pursuant
to
this Agreement shall be in writing and shall be deemed given (i) five days
after mailing by certified or registered mail, postage prepaid, return receipt
requested, (ii) the next business day after being sent through an overnight
delivery service under circumstances in which such service guarantees next
day
delivery, or (iii) when actually received if sent by any other method. All
notices shall be sent to the Company at 0000 Xxxx Xxxxx, Xxxxx 000, Xxxxxxx
Xxxxx, Xxxxxxxx 00000, attention General Counsel, and to Holder at the address
set forth beneath his or her signature on the signature page hereof, or at
such
other addresses as they may designate by written notice in the manner
aforesaid.
12. Governing
Law; Entire Agreement.
This
Agreement shall be governed by and shall be construed in accordance with the
laws of the State of Delaware, without reference to the principles of conflict
of laws thereof. This Agreement contains the entire agreement between Holder
and
the Company with respect to the subject matter contained herein, and supersedes
all prior agreements or prior understandings, whether oral or written, between
such parties relating to such subject matter.
13. Severability.
The
invalidity or unenforceability of any provision of this Agreement in any
jurisdiction shall not affect the validity, legality, or enforceability of
the
remainder of this Agreement in such jurisdiction or the validity, legality,
or
enforceability of any provision of this Agreement in any other jurisdiction,
it
being intended that all rights and obligations of the parties hereunder shall
be
enforceable to the fullest extent permitted by law.
IN
WITNESS WHEREOF, the Company and Holder have duly executed this Agreement in
one
or more counterparts, each of which shall be deemed an original, as of the
Date
of Award.
| AFTERMARKET TECHNOLOGY CORP. | ||
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| By: | ||
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Xxxxxx
X. Xxxxxxx,
Xx.
Chairman,
President and Chief Executive
Officer
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[name
of Holder]
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[signature]
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[street
address]
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[city,
state and ZIP code]
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ATTACHMENT
A
Definitions
“Cause”
means
the occurrence or existence of any of the following with respect to Holder,
as
determined by the Board in its sole discretion:
(a) a
material breach by Holder of his or her duty not to engage in any transaction
that represents, directly or indirectly, self-dealing with the Company or any
of
its affiliates that has not been approved by the Board;
(b) any
act
of dishonesty, misappropriation, embezzlement, intentional fraud or similar
conduct involving the Company or any of its affiliates;
(c) the
conviction or the plea of nolo contendere or the equivalent in respect of a
felony involving moral turpitude;
(d) any
intentional damage of a material nature to any property of the Company or any
of
its affiliates; or
(e) the
repeated non-prescription use of any controlled substance or the repeated use
of
alcohol or any other non-controlled substance that, in the determination of
the
Board renders Holder unfit to serve in his or her capacity as a
Director.
“Change
of Control”
means
the first to occur of the following events:
(a) any
sale
or transfer or other conveyance, whether director or indirect, of all or
substantially all of the assets of the Company, on a consolidated basis, in
one
transaction or a series of related transactions, unless, immediately after
giving effect to such transaction, at least 85% of the total voting power
normally entitled to vote in the election of directors, managers or trustees,
as
applicable, of the transferee is “beneficially owned” by persons who,
immediately prior to the transaction, beneficially owned 100% of the total
voting power normally entitled to vote in the election of directors of the
Company;
(b) any
Person or Group (as defined below) is or becomes the "beneficial owner,"
directly or indirectly, of more than 35% of the total voting power in the
aggregate of all classes of Capital Stock of the Company then outstanding
normally entitled to vote in elections of directors;
(c) during
any period of 12 consecutive months, individuals who at the beginning of such
12-month period constituted the Board (together with any new Directors whose
election by the Board or whose nomination for election by the shareholders
of
the Company was approved by a vote of a majority of the Directors then still
in
office who were either Directors at the beginning of such period or whose
election or nomination for election was previously so approved) cease for any
reason to constitute a majority of the Board then in office; or
(d) a
reorganization, merger or consolidation of the Company the consummation of
which
results in the outstanding securities of the same class as the Restricted Stock
being exchanged for or converted into cash, property and/or a different kind
of
securities, unless, immediately after giving effect to such transaction, at
least 85% of the total voting power normally entitled to vote in the election
of
directors, managers or trustees, as applicable, of the entity surviving or
resulting from such reorganization, merger or consolidation is “beneficially
owned” by persons who, immediately prior to the transaction, beneficially owned
100% of the total voting power normally entitled to vote in the election of
directors of the Company.
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"Permanent
Disability"
means
the inability to engage in any substantial gainful activity by reason of any
medically determinable physical or mental impairment 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 12 months. Holder shall not be deemed to have a
Permanent Disability until proof of the existence thereof shall have been
furnished to the Board in such form and manner, and at such times, as the Board
may require. Any determination by the Board that Holder does or does not have
a
Permanent Disability shall be final and binding upon the Company and
Holder.
“Person”
and “Group”
have
the meanings used for purposes of Sections 13(d) and 14(d) of the Securities
Exchange Act of 1934, whether or not such sections apply to the transaction
in
question.
“Termination
Without Cause”
means
that Holder ceases to be a Director for any of the following
reasons:
(a) Holder
is
removed from the Board without Cause;
(b) Holder
is
not nominated for reelection to the Board, unless the Board has Cause not to
nominate him; or
(c) Holder
is
nominated for reelection to the Board but does not receive sufficient votes
for
reelection.
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