EXHIBIT 10.22
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EXECUTION COPY
RESTRICTED STOCK AWARD
AGREEMENT UNDER THE
WILMAR INDUSTRIES, INC. 2000
STOCK AWARD PLAN
This Agreement (this "Agreement") is made effective as of the 29th day
of September, 2000 between Wilmar Industries, Inc. (the "Company"), and Xxxxxxx
Xxxx (the "Participant"). Except as otherwise specifically provided herein,
capitalized terms used herein shall have the meanings attributed thereto in the
Wilmar Industries, Inc. 2000 Stock Award Plan (the "Plan").
WHEREAS, pursuant to the Plan, the Company desires to grant to the
Participant the restricted stock award provided for herein (the "Restricted
Stock Award") in partial compensation for the performance of services to the
Company, such grant to be subject to the terms set forth herein, the Plan and
the Wilmar Industries, Inc. Amended and Restated Shareholders' Agreement, dated
as of September 29, 2000 and as subsequently amended (the "Shareholders'
Agreement"), among the Company, the Participant and the other parties named
therein. In the event of a conflict between the terms of this Agreement and the
Shareholders' Agreement, the provisions of this Agreement shall govern.
NOW, THEREFORE, in connection with the mutual covenants hereinafter set
forth and for other good and valuable consideration, the parties hereto agree as
follows:
1. Grant of Restricted Stock.
Subject to the terms and conditions of the Shareholders'
Agreement and the additional terms and conditions set forth in the Plan and this
Agreement, the Company hereby grants to the Participant a Restricted Stock Award
consisting of 34,056 shares of the Company's Common Stock (the "Stock")
(hereinafter called the "Restricted Stock"). The Restricted Stock is subject to
the restrictions described herein and in the Plan, including forfeiture under
the circumstances described in Section 5 hereof, and is subject to the
provisions of the Shareholders Agreement (other than the Put Option and the Call
Option referred to in Section 3.3 thereof) (collectively, the "Restrictions").
2. CERTIFICATES.
The certificates evidencing the Restricted Stock shall bear
the legends specified in Section 3.4 of the Shareholders Agreement and the
following additional legend:
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Transfer of this certificate and the shares represented hereby is
restricted pursuant to the terms of the Wilmar Industries, Inc. 2000
Stock Award Plan and Award Agreement, dated as of September, 2000
between Wilmar Industries, Inc. and Xxxxxxx Xxxx. Copies of the
agreement and plan are on file at the offices of Wilmar Industries,
Inc.
In the case of the Participant's death, such certificates will
be delivered to the beneficiary designated in writing by the Participant in the
form annexed hereto as Exhibit A, or, in the event no beneficiary has been
chosen or such beneficiary has pre-deceased the Participant or cannot be located
within a reasonable amount of time (as determined by the Committee), to the
Participant's legatee or legatees, or to his personal representatives or
distributees, as the case may be. Any determination with respect to the delivery
of stock certificates in the event of Participant's death shall be made by the
Board and shall be final and binding and shall completely discharge the Company
from its obligation to deliver stock certificates hereunder.
3. RIGHTS AS A SHAREHOLDER.
The Participant shall be the record owner of the Restricted
Stock, and entitled to all rights of a common shareholder of the Company, until
or unless such Restricted Stock is forfeited pursuant to Section 5 hereof or is
repurchased by the Company pursuant to Section 7 hereof. The Restricted Stock
shall be subject to the limitations on transfer and encumbrance set forth herein
and in the Shareholders' Agreement (other than the Put Option and the Call
Option referred to in Section 3.3 thereof).
4. NON-TRANSFERABILITY.
No share of Restricted Stock may be assigned, alienated,
pledged, attached, sold or otherwise transferred or encumbered by the
Participant except in accordance with the applicable provisions of the
Shareholders' Agreement and this Agreement and any such purported assignment,
alienation, pledge, attachment, sale, transfer or encumbrance shall be void and
unenforceable against the Company.
5. FORFEITURE OF RESTRICTED STOCK.
(a) In the event the Participant's employment with the
Company is terminated by the Company at any time for Cause, all shares of
Restricted Stock previously granted the Participant shall be forfeited and
canceled, and the Participant shall have no rights in respect thereof, as of the
date of such termination.
(b) In the event the Participant terminates his
employment with the Company (other than for "Good Reason," death or Disability
as defined below) on or prior to the first anniversary of the date hereof any
shares of Restricted Stock granted to the Participant shall be forfeited and
canceled, and the Participant shall have no rights in respect thereof, as of the
date of such termination.
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(c) For purposes of this Agreement the terms, "Good
Reason" and "Disability" shall have the meaning ascribed to them in any
agreement in effect as of the date hereof governing the Participant's employment
with the Company or its Affiliates.
6. REPURCHASE OF SHARES.
The provisions of this Section 6 shall apply only prior to an
Initial Offering. Solely for purposes of this Section 6, Fair Market Value shall
have the meaning, and shall be determined in accordance with, Section 3.3 of the
Shareholders Agreement, including the third-party appraisal procedures set forth
in Section 3.3.4 therein.
(a) If the Participant's employment with the Company is
terminated by the Participant for any reason other than Good Reason after the
first anniversary of the date hereof, the Company shall have the right, but not
the obligation, to purchase all or a portion of the Participant's Restricted
Stock at the Fair Market Value of such Restricted Stock (the "Call Option").
Subject to Section 8(c) hereof, the Call Option may be exercised by delivery of
written notice thereof (the "Call Notice") to the Participant within thirty (30)
calendar days following such termination. The Call Notice shall state that the
Company has elected to exercise its Call Option, and the number and price of the
Shares with respect to which such option is being exercised. The purchase of the
Restricted Stock pursuant to the exercise of the Call Option shall occur within
twenty (20) calendar days of the date on which the Fair Market Value of the
Restricted Stock is finally established.
(b) If at any time the Participant's employment with the
Company is terminated (i) by the Company for any reason other than Cause or (ii)
by the Participant for Good Reason, the Participant shall sell and the Company
shall purchase all of such Participant's Restricted Stock at the Fair Market
Value of such Restricted Stock (the "Required Purchase") within thirty (30)
calendar days following such termination. The purchase of Restricted Stock in
connection with a Required Purchase shall occur within twenty (20) calendar days
of the date on which the Fair Market Value of the Restricted Stock is finally
established.
(c) The Company may pay the purchase price in connection
with its exercise of the Call Option or with a Required Repurchase in cash or,
if the terms of the Company's equity or debt financing instruments prohibit full
or partial payment of such purchase price, the Company may either (i) delay full
or partial payment of the purchase price until such prohibitions lapse; provided
that interest shall accrue on such deferred amount at the then prevailing prime
interest rate as most recently announced by Fleet National Bank, up to a maximum
of 8% per annum, on or prior to the date of expiration of the 30 period
following the Participant's termination of employment (the "Deferred Interest
Rate") throughout such delay period, or (ii) pay any unpaid purchase price in
the form of a promissory note (reasonably acceptable to the administrative agent
under the Company's credit agreement), bearing interest at the Deferred Interest
Rate, fully subordinated in right of payment and otherwise to the then
outstanding Existing
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Indebtedness (as defined in the Shareholders Agreement) and payable in full in
cash upon lapse of such prohibitions.
7. BINDING EFFECT.
This Agreement shall be binding upon the heirs, executors,
administrators and successors of the parties hereto.
8. GOVERNING LAW.
This Agreement shall be governed by, and construed and
interpreted in accordance with, the internal laws of the State of New Jersey
without reference to principles of conflict of laws.
9. HEADINGS.
Headings used herein are for convenience of reference only, do
not constitute a part of this Agreement and shall not be deemed to limit or
affect any of the provisions hereof.
10. SEVERABILITY.
To the extent any portion of this Agreement, or any portion of
any provision of this Agreement is held to be invalid, void or unenforceable by
a court of competent jurisdiction, such court shall substitute a valid,
enforceable provision that preserves, to the maximum lawful extent, the terms
and intent of this Agreement.
11. PLAN.
The terms of the Plan are made part of this Agreement and are
incorporated herein by reference. In the event of any conflict between the terms
of the Plan and the terms of this Agreement, the terms of the Plan shall govern.
12. 83(B) ELECTION.
If the Participant files an election with the Internal Revenue
Service to include in gross income the fair market value of any shares of
Restricted Stock at the time of grant, the Participant shall promptly furnish a
copy of such election to the Company.
13. ADJUSTMENT TO RESTRICTED STOCK.
If there shall be any stock split, dividend or combination in
respect of the Common Stock, or any recapitalization of the Common Stock, then
all references to the number of shares of Restricted Stock contained herein
shall be automatically adjusted to give effect to such stock split, dividend or
combination or recapitalization.
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14. WITHHOLDING.
The Participant shall remit to the Company, in cash, the
amount of any required tax withholding.
15. SHAREHOLDER APPROVAL.
The Awards granted pursuant to this Agreement are contingent
upon the approval of the shareholders of the Company in a manner intended to
comply with the shareholder approval requirements of Section 280G of the Code.
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EXECUTED effective as of the day and year first written above.
WILMAR INDUSTRIES, INC.
By: /s/ Xxxxxxx Xxxxxxx
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Name: Xxxxxxx Xxxxxxx
Title: Senior Vice President
PARTICIPANT
By: /s/ Xxxxxxx Xxxx
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Xxxxxxx Xxxx
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EXHIBIT A
WILMAR INDUSTRIES, INC.
2000 STOCK AWARD PLAN
BENEFICIARY DESIGNATION FORM
WHEREAS, pursuant to the terms of the Wilmar Industries, Inc. 2000
Stock Award Plan (the "Plan"), Xxxxxxx Xxxx (the "Participant") has been granted
an award of 34,056 shares of common stock, par value per share $0.01, of Wilmar
Industries, Inc. (the "Company"), subject to certain restrictions as described
in the Plan and a Restricted Stock Award Agreement between the Participant and
the Company dated September 29, 2000 (the "Restricted Stock").
WHEREAS, the Restricted Stock Award Agreement provides that if the
Participant dies after the restrictions on the Restricted Stock have lapsed with
respect to shares of Restricted Stock, but the certificates representing such
shares have not been transferred to the Participant, then a designated
beneficiary of the Participant is entitled to receive such certificate.
NOW THEREFORE, the Participant hereby designates the individual listed
below as the designated beneficiary of the Restricted Stock.
_____________________________
Participant
Beneficiary's Name and Address:
________________________________
________________________________
________________________________
Relationship to Participant:
Dated:___________________ ________________________________
