Exhibit 5.02(1)
RESTRICTED STOCK AWARD
PURSUANT TO THE SPARTECH CORPORATION
2004 EQUITY COMPENSATION PLAN
AWARD NO.: RS-20__-___
AWARD DATE: ________, 20__
PARTICIPANT: ____________________
AWARD SHARES: ________
VESTING DATE(s): _____ SHARES ON ______, 20__ [25% ON THE FIRST TRADING
_____ SHARES ON ______, 20__ DAY IN JANUARY AFTER EACH
_____ SHARES ON ______, 20__ OF THE FIRST FOUR
_____ SHARES ON ______, 20__ ANNIVERSARIES OF THE AWARD
DATE -- E.G. 1/2/2008,
1/2/2009, 1/4/2010 &
1/3/2011 FOR 12/2006 AWARDS]
THIS RESTRICTED STOCK AWARD ("AWARD") is granted by Spartech Corporation
(the "COMPANY") to the individual named above ("PARTICIPANT"), as of the date
specified above (the "AWARD DATE"), pursuant to the Spartech Corporation 2004
Equity Compensation Plan (as amended and in effect from time to time, the
"PLAN"). Capitalized terms not defined herein have the meanings given to them in
the Plan.
Subject to the terms and conditions set forth in this Award and the Plan,
and subject to the Participant's written acknowledgment and acceptance of this
Award, the Company hereby grants to the Participant all rights, title and
interest in and to the number of shares of Company common stock, $.75 par value
per share ("COMMON Stock") specified above (the "AWARD SHARES").
This Award is subject to the terms of the Plan and to all of the terms
and conditions contained in EXHIBIT A, which begins on the following page and
which is a part of this Award. Among other things, EXHIBIT A contains important
additional information on vesting and forfeiture of the Award Shares.
THIS AWARD IS VOID UNLESS IT IS SIGNED BY THE PARTICIPANT AND RETURNED
TO THE COMPANY BY THE 60TH DAY AFTER THE AWARD DATE.
SPARTECH CORPORATION
By:
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(Name)
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(Title)
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* * * * *
By signing below, the Participant hereby acknowledges and accepts the
above Award subject to the terms set forth above and in the Plan, and also
acknowledges receipt of a copy of the Plan and the current Prospectus for the
Award Shares.
PARTICIPANT:
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DATE SIGNED:
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EXHIBIT A
TO
RESTRICTED STOCK AWARD
1. RIGHTS OF PARTICIPANT WITH RESPECT TO AWARD SHARES. Subject to the
restrictions set forth in this Award, the Participant shall have all rights as a
stockholder with respect to the Award Shares, including the right to vote and
receive dividends and other distributions on the Award Shares.
2. CERTAIN RESTRICTIONS WITH RESPECT TO AWARD AND AWARD SHARES.
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(a) NON-TRANSFERABILITY OF AWARD. This Award, and any unvested Award
Shares, shall not be transferable other than by the Participant's last will and
testament or the laws of descent and distribution, or by court order. No right
or benefit hereunder shall in any manner be liable for or subject to any debts,
contracts, liabilities, or torts of the Participant.
(b) ASSURANCE OF COMPLIANCE. To ensure compliance with the terms of this
Award, and as a condition of the issuance of the Award Shares, the Participant
hereby:
(i) Agrees that certificates or accounts for unvested Award Shares may
bear a legend or otherwise be subject to the restrictions imposed by
this Award;
(ii) Agrees that the Company may retain custody, either directly or
through an agent, of any unvested Award Shares either in certificate
or book entry form at the Company's option;
(iii) Agrees to execute such stock powers or other documents, if required,
as the Company may require in order to transfer and/or redeliver any
unvested Award Shares to the Company if and when provided by this
Award; and
(iv) Irrevocably appoints the Secretary or Assistant Secretary of the
Company as the Participant's attorney-in-fact to take any other
action necessary to ensure such compliance.
3. VESTING OF AWARD SHARES.
(a) VESTING DATE. Except as otherwise provided in this Award, the Award
Shares shall become non-forfeitable, or "VEST," on the "VESTING DATE(s)" set
forth above. Upon vesting of the Award Shares, the Company shall release the
Award Shares which have vested to or as directed by the Participant, subject to
Section 5.
(b) ACCELERATION OF VESTING UPON DEATH OR DISABILITY. Upon the Participant
's death or Disability, all unvested Award Shares shall immediately vest, and,
subject to Section 5, the Company shall deliver the Award Shares which have
become vested:
(i) In the case of the Participant's death, to or as directed by the
person or persons to whom the Participant's rights under this Award
shall have passed by will or by the applicable laws of descent and
distribution; or
(ii) In the case of the Participant's Disability, to or as directed by the
Participant or the Participant's personal representative.
(c) ACCELERATION OF VESTING UPON CHANGE IN CONTROL. If a Change in Control
shall occur, whether or not the Participant's Employment is terminated, then all
unvested Award Shares shall immediately vest, and, subject to Section 5, the
Company shall deliver to or as directed by the Participant the Award Shares
which have become vested.
(d) CONTINUATION OF VESTING UPON RETIREMENT. If the Participant's
Employment terminates by reason of the Participant's Retirement, then the Award
Shares shall continue to vest pursuant to the other provisions of this Section
3.
4. FORFEITURE OF UNVESTED AWARD SHARES. If, prior to the vesting of all of
the Award Shares, the Participant's Employment terminates for any reason
(whether voluntary or involuntary and whether with or without cause) other than
because of a Change in Control or the Participant's death, Disability or
Retirement, then immediately after such termination all unvested Award Shares
shall be forfeited by the Participant and transferred back to the Company.
5. TAXES.
(a) TAX WITHHOLDING. Unless the Participant makes advance arrangements
satisfactory to the Company to reimburse the Company in a timely manner for the
withholding taxes payable by the Company under any federal, state or local tax
law related to the grant of this Award or the vesting of the Award Shares, the
Company:
(i) May withhold, or cause to be withheld, from the Award Shares
otherwise deliverable to the Participant under this Award, a number
of such shares having a fair market value on the applicable Vesting
Date sufficient to satisfy its tax withholding obligations at the
minimum statutory rate, and
(ii) May take such other action as may be necessary or appropriate to
satisfy any such tax withholding obligations.
(b) VALUATION FOR TAX PURPOSES. For income and withholding tax purposes,
the per-share fair market value of the Award Shares on a given date shall be
deemed to be the closing price of the Company's common stock on the New York
Stock Exchange on such date (or if such date is not a trading day, then the
opening price on the next trading day), except to the extent a different
valuation method may be required to be used by applicable tax laws or
regulations.
(c) NO COMMITMENT AS TO TAX TREATMENT. Neither the Company nor any
subsidiary makes any commitment or guarantee that any federal or state tax
treatment will apply or be available to the Participant. The Participant agrees
to indemnify the Company for the Participant's portion of any social insurance
obligations or taxes arising under any foreign law with respect to the grant of
this Award, the vesting of the Award Shares, or the sale or other disposition of
the Award Shares.
6. ADDITIONAL DEFINITIONS. For purposes of this Award:
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(a) "CHANGE IN CONTROL" means:
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(i) The occurrence of the "Distribution Date" as such term is defined in
the Rights Agreement dated as of April 2, 2001 between the Company
and Mellon Investor Services LLC; or
(ii) If the "Redemption Date" or the "Final Expiration Date," as such
terms are defined in the aforesaid Rights Agreement, has occurred,
the acquisition by any Person of 50% or more of the combined voting
power of all the Company's then outstanding voting securities,
unless prior to such acquisition the Board has approved such
acquisition and determined that it is in the best interests of the
Company and its shareholders; or
(iii) The approval by the Board of any merger, consolidation or other
transaction involving the Company, or of any one of a series of
related transactions, as a result of which (A) the Company would not
be the surviving corporation, or (B) the holders of the Company's
common stock immediately prior to such transaction would not own at
least a majority of the voting power of the Company immediately
after the transaction in substantially the same relative proportions
as they owned the Company's common stock immediately prior to the
transaction, or (C) the Company's common stock would be converted
into cash or other securities of the Company other than voting
securities having substantially the same relative and proportionate
voting power in the entity or entities surviving the transaction as
the common stock has immediately prior to the transaction; or
(iv) The commencement of any tender offer subject to Section 14(d) of the
Exchange Act for 20% or more of the Company's common stock; if the
person making such offer could own 50% or more of such common stock
when the tender offer terminates; or
(v) Any change or changes in the composition of the Board within any
twenty-four month period such that the individuals constituting the
Board at the beginning of such period, together with any individuals
who became directors after the beginning of such period whose
election by the Board or nomination for election by the Company's
shareholders was approved by at least a majority of the directors
who were on the Board at the beginning of such period or whose
election was previously approved in the same manner, cease to
constitute a majority of the Board; or
(vi) The approval by the stockholders of the Company of a plan of
complete liquidation of the Company or an agreement for the sale or
disposition by the Company of all or substantially all the Company's
assets.
For purposes of this definition, "Person" shall have the meaning given in
Section 3(a)(9) of the Exchange Act, as modified and used in Sections 13(d) and
14(d) thereof; however, a Person shall not include (1) the Company or any of its
subsidiaries, (2) a trustee or other fiduciary holding securities under an
employee benefit plan of the Company or any of its subsidiaries, (3) an
underwriter temporarily holding securities pursuant to an offering of such
securities, or (4) a corporation owned, directly or indirectly, by the
stockholders of the Company in substantially the same proportions as their
ownership of Company stock.
(b) "DISABILITY" means the condition of being "disabled" as defined in
Section 409A(a)(2)(C) of the Internal Revenue Code (the "Code"). Unless
otherwise required under applicable provisions of the Code, the Disability of a
Participant shall be determined by a licensed physician chosen by the Company.
(c) "EMPLOYMENT" means substantially full-time employment by the Company
or a subsidiary. In this regard, the transfer of the Participant's employment
between the Company and a subsidiary or between subsidiaries shall not be deemed
to be a termination of Employment. Moreover, the Participant's Employment shall
not be deemed to have been terminated because of absence from active employment
on account of temporary illness or authorized vacation or temporary leaves of
absence from active employment granted by the Company or a subsidiary for
reasons of professional advancement, education, health, or government service,
or during military leave for any period if the Participant returns to active
employment within 90 days after the termination of military leave, or during any
period required to be treated as a leave of absence by
virtue of any valid law or agreement. The Committee's determination in good
faith regarding whether a termination of Employment has occurred shall be
conclusive.
(d) "RETIREMENT" means the permanent withdrawal of the Participant from
the conduct of regular, active business activities, on or after the Participant
reaches the age of 60. Retirement does not preclude part-time employment,
consulting or other activities expressly approved by the Company, or passive
activities such as the management of the Participant's investments.
7. ADDITIONAL PAYMENT IN CERTAIN EVENTS. In the event a payment or benefit
pursuant to this Award is determined to be an "excess parachute payment" subject
to an excise tax under Section 4999 of the Internal Revenue Code, the Company
shall pay the Participant, within ten days of such determination, an amount
equal to such excise tax plus an additional amount so that the net after tax
effect on the Participant, considering Federal income, Insurance Contributions
Act and Unemployment Tax Act taxes, state income taxes and the excise tax under
Section 4999 of the Code, is the same as if such excise tax had not been
imposed.
8. SECURITIES LAW RESTRICTIONS. The Participant agrees that if at the time
of acquisition or delivery of any Award Shares issued hereunder the sale of such
shares is not covered by an effective registration statement filed under the
Securities Act of 1933 (the "Act"), the Participant will acquire the Award
Shares for the Participant's own account and without a view to resale or
distribution in violation of the Act or any other securities law, and that the
Participant will enter into such written representations, warranties and
agreements as the Company may reasonably request in order to comply with the Act
or any other securities law or with this Award.
9. REORGANIZATION OF THE COMPANY; ADJUSTMENT OF AWARD SHARES. The
existence of this Award shall not affect in any way the right or power of the
Company or its stockholders to make or authorize any or all adjustments,
recapitalizations, reorganizations or other changes in the Company's capital
structure or its business, or any merger or consolidation of the Company, or any
issue of bonds, debentures, preferred or prior preference stock ahead of or
affecting the Award Shares or the rights thereof, or the dissolution or
liquidation of the Company, or any sale or transfer of all or any part of the
Company's assets or business, or any other corporate act or proceeding, whether
of a similar character or otherwise. However, if the Common Stock is subdivided,
consolidated, increased, decreased, changed into or exchanged for a different
number or kind of shares or other securities, whether through reorganization,
merger, recapitalization, reclassification, capital adjustment or otherwise, or
if the Company shall issue common stock or other securities as a dividend or
upon a stock split, then for all purposes, references herein to Common Stock or
to Award Shares shall mean and include all securities or other property (other
than cash) that holders of the Common Stock are entitled to receive in respect
of the Common Stock by reason of each such event, which securities or other
property (other than cash) shall be treated in the same manner and shall be
subject to the same restrictions as the underlying Award Shares. In computing
any adjustment hereunder, any fractional share or other fractional security
which might otherwise become subject to issuance may be eliminated.
10. NO GUARANTEE OF EMPLOYMENT OR OTHER CONTRACT RIGHT. This Award is not
a contract of employment, and neither this Award nor the Plan shall confer upon
the Participant any right with respect to continuance of employment or other
service with the Company or any subsidiary, or interfere in any way with any
right the Company or any subsidiary would otherwise have to terminate the
Participant's employment or other service. Receipt of this Award shall not be
deemed to create a right to receive any future restricted stock, restricted
stock unit, performance share or performance unit, stock option, stock
appreciation right or other award or bonus in any form, and shall not constitute
an acquired labor right for purposes of any foreign law. This Award
is not a part of the Participant's salary or wages and shall not afford the
Participant any additional right to severance payments or other termination
awards or compensation under any Company policy or any domestic or foreign law
as a result of the termination of the Participant's employment for any reason
whatsoever.
11. AMENDMENT AND TERMINATION. No amendment or termination of this Award
which would impair the rights of the Participant may be made without the written
consent of the Participant. No amendment or termination of the Plan may impair
the rights of the Participant under this Award without the written consent of
the Participant.
12. SEVERABILITY. If any provision of this Award shall be held illegal,
invalid, or unenforceable for any reason, such provision shall be fully
severable and shall not affect the remaining provisions of this Award, and this
Award shall be construed and enforced as if the illegal, invalid, or
unenforceable provision had never been included herein.
13. GOVERNING LAW. This Award shall be construed in accordance with the
laws of the State of Missouri.
END OF EXHIBIT A