kl02071_ex10-23.htm


    
      

    

    Exhibit 10.23

    
 

    
      Genco
Shipping & Trading Limited

      Executive
Officer Restricted Stock Grant Agreement

       

      THIS
AGREEMENT, made as of December 24, 2008, between GENCO SHIPPING
& TRADING LIMITED (the
“Company”) and Robert Gerald
Buchanan (the “Participant”).

       

      WHEREAS,
the Company has adopted and maintains the Genco Shipping
& Trading Limited 2005 Equity Incentive Plan (as amended and restated
effective December 21, 2005) (the “Plan”) to provide certain key persons, on
whose initiative and efforts the successful conduct of the business of the
Company depends, with incentives to: (a) enter into and remain in the service of
the Company, (b) acquire a proprietary interest in the success of the Company,
(c) maximize their performance and (d) enhance the long-term performance of the
Company;

       

      WHEREAS,
the Plan provides that the Board of Directors of the Company (the “Board of
Directors”) shall administer the Plan and determine the key persons to whom
awards shall be granted and the amount and type of such awards; and

       

      WHEREAS,
the Board of Directors has determined that the purposes of the Plan would be
furthered by granting the Participant an award under the Plan as set forth in
this Agreement;

       

      NOW,
THEREFORE, in consideration of the premises and the mutual covenants hereinafter
set forth, the parties hereto hereby agree as follows:

       

      1.            
Grant of Restricted
Stock.  Pursuant to, and subject to, the terms and conditions
set forth herein and in the Plan, the Board of Directors hereby grants to the
Participant 15,000
restricted shares (the “Restricted Stock”) of common stock of the Company, par
value $0.01 per share (“Common Stock”).  

       

      2.            
Grant
Date.  The Grant Date of the Restricted Stock is December 24,
2008.

       

      3.            
Incorporation of
Plan.  All terms, conditions and restrictions of the Plan are
incorporated herein and made part hereof as if stated herein.  If
there is any conflict between the terms and conditions of the Plan and this
Agreement, the terms and conditions of the Plan, as interpreted by the Board of
Directors, shall govern.  Except as otherwise provided herein, all
capitalized terms used herein shall have the meaning given to such terms in the
Plan.

       

      4.            
Vesting.

       

      (a)           Subject
to Section 4(b) hereof and the further provisions of this Agreement, a number of
whole shares of Restricted Stock as close as possible to 25% of the total number
of shares granted hereunder shall vest on each of November 15, 2009, 2010, 2011
and 2012 (each such date, a “Vesting Date”).

       

       

      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

       

       

      (b)           In
the event of the occurrence of a Change in Control, as defined in Section 3.8(a)
of the Plan, as in effect on the date of such occurrence, the Restricted Stock
shall become vested in full on the date of such Change in Control.

       

      5.            
Restrictions on
Transferability.  Until a share of Restricted Stock vests, the
Participant shall not transfer the Participant’s rights to such share of
Restricted Stock or to any rights related thereto.  Any attempt to
transfer unvested shares of Restricted Stock or any rights related thereto,
whether by transfer, pledge, hypothecation or otherwise and whether voluntary or
involuntary, by operation of law or otherwise, shall not vest the transferee
with any interest or right in or with respect to such shares of Restricted Stock
or such related rights.

       

      6.            
Termination of
Service.

       

      (a)           In
the event that the Participant’s Service with the Company terminates before all
the shares of Restricted Stock are vested for any reason other than a
termination by the Company without cause (as defined in the Plan) or the
Participant’s death or disability (as defined in the Plan), all unvested shares
of Restricted Stock, together with any property received in respect of such
shares, subject to and as set forth in Section 9 hereof, shall be forfeited as
of the date such Service terminates, and the Participant promptly shall return
to the Company any certificates evidencing such shares, together with any cash
dividends or other property received in respect of such shares.  For
purposes hereof, “Service” means a continuous time period during which the
Participant is at least one of the following:  an employee or a
director of, or a consultant to, the Company.

       

      (b)           In
the event that the Participant’s Service with the Company is terminated before
all the shares of Restricted Stock are vested by the Company without cause (as
defined in the Plan) or for reason of the Participant’s death or disability (as
defined in the Plan), a portion of the shares of Restricted Stock shall become
vested immediately prior to the date such Service terminates, and all other
shares of Restricted Stock which are not and have not become vested, together
with any property received in respect of such shares, as set forth in Section 9
hereof, shall be forfeited as of the date such Service terminates, and the
Participant promptly shall return to the Company any certificates evidencing
such shares, together with any cash dividends or other property received in
respect of such shares.  The number of shares to become vested
immediately prior to the date such Service terminates shall be as
follows:

       

      (i) If the
termination occurs prior to November 15, 2009, 25% of the number of shares set
forth in Section 1 hereof multiplied by a fraction, the denominator of which is
11 and the numerator of which is the number of completed months between the date
hereof and the date such Service terminates.  For the purposes of this
paragraph, a month shall be deemed completed on the 15th of such
month.

       

      (ii) If the
termination occurs on or after November 15, 2009, 25% of the number of shares
set forth in Section 1 hereof multiplied by a fraction, the denominator of which
is 12 and the numerator of which is the number of completed months between the
immediately preceding November 15 and the date such Service
terminates.  For the purposes of this paragraph, a month shall be
deemed completed on the 15th of such month.

       

       

      
        
          2

        

        
          
          

          
            

          

        

        
          
          

        

      

       

       

      7.            
Issuance of
Shares.

       

      (a)           Reasonably
promptly after the Grant Date, the Company shall issue and deliver to the
Participant stock certificates, registered in the name of the Participant,
evidencing the shares of Restricted Stock or shall instruct its transfer agent
to issue shares of Restricted Stock which shall be maintained in book entry form
on the books of the transfer agent.  The Restricted Stock, if
certificated, shall bear the following legend:

       

      “THE
SALE, TRANSFER, ASSIGNMENT, PLEDGE, HYPOTHECATION ENCUMBRANCE OR OTHER DISPOSAL
OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO THE TERMS OF
THE GENCO SHIPPING
& TRADING LIMITED 2005 EQUITY
INCENTIVE PLAN AND A RESTRICTED STOCK GRANT AGREEMENT BETWEEN GENCO SHIPPING
& TRADING LIMITED AND THE
HOLDER OF RECORD OF THE SECURITIES REPRESENTED BY THIS
CERTIFICATE.  NO TRANSFER OF THE SECURITIES REPRESENTED BY THIS
CERTIFICATE IN CONTRAVENTION OF SUCH PLAN AND RESTRICTED STOCK GRANT AGREEMENT
SHALL BE VALID OR EFFECTIVE.  COPIES OF SUCH AGREEMENT MAY BE OBTAINED
BY WRITTEN REQUEST MADE BY THE HOLDER OF RECORD OF THE CERTIFICATE TO THE
SECRETARY OF GENCO SHIPPING
& TRADING LIMITED.”

       

      If the
Restricted Stock is in book entry form, it shall be subject to electronic coding
or stop order indicating that such shares of Restricted Stock are restricted by
the terms of this Agreement and the Plan.  Such legend, electronic
coding or stop order shall not be removed until such shares of Restricted Stock
vest.

       

      (b)           Reasonably
promptly after any such shares of Restricted Stock vest pursuant to Section 4
hereof, (i) in the case of certificated shares, in exchange for the surrender to
the Company of the certificates evidencing the Restricted Stock, delivered to
the Participant under Section 7(a) hereof, and the certificates evidencing any
other securities received in respect of such shares, if any, the Company shall
issue and deliver to the Participant (or the Participant’s legal representative,
beneficiary or heir) certificates evidencing such shares of Restricted Stock and
such other securities, free of the legend provided in Section 7(a) hereof and
(ii) in the case of book entry shares, the Company shall cause to be lifted and
removed any electronic coding or stop order established pursuant to Section 7(a)
hereof.

       

      (c)           The
Company may require as a condition of the delivery of stock certificates or the
removal of any electronic coding or stop order, pursuant to Section 7(b) hereof,
that the Participant remit to the Company an amount sufficient in the opinion of
the Company to satisfy any federal, state and other governmental tax withholding
requirements related to the vesting of the applicable shares.  The
Board of Directors, in its sole discretion, may permit the Participant to
satisfy such obligation by delivering shares of Common Stock or by directing the
Company to withhold from delivery shares of Common Stock, in either case valued
at their Fair Market Value on the Vesting Date with fractional shares being
settled in cash.

       

       

       

      
        
          3

        

        
          
          

          
            

          

        

        
          
          

        

      

       

       

       

      (d)           The
Participant shall not be deemed for any purpose to be, or have rights as, a
shareholder of the Company by virtue of the grant of Restricted Stock, except to
the extent a stock certificate is issued therefor or an appropriate book entry
is made on the books of the transfer agent reflecting the issuance thereof
pursuant to Section 7(a) hereof, and then only from the date such certificate is
issued or such book entry is made.  Upon the issuance of a stock
certificate or the making of an appropriate book entry on the books of the
transfer agent, the Participant shall have the rights of a shareholder with
respect to the Restricted Stock, including the right to vote the shares, subject
to the restrictions on transferability and the forfeiture provisions, as set
forth in this Agreement.

       

      8.            
Securities
Matters.  The Company shall be under no obligation to effect
the registration pursuant to the Securities Act of 1933, as amended (the “1933
Act”) of any interests in the Plan or any shares of Common Stock to be issued
thereunder or to effect similar compliance under any state laws.  The
Company shall not be obligated to cause to be issued any shares, whether by
means of stock certificates or appropriate book entries, unless and until the
Company is advised by its counsel that the issuance of such shares is in
compliance with all applicable laws, regulations of governmental authority and
the requirements of any securities exchange on which shares of Common Stock are
traded.  The Board of Directors may require, as a condition of the
issuance of shares of Common Stock pursuant to the terms hereof, that the
recipient of such shares make such covenants, agreements and representations,
and that any certificates bear such legends and any book entries be subject to
such electronic coding, as the Board of Directors, in its sole discretion, deems
necessary or desirable.  The Participant specifically understands and
agrees that the shares of Common Stock, if and when issued, may be “restricted
securities,” as that term is defined in Rule 144 under the 1933 Act and,
accordingly, the Participant may be required to hold the shares indefinitely
unless they are registered under such Act or an exemption from such registration
is available.

       

      9.            
Dividends,
etc.  Any cash dividends or other property (but not including
securities) received by a Participant with respect to a share of Restricted
Stock shall be returned to the Company in the event such share of Restricted
Stock is forfeited, subject to Section 2.7(e) of the Plan.  Any
securities received by a Participant with respect to a share of Restricted Stock
as a result of any dividend, recapitalization, merger, consolidation,
combination, exchange of shares or otherwise will not vest until such share of
Restricted Stock vests and shall be forfeited if such share of Restricted Stock
is forfeited, subject to Section 2.7(e) of the Plan.  Unless the Board
of Directors otherwise determines, such securities shall bear the legend or be
subject to the electronic coding or stop order set forth in Section 7(a)
hereof.

       

      10.          
Delays or
Omissions.  No delay or omission to exercise any right, power
or remedy accruing to any party hereto upon any breach or default of any party
under this Agreement, shall impair any such right, power or remedy of such
party, nor shall it be construed to be a waiver of any such breach or default,
or an acquiescence therein, or of or in any similar breach or default thereafter
occurring, nor shall any waiver of any single breach or default be deemed a
waiver of any other breach or default theretofore or thereafter
occurring.  Any waiver, permit, consent or approval of any kind or
character on the part of any party of any breach or default under this
Agreement, or any waiver on the part of any party or any provisions or
conditions of this Agreement, must be in a writing signed by such party and
shall be effective only to the extent specifically set forth in such
writing.

       

       

      
        
          4

        

        
          
          

          
            

          

        

        
          
          

        

      

       

       

      11.          
Right of Discharge
Preserved.  Nothing in this Agreement shall confer upon the
Participant the right to continue in the employ or other service of the Company,
or affect any right which the Company may have to terminate such employment or
service.

       

      12.           Integration.  This
Agreement contains the entire understanding of the parties with respect to its
subject matter.  There are no restrictions, agreements, promises,
representations, warranties, covenants or undertakings with respect to the
subject matter hereof other than those expressly set forth
herein.  This Agreement, including, without limitation, the Plan,
supersedes all prior agreements and understandings between the parties with
respect to its subject matter.

       

      13.          
Counterparts.  This
Agreement may be executed in two or more counterparts, each of which shall be
deemed an original, but all of which shall constitute one and the same
instrument.

       

      14.          
Governing
Law.  This Agreement shall be governed by and construed and
enforced in accordance with the laws of the State of New York, without regard to
the provisions governing conflict of laws.

       

      15.          
Obligation to
Notify.  If the Participant makes the election permitted under
Section 83(b) of the Internal Revenue Code of 1986, as amended (that is, an
election to include in gross income in the year of transfer the amounts
specified in Section 83(b)), the Participant shall notify the Company of such
election within 10 days of filing notice of the election with the Internal
Revenue Service and shall within the same 10-day period remit to the Company an
amount sufficient in the opinion of the Company to satisfy any federal, state
and other governmental tax withholding requirements related to such inclusion in
Participant’s income. The Participant should consult with his or her tax advisor
to determine the tax consequences of acquiring the Restricted Stock and the
advantages and disadvantages of filing the Section 83(b)
election.  The Participant acknowledges that it is his or her sole
responsibility, and not the Company’s, to file a timely election under Section
83(b), even if the Participant requests the Company or its representatives to
make this filing on his or her behalf.

       

      16.          
Reduction in
Benefits.  Unless the Participant and the Company agree
otherwise in writing, in the event that the Participant would incur an Excise
Tax on any payments or benefits under this Agreement as a result of a Change of
Control (or any other change described in Section 280G(b)(2) of the Code), the
Company shall reduce the payments or benefits to be paid to or granted to
Participant hereunder to the greater of (i) the maximum amount payable to the
Participant without the imposition of any Excise Tax with respect to the
Restricted Stock and (ii) the amount that yields the Participant the greatest
after-tax amount of benefits under this Agreement after taking into account any
Excise Tax imposed on Participant, whether due to payments and benefits under
this Agreement or otherwise.  “Excise Tax” means the tax imposed by
Section 4999 of the Code and any successor tax.  The determination of
whether the Participants payments and benefits should be reduced and the amount
of any such reduction shall be made by independent counsel selected by the
Participant and reasonably acceptable to the Company (“Independent
Counsel”).  For purposes of such determination, (x) the total amount
of payments and benefits received by the Participant as a result of such Change
in Control (or such other change) shall be treated as “parachute payments”
within the meaning of Section 280G(b)(2) of the Code, and all “excess parachute
payments” within the meaning of 

       

       

       

      
        
          5

        

        
          
          

          
            

          

        

        
          
          

        

      

       

       

      Section
280G(b)(1) of the Code shall be treated as subject to the Excise Tax, except to
the extent that, in the opinion of Independent Counsel, a payment or benefit
hereunder (in whole or in part) does not constitute a “parachute payment” within
the meaning of Section 280G(b)(2) of the Code and the Treasury Regulations under
Section 280G of the Code (the “Regulations”), or such “excess parachute
payments” (in whole or in part) are not subject to the Excise Tax; (y) the
amount of the payments and benefits hereunder that shall be treated as subject
to the Excise Tax shall be equal to the lesser of (A) the total amount of such
payments and benefits or (B) the amount of “excess parachute payments” within
the meaning of Section 280G(b)(1) of the Code (after applying clause (x)
hereof); and (z) the value of any noncash benefits or any deferred payment or
benefit shall be determined by Independent Counsel in accordance with the
principles of Sections 280G(d)(3) and (4) of the Code.  All fees and
expenses of Independent Counsel shall be borne by the Company.

       

      17.          
Participant
Acknowledgment.  The Participant hereby acknowledges receipt of
a copy of the Plan.  The Participant hereby acknowledges that all
decisions, determinations and interpretations of the Board of Directors in
respect of the Plan, this Agreement and the Restricted Stock shall be final and
conclusive.

       

      IN
WITNESS WHEREOF, the Company has caused this Agreement to be duly executed by
its duly authorized officer, and the Participant has hereunto signed this
Agreement on his own behalf, thereby representing that he has carefully read and
understands this Agreement and the Plan as of the day and year first written
above.

      


      


                                   
GENCO SHIPPING
& TRADING LIMITED

       

      


      
        
          
            	
                                                                                         
      By:

                  	
                    /s/ John C. Wobensmith

                     

                  
	
                                                                                         
      Name:

                  	
                    John
      C. Wobensmith

                     

                  
	
                                                                                         
      Title:

                  	
                    Chief
      Financial Officer

                     

                     

                  
	
                                                                                         
      /s/ Robert Gerald
      Buchanan

                  
	
                                                                                         
      ROBERT GERALD BUCHANAN

                  


          

        

      

      


    

     

     

    6