Exhibit 10.57
RESTRICTED STOCK AWARD
C&D TECHNOLOGIES, INC.
This RESTRICTED STOCK AWARD (the "Award") is made and entered into
effective as of the 12th day of March, 2007 by and between C&D Technologies,
Inc. (the "Company"), a Delaware corporation, and _______________ (the
"Participant").
Upon and subject to the Terms and Conditions attached hereto and
incorporated herein by reference as part of this Award, the Company hereby
awards as of the Grant Date below to the Participant the Restricted Shares
described below in consideration of Participant's services to the Company.
A. Grant Date: March 12, 2007.
B. Plan (under which the Award is granted): The C&D Technologies, Inc.
2007 Stock Incentive Plan.
C. Restricted Shares: ____________ shares of the Company's common stock
("Common Stock"), subject to adjustment as provided in the attached
Terms and Conditions.
D. Vesting Schedule: The Restricted Shares shall vest according to the
Vesting Schedule attached hereto as Schedule 1. The Restricted
Shares which have become vested pursuant to the Vesting Schedule are
herein referred to as the "Vested Shares."
IN WITNESS WHEREOF, the Company and the Participant have executed this
Award as of the Grant Date set forth above.
C&D TECHNOLOGIES, INC.
By: /s/ ____________________
President and Chief Executive Officer
_____________________________________
Signature of Participant
Name: Name
SSN: XXX-XX-9999
Address: Address
City, State Zip
TERMS AND CONDITIONS TO THE
RESTRICTED STOCK AWARD PURSUANT TO THE
C&D TECHNOLOGIES, INC. 2007 STOCK INCENTIVE PLAN
1. Restricted Shares Held by the Share Custodian. The Participant
hereby authorizes and directs the Company to deliver any share certificate
issued by the Company to evidence Restricted Shares to the Secretary of the
Company or such other officer of the Company as may be designated by the
Committee (the "Share Custodian") to be held by the Share Custodian until the
Restricted Shares become Vested Shares in accordance with the Vesting Schedule.
When the Restricted Shares become Vested Shares, the Share Custodian shall
deliver the Restricted Shares to the Participant. In the event that the
Participant forfeits any of the Restricted Shares, and the number of Vested
Shares includes a fraction of a share, the Share Custodian shall not be required
to deliver the fractional share, and the Company may pay the Participant the
amount determined by the Company to be the estimated fair market value therefor.
The Participant hereby irrevocably appoints the Share Custodian, and any
successor thereto, as the true and lawful attorney-in-fact of the Participant
with full power and authority to execute any stock transfer power or other
instrument necessary to transfer the Restricted Shares to the Company in
accordance with this Award, in the name, place, and stead of the Participant.
The term of such appointment shall commence on the date of the Award and shall
continue until the Restricted Shares are delivered to the Participant as
provided above. In the event the number of shares of Common Stock is increased
or reduced by a change in the par value, split-up, stock split, reverse stock
split, reclassification, merger, reorganization, consolidation, or otherwise,
the Participant agrees that any certificate representing shares of Common Stock
or other securities of the Company issued as a result of any of the foregoing
shall be delivered to the Share Custodian and shall be subject to all of the
provisions of this Award as if initially granted thereunder.
2. Rights of a Shareholder. During the period that the Share Custodian
holds the shares of Common Stock subject to Section 1, the Participant shall be
entitled to all rights applicable to shares of Common Stock not so held, except
as otherwise provided in this Award; provided, however, that dividends paid on
Restricted Shares that are not Vested Shares shall be retained by the Share
Custodian and paid to the Participant only upon the vesting of the Restricted
Shares associated with the dividends. The Company may require the Participant to
execute a stockholder agreement to which stockholders are generally subject, if
any, as a condition to the issuance or delivery to him of a share certificate.
3. Tax Withholding.
(a) The Participant must deliver to the Company, on or prior to
the date on which any Restricted Shares become Vested Shares (the "Vesting
Date"), either cash or a certified check payable to the Company, in the
amount of all tax withholding obligations imposed on the Company by reason
of the vesting of the Restricted Shares; provided, however, in the event
the Participant makes an earlier election pursuant to Internal Revenue
Code Section 83(b) as to all or any portion of the Restricted Shares, the
Participant must deliver to the Company, within thirty (30) days of making
the election, either cash or a certified check payable to the Company in
the amount of all of the tax withholding obligations (whether federal,
state or local) imposed on the Company by reason of the Participant making
the election pursuant to Section 83(b).
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(b) If the Participant does not make an election pursuant to Code
Section 83(b), in lieu of paying the tax withholding obligation as
described in Section 3(a), Participant may elect to have the actual number
of Vested Shares reduced by the number of whole shares of Common Stock
which, when multiplied by the Fair Market Value of the Common Stock on the
Vesting Date, is sufficient to satisfy the minimum amount of the required
tax obligations imposed on the Company by reason of the vesting of the
Restricted Shares (the "Withholding Election"). Participant may make a
Withholding Election only if all of the following conditions are met:
(i) the Withholding Election must be made on or prior to the
Vesting Date by executing and delivering to the Company a properly
completed Notice of Withholding Election, in substantially the form
of Exhibit 1 attached hereto; and
(ii) any Withholding Election made will be irrevocable;
however, the Compensation Committee of the Board of Directors of the
Company (the "Committee") may, in its sole discretion, disapprove
and give no effect to any Withholding Election, in which case, the
Committee shall notify the Participant of such disapproval within
ten (10) days of its decision and the Participant shall have ten
(10) days after receiving such notification to deliver the payment
required under Subsection (a) above.
If the Participant does not timely satisfy payment of the tax withholding
obligation, the Participant will forfeit the Restricted Shares.
4. Restrictions on Transfer of Restricted Shares. Except for the
transfer of any Restricted Shares by bequest or inheritance, the Participant's
right to any unvested Restricted Shares may not be assigned, transferred,
pledged or sold. Any such disposition not made in accordance with this Award
shall be deemed null and void. Any permitted transferee under this Section shall
be bound by the terms of this Award.
5. Additional Restrictions on Transfer.
(a) Certificates evidencing the Restricted Shares shall have noted
conspicuously on the certificate a legend required under applicable
securities laws or otherwise determined by the Company to be appropriate
and reflective of the restrictions and other applicable rights hereunder,
such as:
TRANSFER IS RESTRICTED
THE SECURITIES EVIDENCED BY THIS CERTIFICATE ARE SUBJECT TO
RESTRICTIONS ON TRANSFER AND FORFEITURE PROVISIONS WHICH ALSO APPLY
TO THE TRANSFEREE AS SET FORTH IN A RESTRICTED STOCK AWARD, DATED
___________, 200__, A COPY OF WHICH IS AVAILABLE FROM THE COMPANY.
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(b) No holder of Vested Shares may sell, transfer, assign, pledge
or otherwise dispose of (whether with or without consideration and whether
voluntarily or involuntarily or by operation of law) any interest in or
any beneficial interest in any Vested Shares, except (i) pursuant to an
effective registration statement under the Securities Act of 1933
("Securities Act"), or (ii) in a transaction that fully complies with Rule
144 thereunder, without first delivering to the Company an opinion of
counsel (reasonably acceptable in form and substance to the Company) that
neither registration nor qualification under the Securities Act and
applicable state securities laws is required in connection with such
transfer.
6. Change in Control.
(a) Notwithstanding any other provisions to the contrary, in the
event of a Change in Control following the Grant Date but prior to the
Participant's termination of employment with the Company or its
Affiliates, any Restricted Shares which are not Vested Shares shall become
immediately vested and payable upon the effective date of such event.
(b) For purposes of this Award, "Change in Control" means:
(1) The acquisition by any individual, entity or group
(within the meaning of Section 13(d)(3) or 14(d)(2) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act")) (a "Person") of
beneficial ownership (within the meaning of Rule 13d-3 promulgated under
the Exchange Act) of 30% or more of either (A) the then-outstanding shares
of common stock of the Company (the "Outstanding Company Common Stock") or
(B) the combined voting power of the then-outstanding voting securities of
the Company entitled to vote generally in the election of directors (the
"Outstanding Company Voting Securities"); provided, however, that, for
purposes of this Subsection (b)(1), the following acquisitions shall not
constitute a Change of Control: (i) any acquisition directly from the
Company, (ii) any acquisition by the Company, (iii) any acquisition by any
employee benefit plan (or related trust) sponsored or maintained by the
Company or any majority-owned subsidiary of the Company, or (iv) any
acquisition by any corporation pursuant to a transaction that complies
with Subsection (b)(3) below.
(2) Individuals who, as of the date hereof, constitute the
Board of Directors (the "Incumbent Board") cease, for any reason, to
constitute at least a majority of the Board of Directors; provided,
however, that any individual becoming a director subsequent to the date of
the Award whose election, or nomination for election by the Company's
stockholders, was approved by a vote of at least two-thirds of the
directors then comprising the Incumbent Board shall be considered as
though such individual were a member of the Incumbent Board, but
excluding, for this purpose, any such individual whose initial assumption
of office occurs as a result of an actual or threatened election contest
with respect to the election or removal of directors or other actual or
threatened solicitation of proxies or consents by or on behalf of a Person
other than the Board of Directors.
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(3) Consummation of a reorganization, merger, statutory
share exchange or consolidation or similar corporate transaction involving
the Company or any of its subsidiaries, a sale or other disposition of all
or substantially all of the assets of the Company, or the acquisition of
assets or stock of another entity by the Company or any of its
subsidiaries (each, a "Business Combination"), in each case unless,
following such Business Combination, (A) all or substantially all of the
individuals and entities that were the beneficial owners of the
Outstanding Company Common Stock and the Outstanding Company Voting
Securities immediately prior to such Business Combination beneficially
own, directly or indirectly, more than 50% of the then-outstanding shares
of common stock and the combined voting power of the then-outstanding
voting securities entitled to vote generally in the election of directors,
as the case may be, of the corporation resulting from such Business
Combination (including, without limitation, a corporation that, as a
result of such transaction, owns the Company or all or substantially all
of the Company's assets either directly or through one or more
subsidiaries) in substantially the same proportions as their ownership
immediately prior to such Business Combination of the Outstanding Company
Common Stock and the Outstanding Company Voting Securities, as the case
may be, (B) no Person (excluding any corporation resulting from such
Business Combination or any employee benefit plan (or related trust) of
the Company or such corporation resulting from such Business Combination)
beneficially owns, directly or indirectly, 30% or more of, respectively,
the then-outstanding shares of common stock of the corporation resulting
from such Business Combination or the combined voting power of the
then-outstanding voting securities of such corporation, except to the
extent that such ownership existed prior to the Business Combination, and
(C) at least a majority of the members of the board of directors of the
corporation resulting from such Business Combination were members of the
Incumbent Board at the time of the execution of the initial agreement or
of the action of the Board of Directors providing for such Business
Combination; or
(4) Approval by the stockholders of the Company of a
complete liquidation or dissolution of the Company.
7. Forfeiture. Except as otherwise provided under the terms of the Plan
or this Award, at the time of the Participant's termination of employment with
or service for the Company and its Affiliates for any reason, any Restricted
Shares which are not Vested Shares shall be forfeited by the Participant
immediately upon such termination of employment or service.
8. Change in Capitalization.
(a) The number and kind of Restricted Shares shall be
proportionately adjusted for any increase or decrease in the number of
issued shares of Common Stock resulting from a spin-off, a subdivision or
combination of shares, or the payment of a stock dividend in shares of
Common Stock to holders of outstanding shares of Common Stock or any other
increase or decrease in the number of shares of Common Stock
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outstanding is effected without receipt of consideration by the Company.
No fractional shares shall be issued in making such adjustment.
(b) In the event of a merger, consolidation, extraordinary
dividend, sale of substantially all of the Company's assets or other
material change in the capital structure of the Company, or a tender offer
for shares of Common Stock, or a Change in Control, the Committee shall
take such action to make such adjustments with respect to the Restricted
Shares as are appropriate to convert the Restricted Shares into the same
consideration per share of Common Stock that applies to the Common Stock
holders of the Company, including, without limitation, adjusting the
number and class of securities subject to the Award, or substituting cash,
other securities, or other property to replace the Award; provided that
such consideration shall continue to be subject to the provisions of this
Award.
(c) All determinations and adjustments made by the Committee
pursuant to this Section will be final and binding on the Participant. Any
action taken by the Committee need not treat all recipients of awards
under the Plan equally.
(d) The existence of the Plan and the Award shall not affect the
right or power of the Company to make or authorize any adjustment,
reclassification, reorganization or other change in its capital or
business structure, any merger or consolidation of the Company, any issue
of debt or equity securities having preferences or priorities as to the
Common Stock or the rights thereof, the dissolution or liquidation of the
Company, any sale or transfer of all or part of its business or assets, or
any other corporate act or proceeding.
9. Governing Laws. This Award shall be construed, administered and
enforced according to the laws of the State of Delaware; provided, however, no
Restricted Shares shall be issued except, in the reasonable judgment of the
Committee, in compliance with exemptions under applicable state securities laws
of the state in which Participant resides, and/or any other applicable
securities laws.
10. Successors. This Award shall be binding upon and inure to the
benefit of the heirs, legal representatives, successors, and permitted assigns
of the parties.
11. Notice. Except as otherwise specified herein, all notices and other
communications under this Award shall be in writing and shall be deemed to have
been given if personally delivered or if sent by registered or certified United
States mail, return receipt requested, postage prepaid, addressed to the
proposed recipient at the last known address of the recipient. Any party may
designate any other address to which notices shall be sent by giving notice of
the address to the other parties in the same manner as provided herein.
12. Severability. In the event that any one or more of the provisions or
portion thereof contained in this Award shall for any reason be held to be
invalid, illegal, or unenforceable in any respect, the same shall not invalidate
or otherwise affect any other provisions of this Award, and this Award shall be
construed as if the invalid, illegal or unenforceable provision or portion
thereof had never been contained herein.
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13. Entire Agreement. Subject to the terms and conditions of the Plan,
this Award expresses the entire understanding and agreement of the parties with
respect to the subject matter.
14. Headings and Capitalized Terms. Paragraph headings used herein are
for convenience of reference only and shall not be considered in construing this
Award. Capitalized terms used, but not defined, in this Award shall be given the
meaning ascribed to them in the Plan.
15. Specific Performance. In the event of any actual or threatened
default in, or breach of, any of the terms, conditions and provisions of this
Award, the party or parties who are thereby aggrieved shall have the right to
specific performance and injunction in addition to any and all other rights and
remedies at law or in equity, and all such rights and remedies shall be
cumulative.
16. No Right to Continued Retention. Neither the establishment of the
Plan nor the award of Restricted Shares hereunder shall be construed as giving
Participant the right to continued employment or service with the Company or any
Affiliate.
17. Acknowledgement. Participant acknowledges that: (a) neither the
Company nor any of the Company's affiliates, officers, members, employees,
agents or representatives (each a "Related Person") has provided or is providing
the undersigned with tax advice regarding the receipt and ownership of the
Restricted Shares or any other matter, and the Company has advised the
Participant to consult with his or her own tax advisor with respect to the
income tax consequences of receiving, holding and disposing of the Restricted
Shares (including whether to make an election under Code Section 83(b)); and (b)
neither the Company nor any Related Person has advised the Participant to rely
on any determination by it or its representatives as to the current fair market
value of the Restricted Shares and will have no liability to the Participant if
the actual fair market value of the Restricted Shares exceeds the amount that
the Company intends to use for tax reporting purposes.
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SCHEDULE 1
C&D TECHNOLOGIES, INC.
RESTRICTED STOCK AWARD
Vesting Schedule
I. The Restricted Shares shall become vested in accordance with the following
Vesting Schedule:
Percentage of Restricted Shares
Vesting Date Vesting on Vesting Date
------------ -----------------------
March 12, 2008 25%
March 12, 2009 25%
March 12 ,2010 25%
March 12, 2011 25%
II. The Participant shall become vested in the stated percentage of Restricted
Shares on the specified date, as indicated by the above Vesting Schedule;
provided, however, that the Participant remains in continuous service with
the Company or any Affiliate of the Company measured from the Grant Date.
Except as provided in Section III below, if and when the Participant
experiences a termination of employment with the Company and its
Affiliates for any reason whatsoever, any Restricted Shares which are not
Vested Shares will be immediately forfeited.
III. Notwithstanding the provisions of Sections I or II above, in the event of
the occurrence of any Change in Control following the Grant Date but prior
to the Participant's termination of employment with the Company and its
Affiliates, any previously unvested Restricted Shares shall become
immediately vested upon the effective date of such event in accordance
with Section 6 of the Award.
IV. The Vested Shares shall be issued to the Participant as soon as
practicable after vesting, but in any event, no later than the date that
is two and one-half months from the end of (i) Participant's tax year that
includes the Vesting Date, or (ii) the Company's tax year that includes
the Vesting Date, whichever occurs later, in accordance with Proposed
Treas. Reg. 1.409A-1(b)(4)(i) (or any successor guidance); provided,
however, that if, due to unforeseeable events, it is administratively
impracticable to issue the Vested Shares within the time period provided
in this Section IV or issuing the shares within the time period provided
in this Section IV would jeopardize the solvency of the Company in any
way, the shares shall be issued as soon as reasonably practicable in
accordance with Proposed Treas. Reg. 1.409A-1(b)(4)(ii) (or any successor
guidance).
Schedule 1