Exhibit 10.5
RESTRICTED STOCK AGREEMENT
THIS RESTRICTED STOCK
AGREEMENT (this “Agreement”) is made as of the 20th
day of June, 2008 (the “Date of Grant”), between
Cardtronics, Inc. , a Delaware corporation (the
“Company”), and J. Chris Brewster (the
“Employee”).
1. Award .
Pursuant to the Cardtronics, Inc. 2007 Stock Incentive Plan (the
“Plan”), as of the Date of Grant, 180,000 shares (the
“Restricted Shares”) of the Company’s common
stock, par value $0.0001 per share, shall be issued as hereinafter
provided in the Employee’s name subject to certain
restrictions thereon. The Restricted Shares shall be issued upon
acceptance hereof by the Employee and upon satisfaction of the
conditions of this Agreement. The Employee acknowledges receipt of
a copy of the Plan, and agrees that this award of Restricted Shares
shall be subject to all of the terms and provisions of the Plan,
including future amendments thereto, if any, pursuant to the terms
thereof.
2. Definitions .
Capitalized terms used in this Agreement that are not defined below
or in the body of this Agreement shall have the meanings given to
them in the Plan. In addition to the terms defined in the body of
this Agreement, the following capitalized words and terms shall
have the meanings indicated below:
(a) “Change in
Control” shall mean:
(i) a merger of the Company with
another entity, a consolidation involving the Company, or the sale
of all or substantially all of the assets of the Company to another
entity if, in any such case, (1) the holders of equity
securities of the Company immediately prior to such transaction or
event do not beneficially own immediately after such transaction or
event equity securities of the resulting entity entitled to 60% or
more of the votes then eligible to be cast in the election of
directors generally (or comparable governing body) of the resulting
entity in substantially the same proportions that they owned the
equity securities of the Company immediately prior to such
transaction or event or (2) the persons who were members of
the Board immediately prior to such transaction or event shall not
constitute at least a majority of the board of directors of the
resulting entity immediately after such transaction or event;
(ii) the dissolution or liquidation
of the Company;
(iii) when any person or entity,
including a “group” as contemplated by Section 13(d)(3)
of the Exchange Act, acquires or gains ownership or control
(including, without limitation, power to vote) of more than 50% of
the combined voting power of the outstanding securities of the
Company; or
(iv) as a result of or in connection
with a contested election of directors, the persons who were
members of the Board immediately before such election shall cease
to constitute a majority of the Board.
For
purposes of the preceding sentence, (1) “resulting
entity” in the context of a transaction or event that is a
merger, consolidation or sale of all or substantially all assets
shall mean the surviving entity (or acquiring entity in the case of
an asset sale) unless the surviving entity (or acquiring entity in
the
case of
an asset sale) is a subsidiary of another entity and the holders of
common stock of the Company receive capital stock of such other
entity in such transaction or event, in which event the resulting
entity shall be such other entity, and (2) subsequent to the
consummation of a merger or consolidation that does not constitute
a Change in Control, the term “Company” shall refer to
the resulting entity and the term “Board” shall refer
to the board of directors (or comparable governing body) of the
resulting entity.
(b) “Disability”
shall mean the Employee’s disability entitling the Employee
to benefits under the long-term disability plan maintained by the
Company or an Affiliate; provided, however, that if the Employee is
not eligible to participate in such plan, then the Employee shall
be considered to have incurred a “Disability” if and
when the Committee determines in its discretion that the Employee
is permanently and totally unable to perform his or her duties for
the Company or any Affiliate as a result of any medically
determinable physical or mental impairment as supported by a
written medical opinion to the foregoing effect by a physician
selected by the Committee.
(c) “Earned Shares”
means the Restricted Shares after the lapse of the Forfeiture
Restrictions without forfeiture.
(d) “Forfeiture
Restrictions” shall have the meaning specified in Section
3(a) hereof.
(e) “Good Reason”
shall have the meaning assigned to such term (or any similar term)
in the Employee’s employment agreement with the Company or
any Affiliate; provided, however, that if the Employee does not
have such an employment agreement or the Employee’s
employment agreement does not define the term “Good
Reason” (or any similar term), then “Good Reason”
shall mean the occurrence of any of the following events:
(i) a material diminution in the
Employee’s annual base salary; or
(ii) a material diminution in the
Employee’s authority, duties, or responsibilities; or
(iii) the involuntary relocation of
the geographic location of the Employee’s principal place of
employment by more than 75 miles from the location of the
Employee’s principal place of employment immediately prior to
the Date of Grant.
Notwithstanding the preceding provisions of this Section 2(e),
any assertion by the Employee of a termination of employment for
“Good Reason” shall not be effective for purposes of
this Agreement unless all of the following conditions are
satisfied: (1) the condition described in Section 2(e)(i),
(ii) or (iii) giving rise to the Employee’s
termination of employment (or, if applicable, the condition
specified in the employment agreement defining “Good
Reason” (or a similar term)) must have arisen without the
Employee’s consent; (2) the Employee must provide
written notice to the Company of such condition in accordance with
Section 8 within 45 days of the initial existence of the
condition; (3) the condition specified in such notice must
remain uncorrected for 30 days after receipt of such notice by
the Company; and (4) the date of the Employee’s
termination of employment must occur within 90 days after the
initial existence of the condition specified in such notice.
(f) “Involuntary
Termination” shall mean any termination of the
Employee’s employment with the Company that:
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(i) does not result from a
resignation by the Employee (other than a resignation pursuant to
clause (ii) of this Section 2(f)); or
(ii) results from a resignation by
the Employee for Good Reason;
provided, however, the term “Involuntary Termination”
shall not include a Termination for Cause or any termination as a
result of death or Disability.
(g) “Termination for
Cause” shall mean the termination of the Employee’s
employment with the Company by the Company for “cause”
as such term (or any similar term) is defined in the
Employee’s employment agreement with the Company or any
Affiliate; provided, however, that if the Employee does not have
such an employment agreement or the Employee’s employment
agreement does not define the term “cause” (or any
similar term), then “Termination for Cause” shall mean
the termination of the Employee’s employment with the Company
based on a determination by the Committee (or its delegate) that
the Employee (i) has engaged in gross negligence, gross
incompetence or willful misconduct in the performance of the
Employee’s duties with respect to the Company or any
Affiliate, (ii) has refused without proper legal reason to
perform the Employee’s duties and responsibilities to the
Company or any Affiliate, (iii) has materially breached any
material provision of a written agreement or corporate policy or
code of conduct established by the Company or any Affiliate,
(iv) has willfully engaged in conduct that is materially
injurious to the Company or any Affiliate, (v) has disclosed
without specific authorization from the Company confidential
information of the Company or any Affiliate that is materially
injurious to any such entity, (vi) has committed an act of theft,
fraud, embezzlement, misappropriation or willful breach of a
fiduciary duty to the Company or any Affiliate, or (vii) has
been convicted of (or pleaded no contest to) a crime involving
fraud, dishonesty or moral turpitude or any felony (or a crime of
similar import in a foreign jurisdiction).
3. Restricted
Shares . The Employee hereby accepts the Restricted Shares
when issued and agrees with respect thereto as follows:
(a) Forfeiture
Restrictions . The Restricted Shares may not be sold,
assigned, pledged, exchanged, hypothecated or otherwise
transferred, encumbered or disposed of, and in the event of
termination of the Employee’s employment with the Company for
any reason, the Employee shall, for no consideration and except to
the extent described in the second sentence of Section 3(b),
forfeit to the
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