RESTRICTED STOCK AGREEMENT
Exhibit
10.1
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 Xxxx X. Xxxx.
The
"Grant Date" is July 9, 2007.
The
"Restricted Period" is the period beginning on the Grant Date and ending on
July
9, 2010; 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 33,333, 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 33,333, 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 33,334, 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
100,000 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.
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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.
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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.
PARTICIPANT
/s/ Xxxx
X.
Xxxx
Xxxx
X. Xxxx
ASCENDANT
SOLUTIONS, INC.
By:
/s/ Xxxxx X.
Xxxx
Name: Xxxxx
X. Xxxx
Its: President
& CEO
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