Form of Restricted Stock Award Agreement and Schedule of Recently Reported Restricted Stock Awards GLOWPOINT, INC. NOTICE OF RESTRICTED STOCK AWARD
Exhibit
10.42
Form
of Restricted Stock Award Agreement and Schedule of Recently Reported Restricted
Stock Awards
GLOWPOINT,
INC.
NOTICE
OF RESTRICTED STOCK AWARD
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Xxxxxxx’s
Name and Address:
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_____________________
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_____________________
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_____________________
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You
have
been granted shares of Common Stock of the Company for your service as
_____________________, subject to the terms and conditions of this Notice of
Restricted Stock Award (the “Notice”) and the Restricted Stock Award Agreement
(the “Agreement”) attached hereto, as follows (the “Award”). Defined terms used
in this Notice but not defined herein shall have the same meanings given in
the
Agreement.
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Award
Number
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RS-____
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Date
of Award
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_____________________
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Vesting
Commencement Date
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_____________________
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Total
Number of Shares
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of
Common Stock Awarded
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_____________________
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Aggregate
Current Fair
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Market
Value of Shares
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_____________________
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Vesting
Schedule:
Subject
to the Grantee’s maintenance of his status as _____________________ and other
limitations set forth in this Notice and the Agreement, the Shares will “vest”
in accordance with the following schedule:
[_______
of the Total Number of Shares of Common Stock Awarded shall vest on
____________, and ________ of the Total Number of Shares of Common Stock Awarded
shall vest on each of the [first, second and third} anniversaries of the Vesting
Commencement Date thereafter.]
Vesting
shall cease upon the date of termination of the Grantee’s status as
_________________ for any reason, including death or disability. For purposes
of
this Notice and the Agreement, the term “vest” shall mean, with respect to any
Shares, that such Shares shall remain subject to other restrictions on transfer
set forth in the Agreement. Shares that have not vested are deemed “Restricted
Shares.” If the Grantee would become vested in a fraction of a Restricted Share,
such Restricted Share shall not vest until the Grantee becomes vested in the
entire Share. Notwithstanding the foregoing, the Shares subject to this Notice
will be subject to the provisions of the Agreement relating to the release
of
forfeiture provisions in the event of a Corporate Transaction or Change of
Control.
IN
WITNESS WHEREOF, the Company and the Grantee have executed this Notice and
agree
that the Award is to be governed by the terms and conditions of this Notice
and
the Agreement.
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GLOWPOINT,
INC.
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By:
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Title:
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THE
GRANTEE ACKNOWLEDGES AND AGREES THAT THE SHARES SHALL VEST, IF AT ALL, ONLY
DURING THE PERIOD OF THE GRANTEE’S STATUS AS _____________________ (NOT THROUGH
THE ACT OF BEING ELECTED TO THE COMPANY’S BOARD OF DIRECTORS, BEING GRANTED THIS
AWARD OR ACQUIRING SHARES HEREUNDER). THE GRANTEE FURTHER ACKNOWLEDGES AND
AGREES THAT NOTHING IN THIS NOTICE OR THE AGREEMENT SHALL CONFER UPON THE
GRANTEE ANY RIGHT WITH RESPECT TO CONTINUATION OF THE GRANTEE’S STATUS AS
_____________________, NOR SHALL IT INTERFERE IN ANY WAY WITH THE GRANTEE’S
RIGHT OR THE COMPANY’S RIGHT TO TERMINATE THE GRANTEE AT ANY TIME, WITH OR
WITHOUT CAUSE, AND WITH OR WITHOUT NOTICE.
The
Grantee acknowledges receipt of a copy of the Agreement and represents that
he
is familiar with the terms and provisions thereof, and hereby accepts the Award
subject to all of the terms and provisions hereof and thereof. The Grantee
has
reviewed this Notice and the Agreement in their entirety, has had an opportunity
to obtain the advice of counsel prior to executing this Notice and fully
understands all provisions of this Notice and the Agreement. The Grantee hereby
agrees that all disputes arising out of or relating to this Notice and the
Agreement shall be resolved in accordance with Section 16 of the Agreement.
The Grantee further agrees to notify the Company upon any change in the
residence address indicated in this Notice.
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Dated:
______________________
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Signed:
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GLOWPOINT,
INC.
1.
Issuance
of Shares.
Glowpoint, Inc., a Delaware corporation (the “Company”), hereby issues to the
Grantee (the “Grantee”) named in the Notice of Restricted Stock Award (the
“Notice”), the Total Number of Shares of Common Stock Awarded set forth in the
Notice (the “Shares”), subject to the Notice and this Restricted Stock Award
Agreement (this “Agreement”). All Shares issued hereunder will be deemed issued
to the Grantee as fully paid and nonassessable shares, and the Grantee will
have
the right to vote the Shares at meetings of the Company’s stockholders. The
Company shall pay any applicable stock transfer taxes imposed upon the issuance
of the Shares to the Grantee hereunder. Defined terms used in this Agreement
but
not defined herein shall have the same meanings given in the
Notice.
2.
Consideration.
The
Shares have been issued to the Grantee in consideration for his service to
the
Company as _____________________,
which
consideration has a value of $___ per share, the closing price of the Company’s
Common Stock in the Pink Sheets on the Date of Award. The Grantee agrees to
pay
upon receipt of the Notice the par value of $.0001 for each Share issued in
the
total amount of $_____.
3.
Transfer
Restrictions.
The
Shares issued to the Grantee hereunder may not be sold, transferred by gift,
pledged, hypothecated, or otherwise transferred or disposed of by the Grantee
prior to the date when the Shares become vested pursuant to the Vesting Schedule
set forth in the Notice. Any attempt to transfer Restricted Shares in violation
of this Section 3 will be null and void and will be disregarded.
4.
Escrow
of Stock.
For
purposes of facilitating the enforcement of the provisions of this Agreement,
the Grantee agrees, immediately upon receipt of the certificate(s) for the
Restricted Shares, to deliver such certificate(s), together with an Assignment
Separate from Certificate in the form attached hereto as Exhibit A,
executed in blank by the Grantee and the Grantee’s spouse (if required for
transfer) with respect to each such stock certificate, to the Secretary or
Assistant Secretary of the Company, or their designee, to hold in escrow for
so
long as such Restricted Shares have not vested pursuant to the Vesting Schedule
set forth in the Notice, with the authority to take all such actions and to
effectuate all such transfers and/or releases as may be necessary or appropriate
to accomplish the objectives of this Agreement in accordance with the terms
hereof. The Grantee hereby acknowledges that the appointment of the Secretary
or
Assistant Secretary of the Company (or their designee) as the escrow holder
hereunder with the stated authorities is a material inducement to the Company
to
make this Agreement and that such appointment is coupled with an interest and
is
accordingly irrevocable. The Grantee agrees that such escrow holder shall not
be
liable to any party hereto (or to any other party) for any actions or omissions
unless such escrow holder is grossly negligent or engages in willful misconduct
relative thereto. The escrow holder may rely upon any letter, notice or other
document executed by any signature purported to be genuine and may resign at
any
time. Upon the vesting of Restricted Shares, the escrow holder will, without
further order or instruction, transmit to the Grantee the certificate evidencing
such Shares, subject, however, to satisfaction of any withholding obligations
provided in Section 6 below.
5.
Distributions.
The
Company shall disburse to the Grantee all regular cash dividends with respect
to
the Shares and Additional Securities (whether vested or not).
6. Section
83(b) Election and Withholding of Taxes.
The
Grantee shall provide the Administrator with a copy of any timely election
made
pursuant to Section 83(b) of the Internal Revenue Code or similar provision
of state law (collectively, an “83(b) Election”), a form of which is attached
hereto as Exhibit B. If the Grantee makes a timely 83(b) Election, the
Grantee shall immediately pay the Company the amount necessary to satisfy any
applicable foreign, federal, state, and local income and employment tax
withholding obligations. If the Grantee does not make a timely 83(b) Election,
the Grantee shall, as Restricted Shares shall vest or at the time withholding
is
otherwise required by any applicable law, pay the Company the amount necessary
to satisfy any applicable foreign, federal, state, and local income and
employment tax withholding obligations. The Grantee hereby represents that
he
understands (a) the contents and requirements of the 83(b) Election,
(b) the application of Section 83(b) to the receipt of the Shares by
the Grantee pursuant to this Agreement, (c) the nature of the election to
be made by the Grantee under Section 83(b), and (d) the effect and
requirements of the 83(b) Election under relevant state and local tax laws.
The
Grantee further represents that if he intends to file an election pursuant
to
Section 83(b) with the Internal Revenue Service within thirty
(30) days following the date of this Agreement, he will submit a copy of
such election to the Company and with his federal tax return for the calendar
year in which the date of this Agreement falls.
7.
Additional
Securities.
Any
securities or cash received (other than a regular cash dividend) as the result
of ownership of the Restricted Shares (the “Additional Securities”), including,
but not by way of limitation, warrants, options and securities received as
a
stock dividend or stock split, or as a result of a recapitalization or
reorganization or other similar change in the Company’s capital structure, shall
be retained in escrow in the same manner and subject to the same conditions
and
restrictions as the Restricted Shares with respect to which they were issued,
including, without limitation, the Vesting Schedule set forth in the Notice.
The
Grantee shall be entitled to direct the Company to exercise any warrant or
option received as Additional Securities upon supplying the funds necessary
to
do so, in which event the securities so purchased shall constitute Additional
Securities, but the Grantee may not direct the Company to sell any such warrant
or option. If Additional Securities consist of a convertible security, the
Grantee may exercise any conversion right, and any securities so acquired shall
constitute Additional Securities. In the event of any change in certificates
evidencing the Shares or the Additional Securities by reason of any
recapitalization, reorganization or other transaction that results in the
creation of Additional Securities, the escrow holder is authorized to deliver
to
the issuer the certificates evidencing the Shares or the Additional Securities
in exchange for the certificates of the replacement securities.
8.
Stop-Transfer
Notices.
In
order to ensure compliance with the restrictions on transfer set forth in this
Agreement or the Notice, the Company may issue appropriate “stop transfer”
instructions to its transfer agent, if any, and, if the Company transfers its
own securities, it may make appropriate notations to the same effect in its
own
records.
9.
Refusal
to Transfer.
The
Company shall not be required (i) to transfer on its books any Shares that
have been sold or otherwise transferred in violation of any of the provisions
of
this Agreement or (ii) to treat as owner of such Shares or to accord the
right to vote or pay dividends to any purchaser or other transferee to whom
such
Shares shall have been so transferred.
10.
Restrictive
Legends.
The
Grantee understands and agrees that the Company shall cause the legends set
forth below or legends substantially equivalent thereto, to be placed upon
any
certificate(s) evidencing ownership of the Shares together with any other
legends that may be required by the Company or by state or federal securities
laws:
“THE
SECURITIES REPRESENTED BY THIS CERTIFICATE (THE "SECURITIES") HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT")
OR ANY STATE SECURITIES LAWS AND MAY NOT BE SOLD, TRANSFERRED OR OTHERWISE
DISPOSED OF UNLESS REGISTERED UNDER THE SECURITIES ACT AND UNDER APPLICABLE
STATE SECURITIES LAWS OR GLOWPOINT, INC. SHALL HAVE RECEIVED AN OPINION OF
COUNSEL THAT REGISTRATION OF SUCH SECURITIES UNDER THE SECURITIES ACT AND UNDER
THE PROVISIONS OF APPLICABLE STATE SECURITIES LAWS IS NOT
REQUIRED.”
11.
Lock-Up
Agreement.
(a)
Agreement.
The
Grantee, if requested by the Company and the lead underwriter of any public
offering of the Common Stock or other securities of the Company (the “Lead
Underwriter”), hereby irrevocably agrees not to sell, contract to sell, grant
any option to purchase, transfer the economic risk of ownership in, make any
short sale of, pledge or otherwise transfer or dispose of any interest in any
Common Stock or any securities convertible into or exchangeable or exercisable
for or any other rights to purchase or acquire Common Stock (except Common
Stock
included in such public offering or acquired on the public market after such
offering) during the 180-day period following the effective date of a
registration statement of the Company filed under the Securities Act of 1933,
as
amended, or such shorter period of time as the Lead Underwriter shall specify.
The Grantee further agrees to sign such documents as may be requested by the
Lead Underwriter to effect the foregoing and agrees that the Company may impose
stop-transfer instructions with respect to such Common Stock subject until
the
end of such period. The Company and the Grantee acknowledge that each Lead
Underwriter of a public offering of the Company’s stock, during the period of
such offering and for the 180-day period thereafter, is an intended beneficiary
of this Section 11.
(b)
No
Amendment Without Consent of Underwriter.
During
the period from identification as a Lead Underwriter in connection with any
public offering of the Company’s Common Stock until the earlier of (i) the
expiration of the lock-up period specified in Section 11(a) in connection
with such offering or (ii) the abandonment of such offering by the Company
and the Lead Underwriter, the provisions of this Section 11 may not be
amended or waived except with the consent of the Lead Underwriter.
12.
Registration
of the Shares.
If at
any time the Company proposes to file a registration statement under the
Securities Act with respect to an underwritten
offering
of Common Stock (except on Form S-4 or Form S-8 or any successor forms thereto),
for its own account, then the Company shall give written notice of such proposed
filing to the Grantee at least 15 days in advance of the anticipated filing
date
(the "Piggyback Notice"). The Piggyback Notice shall offer the Grantee the
opportunity to register such amount of Shares as each such holder may request
(a
"Piggyback Registration"), subject in all events to the agreement of the
underwriter or underwriters of the offering contemplated by such registration
statement that such Shares can be included in such registration statement
without adversely affecting such offering. Any reduction in the number of
securities to be so offered shall be (i) first, pro-rata among all security
holders who are exercising "piggyback" registration rights, based on the number
of registrable securities originally proposed to be sold by each of them, and
(ii) second, pro-rata among all security holders who are exercising "demand"
registration rights pursuant to a registration rights agreement with the
company, based on the number of registrable securities originally proposed
to be
sold by each of them.
13.
Xxxxxxx’s
Representations.
In the
event the Shares issuable pursuant to this Agreement have not been registered
under the Securities Act of 1933, as amended, at the time of initial issuance
to
the Grantee, the Grantee shall, if required by the Company, concurrently with
the receipt of the Shares, deliver to the Company his Investment Representation
Statement in the form attached hereto as Exhibit B.
14.
Entire
Agreement: Governing Law.
The
Notice and this Agreement constitute the entire agreement of the parties with
respect to the subject matter hereof and supersede in their entirety all prior
undertakings and agreements of the Company and the Grantee with respect to
the
subject matter hereof, and may not be modified adversely to the Grantee’s
interest except by means of a writing signed by the Company and the Grantee.
These agreements are to be construed in accordance with and governed by the
internal laws of the State of New York without giving effect to any choice
of
law rule that would cause the application of the laws of any jurisdiction other
than the internal laws of the State of New York to the rights and duties of
the
parties. Should any provision of the Notice or this Agreement be determined
by a
court of law to be illegal or unenforceable, the other provisions shall
nevertheless remain effective and shall remain enforceable.
15.
Headings.
The
captions used in this Agreement are inserted for convenience and shall not
be
deemed a part of this Agreement for construction or interpretation.
16.
Dispute
Resolution.
The
provisions of this Section 16 shall be the exclusive means of resolving
disputes arising out of or relating to the Notice and this Agreement. The
Company, the Grantee, and the Grantee’s assignees (the “parties”) shall attempt
in good faith to resolve any disputes arising out of or relating to the Notice
and this Agreement by negotiation between individuals who have authority to
settle the controversy. Negotiations shall be commenced by either party by
notice of a written statement of the party’s position and the name and title of
the individual who will represent the party. Within thirty (30) days of the
written notification, the parties shall meet at a mutually acceptable time
and
place, and thereafter as often as they reasonably deem necessary, to resolve
the
dispute. If the dispute has not been resolved by negotiation, the parties agree
that any suit, action, or proceeding arising out of or relating to the Notice
or
this Agreement shall be brought in the United States District Court for the
Southern District of New York (or should such court lack jurisdiction to hear
such action, suit or proceeding, in a New York state court in the County of
New
York) and that the parties shall submit to the jurisdiction of such court.
The
parties irrevocably waive, to the fullest extent permitted by law, any objection
the party may have to the laying of venue for any such suit, action or
proceeding brought in such court. THE PARTIES ALSO EXPRESSLY WAIVE ANY RIGHT
THEY HAVE OR MAY HAVE TO A JURY TRIAL OF ANY SUCH SUIT, ACTION OR PROCEEDING.
If
any one or more provisions of this Section 16 shall for any reason be held
invalid or unenforceable, it is the specific intent of the parties that such
provisions shall be modified to the minimum extent necessary to make it or
its
application valid and enforceable.
17.
Notices.
Any
notice required or permitted hereunder shall be given in writing and shall
be
deemed effectively given upon personal delivery or upon deposit in the United
States mail by certified mail (if the parties are within the United States)
or
upon deposit for delivery by an internationally recognized express mail courier
service (for international delivery of notice), with postage and fees prepaid,
addressed to the other party at its address as shown beneath its signature
in
the Notice, or to such other address as such party may designate in writing
from
time to time to the other party.
18.
Corporate
Transactions/Changes in Control
(a)
Acceleration
of Award Upon Corporate Transaction.
In the
event of any Corporate Transaction, the Award shall automatically become fully
vested and exercisable and be released from any restrictions on transfer and
forfeiture rights, immediately prior to the specified effective date of such
Corporate Transaction, for all of the Shares at the time represented by the
Award.
(b)
Acceleration
of Award Upon Change in Control.
Following a Change in Control, the Award shall automatically become fully vested
and exercisable and be released from any restrictions on transfer and repurchase
or forfeiture rights, immediately upon the consummation of such Change in
Control.
19.
Definitions.
As used
herein, the following definitions shall apply:
(a)
“Affiliate”
and
“Associate”
shall
have the respective meanings ascribed to such terms in Rule 12b-2
promulgated under the Exchange Act.
(b)
“Board”
means
the Board of Directors of the Company.
(c)
“Change
in Control”
means
a
change in ownership or control of the Company effected through either of the
following transactions:
(i)
the
direct or indirect acquisition by any person or related group of persons (other
than an acquisition from or by the Company or by a Company-sponsored employee
benefit plan or by a person that directly or indirectly controls, is controlled
by, or is under common control with, the Company) of beneficial ownership
(within the meaning of Rule 13d-3 of the Exchange Act) of securities
possessing more than fifty percent (50%) of the total combined voting power
of
the Company’s outstanding securities pursuant to a tender or exchange offer made
directly to the Company’s stockholders which a majority of the Continuing
Directors who are not Affiliates or Associates of the offeror do not recommend
such stockholders accept, or
(ii)
a
change in the composition of the Board over a period of thirty-six (36) months
or less such that a majority of the Board members (rounded up to the next whole
number) ceases, by reason of one or more contested elections for Board
membership, to be comprised of individuals who are Continuing Directors.
(d)
“Code”
means
the Internal Revenue Code of 1986, as amended.
(e)
“Common
Stock”
means
the common stock of the Company.
(f)
“Company”
means
Glowpoint, Inc., a Delaware corporation.
(g)
“Continuing
Directors”
means
members of the Board who either (i) have been Board members continuously
for a period of at least thirty-six (36) months or (ii) have been Board
members for less than thirty-six (36) months and were elected or nominated for
election as Board members by at least a majority of the Board members described
in clause (i) who were still in office at the time such election or
nomination was approved by the Board.
(h)
“Corporate
Transaction”
means
any of the following transactions:
(i)
a
merger or consolidation in which the Company is not the surviving entity, except
for a transaction the principal purpose of which is to change the state in
which
the Company is incorporated;
(ii)
the
sale, transfer or other disposition of all or substantially all of the assets
of
the Company (including the capital stock of the Company’s subsidiary
corporations);
(iii)
approval by the Company’s shareholders of any plan or proposal for the complete
liquidation or dissolution of the Company;
(iv)
any
reverse merger in which the Company is the surviving entity but in which
securities possessing more than fifty percent (50%) of the total combined voting
power of the Company’s outstanding securities are transferred to a person or
persons different from those who held such securities immediately prior to
such
merger; or
(v)
acquisition by any person or related group of persons (other than the Company
or
by a Company-sponsored employee benefit plan) of beneficial ownership (within
the meaning of Rule 13d-3 of the Exchange Act) of securities possessing more
than fifty percent (50%) of the total combined voting power of the Company’s
outstanding securities (whether or not in a transaction also constituting a
Change in Control).
(i)
“Director”
means
a
member of the Board.
(j)
“Exchange
Act”
means
the Securities Exchange Act of 1934, as amended.
(k)
“Independent
Director”
means,
with respect to each such scheduled vesting date, the Grantee (i) attended
at
least 75% of the meetings of the Board held in the twelve months prior to such
date and (ii) remains “independent” under the Nasdaq rules prevailing on such
scheduled vesting date.
(l)
“Parent”
means
a
“parent corporation,” whether now or hereafter existing, as defined in
Section 424(e) of the Code.
(m)
“Share”
means
a
share of the Common Stock.
(n)
“Subsidiary”
means
a
“subsidiary corporation,” whether now or hereafter existing, as defined in
Section 424(f) of the Code.
EXHIBIT
A
STOCK
ASSIGNMENT SEPARATE FROM CERTIFICATE
[Please
sign this document but do not date it. The date and information of the
transferee will be completed if and when the shares are assigned.]
FOR
VALUE
RECEIVED, ____________________________ hereby sells, assigns and transfers
unto
_______________________, __________________ (____) shares of the Common
Stock of Glowpoint, Inc., a Delaware corporation (the “Company”), standing in
his or her name on the books of, the Company represented by Certificate
No. __ herewith, and does hereby irrevocably constitute and appoint the
Secretary of the Company attorney to transfer the said stock in the books of
the
Company with full power of substitution.
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DATED:
________________
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EXHIBIT
B
ELECTION
UNDER SECTION 83(b)
OF
THE
INTERNAL REVENUE CODE OF 1986
The
undersigned taxpayer hereby elects, pursuant to the Internal Revenue Code,
to
include in gross income for 20__ the amount of any compensation taxable in
connection with the taxpayer’s receipt of the property described
below:
The
name,
address, taxpayer identification number and taxable year of the undersigned
are:
TAXPAYER’S
NAME:
SPOUSE’S
NAME:
TAXPAYER’S
SOCIAL SECURITY NO.:
SPOUSE’S
SOCIAL SECURITY NO.:
TAXABLE
YEAR: Calendar Year 20__
ADDRESS:
The
property which is the subject of this election is __________ shares of common
stock of __________________________, Inc.
The
property was transferred to the undersigned on ____________, 20__.
The
fair
market value of the property at the time of transfer (determined without regard
to any restriction other than a restriction which by its terms will never lapse)
is: $_______ per share x ________ shares = $___________.
The
undersigned paid $______ per share x _________ shares for the property
transferred or a total of $______________.
The
undersigned has submitted a copy of this statement to the person for whom the
services were performed in connection with the undersigned’s receipt of the
above-described property. The undersigned taxpayer is the person performing
the
services in connection with the transfer of said property.
The
undersigned will file this election with the Internal Revenue Service office
to
which he files his annual income tax return not later than 30 days after the
date of transfer of the property. A copy of the election also will be furnished
to the person for whom the services were performed. Additionally, the
undersigned will include a copy of the election with his income tax return
for
the taxable year in which the property is transferred. The undersigned
understands that this election will also be effective as an election under
applicable state law.
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Dated:
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Taxpayer
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The
undersigned spouse of taxpayer joins in this election.
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Dated:
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Spouse
of Taxpayer
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EXHIBIT
C
GLOWPOINT,
INC.
INVESTMENT
REPRESENTATION STATEMENT
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GRANTEE
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:
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_____________________
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COMPANY
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:
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GLOWPOINT,
INC.
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SECURITY
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:
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COMMON
STOCK
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AMOUNT
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:
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_____________________
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DATE
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:
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_____________________
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In
connection with the receipt of the above-listed Securities, the undersigned
Grantee represents to the Company the following:
The
Grantee is aware of the Company’s business affairs and financial condition and
has acquired sufficient information about the Company to reach an informed
and
knowledgeable decision to acquire the Securities. The Grantee is acquiring
these
Securities for investment for the Grantee’s own account only and not with a view
to, or for resale in connection with, any “distribution” thereof within the
meaning of the Securities Act of 1933, as amended (the “Securities
Act”).
The
Grantee is an “accredited investor” within the meaning of Rule 501 of Regulation
D of the Securities and Exchange Commission, as presently in effect.
The
Grantee acknowledges and understands that the Securities constitute “restricted
securities” under the Securities Act and have not been registered under the
Securities Act in reliance upon a specific exemption therefrom, which exemption
depends upon among other things, the bona fide nature of the Grantee’s
investment intent as expressed herein. In this connection, the Grantee
understands that, in the view of the Securities and Exchange Commission, the
statutory basis for such exemption may be unavailable if the Grantee’s
representation was predicated solely upon a present intention to hold these
Securities for the minimum capital gains period specified under tax statutes,
for a deferred sale, for or until an increase or decrease in the market price
of
the Securities, or for a period of one year or any other fixed period in the
future. The Grantee further understands that the Securities must be held
indefinitely unless they are subsequently registered under the Securities Act
or
an exemption from such registration is available. The Grantee further
acknowledges and understands that the Company is under no obligation to register
the Securities. Xxxxxxx understands that the certificate evidencing the
Securities will be imprinted with a legend which prohibits the transfer of
the
Securities unless they are registered or such registration is not required
in
the opinion of counsel satisfactory to the Company.
The
Grantee is familiar with the provisions of Rule 701 and Rule 144, each
promulgated under the Securities Act, which, in substance, permit limited public
resale of “restricted securities” acquired, directly or indirectly from the
issuer thereof, in a non-public offering subject to the satisfaction of certain
conditions. Rule 701 provides that if the issuer qualifies under
Rule 701 at the time of the sale of the Shares to the Grantee, the sale
will be exempt from registration under the Securities Act. In the event the
Company becomes subject to the reporting requirements of Section 13 or
15(d) of the Securities Exchange Act of 1934, ninety (90) days thereafter (or
such longer period as any market stand-off agreement may require) the Securities
exempt under Rule 701 may be resold, subject to the satisfaction of certain
of the conditions specified by Rule 144, including: (1) the resale
being made through a broker in an unsolicited “broker’s transaction” or in
transactions directly with a market maker (as said term is defined under the
Securities Exchange Act of 1934); and, in the case of an affiliate, (2) the
availability of certain public information about the Company, (3) the
amount of Securities being sold during any three month period not exceeding
the
limitations specified in Rule 144(e), and (4) the timely filing of a
Form 144, if applicable.
In
the
event that the Company does not qualify under Rule 701 at the time of sale
of the Securities, then the Securities may be resold in certain limited
circumstances subject to the provisions of Rule 144, which requires the
resale to occur not less than one year after the later of the date the
Securities were sold by the Company or the date the Securities were sold by
an
affiliate of the Company, within the meaning of Rule 144; and, in the case
of acquisition of the Securities by an affiliate, or by a non-affiliate who
subsequently holds the Securities less than two years, the satisfaction of
the
conditions set forth in sections (1), (2), (3) and (4) of the paragraph
immediately above.
The
Grantee further understands that in the event all of the applicable requirements
of Rule 701 or 144 are not satisfied, registration under the Securities
Act, compliance with Regulation A, or some other registration exemption
will be required; and that, notwithstanding the fact that Rules 144 and 701
are not exclusive, the Staff of the Securities and Exchange Commission has
expressed its opinion that persons proposing to sell private placement
securities other than in a registered offering and otherwise than pursuant
to
Rules 144 or 701 will have a substantial burden of proof in establishing
that an exemption from registration is available for such offers or sales,
and
that such persons and their respective brokers who participate in such
transactions do so at their own risk. The Grantee understands that no assurances
can be given that any such other registration exemption will be available in
such event.
The
Grantee represents that he is a resident of the State of _________________.
|
Signature
of Grantee:
|
|
Date:_________
Schedule
of Recently Reported Restricted Stock Awards
|
Name
|
Agreement
Number
|
Date
of Award
|
Amount
of Restricted Shares Awarded
|
|
Xxxxx
X. Xxxxxxxx
|
RS-10
|
May
4, 2006
|
200,000
|
|
Xxxxx
Xxxx
|
RS-11
|
May
10, 2006
|
80,000
|
|
Xxxx
Xxxxx
|
RS-12
|
June
20, 2006
|
80,000
|
|
Xxxxx
X. Xxxxxx
|
RS-13
|
January
30, 2007
|
200,000
|
|
Bamdad
(Bami) Xxxxxxx
|
XX-14
|
February
28, 2007
|
80,000
|
|
Xxxxx
X. Xxxx
|
RS-15
|
February
28, 2007
|
80,000
|
|
Xxxxxxx
Xxxxxxxxxx
|
RS-16
|
May
15, 2007
|
400,000
|
|
Xxxxxx
Xxxxxx
|
RS-17
|
May
15, 2007
|
100,000
|
