Stock Grant. Upon the first to occur of (i) ten days after the time that AGI or any of its affiliates (other than Marvel) acquire additional shares of Marvel or (ii) eighteen months after the commencement of the Term, Marvel shall issue to the Executive shares of Marvel common stock with a value of $8,000,000 (such value to be based on the lesser of (a) the lowest price paid for shares (if any) by AGI or its affiliates after the date hereof or (b) the lower of the closing price per share as reported by The Wall Street Journal on (i) the commencement of the Term or (ii) the day that the Executive's appointment to Marvel is announced. Regardless of when issued, such shares shall vest in accordance with a vesting schedule that provides that 25% of such shares vest as of the commencement of the Term and an additional 25% vest at the end of each year of the Term. In the event of the death of the Executive during the Term or if the Term is terminated other than pursuant to Section 4.3, all shares shall vest immediately, if the Term is terminated pursuant to Section 4.3, unvested shares shall be forfeited. If such Marvel common stock is not issued in accordance with the aforementioned terms, the Company shall upon request at any time(s) during the Term after such shares should have been issued hereunder provide the Executive with a payment(s) equal to the economic benefit, if any, that would have inured to him had said shares been timely issued on said terms. If at any time(s) prior to the issuance of the shares hereunder the Executive provides to the Company a written notice that, had such shares been issued at the commencement of the Term, the Executive would have disposed of such shares on such day and the Executive would otherwise have been able at such time to sell such shares, the Company shall pay to the Executive an amount which would hold the Executive harmless and reimburse the Executive for any loss the Executive suffers due to the delay in the issuance of such shares. For purposes of the preceding sentence, it shall be assumed that the shares would have been issued at the commencement of the Term at the closing price per share on such day as reported by The Wall Street Journal. The payment to the Executive shall include the gain the Executive would have realized on such sale and shall also include any federal, state and/or local adverse tax consequences to the Executive as a result of the fact that the shares were not issued at the commencement of the Term (e.g. such sum to be grossed-up in accordance with paragraph 14 below to reimburse the Executive for any loss due to his inability to qualify for long-term capital gains treatment on account of the delayed issuance of the stock). Thereafter, upon the issuance of shares pursuant to this paragraph the number of shares issuable shall be reduced by the number of shares in respect of which the Company has made payment hereunder. In connection with the issuance of the stock hereunder, the Company shall loan to the Executive an amount sufficient to pay the income taxes due on account of such issuance, such loan shall be made at such times as necessary for the Executive to make timely payments of the taxes due (e.g. restrictions lapse and the taxes are payable). Such loan will have a term coincident with the Term, will bear interest at the minimum statutory rate set from time to time by the Internal Revenue Service and shall be secured on a first priority perfected basis by the stock issued pursuant to this paragraph. Such loan shall be nonrecourse to the Executive.
Appears in 1 contract
Stock Grant. Upon The Company hereby grants to the first to occur of (i) ten days after Executive, on the time that AGI or any of its affiliates (other than Marvel) acquire additional Effective Date, 300,000 shares of Marvel or restricted stock (iithe “Executive Stock”) eighteen months after the commencement representing 300,000 shares of the TermCompany’s common stock, Marvel shall issue par value $.01 per share, pursuant to the Restricted Stock Agreement in the form attached hereto as Exhibit A. Except as otherwise provided herein, the Executive Stock shall vest and the restrictions associated with the Executive Stock shall lapse, subject to the Executive’s continued employment with the Company, at the times and as to the number of shares of Marvel common stock with a value of $8,000,000 (such value to be based on the lesser of (a) the lowest price paid for shares (if any) by AGI or its affiliates after the date hereof or (b) the lower as follows: First Anniversary of the closing price per share as reported by The Wall Street Journal on (i) the commencement Effective Date 100,000 Second Anniversary of the Term or (ii) Effective Date 100,000 Third Anniversary of the day that Effective Date 100,000 Notwithstanding anything to the contrary herein, in the event the Executive's appointment to Marvel ’s employment is announced. Regardless terminated without Cause or the Executive resigns for Good Reason (including without limitation as a result of when issued, such shares shall vest a “Change of Control”) in accordance with a vesting schedule that provides that 25% the provisions of such shares Section 4.4 and 4.5 below (as applicable), the Executive Stock shall fully vest as and all remaining restrictions associated with the Executive Stock shall lapse in their entirety. Any equity granted pursuant to this Agreement may be subject to disgorgement pursuant to Section 304 of the commencement Xxxxxxxx-Xxxxx Act. The Company represents that the Executive Stock is registered on the Company’s Form S-8 Registration Statement filed with the Securities and Exchange Commission on June 8, 2007. The Company hereby covenants and agrees to take all actions necessary to satisfy the requirements of Rule 16b-3(d) under the Exchange Act of 1934 (the “Exchange Act”) so as to exempt the issuance of the Term and an additional 25% vest at the end of each year Executive Stock under Section 16(b) of the TermExchange Act. The Executive Stock shall be evidenced by book-entry and certificates representing the vested portion shall be issued promptly upon vesting. The Executive Stock shall be subject to the right of the Executive to first instruct the Company to withhold a number of shares of Executive Stock equal to any tax withholding obligations thereto. In the event of any inconsistency between the death terms of this Agreement and the terms of the Executive during Restricted Stock Agreement or the Company’s 2007 Long-Term or if Incentive Plan (the Term is terminated other than pursuant to Section 4.3, all shares shall vest immediately, if “2007 LTIP”) the Term is terminated pursuant to Section 4.3, unvested shares shall be forfeited. If such Marvel common stock is not issued in accordance with the aforementioned terms, the Company shall upon request at any time(s) during the Term after such shares should have been issued hereunder provide the Executive with a payment(s) equal to the economic benefit, if any, that would have inured to him had said shares been timely issued on said terms. If at any time(s) prior to the issuance terms of the shares hereunder the Executive provides to the Company a written notice that, had such shares been issued at the commencement of the Term, the Executive would have disposed of such shares on such day and the Executive would otherwise have been able at such time to sell such shares, the Company 2007 LTIP shall pay to the Executive an amount which would hold the Executive harmless and reimburse the Executive for any loss the Executive suffers due to the delay in the issuance of such shares. For purposes of the preceding sentence, it shall be assumed that the shares would have been issued at the commencement of the Term at the closing price per share on such day as reported by The Wall Street Journal. The payment to the Executive shall include the gain the Executive would have realized on such sale and shall also include any federal, state and/or local adverse tax consequences to the Executive as a result of the fact that the shares were not issued at the commencement of the Term (e.g. such sum to be grossed-up in accordance with paragraph 14 below to reimburse the Executive for any loss due to his inability to qualify for long-term capital gains treatment on account of the delayed issuance of the stock). Thereafter, upon the issuance of shares pursuant to this paragraph the number of shares issuable shall be reduced by the number of shares in respect of which the Company has made payment hereunder. In connection with the issuance of the stock hereunder, the Company shall loan to the Executive an amount sufficient to pay the income taxes due on account of such issuance, such loan shall be made at such times as necessary for the Executive to make timely payments of the taxes due (e.g. restrictions lapse and the taxes are payable). Such loan will have a term coincident with the Term, will bear interest at the minimum statutory rate set from time to time by the Internal Revenue Service and shall be secured on a first priority perfected basis by the stock issued pursuant to this paragraph. Such loan shall be nonrecourse to the Executiveprevail.
Appears in 1 contract
Samples: Employment Agreement (Gemstar Tv Guide International Inc)
Stock Grant. Upon (a) To induce the first Officer to occur accept the position of Chief Scientific Officer, and subject to the terms of this Paragraph 2.5, the Officer is hereby granted by the Company, effective upon the Effective Date of this Agreement, Thirteen Million Two Hundred Fifty Thousand (13,250,000) shares of the Company’s common stock (the “Common Shares”) and One Million Five Hundred Thousand (1,500,000) shares of Series B preferred stock to be designated by the Company (the “Series B Shares”; and collectively with the Common Shares, the “Restricted Stock”). The grant of the Restricted Stock shall be subject to the following terms and conditions:
(i) ten days If at any time before May 18, 2006, the Officer’s employment with the Company shall cease or terminate for any reason, including but not limited to, termination by reason of [death or] disability, termination by the Company with or without cause and whether or not in breach of the Agreement, or termination by the Officer for any reason, voluntarily or otherwise, then the Officer shall forfeit all of such Restricted Stock to the Company, and the Officer shall have no claim or right, either express or implied, against the Company for any compensation, payment or benefit in lieu of the Restricted Stock so forfeited or otherwise. In addition, unless and until the Officer’s rights in the foregoing Restricted Stock become nonforfeitable by virtue of the satisfaction of the foregoing condition, the Officer shall have no right to, and the Officer hereby agrees that he shall not, sell, pledge, assign, hypothecate, encumber, give, grant or otherwise transfer such Restricted Stock or alienate his then-current or expected future rights to such Restricted Stock, and the certificates representing all of such Restricted Stock shall prominently bear appropriate legends reflecting these restrictions and the Company’s stock register shall likewise reflect these restrictions.
(ii) Upon issuance of the Restricted Stock, except for the restrictions set forth in this Paragraph 2.5, the Officer shall have all rights of a shareholder of the Company with respect to such Restricted Stock including the right to vote such Restricted Stock and to receive all dividends and other distributions paid with respect to such Restricted Stock; provided, however, dividends, if any, paid or distributed on the Restricted Stock shall not be paid by the Company to the Officer unless and until such time as the Restricted Stock becomes nonforfeitable.
(iii) In the event of a Change in Control (as herein defined), the Company may waive in whole or in part any and all remaining restrictions on the Restricted Stock. For purposes hereof, a Change of Control shall mean, and shall be deemed to have occurred:
(A) if any person, other than any benefit plan of the Company or the Officer and Xxxxxx X. Xxxx, as holders of the Series B Preferred Stock, directly or indirectly, becomes the beneficial owner (as defined in Section 13(d) of the Securities Exchange Act of 1934, as amended) of securities representing 51% or more of the combined voting power of the Company’s then-outstanding securities, but excluding any such acquisition pursuant to a merger, consolidation or similar business combination involving the Company; or
(B) upon the consummation of a merger, consolidation, or similar business combination involving the Company, other than any such transaction which results in at least 75% of the total voting power represented by the voting securities of the surviving entity (or the parent entity thereof) outstanding immediately after such transaction being beneficially owned by at least 75% of the holders of the outstanding voting securities of the Company immediately prior to the transaction with the voting power of each such continuing holder relative to other such continuing holders not being substantially altered in the transaction; or
(C) upon the Board of Directors or the shareholders of the Company approving a plan of complete or substantially complete liquidation of the Company; or
(D) upon the consummation of the sale, lease, or disposition by the Company of 50% or more of the total assets of the Company in one or a series of related transactions (provided that a license, sublicense or similar transaction involving the Company’s intellectual property rights shall not be considered as a Change of Control); or
(E) upon the individuals who constitute the Board as of the Effective Date (the “Incumbent Board”) ceasing for any reason to constitute at least a majority of the members of the Board, provided that any person becoming a director after the time that AGI Effective Date whose election, or any nomination for election by the Company’s shareholders, was approved by a vote of its affiliates at least two-thirds of the directors then comprising the Incumbent Board (other than Marvel) acquire additional shares any individual whose initial assumption of Marvel or (ii) eighteen months after the commencement office occurs as a result of the Term, Marvel shall issue to the Executive shares of Marvel common stock with a value of $8,000,000 (such value to be based on the lesser of either (a) the lowest price paid for shares (if any) by AGI an actual or its affiliates after the date hereof threatened election contest or (b) an actual or threatened solicitation of proxies or consents by or on behalf of a person other than the lower Board) shall be, for purposes of this Agreement, considered as though such person were a member of the closing price per share as reported by Incumbent Board.
(v) The Wall Street Journal on Common Shares shall have demand registration rights or piggyback registration rights (i) neither of which, however, shall be effective unless and until, after May 18, 2006, the commencement of the Term or (ii) the day that the Executive's appointment Officer’s rights to Marvel is announced. Regardless of when issued, such shares shall vest have ceased to be subject to the risks of forfeiture as provided herein).
(b) The Officer agrees to pay in accordance with a vesting schedule that provides that 25% of such shares vest as of timely manner deemed suitable by the commencement of the Term Company, and an additional 25% vest at the end of each year of the Term. In the event of the death of the Executive during the Term or if the Term is terminated other than pursuant to Section 4.3, all shares shall vest immediately, if the Term is terminated pursuant to Section 4.3, unvested shares shall be forfeited. If such Marvel common stock is not issued in accordance with the aforementioned terms, indemnify and hold harmless the Company shall upon request at from, any time(s) during the Term after such shares should have been issued hereunder provide the Executive with a payment(s) equal to the economic benefitand all taxes (including all penalties and interest, if any, that would have inured to him had said shares been timely issued on said terms. If at any time(s) prior to thereon), resulting from the issuance grant and/or transfer of the shares hereunder above-referenced Restricted Stock for which ultimate responsibility is assigned to or asserted against the Executive provides to the Company a written notice that, had such shares been issued at the commencement of the Term, the Executive would have disposed of such shares on such day and the Executive would otherwise have been able at such time to sell such shares, the Company shall pay to the Executive an amount which would hold the Executive harmless and reimburse the Executive for any loss the Executive suffers due to the delay in the issuance of such sharesOfficer under applicable law. For purposes of the preceding sentencethis provision, it shall be assumed that the shares would have been issued at the commencement all withholding obligations of the Term at the closing price per share on such day as reported by The Wall Street Journal. The payment to the Executive shall include the gain the Executive would have realized on such sale and shall also include any federal, state and/or local adverse tax consequences to the Executive as a result of the fact that the shares were not issued at the commencement of the Term (e.g. such sum to be grossed-up in accordance with paragraph 14 below to reimburse the Executive for any loss due to his inability to qualify for long-term capital gains treatment on account of the delayed issuance of the stock). Thereafter, upon the issuance of shares pursuant to this paragraph the number of shares issuable shall be reduced by the number of shares Company in respect of which the aforementioned taxes (including any and all taxes, penalties and interest imposed on or asserted against the Company has made payment hereunder. In connection with for failure to properly withhold and remit any such amounts in a timely manner) shall be considered the issuance responsibility of the stock hereunderOfficer and, accordingly, the Company shall loan to the Executive an amount sufficient Officer agrees to pay in a timely manner deemed suitable by the income taxes due on account Company, and to indemnify and hold harmless the Company from, any and all of such issuance, such loan shall be made at such times as necessary for the Executive to make timely payments of the taxes due (e.g. restrictions lapse and the taxes are payable). Such loan will have a term coincident with the Term, will bear interest at the minimum statutory rate set from time to time by the Internal Revenue Service and shall be secured on a first priority perfected basis by the stock issued pursuant to this paragraph. Such loan shall be nonrecourse to the Executiveobligations.
Appears in 1 contract
Samples: Employment Agreement (Power 3 Medical Products Inc)
Stock Grant. Upon the first to occur of (i) ten days after the time that AGI or any of its affiliates (other than Marvel) acquire additional shares of Marvel or (ii) eighteen months after the commencement of the Term, Marvel shall issue to the Executive shares of Marvel common stock with a value of $8,000,000 (such value to be based on the lesser of (a) For services to be rendered to the lowest price paid for Company during the first 12 months of this Agreement, the Consultant shall receive a stock grant of 11,946,375 shares of the Company’s common stock (if any) the “Shares”), at a cost basis per share to be determined by AGI or its the Company’s Board of Directors to be transferred to BGI as set forth below. These shares are being transferred by affiliates after of the date hereof or Company and are not a new issuance of shares by the Company.
(b) All Shares transferred to the lower Consultant will be fully-paid, non-assessable, and will have been lawfully issued by the Company.
(c) The Shares shall be earned for services rendered for each calendar month during the first 12 months of the closing price Agreement at the rate of 995,531 shares per share as reported by The Wall Street Journal on (i) the commencement of the Term or (ii) the day month, except that the Executive's appointment to Marvel is announcednumber of shares earned in the last month shall be 995,534. Regardless of when issued, such shares Shares shall vest in accordance with a vesting schedule that provides that 25% of such shares vest as of be deemed earned by the commencement of the Term and an additional 25% vest Consultant at the end of each year calendar month of the Term. In the event of the death of the Executive during the Term or if the Term is terminated other than pursuant to Section 4.3, all shares shall vest immediately, if the Term is terminated pursuant to Section 4.3, unvested service and said earned shares shall be forfeited. If such Marvel common stock is not issued released to the Consultant in accordance with the aforementioned terms, Lock Up And Leak Out Agreement between the Company and the Consultant of even date herewith (the “Lock Up Agreement”). Consultant and Company agree that the total quantity of Shares to be transferred pursuant hereto shall upon request at not exceed 11,946,375 shares of the Company’s common stock. Notwithstanding the foregoing, any time(s) dividends whether in cash or in-kind issued during the Term after such shares should have been issued hereunder provide initial 12 months of this Agreement shall accrue for the Executive with a payment(sbenefit of BGI and shall be distributed to BGI pro rata upon the Shares being earned.
(d) equal Consultant understands and acknowledges that Shares transferred will constitute restricted stock of the Company subject to the economic benefitlimitations on transfer and resale under U.S. securities law and regulation, and the Lock Up Agreement.
(e) Consultant understands, acknowledges and hereby agrees that if anythis Agreement is terminated by either the Consultant or Company for any reason other than “Cause” (as defined in the Agreement), that would have inured to him had said shares been timely issued on said terms. If at any time(s) prior to the issuance of the shares hereunder the Executive provides to the Company a written notice that, had such shares been issued at the commencement end of the Term, the Executive would have disposed quantity of Shares to be issued shall be adjusted pro rata to the time of such shares termination for which services were performed by the Consultant for the Company (the “Cancellation”); moreover, by the Consultant’s signature on such day and the Executive would otherwise have been able at such time to sell such sharesthis Agreement, the Consultant hereby grants the Company shall pay full rights to said Cancellation without further notice or documentation to the Executive an amount which would hold the Executive harmless and reimburse the Executive for any loss the Executive suffers due to the delay in the issuance of such shares. For purposes of the preceding sentence, it shall be assumed that the shares would have been issued at the commencement of the Term at the closing price per share on such day as reported by The Wall Street Journal. The payment to the Executive shall include the gain the Executive would have realized on such sale and shall also include any federal, state and/or local adverse tax consequences to the Executive as a result of the fact that the shares were not issued at the commencement of the Term (e.g. such sum to be grossed-up in accordance with paragraph 14 below to reimburse the Executive for any loss due to his inability to qualify for long-term capital gains treatment on account of the delayed issuance of the stock). Thereafter, upon the issuance of shares pursuant to this paragraph the number of shares issuable shall be reduced by the number of shares in respect of which the Company has made payment hereunder. In connection with the issuance of the stock hereunder, the Company shall loan to the Executive an amount sufficient to pay the income taxes due on account of such issuance, such loan shall be made at such times as necessary for the Executive to make timely payments of the taxes due (e.g. restrictions lapse and the taxes are payable). Such loan will have a term coincident with the Term, will bear interest at the minimum statutory rate set from time to time by the Internal Revenue Service and shall be secured on a first priority perfected basis by the stock issued pursuant to this paragraph. Such loan shall be nonrecourse to the ExecutiveConsultant.
Appears in 1 contract
Samples: Executive Consulting Agreement (Clic Technology, Inc.)
Stock Grant. Upon (a) To induce the first Officer to occur accept the position of Chief Financial Officer, and subject to the terms of this Paragraph 2.5, the Officer is hereby granted by the Company, effective upon the Effective Date of this Agreement, Twelve Million (12,000,000) shares of the Company’s common stock (the “Restricted Shares”). The grant of the Restricted Shares shall be subject to the following terms and conditions:
(i) ten days The Restricted Shares time vest in 33.33% increments annually over a three-year total period from the anniversary of the date of issue of the Restricted Shares.
(ii) If the Officer’s employment with the Company shall cease or terminate for just cause, then the Officer shall forfeit all of such unvested Restricted Stock to the Company, and the Officer shall have no claim or right, either express or implied, against the Company for any compensation, payment or benefit in lieu of the Restricted Stock so forfeited or otherwise. In addition, unless and until the Officer’s rights in the foregoing Restricted Stock become non-forfeitable by virtue of the satisfaction of the foregoing condition, the Officer shall have no right to, and the Officer hereby agrees that he shall not, sell, pledge, assign, hypothecate, encumber, give, grant or otherwise transfer such Restricted Stock or alienate his then-current or expected future rights to such Restricted Stock, and the certificates representing all of such Restricted Stock shall prominently bear appropriate legends reflecting these restrictions and the Company’s stock register shall likewise reflect these restrictions. Furthermore, until such time as the restricted stock becomes non-forfietable, the Company retains the right, at the discretion of the Board of Directors, to use any of such shares as deemed necessary, solely to pledge as collateral to raise funds for the benefit of the company. In the event that such shares become forfeit of a pledge, the company may at the discretion of the board of directors issue replacement shares to the employee under the restrictions of this agreement. During the course of the pledge, the voting rights of the pledged shares remain with the employee.
(iii) Upon issuance of the Restricted Stock, except for the restrictions set forth in this Paragraph 2.5, the Officer shall have all rights of a shareholder of the Company with respect to such Restricted Stock including the right to vote such Restricted Stock and to receive all dividends and other distributions paid with respect to such Restricted Stock; provided, however, dividends, if any, paid or distributed on the Restricted Stock shall not be paid by the Company to the Officer unless and until such time as the Restricted Stock becomes nonforfeitable.
(iv) In the event of a Change in Control (as herein defined), the Company will waive in whole any and all remaining restrictions on the Restricted Stock. For purposes hereof, a Change of Control shall mean, and shall be deemed to have occurred:
(A) if any person, other than any benefit plan of the Company or Xxx X. Xxxxxxxxx, as holder of the Series B Preferred Stock, directly or indirectly, becomes the beneficial owner (as defined in Section 13(d) of the Securities Exchange Act of 1934, as amended) of securities representing 51% or more of the combined voting power of the Company’s then-outstanding securities, but excluding any such acquisition pursuant to a merger, consolidation or similar business combination involving the Company; or
(B) upon the consummation of a merger, consolidation, or similar business combination involving the Company, other than any such transaction which results in at least 75% of the total voting power represented by the voting securities of the surviving entity (or the parent entity thereof) outstanding immediately after such transaction being beneficially owned by at least 75% of the holders of the outstanding voting securities of the Company immediately prior to the transaction with the voting power of each such continuing holder relative to other such continuing holders not being substantially altered in the transaction; or
(C) upon the Board of Directors or the shareholders of the Company approving a plan of complete or substantially complete liquidation of the Company; or
(D) upon the consummation of the sale, lease, or disposition by the Company of 50% or more of the total assets of the Company in one or a series of related transactions (provided that a license, sublicense or similar transaction involving the Company’s intellectual property rights shall not be considered as a Change of Control); or
(E) upon the individuals who constitute the Board as of the Effective Date (the “Incumbent Board”) ceasing for any reason to constitute at least a majority of the members of the Board, provided that any person becoming a director after the time that AGI Effective Date whose election, or any nomination for election by the Company’s shareholders, was approved by a vote of its affiliates at least two-thirds of the directors then comprising the Incumbent Board (other than Marvel) acquire additional shares any individual whose initial assumption of Marvel or (ii) eighteen months after the commencement office occurs as a result of the Term, Marvel shall issue to the Executive shares of Marvel common stock with a value of $8,000,000 (such value to be based on the lesser of either (a) the lowest price paid for shares (if any) by AGI an actual or its affiliates after the date hereof threatened election contest or (b) an actual or threatened solicitation of proxies or consents by or on behalf of a person other than the lower Board) shall be, for purposes of this Agreement, considered as though such person were a member of the closing price per share as reported by Incumbent Board.
(v) The Wall Street Journal on Restricted Shares shall have demand registration rights or piggyback registration rights (i) neither of which, however, shall be effective unless and until the commencement of the Term or (ii) the day that the Executive's appointment Officer’s rights to Marvel is announced. Regardless of when issued, such shares shall vest have ceased to be subject to the risks of forfeiture as provided herein).
(vi) The Officer agrees to pay in accordance with a vesting schedule that provides that 25% of such shares vest as of timely manner deemed suitable by the commencement of the Term Company, and an additional 25% vest at the end of each year of the Term. In the event of the death of the Executive during the Term or if the Term is terminated other than pursuant to Section 4.3, all shares shall vest immediately, if the Term is terminated pursuant to Section 4.3, unvested shares shall be forfeited. If such Marvel common stock is not issued in accordance with the aforementioned terms, indemnify and hold harmless the Company shall upon request at from, any time(s) during the Term after such shares should have been issued hereunder provide the Executive with a payment(s) equal to the economic benefitand all taxes (including all penalties and interest, if any, that would have inured to him had said shares been timely issued on said terms. If at any time(s) prior to thereon), resulting from the issuance grant and/or transfer of the shares hereunder above-referenced Restricted Stock for which ultimate responsibility is assigned to or asserted against the Executive provides to the Company a written notice that, had such shares been issued at the commencement of the Term, the Executive would have disposed of such shares on such day and the Executive would otherwise have been able at such time to sell such shares, the Company shall pay to the Executive an amount which would hold the Executive harmless and reimburse the Executive for any loss the Executive suffers due to the delay in the issuance of such sharesOfficer under applicable law. For purposes of the preceding sentencethis provision, it shall be assumed that the shares would have been issued at the commencement all withholding obligations of the Term at the closing price per share on such day as reported by The Wall Street Journal. The payment to the Executive shall include the gain the Executive would have realized on such sale and shall also include any federal, state and/or local adverse tax consequences to the Executive as a result of the fact that the shares were not issued at the commencement of the Term (e.g. such sum to be grossed-up in accordance with paragraph 14 below to reimburse the Executive for any loss due to his inability to qualify for long-term capital gains treatment on account of the delayed issuance of the stock). Thereafter, upon the issuance of shares pursuant to this paragraph the number of shares issuable shall be reduced by the number of shares Company in respect of which the aforementioned taxes (including any and all taxes, penalties and interest imposed on or asserted against the Company has made payment hereunder. In connection with for failure to properly withhold and remit any such amounts in a timely manner) shall be considered the issuance responsibility of the stock hereunderOfficer and, accordingly, the Officer agrees to pay in a timely manner deemed suitable by the Company, and to indemnify and hold harmless the Company shall loan from, any and all of such obligations.
(b) To induce the Officer to accept the position of Chief Financial Officer, and subject to the Executive an amount sufficient to pay terms of this Paragraph 2.5, the income taxes due on account of such issuance, such loan shall be made at such times as necessary for the Executive to make timely payments of the taxes due (e.g. restrictions lapse and the taxes are payable). Such loan will have a term coincident with the Term, will bear interest at the minimum statutory rate set from time to time Officer is hereby granted by the Internal Revenue Service and shall be secured on Company, effective upon the Effective Date of this Agreement, a first priority perfected basis by warrant to purchase an additional Ten Million (10,000,000) shares of Common Stock (the stock issued pursuant to “Warrant”) at $0.02 per share three years after the date of this paragraph. Such loan shall be nonrecourse to the ExecutiveWarrant.
Appears in 1 contract
Samples: Employment Agreement (Power 3 Medical Products Inc)
Stock Grant. Upon (a) Over the first period of The Original Agreement, the Officer was granted by the Company restricted common shares of the Company’s stock (the “Common Shares”) and One Million Five Hundred (1,500,000) shares of Series B preferred stock to occur be designated by the Company (the “Series B Shares”); and collectively with the Common Shares, the “Restricted Stock”. The grant of the Restricted Stock shall continue to be subject to the following terms and conditions:
(i) ten days Until such time as the restricted stock becomes non-forfeitable, the Company retains the right, at the discretion of the Board of Directors, to use any of such shares as deemed necessary, solely to pledge as collateral to raise funds for the benefit of the company. In the event that such shares become forfeit of a pledge, the company may at the discretion of the board of directors issue replacement shares to the employee under the restrictions of this agreement. During the course of the pledge, the voting rights of the pledged shares remain with the employee.
(ii) Upon issuance of the Restricted Stock, except for the restrictions set forth in this Paragraph 2.5, the Officer shall have all rights of a shareholder of the Company with respect to such Restricted Stock including the right to vote such Restricted Stock and to receive all dividends and other distributions paid with respect to such Restricted Stock; provided, however, dividends, if any, paid or distributed on the Restricted Stock shall not be paid by the Company to the Officer unless and until such time as the Restricted Stock becomes non-forfeitable.
(iii) In the event of a Change in Control (as herein defined), the Company waives in whole or in part any and all remaining restrictions on the Restricted Stock. For purposes hereof, a Change of Control shall mean, and shall be deemed to have occurred:
(A) if any person, other than any benefit plan of the Company or the Officer, as holder of the Series B Preferred Stock, directly or indirectly, becomes the beneficial owner (as defined in Section 13(d) of the Securities Exchange Act of 1934, as amended) of securities representing 51% or more of the combined voting power of the Company’s then-outstanding securities, but excluding any such acquisition pursuant to a merger, consolidation or similar business combination involving the Company; or
(B) upon the consummation of a merger, consolidation, or similar business combination involving the Company, other than any such transaction which results in at least 75% of the total voting power represented by the voting securities of the surviving entity (or the parent entity thereof) outstanding immediately after such transaction being beneficially owned by at least 75% of the holders of the outstanding voting securities of the Company immediately prior to the transaction with the voting power of each such continuing holder relative to other such continuing holders not being substantially altered in the transaction; or
(C) upon the Board of Directors or the shareholders of the Company approving a plan of complete or substantially complete liquidation of the Company; or
(D) upon the consummation of the sale, lease, or disposition by the Company of 50% or more of the total assets of the Company in one or a series of related transactions (provided that a license, sublicense or similar transaction involving the Company’s intellectual property rights shall not be considered as a Change of Control); or
(E) upon the individuals who constitute the Board as of the Effective Date (the “Incumbent Board”) ceasing for any reason to constitute at least a majority of the members of the Board, provided that any person becoming a director after the time that AGI Effective Date whose election, or any nomination for election by the Company’s shareholders, was approved by a vote of its affiliates at least two-thirds of the directors then comprising the Incumbent Board (other than Marvel) acquire additional shares any individual whose initial assumption of Marvel or (ii) eighteen months after the commencement office occurs as a result of the Term, Marvel shall issue to the Executive shares of Marvel common stock with a value of $8,000,000 (such value to be based on the lesser of either (a) the lowest price paid for shares (if any) by AGI an actual or its affiliates after the date hereof threatened election contest or (b) an actual or threatened solicitation of proxies or consents by or on behalf of a person other than the lower Board) shall be, for purposes of this Agreement, considered as though such person were a member of the closing price per share as reported by Incumbent Board.
(v) The Wall Street Journal on Common Shares shall have demand registration rights or piggyback registration rights (i) neither of which, however, shall be effective unless and until the commencement of the Term or (ii) the day that the Executive's appointment Officer’s rights to Marvel is announced. Regardless of when issued, such shares shall vest have ceased to be subject to the risks of forfeiture as provided herein).
(b) The Officer agrees to pay in accordance with a vesting schedule that provides that 25% of such shares vest as of timely manner deemed suitable by the commencement of the Term Company, and an additional 25% vest at the end of each year of the Term. In the event of the death of the Executive during the Term or if the Term is terminated other than pursuant to Section 4.3, all shares shall vest immediately, if the Term is terminated pursuant to Section 4.3, unvested shares shall be forfeited. If such Marvel common stock is not issued in accordance with the aforementioned terms, indemnify and hold harmless the Company shall upon request at from, any time(s) during the Term after such shares should have been issued hereunder provide the Executive with a payment(s) equal to the economic benefitand all taxes (including all penalties and interest, if any, that would have inured to him had said shares been timely issued on said terms. If at any time(s) prior to thereon), resulting from the issuance grant and/or transfer of the shares hereunder above-referenced Restricted Stock for which ultimate responsibility is assigned to or asserted against the Executive provides to the Company a written notice that, had such shares been issued at the commencement of the Term, the Executive would have disposed of such shares on such day and the Executive would otherwise have been able at such time to sell such shares, the Company shall pay to the Executive an amount which would hold the Executive harmless and reimburse the Executive for any loss the Executive suffers due to the delay in the issuance of such sharesOfficer under applicable law. For purposes of the preceding sentencethis provision, it shall be assumed that the shares would have been issued at the commencement all withholding obligations of the Term at the closing price per share on such day as reported by The Wall Street Journal. The payment to the Executive shall include the gain the Executive would have realized on such sale and shall also include any federal, state and/or local adverse tax consequences to the Executive as a result of the fact that the shares were not issued at the commencement of the Term (e.g. such sum to be grossed-up in accordance with paragraph 14 below to reimburse the Executive for any loss due to his inability to qualify for long-term capital gains treatment on account of the delayed issuance of the stock). Thereafter, upon the issuance of shares pursuant to this paragraph the number of shares issuable shall be reduced by the number of shares Company in respect of which the aforementioned taxes (including any and all taxes, penalties and interest imposed on or asserted against the Company has made payment hereunder. In connection with for failure to properly withhold and remit any such amounts in a timely manner) shall be considered the issuance responsibility of the stock hereunderOfficer and, accordingly, the Company shall loan to the Executive an amount sufficient Officer agrees to pay in a timely manner deemed suitable by the income taxes due on account Company, and to indemnify and hold harmless the Company from, any and all of such issuance, such loan shall be made at such times as necessary for the Executive to make timely payments of the taxes due (e.g. restrictions lapse and the taxes are payable). Such loan will have a term coincident with the Term, will bear interest at the minimum statutory rate set from time to time by the Internal Revenue Service and shall be secured on a first priority perfected basis by the stock issued pursuant to this paragraph. Such loan shall be nonrecourse to the Executiveobligations.
Appears in 1 contract
Samples: Employment Agreement (Power 3 Medical Products Inc)
Stock Grant. Upon (a) To induce the first Officer to occur accept the position of Chief Executive Officer, and subject to the terms of this Paragraph 2.5, the Officer is hereby granted by the Company, effective upon the Effective Date of this Agreement, Thirteen Million Two Hundred Fifty Thousand (13,250,000) shares of the Company's common stock (the "COMMON SHARES") and One Million Five Hundred Thousand (1,500,000) shares of Series B preferred stock to be designated by the Company (the "SERIES B SHARES"; and collectively with the Common Shares, the "RESTRICTED STOCK"). The grant of the Restricted Stock shall be subject to the following terms and conditions:
(i) ten days If at any time before May 18, 2006, the Officer's employment with the Company shall cease or terminate for any reason, including but not limited to, termination by reason of death or disability, termination by the Company with or without cause and whether or not in breach of the Agreement, or termination by the Officer for any reason, voluntarily or otherwise, then the Officer shall forfeit all of such Restricted Stock to the Company, and the Officer shall have no claim or right, either express or implied, against the Company for any compensation, payment or benefit in lieu of the Restricted Stock so forfeited or otherwise. In addition, unless and until the Officer's rights in the foregoing Restricted Stock become nonforfeitable by virtue of the satisfaction of the foregoing condition, the Officer shall have no right to, and the Officer hereby agrees that he shall not, sell, pledge, assign, hypothecate, encumber, give, grant or otherwise transfer such Restricted Stock or alienate his then-current or expected future rights to such Restricted Stock, and the certificates representing all of such Restricted Stock shall prominently bear appropriate legends reflecting these restrictions and the Company's stock register shall likewise reflect these restrictions.
(ii) Upon issuance of the Restricted Stock, except for the restrictions set forth in this Paragraph 2.5, the Officer shall have all rights of a shareholder of the Company with respect to such Restricted Stock including the right to vote such Restricted Stock and to receive all dividends and other distributions paid with respect to such Restricted Stock; provided, however, dividends, if any, paid or distributed on the Restricted Stock shall not be paid by the Company to the Officer unless and until such time as the Restricted Stock becomes nonforfeitable.
(iii) In the event of a Change in Control (as herein defined), the Company may waive in whole or in part any and all remaining restrictions on the Restricted Stock. For purposes hereof, a Change of Control shall mean, and shall be deemed to have occurred:
(A) if any person, other than any benefit plan of the Company or the Officer and Ira Goldknopf, as holders of the Series B Preferred Stock, directly ox xxxxxxxxxx, becomes the beneficial owner (as defined in Section 13(d) of the Securities Exchange Act of 1934, as amended) of securities representing 51% or more of the combined voting power of the Company's then-outstanding securities, but excluding any such acquisition pursuant to a merger, consolidation or similar business combination involving the Company; or
(B) upon the consummation of a merger, consolidation, or similar business combination involving the Company, other than any such transaction which results in at least 75% of the total voting power represented by the voting securities of the surviving entity (or the parent entity thereof) outstanding immediately after such transaction being beneficially owned by at least 75% of the holders of the outstanding voting securities of the Company immediately prior to the transaction with the voting power of each such continuing holder relative to other such continuing holders not being substantially altered in the transaction; or
(C) upon the Board of Directors or the shareholders of the Company approving a plan of complete or substantially complete liquidation of the Company; or
(D) upon the consummation of the sale, lease, or disposition by the Company of 50% or more of the total assets of the Company in one or a series of related transactions (provided that a license, sublicense or similar transaction involving the Company's intellectual property rights shall not be considered as a Change of Control); or
(E) upon the individuals who constitute the Board as of the Effective Date (the "INCUMBENT BOARD") ceasing for any reason to constitute at least a majority of the members of the Board, provided that any person becoming a director after the time that AGI Effective Date whose election, or any nomination for election by the Company's shareholders, was approved by a vote of its affiliates at least two-thirds of the directors then comprising the Incumbent Board (other than Marvel) acquire additional shares any individual whose initial assumption of Marvel or (ii) eighteen months after the commencement office occurs as a result of the Term, Marvel shall issue to the Executive shares of Marvel common stock with a value of $8,000,000 (such value to be based on the lesser of either (a) the lowest price paid for shares (if any) by AGI an actual or its affiliates after the date hereof threatened election contest or (b) an actual or threatened solicitation of proxies or consents by or on behalf of a person other than the lower Board) shall be, for purposes of this Agreement, considered as though such person were a member of the closing price per share as reported by Incumbent Board.
(v) The Wall Street Journal on Common Shares shall have demand registration rights or piggyback registration rights (i) neither of which, however, shall be effective unless and until, after May 18, 2006, the commencement of the Term or (ii) the day that the ExecutiveOfficer's appointment rights to Marvel is announced. Regardless of when issued, such shares shall vest have ceased to be subject to the risks of forfeiture as provided herein).
(b) The Officer agrees to pay in accordance with a vesting schedule that provides that 25% of such shares vest as of timely manner deemed suitable by the commencement of the Term Company, and an additional 25% vest at the end of each year of the Term. In the event of the death of the Executive during the Term or if the Term is terminated other than pursuant to Section 4.3, all shares shall vest immediately, if the Term is terminated pursuant to Section 4.3, unvested shares shall be forfeited. If such Marvel common stock is not issued in accordance with the aforementioned terms, indemnify and hold harmless the Company shall upon request at from, any time(s) during the Term after such shares should have been issued hereunder provide the Executive with a payment(s) equal to the economic benefitand all taxes (including all penalties and interest, if any, that would have inured to him had said shares been timely issued on said terms. If at any time(s) prior to thereon), resulting from the issuance grant and/or transfer of the shares hereunder above-referenced Restricted Stock for which ultimate responsibility is assigned to or asserted against the Executive provides to the Company a written notice that, had such shares been issued at the commencement of the Term, the Executive would have disposed of such shares on such day and the Executive would otherwise have been able at such time to sell such shares, the Company shall pay to the Executive an amount which would hold the Executive harmless and reimburse the Executive for any loss the Executive suffers due to the delay in the issuance of such sharesOfficer under applicable law. For purposes of the preceding sentencethis provision, it shall be assumed that the shares would have been issued at the commencement all withholding obligations of the Term at the closing price per share on such day as reported by The Wall Street Journal. The payment to the Executive shall include the gain the Executive would have realized on such sale and shall also include any federal, state and/or local adverse tax consequences to the Executive as a result of the fact that the shares were not issued at the commencement of the Term (e.g. such sum to be grossed-up in accordance with paragraph 14 below to reimburse the Executive for any loss due to his inability to qualify for long-term capital gains treatment on account of the delayed issuance of the stock). Thereafter, upon the issuance of shares pursuant to this paragraph the number of shares issuable shall be reduced by the number of shares Company in respect of which the aforementioned taxes (including any and all taxes, penalties and interest imposed on or asserted against the Company has made payment hereunder. In connection with for failure to properly withhold and remit any such amounts in a timely manner) shall be considered the issuance responsibility of the stock hereunderOfficer and, accordingly, the Company shall loan to the Executive an amount sufficient Officer agrees to pay in a timely manner deemed suitable by the income taxes due on account Company, and to indemnify and hold harmless the Company from, any and all of such issuance, such loan shall be made at such times as necessary for the Executive to make timely payments of the taxes due (e.g. restrictions lapse and the taxes are payable). Such loan will have a term coincident with the Term, will bear interest at the minimum statutory rate set from time to time by the Internal Revenue Service and shall be secured on a first priority perfected basis by the stock issued pursuant to this paragraph. Such loan shall be nonrecourse to the Executiveobligations.
Appears in 1 contract
Samples: Employment Agreement (Power 3 Medical Products Inc)
Stock Grant. Upon (a) To induce the first Officer to occur accept the position of Chief Executive Officer, and subject to the terms of this Paragraph 2.5, the Officer is hereby granted by the Company, effective upon the Effective Date of this Agreement, Thirteen Million Two Hundred Fifty Thousand (13,250,000) shares of the Company’s common stock (the “Common Shares”) and One Million Five Hundred Thousand (1,500,000) shares of Series B preferred stock to be designated by the Company (the “Series B Shares”; and collectively with the Common Shares, the “Restricted Stock”). The grant of the Restricted Stock shall be subject to the following terms and conditions:
(i) ten days If at any time before May 18, 2006, the Officer’s employment with the Company shall cease or terminate for any reason, including but not limited to, termination by reason of [death or] disability, termination by the Company with or without cause and whether or not in breach of the Agreement, or termination by the Officer for any reason, voluntarily or otherwise, then the Officer shall forfeit all of such Restricted Stock to the Company, and the Officer shall have no claim or right, either express or implied, against the Company for any compensation, payment or benefit in lieu of the Restricted Stock so forfeited or otherwise. In addition, unless and until the Officer’s rights in the foregoing Restricted Stock become nonforfeitable by virtue of the satisfaction of the foregoing condition, the Officer shall have no right to, and the Officer hereby agrees that he shall not, sell, pledge, assign, hypothecate, encumber, give, grant or otherwise transfer such Restricted Stock or alienate his then-current or expected future rights to such Restricted Stock, and the certificates representing all of such Restricted Stock shall prominently bear appropriate legends reflecting these restrictions and the Company’s stock register shall likewise reflect these restrictions.
(ii) Upon issuance of the Restricted Stock, except for the restrictions set forth in this Paragraph 2.5, the Officer shall have all rights of a shareholder of the Company with respect to such Restricted Stock including the right to vote such Restricted Stock and to receive all dividends and other distributions paid with respect to such Restricted Stock; provided, however, dividends, if any, paid or distributed on the Restricted Stock shall not be paid by the Company to the Officer unless and until such time as the Restricted Stock becomes nonforfeitable.
(iii) In the event of a Change in Control (as herein defined), the Company may waive in whole or in part any and all remaining restrictions on the Restricted Stock. For purposes hereof, a Change of Control shall mean, and shall be deemed to have occurred:
(A) if any person, other than any benefit plan of the Company or the Officer and Xxx Xxxxxxxxx, as holders of the Series B Preferred Stock, directly or indirectly, becomes the beneficial owner (as defined in Section 13(d) of the Securities Exchange Act of 1934, as amended) of securities representing 51% or more of the combined voting power of the Company’s then-outstanding securities, but excluding any such acquisition pursuant to a merger, consolidation or similar business combination involving the Company; or
(B) upon the consummation of a merger, consolidation, or similar business combination involving the Company, other than any such transaction which results in at least 75% of the total voting power represented by the voting securities of the surviving entity (or the parent entity thereof) outstanding immediately after such transaction being beneficially owned by at least 75% of the holders of the outstanding voting securities of the Company immediately prior to the transaction with the voting power of each such continuing holder relative to other such continuing holders not being substantially altered in the transaction; or
(C) upon the Board of Directors or the shareholders of the Company approving a plan of complete or substantially complete liquidation of the Company; or
(D) upon the consummation of the sale, lease, or disposition by the Company of 50% or more of the total assets of the Company in one or a series of related transactions (provided that a license, sublicense or similar transaction involving the Company’s intellectual property rights shall not be considered as a Change of Control); or
(E) upon the individuals who constitute the Board as of the Effective Date (the “Incumbent Board”) ceasing for any reason to constitute at least a majority of the members of the Board, provided that any person becoming a director after the time that AGI Effective Date whose election, or any nomination for election by the Company’s shareholders, was approved by a vote of its affiliates at least two-thirds of the directors then comprising the Incumbent Board (other than Marvel) acquire additional shares any individual whose initial assumption of Marvel or (ii) eighteen months after the commencement office occurs as a result of the Term, Marvel shall issue to the Executive shares of Marvel common stock with a value of $8,000,000 (such value to be based on the lesser of either (a) the lowest price paid for shares (if any) by AGI an actual or its affiliates after the date hereof threatened election contest or (b) an actual or threatened solicitation of proxies or consents by or on behalf of a person other than the lower Board) shall be, for purposes of this Agreement, considered as though such person were a member of the closing price per share as reported by Incumbent Board.
(v) The Wall Street Journal on Common Shares shall have demand registration rights or piggyback registration rights (i) neither of which, however, shall be effective unless and until, after May 18, 2006, the commencement of the Term or (ii) the day that the Executive's appointment Officer’s rights to Marvel is announced. Regardless of when issued, such shares shall vest have ceased to be subject to the risks of forfeiture as provided herein).
(b) The Officer agrees to pay in accordance with a vesting schedule that provides that 25% of such shares vest as of timely manner deemed suitable by the commencement of the Term Company, and an additional 25% vest at the end of each year of the Term. In the event of the death of the Executive during the Term or if the Term is terminated other than pursuant to Section 4.3, all shares shall vest immediately, if the Term is terminated pursuant to Section 4.3, unvested shares shall be forfeited. If such Marvel common stock is not issued in accordance with the aforementioned terms, indemnify and hold harmless the Company shall upon request at from, any time(s) during the Term after such shares should have been issued hereunder provide the Executive with a payment(s) equal to the economic benefitand all taxes (including all penalties and interest, if any, that would have inured to him had said shares been timely issued on said terms. If at any time(s) prior to thereon), resulting from the issuance grant and/or transfer of the shares hereunder above-referenced Restricted Stock for which ultimate responsibility is assigned to or asserted against the Executive provides to the Company a written notice that, had such shares been issued at the commencement of the Term, the Executive would have disposed of such shares on such day and the Executive would otherwise have been able at such time to sell such shares, the Company shall pay to the Executive an amount which would hold the Executive harmless and reimburse the Executive for any loss the Executive suffers due to the delay in the issuance of such sharesOfficer under applicable law. For purposes of the preceding sentencethis provision, it shall be assumed that the shares would have been issued at the commencement all withholding obligations of the Term at the closing price per share on such day as reported by The Wall Street Journal. The payment to the Executive shall include the gain the Executive would have realized on such sale and shall also include any federal, state and/or local adverse tax consequences to the Executive as a result of the fact that the shares were not issued at the commencement of the Term (e.g. such sum to be grossed-up in accordance with paragraph 14 below to reimburse the Executive for any loss due to his inability to qualify for long-term capital gains treatment on account of the delayed issuance of the stock). Thereafter, upon the issuance of shares pursuant to this paragraph the number of shares issuable shall be reduced by the number of shares Company in respect of which the aforementioned taxes (including any and all taxes, penalties and interest imposed on or asserted against the Company has made payment hereunder. In connection with for failure to properly withhold and remit any such amounts in a timely manner) shall be considered the issuance responsibility of the stock hereunderOfficer and, accordingly, the Company shall loan to the Executive an amount sufficient Officer agrees to pay in a timely manner deemed suitable by the income taxes due on account Company, and to indemnify and hold harmless the Company from, any and all of such issuance, such loan shall be made at such times as necessary for the Executive to make timely payments of the taxes due (e.g. restrictions lapse and the taxes are payable). Such loan will have a term coincident with the Term, will bear interest at the minimum statutory rate set from time to time by the Internal Revenue Service and shall be secured on a first priority perfected basis by the stock issued pursuant to this paragraph. Such loan shall be nonrecourse to the Executiveobligations.
Appears in 1 contract
Samples: Employment Agreement (Power 3 Medical Products Inc)
Stock Grant. Upon (a) On the first Transition Date, the Company shall issue and deliver to occur Franxx 000,000 Shares (the "Restricted Shares") as additional compensation for services rendered under this Agreement. The grant of the Restricted Shares in accordance with this paragraph (a) (the "New Stock Grant") shall be in lieu of, and not in addition to, the stock grants described in Section 3.2(a)(3) of the 1994 Agreement.
(b) Except as expressly set forth below in this Section 3.2, (i) ten days after the time that AGI New Stock Grant shall be irrevocable and unconditional and (ii) none of the Restricted Shares shall be subject to forfeiture or surrender for any reason.
(c) Franxx xxxl not sell, transfer or otherwise dispose of any of its affiliates (the Restricted Shares other than Marvelby will or by laws of descent and distribution; provided, however, that the foregoing restriction (the "Transfer Restriction") acquire additional shares shall lapse with respect to any Restricted Shares which are no longer subject to forfeiture by Franxx xxxsuant to paragraph (d) below and, provided further, that the Transfer Restriction shall automatically lapse in full (i) upon the occurrence of Marvel a Change in Control, (ii) in the event of Franxx'x xxxth or (iii) in the event Franxx'x xxxloyment is terminated by Franxx xxx Good Reason or on account of Disability or by the Company for any reason other than Misconduct on account of the conviction of Franxx xxx a felony.
(d) In the event Franxx'x xxxloyment is terminated by Franxx xxxsuant to Section 4.1 other than for Good Reason or by the Company pursuant to Section 4.2 for Misconduct, then -8- 9 Franxx xxxll forfeit and be obligated, for no consideration, to surrender to the Company that number of Restricted Shares determined by multiplying 108,000 by a fraction the numerator of which shall be the number of whole calendar months within the period beginning on the Termination Date and ending on the Expiration Date and the denominator of which shall be 36.
(e) The New Stock Grant shall be made pursuant to the Incentive Plan and shall become vested when the Transfer Restriction has lapsed with respect thereto.
(f) Certificates evidencing the Restricted Shares will be issued by the Company in Franxx'x xxxe. The Company may cause such certificates to bear a legend setting forth or incorporating the Transfer Restriction, and the Company may cause such certificates to be delivered upon issuance to the Secretary of the Company (or such other depositary as may be designated by the committee which administers the Incentive Plan) as a depositary for safe-keeping until the Transfer Restriction lapses with respect thereto or until forfeiture occurs with respect thereto pursuant to paragraph (d) above. If such certificates bear a legend setting forth or incorporating the Transfer Restriction, then upon the lapse of the Transfer Restriction without forfeiture, the Company will cause a new certificate or certificates to be issued in the name of Franxx xxxhout such legend. The Company may require Franxx xx execute and deliver stock powers in the event of forfeiture.
(g) Franxx xxxll be entitled to receive all dividends and distributions in respect of the Restricted Shares (subject to applicable tax withholding), to vote the Restricted Shares and to give consents, waivers and ratifications with respect to the Restricted Shares; provided, however, that distributions applicable to any Restricted Shares shall be held by the Company until (i) the Transfer Restriction lapses with respect to such Shares, at which time such distributions shall be paid to Franxx xx his designee without interest or (ii) eighteen months after the commencement of the Term, Marvel shall issue forfeiture occurs with respect to the Executive shares of Marvel common stock with a value of $8,000,000 (such value to be based on the lesser of (a) the lowest price paid for shares (if any) by AGI or its affiliates after the date hereof or (b) the lower of the closing price per share as reported by The Wall Street Journal on (i) the commencement of the Term or (ii) the day that the Executive's appointment to Marvel is announced. Regardless of when issued, such shares shall vest in accordance with a vesting schedule that provides that 25% of such shares vest as of the commencement of the Term and an additional 25% vest at the end of each year of the Term. In the event of the death of the Executive during the Term or if the Term is terminated other than Shares pursuant to Section 4.3paragraph (d) above, all shares shall vest immediately, if the Term is terminated pursuant to Section 4.3, unvested shares at which time such distributions shall be forfeited. .
(h) If such Marvel common stock is not issued in accordance with the aforementioned termsrequested by Franxx xx any time, the Company shall upon request at any time(s) during promptly request, and diligently seek in good faith to obtain, a no action letter from the Term after such shares should have been issued hereunder provide the Executive with a payment(s) equal SEC to the economic benefiteffect that the date of purchase, if any, that would have inured to him had said shares been timely issued on said terms. If at any time(s) prior to within the issuance of meaning and for the shares hereunder the Executive provides to the Company a written notice that, had such shares been issued at the commencement of the Term, the Executive would have disposed of such shares on such day and the Executive would otherwise have been able at such time to sell such shares, the Company shall pay to the Executive an amount which would hold the Executive harmless and reimburse the Executive for any loss the Executive suffers due to the delay in the issuance of such shares. For purposes of the preceding sentence, it shall be assumed that the shares would have been issued at the commencement short-swing profit provisions of Section 16(b) of the Term at the closing price per share on such day Securities Exchange Act of 1934 (as reported by The Wall Street Journal. The payment to the Executive shall include the gain the Executive would have realized on such sale and shall also include any federalamended), state and/or local adverse tax consequences to the Executive as a result of the fact that Restricted Shares is the shares were not issued at the commencement of the Term grant date thereof.
(e.g. such sum i) If requested by Franxx, xxe Company will loan Franxx xx to be grossed-up in accordance with paragraph 14 below to reimburse the Executive for any loss due to his inability to qualify for long-term capital gains treatment on account of the delayed issuance of the stock). Thereafter, upon the issuance of shares pursuant to this paragraph the number of shares issuable shall be reduced by the number of shares in respect of which the Company has made payment hereunder. In connection with the issuance of the stock hereunder, the Company shall loan to the Executive an amount sufficient to pay the income taxes due on account of such issuance, such loan shall be made at such times as necessary $860,000 solely for the Executive to make timely payments purpose of enabling Franxx xx pay all or portion of the taxes due (e.g. restrictions lapse Federal and state) attributable to the taxes are payable). Such loan will have a term coincident with the Term, will bear interest at the minimum statutory rate set from time to time by the Internal Revenue Service and shall be secured on a first priority perfected basis by the stock issued pursuant to this paragraphNew Stock Grant. Such loan shall be nonrecourse evidenced by, and subject to the Executive.terms and conditions of, a promissory note duly executed by Franxx xxx payable to the order of the Company (the "Promissory Note"). The Promissory Note shall be in form and substance reasonably satisfactory to the Company and shall be secured by a pledge agreement (the "Pledge Agreement") initially covering that number of the Restricted Shares determined by dividing 150% of the principal amount of the Promissory Note by the Market Value per Share on the day prior to the date the loan is funded. The Pledge Agreement shall be in form and substance (including release of collateral provisions based on a collateral value to loan ratio of 1.5 to 1.0) reasonably satisfactory to the Company and
Appears in 1 contract
