Attached files
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10-Q - MSC INDUSTRIAL DIRECT CO INC | v170401_10q.htm |
EX-31.2 - MSC INDUSTRIAL DIRECT CO INC | v170401_ex31-2.htm |
EX-31.1 - MSC INDUSTRIAL DIRECT CO INC | v170401_ex31-1.htm |
EX-10.3 - MSC INDUSTRIAL DIRECT CO INC | v170401_ex10-3.htm |
EX-32.2 - MSC INDUSTRIAL DIRECT CO INC | v170401_ex32-2.htm |
EX-32.1 - MSC INDUSTRIAL DIRECT CO INC | v170401_ex32-1.htm |
EX-10.2 - MSC INDUSTRIAL DIRECT CO INC | v170401_ex10-2.htm |
EX-10.1 - MSC INDUSTRIAL DIRECT CO INC | v170401_ex10-1.htm |
EX-10.4 - MSC INDUSTRIAL DIRECT CO INC | v170401_ex10-4.htm |
EXHIBIT
10.5
2005
OMNIBUS EQUITY PLAN
RESTRICTED
STOCK AWARD
MSC
INDUSTRIAL DIRECT CO., INC. (the “Company”), hereby
grants to [ASSOCIATE
NAME] (the “Participant”) under
the MSC Industrial Direct Co., Inc. 2005 Omnibus Equity Plan (the “Plan”) a Restricted
Stock Award (the “Award”), pursuant to
and evidencing the grant thereof by the Compensation Committee of the Board of
Directors of the Company on October ___, 2009 (the “Award Date”) with
respect to [#
SHARES] shares of the Class A common stock, par value $.001 per share
(the “Stock”),
of the Company (the “Shares”), all in
accordance with and subject to the following terms and conditions:
1. Definitions. Capitalized
terms used but not defined herein shall have the meaning given to such terms in
the Plan.
2. Restrictions. Subject
to Sections 5, 6 and 10 below, the restrictions on the applicable percentage of
Shares shall lapse, and the applicable percentage of Shares shall vest, on each
“Vesting Date” in accordance with the following schedule, provided that the
Participant remains an associate of, or in the service of, the Company (or a
subsidiary or affiliate) during the entire period (the “Restriction Period”)
commencing on the Award Date and ending the applicable Vesting
Date:
Vesting
Date
|
Percentage
of Shares Vested
|
October
___,
2012
|
50%
|
October
___,
2013
|
75%
|
October
___,
2014
|
100%
|
3. Voting and Dividend
Rights. Upon the earlier of (i) issuance of the certificate or
certificates for the Shares in the name of the Participant or (ii) book entry
recordation of the grant by the Company’s transfer agent as provided in Section
11 hereof, the Participant shall thereupon be a shareholder with respect to all
the Shares represented by such certificate or certificates and shall have the
rights of a shareholder with respect to such Shares, including the right to vote
such Shares and to receive all dividends and other distributions paid with
respect to such Shares. Dividends, if any, declared by the Company
during a calendar year with respect to such Shares shall be paid to the
Participant no later than the end of the calendar year in which the dividends
are declared, or, if later, the fifteenth (15th) day of the third (3rd) month
following the date such dividends are declared.
4. Transfer Restrictions;
Forfeitures. This Award and the Shares (until they become
unrestricted pursuant to the terms hereof) are non-transferable and may not be
assigned, pledged or hypothecated and shall not be subject to execution,
attachment or similar process. Upon any attempt to effect any such
disposition, or upon the levy of any such process, the Award shall immediately
become null and void and the Shares shall be forfeited.
5. Termination of Employment or
Provision of Services by Reason of Death, Disability or
Retirement. If the Participant’s employment with or provision
of services for the Company and its Affiliates terminates by reason of death,
Disability or Retirement, the restrictions to the Shares shall forthwith
terminate.
6. Other Termination of
Employment or Provision of Services. If the Participant’s
employment or provision of services is terminated for any reason other than
death, Disability or Retirement, the Participant shall be obligated to redeliver
such Shares that are still restricted prior to termination to the Company
immediately and the Company shall pay to the Participant, in redemption of such
restricted Shares, the amount equal to the price paid (if any) by the
Participant for such Shares.
7. Election Under Section
83(b). No later than 30 days after the date of grant of the Shares
hereunder, Participant may make an election to be taxed upon such award
under Section 83(b) of the Internal Revenue Code of 1986, as
amended (the “Code”). If the Participant makes a Section
83(b) election with respect to the Shares granted hereunder, he or
she shall provide a copy thereof to the Company within ten days of the filing of
such election with the Internal Revenue Service and shall satisfy all then
applicable Federal, state or local withholding tax obligations arising from that
election in accordance with Section 8 below. The Participant should consult his or
her own tax advisor for information concerning the tax consequences of the grant
of an Award, the filing of a Section 83(b) election and the lapse of
restrictions with respect to the Shares.
8. Withholding
Taxes. No later than the date as of which an amount first
becomes includible in the gross income of the Participant for Federal income tax
purposes with respect to any Award under the Plan, the Participant shall make
arrangements satisfactory to the Company regarding the payment of, any Federal,
state, local or foreign taxes of any kind required by law to be withheld with
respect to such amount. Unless the Participant elects, with respect to each
particular vesting event, to satisfy his or her withholding obligation with a
cash payment in accordance with rules established by the Administrator, the
Participant shall be deemed to have, and by his or her signature hereto hereby
does, instruct the Company to satisfy his or her withholding obligations with
Stock that is part of the Award that gives rise to the withholding
requirement. Changes to this instruction to pay withholding
obligations in Stock (i.e., to make arrangements to pay withholding obligations
in cash) can only be made during the “trading window” prior to the vesting event
under the Company’s Insider Trading Policy. The obligations of the
Company under the Plan shall be conditional on such payment or arrangements, and
the Company, its Subsidiaries and its Affiliates shall, to the extent permitted
by law, have the right to deduct any such taxes from any payment otherwise due
to the Participant. The Administrator may establish such procedures as it deems
appropriate for the settlement of withholding obligations with Stock or
cash. A Participant
should consult his or her own tax advisor for more information concerning the
tax consequences of the grant of an Award.
2
9. Death of
Participant. If any of the Shares shall vest upon the death of
the Participant, they shall be registered in the name of the estate of the
Participant unless the Company shall have theretofore received in writing a
beneficiary designation, in which event they shall be registered in the name of
the designated beneficiary.
10. Change in Control.
Upon any Change in Control as provided under the Plan, and otherwise subject to
the Plan, any restrictions applicable to Shares covered hereunder shall lapse
and such Shares shall become free of restrictions and fully vested and
transferable and shall be otherwise subject to the Plan.
11. Issuance of
Shares. The Shares will be initially evidenced by a book entry
record maintained by the Company’s transfer agent. Once the Shares
have vested, physical share certificates (less those needed for withholding
taxes) may be issued upon the Participant’s written request to the transfer
agent or Plan Administrator. The Company may place on the
certificates representing the Shares such legend or legends as the Company may
deem appropriate and the Company may place a stop transfer order with respect to
such Shares with the transfer agent(s) for the Shares.
12. Effect of Amendment of
Plan. No discontinuation, modification, or amendment of the
Plan may, without the express written consent of the Participant, adversely
affect the rights of the Participant under this Award, except as expressly
provided under the Plan.
This Restricted Stock Award Agreement
(the “Agreement”) may be
amended as provided under the Plan, but except as provided thereunder any such
amendment shall not adversely affect Participant’s rights hereunder without
Participant’s consent.
13. No Limitation on Rights of
the Company. The grant of this Award shall not in any way
affect the right or power of the Company to make adjustments, reclassifications,
or changes in its capital or business structure or to merge, consolidate,
dissolve, liquidate, sell, or transfer all or any part of its business or
assets.
14. Compliance with Applicable
Law. Notwithstanding anything herein to the contrary, the
Company shall not be obligated to cause to be issued or delivered any
certificates for Shares, unless and until the Company is advised by its counsel
that the issuance and delivery of such certificates is in compliance with all
applicable laws, regulations of governmental authority, and the requirements of
any exchange upon which Shares are traded. The Company shall in no
event be obligated to register any securities pursuant to the Securities Act of
1933 (as now in effect or as hereafter amended) or to take any other action in
order to cause the issuance and delivery of such certificates to comply with any
such law, regulation or requirement. The Company may require, as a
condition of the issuance and delivery of such certificates and in order to
ensure compliance with such laws, regulations, and requirements, that the
Participants make such covenants, agreements, and representations as the
Company, in its sole discretion, considers necessary or desirable.
3
15. Agreement Not a Contract of
Employment or Other Relationship. This Agreement is not a
contract of employment, and the terms of employment of the Participant or other
relationship of the Participant with the Company or any of its subsidiaries or
affiliates shall not be affected in any way by this Agreement except as
specifically provided herein. The execution of this Agreement shall
not be construed as conferring any legal rights upon the Participant for a
continuation of an employment or other relationship with the Company or any of
its subsidiaries or affiliates, nor shall it interfere with the right of the
Company or any of its subsidiaries or affiliates to discharge the Participant
and to treat him or her without regard to the effect which such treatment might
have upon him or her as a Participant.
16. Notices. Any
notice or other communication required or permitted hereunder shall be in
writing and shall be delivered personally or sent by certified, registered, or
express mail, postage prepaid, return receipt requested, or by a reputable
overnight delivery service. Any such notice shall be deemed given
when received by the intended recipient.
17. Governing
Law. Except to the extent preempted by Federal law, this
Agreement shall be construed and enforced in accordance with, and governed by,
the laws of the State of New York without regard to the principles thereof
relating to the conflicts of laws.
18. No Rights to Continued
Employment. Nothing contained in the Plan shall give any
associate the right to be retained in the employment or service of the Company
or any of its subsidiaries or affiliates or affect the right of any such
employer to terminate the Participant. The adoption and maintenance
of the Plan shall not constitute an inducement to, or condition of, the
employment or service of the Participant. The Plan is a discretionary
plan, and participation by the Participant is purely
voluntary. Participation in the Plan with respect to this Award shall
not entitle the Participant to participate with respect to any other
award. Any payment or benefit paid to the Participant with respect to
this Award shall not be considered to be part of the Participant’s “salary,” and
thus, shall not be taken into account for purposes of determining the
Participant’s termination indemnity, severance pay, retirement or pension
payment, or any other employee benefits, except to the extent required under
applicable law.
19. Receipt of
Plan. The Participant acknowledges receipt of a copy of the
Plan, and represents that the Participant is familiar with the terms and
provisions thereof, and hereby accepts this Award subject to all the terms and
provisions of this Agreement and of the Plan. The Participant hereby
agrees to accept as binding, conclusive and final all decisions or
interpretations of the Administrator with respect to any questions arising under
this Agreement or the Plan.
20. Other Terms and
Conditions. The foregoing does not modify or amend any terms
of the Plan. To the extent any provisions of the Agreement are
inconsistent or in conflict with any terms or provisions of the Plan, the Plan
shall govern.
4
IN
WITNESS WHEREOF, this Agreement has been duly executed as of
___________________.
MSC
Industrial Direct Co.,
Inc.
I have read, understand and agree to
abide by the terms of this Agreement, the Plan and the Associate
Confidentiality, Non-Solicitation and Non-Competition Agreement that I entered
into with the Company dated as of
,
200
(the “Associate Agreement”). I hereby acknowledge that the grant of
Shares pursuant to this Agreement is consideration for my entering into and
complying with the Associate Agreement. I understand this Agreement,
the Plan and the Associate Agreement control in all respects the terms and
conditions of the Award granted to me.
In
addition, in accordance with the Company’s Executive Incentive Compensation
Recoupment Policy (the “Policy”), a copy of which I acknowledge having received
and which I have reviewed and understand, I agree to the following:
(i) I
agree, upon demand by the Company, to forfeit, return or repay to the Company
any or all of the “Award Benefits and Proceeds” if the Company determines that I
engaged in Misconduct that caused or partially caused the need for a significant
restatement of financial results, other than as a result of a change in
accounting principles (a “Restatement”). “Misconduct” shall mean a
knowing violation of SEC rules and regulations or Company policy, as determined
by the Board or the Compensation Committee of the Board in its sole and absolute
discretion.
(ii)
I agree, upon demand by the Company, to forfeit, return or repay to the
Company any or all of the “Award Benefits and Proceeds” if I breach or violate
any of the terms of the Associate Agreement (which also shall mean any future
Associate Agreement) following the termination of my employment with the
Company.
“Award
Benefits and Proceeds” shall mean (a) to the extent that the Award has not fully
vested, all of my remaining rights under the Award, (b) to the extent that all
or any part of the Award has vested and I continue to hold shares that vested,
any such shares, and (c) to the extent that all or any part of the Award has
vested and I have disposed of shares that vested under the Award, any net
proceeds realized from such disposition (or, in the case of a gift, the fair
market value of the shares so gifted at the time of the gift); provided, that
for purposes of clause (ii) above, clauses (b) and (c) of this definition of
“Award Benefits and Proceeds” only shall apply with respect to shares that
vested during the period beginning two years before and ending two years after
the termination of my employment.
5
These
provisions are subject to the limitations on the period for recoupment set forth
in the Policy and shall terminate in the event of a Change in
Control.
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Date
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Associate
Signature
|
FOR MSC INDUSTRIAL DIRECT
CO., INC. USE ONLY
ACCEPTED
BY MSC INDUSTRIAL DIRECT CO., INC.
By:
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||
Name:
Danielle Fox
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Title:
Sr. Compensation Analyst
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Date:
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6