ZBB ENERGY CORPORATION RESTRICTED STOCK UNIT AWARD AGREEMENT
Exhibit 10.1
ZBB ENERGY CORPORATION
This Restricted Stock Unit Award Agreement (this “Agreement”) is executed as of July 15, 2014 (the “Effective Date”), by and between ZBB ENERGY CORPORATION, a Wisconsin corporation (the “Company”), and Xxxxxxx Xxxxxx (“Employee”).
W I T N E S S E T H:
WHEREAS, the Compensation Committee of the Board of Directors of the Company wishes to grant Employee Restricted Stock Units (the “RSUs” and each, a “RSU”) in conjunction with Employee’s appointment as President and COO of the Company, subject to the terms provided in this Agreement; and
WHEREAS, the Compensation Committee of the Board of Directors of the Company anticipates that this Agreement will promote the best interests of the Company and its shareholders by providing Employee a proprietary interest in the Company with a stronger incentive to put forth maximum effort for the continued success and growth of the Company and its subsidiaries.
NOW, THEREFORE, in consideration of the employee entering his Employment Agreement with the Company (the “Employment Agreement”) and the benefits that the Company will derive in connection with the services to be rendered by Employee thereunder, the Company and Employee hereby agree as follows:
1. Capitalized Terms; Determinations by Administrator.
(a) Capitalized terms used but not defined herein shall have the meanings ascribed to such terms in the Employment Agreement.
(b) The Administrator (as defined below) shall make all interpretations, rules and regulations necessary to administer this Agreement, and such determinations of the Administrator shall be binding upon Employee. For purposes of this Agreement, the term “Administrator” shall mean the Compensation Committee of the Board of Directors.
2. Grant; Vesting. Subject to the terms and conditions of this Agreement, the Company grants to Employee three hundred sixty thousand (360,000) RSUs. Each RSU shall have a value equal to the fair market value of one (1) share of Company Common Stock (a “Share”). The RSUs covered by this Agreement shall become earned by, and payable to, Employee in the amounts and on the dates shown on Annex 1 attached hereto.
3. Compliance with Laws. Employee agrees that Employee shall comply with (or provide adequate assurance as to future compliance with) all applicable securities laws and income tax laws as determined by the Company as a condition precedent to the delivery of any Shares pursuant to this Agreement. In addition, Employee agrees that, upon request, Employee will furnish a letter agreement providing that (i) Employee will not distribute or resell any of said Shares in violation of the Securities Act of 1933, as amended, (ii) Employee will indemnify and hold the Company harmless against all liability for any such violation and (iii) Employee will accept all liability for any such violation.
4. Designation of Beneficiary. Employee may designate a beneficiary to receive payment in connection with the RSUs granted hereunder in the event of Employee’s death while a Service Provider with the Company in accordance with the Company’s beneficiary designation procedures, as in effect from time to time. If Employee does not designate a beneficiary or if Employee’s designated beneficiary does not survive Employee, then Employee’s beneficiary will be Employee’s estate.
5. Nature of RSUs.
(a) Employee shall not have any interest in any fund or in any specific asset or assets of the Company by reason of the RSUs granted hereunder, or any right to exercise any of the rights or privileges of a stockholder with respect to the RSUs until Shares are issued in connection with the RSUs.
(b) The existence of this Agreement shall not affect in any way the right or power of the Company or its stockholders to make or authorize any or all adjustments, recapitalizations, reorganizations or other changes in the Company’s capital structure or its business, or any merger or consolidation of the Company, or any issue of bonds, debentures, preferred or prior preference stocks ahead of or convertible into, or otherwise affecting the Company’s Common Stock or the rights thereof, or the dissolution or liquidation of the Company, or any sale or transfer of all or any part of its assets or business, or any other corporate act or proceeding, whether of a similar character or otherwise.
6. Acknowledgments.
(a) Employee acknowledges having read this Agreement and agrees to be bound by all the terms and conditions of the Employment Agreement and this Agreement.
(b) Regardless of any action the Company takes with respect to any or all income tax, payroll tax or other tax-related withholding (“Tax-Related Items”), Employee acknowledges that the ultimate liability for all Tax-Related Items owed by Employee is and remains Employee’s responsibility and that the Company (i) makes no representations or undertakings regarding the treatment of any Tax-Related Items in connection with any aspect of the grant of RSUs, including the grant and vesting of the RSUs, the subsequent sale of Shares acquired upon the vesting of the RSUs and the receipt of any dividends; and (ii) does not commit to structure the terms of the grant or any aspect of the RSUs to reduce or eliminate Employee’s liability for Tax-Related Items.
In the event the Company determines that it must withhold any Tax-Related Items as a result of the grant of the RSUs, Employee agrees as a condition precedent of such grant to make arrangements satisfactory to the Company to enable it to satisfy all withholding requirements, including, but not limited to, withholding any applicable Tax-Related Items from the pay-out of the RSUs. In addition, Employee authorizes the Company to fulfill its withholding obligations by all legal means, including, but not limited to: withholding Tax-Related Items from Employee’s other cash compensation paid by the Company to Employee; withholding Tax-Related Items from the cash proceeds, if any, received upon sale of any Shares received in payment for Employee’s RSUs; and at the time of payment, withholding Shares sufficient to meet minimum withholding obligations for Tax-Related Items. The Company may refuse to issue and deliver Shares in payment of any earned RSUs if Employee fails to comply with any withholding obligation.
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7. Adjustment provisions.
(a) Share Adjustments. In the event of any stock dividend, stock split, recapitalization, merger, consolidation, combination or exchange of shares of Company stock, or the like, as a result of which shares of any class shall be issued in respect of the outstanding Shares, or the Shares shall be changed into the same or a different number of the same or another class of stock, or into securities of another person, cash or other property (not including a regular cash dividend), the number of Shares subject to the RSUs shall be appropriately adjusted in such equitable and proportionate amount as determined by the Administrator. No fractional Share shall be issued under the Agreement resulting from any such adjustment but the Administrator in its sole discretion may make a cash payment in lieu of a fractional Share.
(b) Acquisitions. In the event of a merger or consolidation of the Company with another corporation or entity, or a sale or disposition by the Company of all or substantially all of its assets, the Administrator shall, in its sole discretion, have authority to provide for (i) waiver in whole or in part of any remaining restrictions or vesting requirements in connection with the RSUs granted hereunder, (ii) the conversion of the outstanding RSUs into cash, and/or (iii) the conversion of the RSUs into the right to receive securities, including options, of another person or entity upon such terms and conditions as are determined by the Administrator in its sole discretion.
8. Prohibition Against Transfer. Unless otherwise provided by the Administrator and except as provided below, the RSUs, and the rights and privileges conferred hereby, may not be transferred by Employee. The RSUs shall not be subjected to execution, attachment or similar process.
9. Notices. The Company may, in its sole discretion, decide to deliver any documents related to this Agreement by electronic means. Employee hereby consents to receive such documents by electronic delivery. Any notice which either party hereto may be required or permitted to give to the other shall be in writing and may be delivered personally, by intraoffice mail, by fax, by electronic mail or other electronic means, or via a postal service, postage prepaid, to such electronic mail or postal address and directed to such person as the Company may notify Employee from time to time; and to Employee at Employee’s electronic mail or postal address as shown on the records of the Company from time to time, or at such other electronic mail or postal address as Employee, by notice to the Company, may designate in writing from time to time.
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10. Amendment. The Administrator may amend the Agreement; provided, however, that Employee’s consent to such action shall be required unless the Administrator determines that the action, taking into account any related action, would not materially and adversely affect Employee.
11. No Right To Employment. The Agreement shall not confer upon Employee any right to continue employment with the Company or a subsidiary, nor shall it interfere in any way with the right of the Company or such subsidiary to terminate Employee’s employment any time.
12. Entire Agreement. This Agreement, together with the Employment Agreement by and between the Employee and Company dated May 19, 2014, constitutes the final understanding between Employee and the Company regarding the RSUs.
13. Severability. In the event any provision of this Agreement shall be held illegal or invalid for any reason, the illegality or invalidity shall not affect the remaining parts of the Agreement, and this Agreement shall be construed and enforced as if the illegal or invalid provision had not been included.
14. Governing Law. This Agreement and all actions taken hereunder shall be governed by, and construed in accordance with, the laws of the State of Wisconsin, applied without regard to the laws of any other jurisdiction that otherwise would govern under conflict of law principles.
[Signature Pages Follow]
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IN WITNESS WHEREOF, the Company has caused this Agreement to be executed by its duly authorized officer, and Employee has hereunto set Employee’s hand, all effective as of the Effective Date set forth above.
ZBB ENERGY CORPORATION
By:
Name:
Title:
The undersigned Employee hereby accepts the foregoing RSUs and agrees to the several terms and conditions hereof.
Employee
