Exhibit 10.12


 


RESTRICTED
STOCK AGREEMENT


 


RESTRICTED
STOCK AGREEMENT, dated as of the Grant Date specified on Schedule A hereto
under the heading “Grant Date”, by and between SIRVA, Inc., a Delaware
corporation (the “Company”), and the grantee whose name appears on the
signature page hereof (the “Grantee”).


 


W  I
T  N  E  S  S  E  T  H:


 


WHEREAS,
to motivate key employees, consultants and non-employee directors of the
Company and the Subsidiaries by providing them an ownership interest in the
Company, the Board of Directors (the “Board”) has established, and the
shareholders of the Company have approved, the SIRVA, Inc. Amended and Restated
Stock Incentive Plan, as the same may be amended from time to time (the “Plan”);
and


 


WHEREAS,
pursuant to the Plan, the Compensation Committee of the Board has authorized
the grant to the Grantee of Restricted Stock (as defined below); and


 


WHEREAS,
the Grantee and the Company desire to enter into an agreement to evidence and
confirm the grant of such Restricted Stock on the terms and conditions set
forth herein.


 


NOW,
THEREFORE, to evidence the Restricted Stock so granted, and to set forth the
terms and conditions governing such Restricted Stock, the Company and the
Grantee hereby agree as follows:


 


1. Grant
of Restricted Stock. The Company hereby evidences and confirms its grant to
the Grantee, effective as of the date hereof (the “Grant Date”), of the
number of shares of the common stock, par value $.01 per share, of the Company
(each, a “Share” and, collectively, the “Shares”) specified on
Schedule A hereto under the heading “Restricted Stock”. All Shares received by
the Grantee under this Agreement are subject to the restrictions contained
herein and are referred to herein as “Restricted Stock.”  This Agreement is subordinate to, and the
terms and conditions of the Restricted Stock granted hereunder are subject to,
the terms and conditions of the Plan, which are incorporated by reference
herein. If there is any inconsistency between the terms hereof and the terms of
the Plan, the terms of the Plan shall govern. Any capitalized terms used herein
without definition shall have the meanings set forth in the Plan.


 


2. Vesting
of Restricted Stock.


 


(a)  Restricted Period. Except as provided
in Section 2(b)(i) or Section 6 hereof, the Restricted Stock granted hereby may
not be sold, assigned, transferred, pledged, hypothecated or otherwise directly
or indirectly encumbered or disposed of until the end


 





















 


of the Restriction
Period (the “Restriction Period”) set forth on the signature page hereof
under the heading “Restriction Period” or at such earlier date as such
restrictions shall otherwise lapse under the terms of this Agreement or the
Plan.


 


(b)  Termination of Employment. Notwithstanding
anything contained in this Agreement to the contrary, (i) subject
to the provisions of Article X of the Plan, if the Grantee’s employment is
terminated due to his death or Disability during the Restriction Period, the Restriction
Period shall terminate with respect to a pro rata portion of the Shares
underlying the Restricted Stock then held by the Grantee based on the number of
months the Grantee was employed during the applicable Restriction Period, and
the remaining Restricted Stock for which the Restriction Period has not then
expired shall be forfeited and canceled as of the date of such termination, and
(ii) if the Grantee’s employment is terminated for any other reason
during the Restriction Period, any Restricted Stock held by the Grantee for
which the Restriction Period has not then expired shall be forfeited and
canceled as of the date of such termination. Nothing in the Agreement shall be
deemed to confer on the Grantee any right to continue in the employ of the
Company or any Subsidiary, or to interfere with or limit in any way the right
of the Company or Subsidiary to terminate such employment at any time.


 


(c)  Committee Discretion. Notwithstanding
anything contained in this Agreement to the contrary, the Committee, in its
sole discretion, may accelerate the expiration date of the Restriction Period
with respect to any Restricted Stock under this Agreement, at such times and
upon such terms and conditions as the Committee shall determine.


 


3. Delivery
of Restricted Stock.


 


(a)  Stock Certificates; Share Register. On
or as soon as practicable after the Grant Date, the Company shall either (i)
issue one or more stock certificates evidencing the grant of Restricted Stock
to Grantee, which shall be held by the Company until the expiration of the Restriction
Period, at which time the Shares shall be delivered to the Grantee, or (ii)
register the grant of Restricted Stock in the name of the Grantee through a
book entry credit in the records of the Company’s transfer agent, which shall
be registered as restricted until the expiration of the Restriction Period.


 


(b)  Stock Powers. In the event that the
Company issues one or more stock certificates evidencing the grant of
Restricted Stock to the Grantee, the Grantee shall deposit with the Secretary
of the Company stock powers or other instruments of transfer or assignment,
duly endorsed in blank with signature guaranteed, corresponding to each
certificate for all Shares until the expiration of the Restriction Period, at
which time the stock powers shall be returned to the Grantee.


 


2

















 


4. Grantee’s
Representations, Warranties and Covenants.


 


The
Grantee represents and warrants that the Restricted Stock has been, and any
Shares will be, acquired by the Grantee solely for the Grantee’s own account
for investment and not with a view to or for sale in connection with any
distribution thereof. The Grantee further understands, acknowledges and agrees
that the Restricted Stock, and any Shares, may not be transferred, sold,
pledged, hypothecated or otherwise disposed of except to the extent expressly
permitted hereby and at all times in compliance with the U.S. Securities Act of
1933, as amended, and the rules and regulations of the Securities Exchange
Commission thereunder, and in compliance with applicable state securities or “blue
sky” laws and non-U.S. securities laws.


 


5. Grantee’s
Rights with Respect to Restricted Stock.


 


(a)  Restrictions on Transferability. During
the Restriction Period, the Restricted Stock granted hereby is not assignable
or transferable, in whole or in part, and may not, directly or indirectly, be
offered, transferred, sold, pledged, assigned, alienated, hypothecated or
otherwise disposed of or encumbered (including without limitation by gift,
operation of law or otherwise) other than by will or by the laws of descent and
distribution to the estate of the Grantee upon the Grantee’s death; provided
that the deceased Grantee’s beneficiary or representative of the Grantee’s
estate shall acknowledge and agree in writing, in a form reasonably acceptable
to the Company, to be bound by the provisions of this Agreement and the Plan as
if such beneficiary or the estate were the Grantee.


 


(b)  Rights as Stockholder. Except as
otherwise provided in this Agreement or the Plan, Grantee shall have, with respect
to all Restricted Stock, the right to vote such Restricted Stock and the right
to receive cash and other dividends, if any, as may be declared on the
Restricted Stock from time to time, but shall otherwise enjoy none of the
rights of a stockholder unless and until the expiration of the Restriction
Period with respect to such Restricted Stock. Any securities issued to or
received by the Grantee with respect to Restricted Stock as a result of a stock
split, a dividend payable in capital stock or other securities, a combination
of shares or any other change or exchange of the Restricted Stock for other
securities, by reclassification, reorganization, distribution, liquidation,
merger, consolidation, or otherwise, shall have the same status and bear the same
legend as the Restricted Stock and shall be held by the Company if the
Restricted Stock is being so held, unless otherwise determined by the
Committee.


 


(c)  Legend. Any certificate evidencing the
Restricted Stock and any book entry credit shall reflect the following legend: “THE
SHARES REPRESENTED BY THIS CERTIFICATE OR THIS BOOK ENTRY ARE SUBJECT TO THE
TERMS AND CONDITIONS (INCLUDING FORFEITURE) CONTAINED IN THE SIRVA, INC. AMENDED
AND RESTATED OMNIBUS STOCK INCENTIVE PLAN AND THE SHARES EVIDENCED HEREBY ARE
NOT ASSIGNABLE OR OTHERWISE


 


3

















 


TRANSFERABLE
EXCEPT IN ACCORDANCE WITH SUCH PLAN, A COPY OF WHICH IS ON FILE WITH THE
SECRETARY OF THE COMPANY.”


 


(d)  Forfeiture. By accepting the
Restricted Stock, the Grantee acknowledges and agrees that the Restricted Stock
have been granted as an incentive to the Grantee to remain employed by the
Company and the Subsidiaries, and to use his or her best efforts to enhance the
value of the Company and the Subsidiaries over the long-term. Accordingly,
notwithstanding anything contained in this Agreement to the contrary, if, (A)
during the Grantee’s employment with the Company or any Subsidiary, (B)
during any post-termination period where the Restriction Period may continue to
lapse, or (C) during the period ending one (1) year after the expiration
of any post-termination period (the date such period expires, the “One-Year
Date”), the Grantee, except with the prior written consent of the
Committee,


 


(i)  directly or indirectly, owns any interest in,
operates, joins, controls or participates as a partner, director, principal,
officer, or agent of, enters into the employment of, acts as a consultant to,
or performs any services for any entity which has operations that compete with
any business of the Company and the Subsidiaries in which the Grantee was
employed (in any capacity) in any jurisdiction in which such business is
engaged, or in which any of the Company and the Subsidiaries have documented
plans to become engaged of which the Grantee has knowledge at the time of the
Grantee’s termination of employment (the “Business”), except where (x)
the Grantee’s interest or association with such entity is unrelated to the
Business, (y) such entity’s gross revenue from the Business is less than
10% of such entity’s total gross revenue, and (z) the Grantee’s interest
is directly or indirectly less than two percent (2%) of the Business;


 


(ii)  directly or indirectly, solicits for
employment, employs or otherwise interferes with the relationship of the
Company or any of its Affiliates with any natural person throughout the world
who is or was employed by or otherwise engaged to perform services for the
Company or any of its Affiliates at any time during the Grantee’s employment
with the Company or any Subsidiary (in the case of any such activity during
such time) or during the twelve-month period preceding such solicitation,
employment or interference (in the case of any such activity after the
termination of the Grantee’s employment); or


 


(iii)  directly or indirectly, discloses or misuses
any confidential information of the Company or any of its Affiliate (such
activities to be collectively referred to as “Wrongful Conduct”), then


 


all Restricted Stock granted hereunder, to the extent
they remain subject to the Restriction Period, shall automatically terminate
and be canceled immediately as of the date on


 


4

















 


which the Grantee first engaged in such Wrongful
Conduct and, in such case and in the case of the Grantee’s termination for
Cause, the Grantee shall pay to the Company in cash any Financial Gain the
Grantee realized from the lapse of the Restriction Period on all or a portion
of the Restricted Stock granted hereunder within the period commencing six (6)
months prior to the termination of the Grantee’s employment and ending on the
One-Year Date (such period, the “Wrongful Conduct Period”). For purposes
of this Section 4(c), “Financial Gain” shall equal, on each date of lapse
of the Restriction Period, the greater of (x) the Fair Market Value on
the date of lapse of the Restriction Period and (y) the Fair Market
Value on the date of sale of the Shares, multiplied by the number of shares of
Common Stock no longer subject to the Restriction Period (without reduction for
any shares of Common Stock surrendered or attested to). By executing this Restricted
Stock Agreement, the Grantee hereby consents to and authorizes the Company and
the Subsidiaries to deduct from any amounts payable by such entities to the
Grantee any amounts the Grantee owes to the Company under this Section 4(d). This
right of set-off is in addition to any other remedies the Company may have
against the Grantee for the Grantee’s breach of this Agreement. The Grantee’s
obligations under this Section 4(d) shall be cumulative (but not duplicative)
of any similar obligations the Grantee has under this Agreement or pursuant to
any other agreement with the Company or any Subsidiary.


 


6. Change
in Control.


 


(a)  Subject to Section 6(b), in the event of a
Change in Control, the Restriction Period applicable to all of the Grantee’s
shares of Restricted Stock outstanding shall lapse immediately prior to the
consummation of the transaction constituting the Change in Control.


 


(b)  Notwithstanding Section 6(a) hereof, no
cancellation, termination, acceleration of vesting, lapse of a Restriction
Period or settlement or other payment shall occur with respect to any
outstanding Restricted Stock if the Committee (as constituted immediately prior
to the Change in Control) reasonably determines, in good faith, prior to the
Change in Control that such outstanding Restricted Stock shall be honored or
assumed, or new rights substituted therefor (such honored, assumed or
substituted Restricted Stock being hereinafter referred to as an “Alternative
Award”) by the New Employer, provided that any Alternative Award must:


 


(i)  be based on
shares of voting common stock that are traded on an established U.S. securities
market;


 


(ii)  provide
the Grantee with rights and entitlements substantially equivalent to the
rights, terms and conditions applicable under such Restricted Stock, including,
but not limited to, an identical vesting schedule and identical timing and
method of payment;


 


5

















 


(iii)  have
terms and conditions which provide that in the event that the Grantee suffers
an involuntary termination within two years following a Change in Control any
conditions on the Grantee’s rights under, or any Restriction Period applicable
to, all such Restricted stock held by the Grantee shall be waived or shall
lapse, as the case may be.


 


7. Miscellaneous.


 


(a)  Notices. All notices and other
communications required or permitted to be given under this Agreement shall be
in writing and shall be deemed to have been given if delivered personally or
sent by certified or express mail, return receipt requested, postage prepaid,
or by any recognized international equivalent of such delivery, to the Company
or Grantee, as the case may be, at the following addresses or to such other
address as the Company or Grantee, as the case may be, shall specify by notice
to the others:


 


(i)  if to the Company, to it at:


 


SIRVA, Inc.


Law Department


700 Oakmont Lane


Westmont, Illinois  60559


Attention:  General Counsel


 


(ii)  if to Grantee, to the Grantee at the address
set forth on Schedule A hereto under the heading “Grantee’s Address”.


 


(b)  Binding Effect; Benefits. This
Agreement shall be binding upon and inure to the benefit of the parties to this
Agreement and their respective successors and assigns. Nothing in this
Agreement, express or implied, is intended or shall be construed to give any
person other than the parties to this Agreement or their respective successors
or assigns any legal or equitable right, remedy or claim under or in respect of
any agreement or any provision contained herein.


 


(c)  Waiver. Any party hereto may by
written notice to the other party (A) extend the time for the
performance of any of the obligations or other actions of the other party under
this Agreement, (B) waive compliance with any of the conditions or
covenants of the other party contained in this Agreement, and (C) waive
or modify performance of any of the obligations of the other party under this
Agreement. Except as provided in the preceding sentence, no action taken
pursuant to this Agreement, including, without limitation, any investigation by
or on behalf of any party, shall be deemed to constitute a waiver by the party
taking such action of compliance with any representations, warranties,
covenants or agreements contained herein. The waiver by any party hereto of


 


6

















 


a breach of any
provision of this Agreement shall not operate or be construed as a waiver of
any preceding or succeeding breach and no failure by a party to exercise any
right or privilege hereunder shall be deemed a waiver of such party’s rights or
privileges hereunder or shall be deemed a waiver of such party’s rights to
exercise the same at any subsequent time or times hereunder.


 


(d)  Amendment. This Agreement may not be
amended, modified or supplemented orally, but only by a written instrument
executed by the Grantee and the Company.


 


(e)  Assignability. Neither this Agreement
nor any right, remedy, obligation or liability arising hereunder or by reason
hereof shall be assignable by the Company or Grantee without the prior written
consent of the other party; provided that the Company may assign all or any
portion of its rights or obligations under this Agreement to one or more
persons or other entities designated by it in connection with a Change in
Control of the Company.


 


(f)  Tax Withholding. The Company may
require the recipient of the Shares to remit to the Company an amount in cash
sufficient to satisfy the statutory minimum U.S. federal, state and local and
non-U.S. tax withholding requirements as a condition to the issuance of such
Shares. In the event any cash is paid to the Grantee or the Grantee’s estate or
beneficiary pursuant to Section 6 hereof or Article IX of the Plan, the Company
shall have the right to withhold an amount from such payment sufficient to
satisfy the statutory minimum U.S. federal, state and local and non-U.S. tax
withholding requirements. The Committee may, in its discretion, require or
permit the Grantee to elect, subject to such conditions as the Committee shall
impose, to meet such obligations by having the Company withhold or sell the
least number of shares of Restricted Stock having a Fair Market Value sufficient
to satisfy all or part of the Grantee’s estimated total statutory minimum U.S.
federal, state and local and non-U.S. tax obligation with respect to the
issuance of or lapse of restrictions on the Shares.


 


(g)  Applicable Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK, EXCEPT TO THE EXTENT THAT THE
CORPORATE LAW OF THE STATE OF DELAWARE SPECIFICALLY AND MANDATORILY APPLIES.


 


(h)  Consent to Electronic Delivery. By
executing this Agreement, Grantee hereby consents to the delivery of
information (including, without limitation, information required to be
delivered to the Grantee pursuant to applicable securities laws) regarding the
Company and the Subsidiaries, the Plan, and the Restricted Stock via Company
web site or other electronic delivery.


 


7

















 


(i)  Section and Other Headings, etc. The
section and other headings contained in this Agreement are for reference
purposes only and shall not affect the meaning or interpretation of this
Agreement.


 


(j)  Counterparts. This Agreement may be
executed in any number of counterparts, each of which shall be deemed to be an
original and all of which together shall constitute one and the same
instrument.


 


–  Signature
page follows –


 


8

















 


IN
WITNESS WHEREOF, the Company and Grantee have executed this Agreement as of the
Grant Date.


 


	
   

  	
  SIRVA,
  Inc.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  GRANTEE

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Name:
  «name»

  
					



 

















 


Schedule A


 


	
  Grantee

  	
  «name»

  
	
   

  	
   

  
	
  Grantee’s Address

  	
  «address»

  «citystatezip»

  
	
   

  	
   

  
	
  Grant Date

  	
  «grantdate»

  
	
   

  	
   

  
	
  Restricted Stock

  	
  «restrictedstock»

  
	
   

  	
   

  
	
  Restriction Period

  	
  Lapses over five (5) years in equal installments on
  each of the first five anniversaries of the Grant Date, subject to the
  Grantee’s continuous employment with the Company or a Subsidiary from the
  Grant Date to such anniversary