RESTRICTED STOCK AGREEMENT
Exhibit 1.01
THIS
AGREEMENT, entered into as of the Grant Date (as defined in paragraph 1), by and
between the Participant and Ascendant Solutions, Inc. (the
"Company");
WITNESSETH
THAT:
WHEREAS,
the Company maintains the 2002 Equity Incentive Plan (the "Plan"), which is
incorporated into and forms a part of this Agreement, and the Participant has
been selected by the committee administering the Plan (the "Committee") to
receive a Restricted Stock Award under the Plan;
NOW,
THEREFORE, IT IS AGREED, by and between the Company and the Participant, as
follows:
1. -Terms
of Award. The
following terms used in this Agreement shall have the meanings set forth in this
paragraph 1:
The
"Participant" is ____________.
The
"Grant Date" is _______, 2005.
The
"Restricted Period" is the period beginning on the Grant Date and ending on
______, 2008; provided, however, that all of the restrictions on the Restricted
Stock set forth herein shall lapse and such shares of Restricted Stock shall
fully vest in accordance with the following vesting schedule:
One-third,
or _______, of the total shares of the Restricted Stock shall no longer be
restricted following the first anniversary of the Grant Date;
An
additional one-third, or ______, of the total shares of Restricted Stock shall
no longer be restricted following the second anniversary of the Grant Date;
and
An
additional one-third, or _______, of the total shares of Restricted Stock shall
no longer be restricted following the third anniversary of the Grant
Date.
Notwithstanding
the vesting schedule set forth above and so long as the Date of Termination (as
defined in paragraph 6) has not occurred, in the event of a "Change of Control"
as defined in the Plan, the vesting schedule above shall be accelerated such
that the Restricted Stock shall be deemed to be fully vested immediately prior
to such event.
Notwithstanding
the vesting schedule set forth above and so long as the Date of Termination has
not occurred, in the event that the employment of the Participant is terminated
without “Cause” (as such term is hereinafter defined), the vesting schedule
above shall be accelerated such that the Restricted Stock shall be deemed to be
fully vested immediately prior to such event. “Cause” means the occurrence of
gross negligence or willful misconduct or malfeasance or the commission of an
act constituting dishonesty or other act of material misconduct by Participant
that affects the Company, its business, Participant’s employment or
Participant's business reputation.
The
number of shares of "Restricted Stock" awarded under this Agreement shall be
_______ shares. Shares of "Restricted Stock" are shares of Stock granted under
this Agreement and are subject to the terms of this Agreement and the
Plan.
Other
terms used in this Agreement are defined pursuant to paragraph 6 or elsewhere in
this Agreement.
2. -Award. The
Participant is hereby granted the number of shares of Restricted Stock set forth
in paragraph 1.
3. -Dividends
and Voting Rights.
Restricted Stock shall constitute issued and outstanding shares of Common Stock
for all corporate purposes. The Participant will have the right to vote such
Restricted Stock, to receive and retain all regular cash dividends and other
cash equivalent distributions as the Board may in its sole discretion designate,
pay or distribute on such Restricted Stock and to exercise all other rights,
powers and privileges of a holder of Common Stock with respect to such
Restricted Stock, with the exceptions that (A) the Participant will not be
entitled to delivery of the stock certificate or certificates representing any
shares of Restricted Stock until the Restricted Period with respect to such
shares of Restricted Stock shall have expired and unless all other vesting
requirements with respect thereto shall have been fulfilled; (B) the
Company will retain custody of the stock certificate or certificates
representing the Restricted Stock during the Restricted Period; (C) other
than regular cash dividends and other cash equivalent distributions as the Board
may in its sole discretion designate, pay or distribute, the Company will retain
custody of all distributions ("Retained Distributions") made or declared with
respect to the Restricted Stock (and such Retained Distributions will be subject
to the same restrictions, terms and conditions as are applicable to the
Restricted Stock) until such time, if ever, as the Restricted Stock with respect
to which such Retained Distributions shall have been made, paid or declared
shall have become vested and with respect to which the Restricted Period shall
have expired; and (D) a breach of any of the restrictions, terms or
conditions contained in the Plan or this Agreement or otherwise established by
the Committee with respect to any Restricted Stock or Retained Distributions
will cause a forfeiture of such Restricted Stock and any Retained Distributions
with respect thereto.
4. -Deposit
of Shares of Restricted Stock. The
Restricted Stock will be represented by a stock certificate or certificates
registered in the name of the Participant to whom such Restricted Stock shall
have been awarded. During the Restricted Period, certificates representing the
Restricted Stock and any securities constituting Retained Distributions shall
bear a legend to the effect that ownership of the Restricted Stock (and such
Retained Distributions), and the enjoyment of all rights appurtenant thereto,
are subject to the restrictions, terms and conditions provided in the Plan and
this Agreement. Such certificates shall be deposited by the Participant with the
Company, together with stock powers or other instruments of assignment, each
endorsed in blank, which will permit transfer to the Company of all or any
portion of the Restricted Stock and any securities constituting Retained
Distributions that shall be forfeited or that shall not become vested in
accordance with the Plan and this Agreement.
5. -Transfer,
Forfeiture and Withholding of Shares. Upon
the expiration of the Restricted Period with respect to the shares of Restricted
Stock and the satisfaction of any other applicable restrictions, terms and
conditions, all of such shares of Restricted Stock shall become vested and the
restrictions shall lapse in accordance with the terms of this Agreement and any
Retained Distributions with respect to such shares of Restricted Stock shall
become vested and the restrictions shall lapse to the extent that the shares of
Restricted Stock related thereto shall have become vested and the restrictions
shall lapse. Any such shares of Restricted Stock and Retained Distributions that
do not vest shall be forfeited to the Company and the Participants shall not
thereafter have any rights with respect to such shares of Restricted Stock and
Retained Distributions that shall have been so forfeited.
Shares of
Restricted Stock may not be sold, assigned, transferred, pledged or otherwise
encumbered until the expiration of the Restricted Period or, if earlier, until
the Participant is vested in the shares. Except as otherwise provided in
paragraph 1, if the Participant's Date of Termination occurs prior to the end of
the Restricted Period, the Participant shall forfeit all shares of the
Restricted Stock and Retained Distributions which have not vested as of the
Participant's Date of Termination.
Participant
may, at his sole discretion, satisfy any withholding tax obligations due to the
vesting of shares of Restricted Stock by requesting the Company to withhold the
requisite number of such shares.
6. -Definitions. For
purposes of this Agreement, the terms used in this Agreement shall be subject to
the following:
Date
of Termination. The
Participant's "Date of Termination" shall be the first day occurring on or after
the Grant Date on which the Participant is not employed by or a consultant to
the Company, regardless of the reason for the termination of employment or
consulting relationship.
Disability.
"Disability" shall have the meaning set forth in Section 2(s) of the
Plan.
Plan
Definitions. Except
where the context clearly implies or indicates the contrary, a word, term, or
phrase used in the Plan is similarly used in this Agreement.
7. -Heirs
and Successors. This
Agreement shall be binding upon, and inure to the benefit of, the Company and
its successors and assigns, and upon any person acquiring, whether by merger,
consolidation, purchase of assets or otherwise, all or substantially all of the
Company's assets and business. If any rights of the Participant or benefits
distributable to the Participant under this Agreement have not been exercised or
distributed, respectively, at the time of the Participant's death, such rights
shall be exercisable by the Designated Beneficiary, and such benefits shall be
distributed to the Designated Beneficiary, in accordance with the provisions of
this Agreement and the Plan. The "Designated Beneficiary" shall be the
beneficiary or beneficiaries designated by the Participant in a writing filed
with the Committee in such form and at such time as the Committee shall require.
If a deceased Participant fails to designate a beneficiary, or if the Designated
Beneficiary does not survive the Participant, any rights that would have been
exercisable by the Participant and any benefits distributable to the Participant
shall be exercised by or distributed to the legal representative of the estate
of the Participant. If a deceased Participant designates a beneficiary but the
Designated Beneficiary dies before the Designated Beneficiary's exercise of all
rights under this Agreement or before the complete distribution of benefits to
the Designated Beneficiary under this Agreement, then any rights that would have
been exercisable by the Designated Beneficiary shall be exercised by the legal
representative of the estate of the Designated Beneficiary, and any benefits
distributable to the Designated Beneficiary shall be distributed to the legal
representative of the estate of the Designated Beneficiary.
8. -Administration. The
authority to manage and control the operation and administration of this
Agreement shall be vested in the Committee, and the Committee shall have all
powers with respect to this Agreement as it has with respect to the Plan. Any
interpretation of the Agreement by the Committee and any decision made by it
with respect to this Agreement is final and binding.
9. -Plan
Governs.
Notwithstanding anything in this Agreement to the contrary, the terms of this
Agreement shall be subject to the terms of the Plan, a copy of which may be
obtained by the Participant from the office of the Secretary of the
Company.
10. -Amendment. This
Agreement may be amended by written Agreement of the Participant and the
Company, without the consent of any other person.
IN
WITNESS WHEREOF, the Participant has executed this Agreement, and the Company
has caused these presents to be executed in its name and on its behalf, all as
of the Grant Date.
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PARTICIPANT | |
|
Name:
| |
|
ASCENDANT
SOLUTIONS, INC. | |
|
By:
| |
|
Name:
Xxxxx X. Xxxx | |
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Its:
President & CEO | |
DALLAS
593920_1 6029.1
