HUDSON HIGHLAND GROUP, INC. RESTRICTED STOCK AWARD AGREEMENT
EXHIBIT
10.1
XXXXXX
HIGHLAND GROUP, INC.
RESTRICTED STOCK AWARD
AGREEMENT (“Agreement”) made as of the [DAY]th day of [MONTH], [YEAR]
(the “Grant Date”), by and between XXXXXX HIGHLAND GROUP, INC., a
Delaware corporation (the “Company”) and FIRST NAME LAST NAME (the
“Grantee”).
WITNESSETH:
WHEREAS, pursuant to the
Xxxxxx Highland Group, Inc. 2009 Incentive Stock and Awards Plan (the “Plan”),
the Company desires to grant to the Grantee and the Grantee desires to accept an
award of shares of common stock, $.001 par value, of the Company (the “Common
Stock”) upon the terms and conditions set forth in this Agreement.
NOW, THEREFORE, the parties
hereto agree as follows:
1. Award. Subject
to the terms and conditions set forth herein, the Company hereby awards the
Grantee [RESTRICTED STOCK AWARDS] shares of Common Stock (the “Restricted
Stock”).
2. Restrictions;
Vesting. Except as otherwise provided herein, the Restricted
Stock may not be sold, transferred, pledged, encumbered, assigned or otherwise
alienated or hypothecated, if at all, until such shares of Restricted Stock have
vested upon satisfaction of both the performance vesting conditions and the
service vesting conditions set forth below. The performance vesting
conditions with respect to the Restricted Stock shall be satisfied as
follows: (a) [_____]% of the shares of Restricted Stock (the “EBITDA
Restricted Stock”) shall vest (subject to satisfaction of the service vesting
conditions) upon the determination by the Compensation Committee of the Board of
Directors of the Company that the Company achieved income (loss) from continuing
operations before inclusion of provision for income taxes, other income
(expense), interest income (expense), and depreciation and amortization for the
year ending December 31, [_____] equal to or greater than $[_____], provided
that the shares of EBITDA Restricted Stock shall vest (subject to satisfaction
of the service vesting conditions) pro rata for EBITDA performance between
$[_____] and $[_____]; and (b) [_____]% of the shares of Restricted Stock (the
“Gross Margin Restricted Stock”) shall vest (subject to satisfaction of the
service vesting conditions) upon the determination by the Compensation Committee
of the Board of Directors of the Company that the Company achieved gross margin
growth (measured as a percentage of growth) for the year ending December 31,
[_____] as compared to the year ended December 31, [_____] equal to or greater
than [_____]%, provided that the shares of Gross Margin Restricted Stock shall
vest (subject to satisfaction of the service vesting conditions) pro rata for
gross margin growth between [_____]% and [_____]%. The Grantee shall
forfeit the number of shares of EBITDA Restricted Stock and Gross Margin
Restricted Stock that do not vest (subject to satisfaction of the service
vesting conditions) pursuant to the preceding sentence. To the extent
the performance vesting conditions above have been satisfied, the service
vesting conditions with respect to the Restricted Stock shall be satisfied as
follows: (i) 33% of the shares of Restricted Stock shall vest on the
first anniversary of the Grant Date, (ii) 33% of the shares of Restricted Stock
shall vest on the second anniversary of the Grant Date and (iii) 34% of the
shares of Restricted Stock shall vest on the third anniversary of the Grant
Date; provided that, in each case, the Grantee remains employed by the Company
or an affiliate (as defined below) of the Company from the Grant Date through
the date the performance vesting conditions are satisfied, in the case of clause
(i), or the applicable anniversary date, in the case of clauses (ii) and
(iii). As used in this Agreement, the term “affiliate” means an
affiliate of the Company within the meaning of Rule 405 under the Securities Act
of 1933, as amended. If any fractional shares would result from the
strict application of the incremental vesting percentages described above, then
the actual number of shares of Restricted Stock that vest on any specific date
will cover only the full number of shares determined by rounding the number of
shares to be issued from the strict application of the incremental percentages
set forth above to the nearest whole number.
3. Evidence of Restricted
Stock. The shares of Restricted Stock awarded under this
Agreement initially will be evidenced by book entries on the Company’s stock
transfer records. If and when the shares of Restricted Stock vest
pursuant to Section 2, 5 or 8 and the restrictions imposed by Section 2
terminate, the Company will deliver to the Grantee one or more stock
certificates for the appropriate number of shares, free of any restrictions
imposed under this Agreement.
4. Tax
Withholding. Notwithstanding anything herein to the contrary,
certificates for shares of Restricted Stock that have vested shall not be
delivered to the Grantee unless and until the Grantee has delivered to the
Executive Vice President, Human Resources of the Company (or such other
executive officer of the Company performing a similar function), at its
corporate headquarters in New York, New York, cash payment, if any, deemed
necessary by the Company to enable it to satisfy any federal, foreign or other
tax withholding obligations with respect to the shares of Restricted Stock that
have vested (the “Tax Amount”) (unless other arrangements acceptable to the
Company in its sole discretion have been made). Notwithstanding
anything herein to the contrary, in the event that a Grantee has not satisfied
the conditions outlined in the immediately preceding sentence within twenty (20)
days after the shares of Restricted Stock have vested, the Company may (but
shall not be required to), in its sole discretion, at any time by notice to the
Grantee, choose to satisfy the conditions outlined in the immediately preceding
sentence by unilaterally revoking the Grantee’s right to receive that number of
shares of Restricted Stock that have vested with an aggregate value equal to
150% of the Tax Amount. For purposes of the preceding sentence, each
share of Restricted Stock shall be deemed to have a value equal to the average
closing price of a share of the Common Stock on the Nasdaq Global Market (or
such other U.S. exchange or market on which the Common Stock is then primarily
traded) on the five (5) trading days up to and including the date of
vesting. The Company may from time to time change (or provide
alternatives to) the method of tax withholding on the Restricted Stock granted
hereunder by notice to the Grantee, it being understood that from and after such
notice the Grantee will be bound by the method (or alternatives) specified in
any such notice. The Company (in its sole and absolute discretion)
may permit all or part of the Tax Amount to be paid with shares of Common Stock
owned by the Grantee, or in installments (together with interest) evidenced by
the Grantee’s secured promissory note.
2
5. Termination of
Employment. If the Grantee’s employment or service with the
Company or its Affiliates is terminated for any reason other than death or
termination without cause by the Company prior to the first anniversary of the
appointment of a new Chief Executive Officer of the Company, including but not
limited to by reason of disability, then the shares of Restricted Stock that
have not yet become fully vested in accordance with Section 2 will automatically
be forfeited by the Grantee (or the Grantee’s successors) and any book entry
with respect thereto will be canceled. If the Grantee’s employment
terminates by reason of the Grantee’s death, then the shares of Restricted Stock
that have not yet become fully vested as a result of a service vesting condition
contained in Section 2 not being satisfied will automatically become fully
vested and the restrictions imposed upon the Restricted Stock by Section 2 will
be immediately deemed to have lapsed, but only if and to the extent that the
performance vesting conditions contained in Section 2 shall have been achieved
on or prior to the date of such termination of employment. If after
the date hereof a new Chief Executive Officer of the Company is appointed and
the Grantee’s employment is terminated without cause by the Company prior to the
first anniversary of the appointment of such new Chief Executive Officer, then
the shares of Restricted Stock will fully vest and the restrictions imposed upon
the Restricted Stock by Section 2 will be immediately deemed to have
lapsed. For purposes of this Agreement, the term “cause”
shall be defined as (i) the willful or negligent failure of the Grantee to
perform the Grantee’s duties and obligations in any material respect (other than
any failure resulting from the Grantee’s disability), which failure is not cured
within fifteen (15) days after receipt of written notice thereof, provided
that there shall be no obligation to provide any additional written notice if
the Grantee’s failure to perform is repeated and the Grantee has previously
received one (1) or more written notices; (ii) acts of dishonesty or
willful misconduct by the Grantee with respect to the Company; (iii) conviction
of a felony or violation of any law involving moral turpitude, dishonesty,
disloyalty or fraud, or a pleading of guilty or nolo contendere to such
charge; (iv) repeated refusal to perform the reasonable and legal instructions
of the Grantee’s supervisors; (v) any material breach of this Agreement; or (vi)
failure to confirm compliance with the Company’s Ethics Policy after 10 days’
written notice requesting confirmation.
6. Voting Rights; Dividends and
Other Distributions.
(a) While
the Restricted Stock is subject to restrictions under Section 2 and prior to any
forfeiture thereof, the Grantee may exercise full voting rights for the
Restricted Stock registered in his name.
(b) While
the Restricted Stock is subject to the restrictions under Section 2 and prior to
any forfeiture thereof, the Grantee shall be entitled to receive all dividends
and other distributions paid with respect to the Restricted Stock. If
any such dividends or distributions are paid in shares of Common Stock, then
such shares shall be subject to the same restrictions as the shares of
Restricted Stock with respect to which they were paid.
(c) Subject
to the provisions of this Agreement, the Grantee shall have, with respect to the
Restricted Stock, all other rights of holders of Common Stock.
7. Securities Law
Restrictions. Notwithstanding anything herein to the contrary,
shares of Restricted Stock shall not be issued hereunder if, in the opinion of
counsel to the Company, such exercise and/or issuance may result in a violation
of federal or state securities laws or the securities laws of any other relevant
jurisdiction.
3
8. Change in
Control. Effective upon a Change in Control (as defined
below), if the Grantee is employed by the Company or an Affiliate immediately
prior to the date of such Change in Control, the shares of Restricted Stock will
fully vest and the restrictions imposed upon the Restricted Stock by Section 2
will be immediately deemed to have lapsed. For purposes hereof, a
“Change in Control” shall be deemed to occur on the first to occur of any one of
the following events: (a) the consummation of a consolidation, merger, share
exchange or reorganization involving the Company, unless such consolidation,
merger, share exchange or reorganization is a “Non-Control Transaction” (as
defined below); (b) the stockholders of the Company approve a plan of complete
liquidation or dissolution of the Company or an agreement for the sale or
disposition by the Company of all, or substantially all, of the assets of the
Company (in one transaction or a series of related transactions within any
period of 24 consecutive months), other than a sale or disposition by the
Company of all, or substantially all, of the Company’s assets to an entity at
least 75% of the combined voting power of the voting securities of which are
owned by stockholders of the Company in substantially the same proportions as
their ownership of the Company immediately prior to such sale; (c) any person
(as such term is used in Section 13(d) and 14(d)(2) of the Securities Exchange
Act of 1934, as amended (the “Exchange Act”)) (other than (1) the Company, (2)
any subsidiary of the Company, (3) a trustee or other fiduciary holding
securities under any employee benefit plan (or any trust forming a part thereof)
maintained by the Company or any subsidiary or (4) a corporation owned, directly
or indirectly, by the stockholders of the Company in substantially the same
proportions as their ownership of stock in the Company) is or becomes the
beneficial owner (within the meaning of Rule 13d-3 under the Exchange Act),
directly or indirectly, of securities of the Company (not including in the
securities beneficially owned by such person any securities acquired directly
from the Company after the Grant Date pursuant to express authorization by the
Board that refers to this exception) representing more than 20% of the then
outstanding shares of Common Stock or the combined voting power of the Company’s
then outstanding voting securities; or (d) the following individuals cease for
any reason to constitute a majority of the number of directors then
serving: individuals who, as of the Grant Date, constitute the entire
Board of Directors of the Company (the “Board”) and any new director (other than
a director whose initial assumption of office is in connection with an actual or
threatened election contest) whose appointment or election by the Board or
nomination for election by the Company’s stockholders was approved or
recommended by a vote of at least two-thirds of the directors then still in
office who either were directors on the Grant Date or whose appointment,
election or nomination for election was previously so approved or
recommended. Notwithstanding the foregoing, no “Change in Control”
shall be deemed to have occurred if there is consummated any transaction or
series of integrated transactions immediately following which the record holders
of the Common Stock immediately prior to such transaction or series of
transactions continue to have substantially the same proportionate ownership in
an entity that owns all or substantially all of the assets or voting securities
of the Company immediately following
such transaction or series of transactions. A “Non-Control
Transaction” shall mean a consolidation, merger, share exchange or
reorganization of the Company where (a) the stockholders of the Company
immediately before such consolidation, merger, share exchange or reorganization
beneficially own, directly or indirectly, more than 50% of the then outstanding
shares of common stock and the combined voting power of the outstanding voting
securities of the corporation resulting from such consolidation, merger, share
exchange or reorganization (the “Surviving Corporation”); (b) the individuals
who were members of the Board immediately prior to the execution of the
agreement providing for such consolidation, merger, share exchange or
reorganization constitute at least 50% of the members of the board of directors
of the Surviving Corporation; and (c) no person (other than (1) the Company, (2)
any subsidiary of the Company or (3) any employee benefit plan (or any trust
forming a part thereof) maintained by the Company, the Surviving Corporation or
any subsidiary) is or becomes the beneficial owner, directly or indirectly, of
securities of the Company (not including in the securities beneficially owned by
such person any securities acquired directly from the Company after the Grant
Date pursuant to express authorization by the Board that refers to this
exception) representing more than 20% of the then outstanding shares of the
common stock of the Surviving Corporation or the combined voting power of the
Surviving Corporation’s then outstanding voting securities.
4
9. No Employment
Rights. Nothing in this Agreement shall give the Grantee any
right to continue in the employment of the Company or any Affiliate, or
interfere in any way with the right of the Company or any Affiliate to terminate
the employment of the Grantee.
10. Plan
Provisions. The provisions of the Plan shall govern if and to
the extent that there are inconsistencies between those provisions and the
provisions hereof. The Grantee acknowledges receipt of a copy of the
Plan prior to the execution of this Agreement. Capitalized terms used
in this Agreement but not defined herein shall have the meaning given to them in
the Plan.
11. Administration. The
Committee will have full power and authority to interpret and apply the
provisions of this Agreement and act on behalf of the Company and the Board in
connection with this Agreement, and the decision of the Committee as to any
matter arising under this Agreement shall be binding and conclusive as to all
persons.
12. Binding Effect;
Headings. This Agreement shall be binding upon and shall inure
to the benefit of the parties hereto and their respective successors and
permitted assigns. The subject headings of Sections of this Agreement
are included for the purpose of convenience only and shall not affect the
construction or interpretation of any of its provisions. All
references in this Agreement to “$” or “dollars” are to United States
dollars.
13. Employee Handbook and
Arbitration Agreements. As a material inducement to the
Company to grant this award of Restricted Stock and to enter into this
Agreement, the Grantee hereby expressly agrees to (a) comply with and abide by
the terms and conditions of, and rules relating to, such Grantee’s employment
with the Company or an Affiliate set forth in the applicable employee handbook
and (b) be bound by the terms and provisions of any arbitration or similar
agreement to which the Grantee is or becomes a party with the Company or an
Affiliate.
5
14. Confidentiality,
Non-Solicitation and Work Product Assignment. As a material
inducement to the Company to grant this award of Restricted Stock and enter into
this Agreement, the Grantee hereby expressly agrees to be bound by the following
covenants, terms and conditions:
(a) Definition. “Confidential
Information” consists of all information or data relating to the business of the
Company, including but not limited to, business and financial information; new
product development and technological data; personnel information and the
identities of employees; the identities of clients and suppliers and prospective
clients and suppliers; client lists and potential client lists; development,
expansion and business strategies, plans and techniques; computer programs,
devices, methods, techniques, processes and inventions; research and development
activities; trade secrets as defined by applicable law and other materials
(whether in written, graphic, audio, visual, electronic or other media,
including computer software) developed by or on behalf of the Company which is
not generally known to the public, which the Company has and will take
precautions to maintain as confidential, and which derives at least a portion of
its value to the Company from its confidentiality. Additionally,
Confidential Information includes information of any third party doing business
with the Company (actively or prospectively) that the Company or such third
party identifies as being confidential. Confidential Information does
not include any information that is in the public domain or otherwise publicly
available (other than as a result of a wrongful act by the Grantee or an agent
or other employee of the Company). For purposes of this Section 14,
the term “the Company” also refers to each of its officers, directors, employees
and agents, all subsidiary and affiliated entities, all benefit plans and
benefit plans’ sponsors and administrators, fiduciaries, affiliates, and all
successors and assigns of any of them.
(b) Agreement to Maintain the
Confidentiality of Confidential Information. The Grantee
acknowledges that, as a result of his/her employment by the Company, he/she will
have access to such Confidential Information and to additional Confidential
Information which may be developed in the future. The Grantee
acknowledges that all Confidential Information is the exclusive property of the
Company, or in the case of Confidential Information of a third party, of such
third party. The Grantee agrees to hold all Confidential Information
in trust for the benefit of the owner of such Confidential
Information. The Grantee further agrees that he/she will use
Confidential Information for the sole purpose of performing his/her work for the
Company, and that during his/her employment with the Company, and at all times
after the termination of that employment for any reason, the Grantee will not
use for his/her benefit, or the benefit of others, or divulge or convey to any
third party any Confidential Information obtained by the Grantee during his/her
employment by the Company, unless it is pursuant to the Company’s prior written
permission.
(c) Return of
Property. The Grantee acknowledges that he/she has not
acquired and will not acquire any right, title or interest in any Confidential
Information or any portion thereof. The Grantee agrees that upon
termination of his/her employment for any reason, he/she will deliver to the
Company immediately, but in no event later that the last day of his/her
employment, all documents, data, computer programs and all other materials, and
all copies thereof, that were obtained or made by the Grantee during his/her
employment with the Company, which contain or relate to Confidential Information
and will destroy all electronically stored versions of the
foregoing.
6
(d) Disclosure and Assignment of
Inventions and Creative Works. The Grantee agrees to promptly
disclose in writing to the Company all inventions, ideas, discoveries,
developments, improvements and innovations (collectively “Inventions”), whether
or not patentable and all copyrightable works, including but limited to computer
software designs and programs (“Creative Works”) conceived, made or developed by
the Grantee, whether solely or together with others, during the period the
Grantee is employed by the Company. The Grantee agrees that all
Inventions and all Creative Works, whether or not conceived or made during
working hours, that: (1) relate directly to the business of the
Company or its actual or demonstrably anticipated research or development, or
(2) result from the Grantee’s work for the Company, or (3) involve the use of
any equipment, supplies, facilities, Confidential Information, or time of the
Company, are the exclusive property of the Company. The Grantee
hereby assigns and agrees to assign all right, title and interest in and to all
such Inventions and Creative Works to the Company. The Grantee
understands that he/she is not required to assign to the Company any Invention
or Creative Work for which no equipment, supplies, facilities, Confidential
Information or time of the Company was used, unless such Invention or Creative
Work relates directly to the Company’s business or actual or demonstrably
anticipated research and development, or results from any work performed by the
Grantee for the Company.
(e) Non-Solicitation of
Clients. During the period of the Grantee’s employment with
the Company and for a period of one year from the date of termination of such
employment for any reason, the Grantee agrees that he/she will not, directly or
indirectly, for the Grantee’s benefit or on behalf of any person, corporation,
partnership or entity whatsoever, call on, solicit, perform services for,
interfere with or endeavor to entice away from the Company any client to whom
the Company provides services at any time during the 12 month period proceeding
the date of termination of the Grantee’s employment with the Company, or any
prospective client to whom the Company had made a presentation at any time
during the 12 month period preceding the date of termination of the Grantee’s
employment with the Company.
(f) Non-Solicitation of
Employees. For a period of one year after the date of
termination of the Grantee’s employment with the Company for any reason, the
Grantee agrees that he/she will not, directly or indirectly, hire, attempt to
hire, solicit for employment or encourage the departure of any employee of the
Company, to leave employment with the Company, or any individual who was
employed by the Company as of the last day of the Grantee’s employment with the
Company.
(g) Enforcement. If,
at the time of enforcement of this Section 14, a court holds that any of the
restrictions stated herein are unreasonable under circumstances then existing,
the parties hereto agree that the maximum period, scope or geographical area
deemed reasonable under such circumstances will be substituted for the stated
period, scope or area as contained in this Section 14. Because money
damages would be an inadequate remedy for any breach of the Grantee’s
obligations under this Agreement, in the event the Grantee breaches or threatens
to breach this Section 14, the Company, or any successors or assigns, may, in
addition to other rights and remedies existing in its favor, apply to any court
of competent jurisdiction for specific performance, or injunctive or other
equitable relief in order to enforce or prevent any violations of this Section
14.
7
(h) Miscellaneous. The
Grantee acknowledges and agrees that the provisions of this Section 14 are in
addition to, and not in lieu of, any confidentiality, non-solicitation, work
product assignment and/or similar obligations that the Grantee may have with
respect to the Company and/or its Affiliates, whether by agreement, fiduciary
obligation or otherwise and that the grant and the vesting of the Restricted
Stock contemplated by this Agreement are expressly made contingent on the
Grantee's compliance with the provisions of this Section 14. Without
in any way limiting the provisions of this Section 14, the Grantee further
acknowledges and agrees that the provisions of this Section 14 shall remain
applicable in accordance with their terms after the Grantee's termination of
employment with the Company, regardless of whether (1) the Grantee's termination
or cessation of employment is voluntary or involuntary or (2) the Restricted
Stock has not or will not vest.
15. Applicable
Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware, without regard to conflict of
law principles thereof. This Agreement constitutes the entire
agreement between the parties with respect to the subject matter hereof and
controls and supersedes any prior understandings, agreements or representations
by or between the parties, written or oral with respect to its subject matter
and may not be modified except by written instrument executed by the
parties. The Grantee has not relied on any representation not set
forth in this Agreement.
8
IN
WITNESS WHEREOF, this Agreement has been executed as of the date first above
written.
|
XXXXXX
HIGHLAND GROUP, INC.
|
|
|
By:
|
|
|
Name:
|
|
|
Title:
|
|
|
|
|
|
Grantee
– Signature
|
|
|
|
|
|
Grantee
– Print
Name
|
|
9
