Exhibit D INNOTRAC CORPORATION. RESTRICTED STOCK AWARD AGREEMENT
EXHIBIT
10.28
Exhibit
D
INNOTRAC
CORPORATION.
2000
STOCK OPTION AND INCENTIVE AWARD PLAN
THIS
AGREEMENT, made and entered into as of the ____ day of March, 2007, by
and
between INNOTRAC CORPORATION. (“the “Company”)
and
______________________ (the “Grantee”).
WITNESSETH:
WHEREAS,
the Company maintains the Innotrac Corporation 2000 Stock Option and Incentive
Award Plan (the “Plan”),
and
the Grantee has been selected by the Committee to receive a Restricted
Stock
Award under the Plan;
NOW,
THEREFORE, IT IS AGREED, by and between the Company and the Grantee, as
follows:
1. Award
of Restricted Stock
1.1 The
Company hereby grants to the Grantee an award of _____________ Shares of
restricted stock (“Restricted
Stock”),
subject to, and in accordance with, the restrictions, terms and conditions
set
forth in this Agreement. The grant date of this award of Restricted Stock
is
March ____, 2007 (“Grant Date”).
1.2 This
Agreement shall be construed in accordance and consistent with, and subject
to,
the provisions of the Plan (the provisions of which are incorporated herein
by
reference) and, except as otherwise expressly set forth herein, the capitalized
terms used in this Agreement shall have the same definitions as set forth
in the
Plan.
1.3 This
Award is conditioned on the Grantee’s execution of this Agreement. If this
Agreement is not executed by the Grantee and returned to the Company within
two
months of the Grant Date, it may be canceled by the Committee resulting
in the
immediate forfeiture of all Shares of Restricted Stock.
2. Restrictions
2.1 Subject
to Section 2.2 below, if the Grantee remains employed by the Company (or
with
respect to a Director or consultant, continues to serve as a Director or
continues to provide services to the Company, as determined by the Committee
in
its discretion), the Grantee shall become vested in 1/4 of the Shares of
Restricted Stock on each of the seventh, eighth, ninth and tenth anniversaries
of the Grant Date (each, a “Vesting
Date”),
such
that all Shares of Restricted Stock shall be fully vested on March __,
2017 (the
“Final
Vesting Date”).
2.2 Notwithstanding
the other provisions of this Agreement, in the event of a Change in Control
prior to Grantee’s Final Vesting Date, the Restricted Stock shall become fully
vested and nonforfeitable as of the date of the Change in Control.
2.3 If,
prior
to the Final Vesting Date, Grantee has his/her employment (or service as
a
Director or consultant) terminated for any reason, all unvested shares
of
Restricted Stock shall be forfeited.
2.4 The
Restricted Stock may not be sold, assigned, transferred, pledged or otherwise
encumbered prior to the date Grantee becomes vested in the Restricted
Stock.
3. Stock;
Dividends; Voting
3.1 The
stock
certificate(s) evidencing the Restricted Stock shall be registered on the
Company’s books in the name of the Grantee as of the Grant Date. The Company or
its designee shall retain physical possession or custody of such stock
certificate(s) or shall not issue such certificate(s) until such time as
the
Shares of Restricted Stock are vested in accordance with Section 2 and,
if
applicable, until the Grantee requests delivery of the certificate(s).
While in
its possession, the Company reserves the right to place a legend on the
stock
certificate(s) restricting the transferability of such certificates and
referring to the terms and conditions (including forfeiture) of this Agreement
and the Plan. Grantee agrees to provide the Company at the time of execution
of
this Agreement with a stock power in the form attached hereto, appropriately
endorsed in blank, in respect of the Restricted Stock
3.2 During
the period the Restricted Stock is not vested, the Grantee shall be entitled
to
vote such Restricted Stock. All dividends declared and paid by the Company
on
Shares of Restricted Stock in Shares shall be deferred until the restrictions
on
the Restricted Stock lapse in accordance with Section 2. These deferred
dividends shall be held by the Company for the Grantee’s account. Upon the
forfeiture of the Restricted Stock, any deferred dividends attributable
to such
Restricted Stock shall also be forfeited. Dividends declared and paid by
the
Company on Restricted Stock in cash shall not be subject to such
restrictions.
3.3 In
the
event of any adjustments in authorized Shares as provided in Article 4
of the
Plan, the number and class of Shares of Restricted Stock or other securities
that Grantee shall be entitled to pursuant to this Agreement shall be
appropriately adjusted or changed to reflect such change, provided that
any such
additional Shares of Restricted Stock or additional or different shares
or
securities shall remain subject to the restrictions in this Agreement.
3.4 The
Grantee represents and warrants that he is acquiring the Restricted Stock
for
investment purposes only, and not with a view to distribution thereof.
The
Grantee is aware that the Restricted Stock may not be registered under
the
federal or any state securities laws and that, in addition to the other
restrictions on the Restricted Stock, the shares will not be able to be
transferred unless an exemption from registration is available. By making
this
award of Restricted Stock, the Company is not undertaking any obligation
to
register the Restricted Stock under any federal or state securities laws.
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4. No
Right to Continued Employment
Nothing
in this Agreement or the Plan shall be interpreted or construed to confer
upon
the Grantee any right with respect to continuance of employment or service
as a
Director or consultant by the Company or a Subsidiary, nor shall this Agreement
or the Plan interfere in any way with the right of the Company or a Subsidiary
to terminate at any time the Grantee’s employment or service as a Director or
consultant, subject to Grantee’s rights under this Agreement.
5. Taxes
and Withholding
The
Grantee shall be responsible for all federal, state and local income and
employment taxes payable with respect to this Award of Restricted Stock.
The
Grantee shall have the right to make such elections under the Internal
Revenue
Code of 1986, as amended, as are available in connection with this Award
of
Restricted Stock, including a Section 83(b) election. The Company and Grantee
agree to report the value of the Restricted Stock in a consistent manner
for
federal income tax purposes. The Company shall have the right to retain
and
withhold from any payment of Restricted Stock the amount of taxes required
by
any government to be withheld or otherwise deducted and paid with respect
to
such payment. At its discretion, the Company may require Grantee to reimburse
the Company for any such taxes required to be withheld and may withhold
any
distribution in whole or in part until the Company is so reimbursed. In
lieu
thereof, the Company shall have the right to withhold from any other cash
amounts due to Grantee an amount equal to such taxes required to be withheld
or
withhold and cancel (in whole or in part) a number of shares of Restricted
Stock
having a market value not less than the amount of such taxes.
6. Grantee
Bound By the Plan
The
Grantee hereby acknowledges receipt of a copy of the Plan and the Prospectus
related to the Plan and agrees to be bound by all the terms and provisions
of
the Plan.
7. Modification
of Agreement
This
Agreement may be modified, amended, suspended or terminated, and any terms
or
conditions may be waived, but only by a written instrument executed by
the
parties hereto.
8. Severability
Should
any provision of this Agreement be held by a court of competent jurisdiction
to
be unenforceable or invalid for any reason, the remaining provisions of
this
Agreement shall not be affected by such holding and shall continue in full
force
in accordance with their terms.
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9. Governing
Law
The
validity, interpretation, construction and performance of this Agreement
shall
be governed by the laws of the State of Georgia without giving effect to
the
conflicts of laws principles thereof.
10. Successors
in Interest
This
Agreement shall inure to the benefit of, and be binding upon, the Company
and
its successors and assigns, and upon any person acquiring, whether by merger,
consolidation, reorganization, purchase of stock or assets, or otherwise,
all or
substantially all of the Company’s assets and business. This Agreement shall
inure to the benefit of the Grantee’s legal representatives. All obligations
imposed upon the Grantee and all rights granted to the Company under this
Agreement shall be final, binding and conclusive upon the Grantee’s heirs,
executors, administrators and successors.
11. Resolution
of Disputes
Any
dispute or disagreement which may arise under, or as a result of, or in
any way
relate to the interpretation, construction or application of this Agreement
shall be determined by the Committee. Any determination made hereunder
shall be
final, binding and conclusive on the Grantee and the Company for all purposes.
IN
WITNESS WHEREOF, the parties have executed this Agreement effective as
of the
date first above written.
INNOTRAC
CORPORATION.
By:
_________________________________
____________________________________
GRANTEE:
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STOCK
POWER
FOR
VALUE
RECEIVED, the undersigned does hereby assign and transfer to
__________________________ ___________________________(_______) shares
of the
common stock of INNOTRAC CORPORATION. (the “Company”), $0.10 par value, standing
in the name of the undersigned on the books of the Company and does hereby
irrevocably constitute and appoint _______________________ attorney to
transfer
said stock on the books of the Company, with full power of substitution
in the
premises.
DATED:
______________________
___________________________(SEAL)
Name:
WITNESS:
_______________________
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