EXHIBIT 10.9
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FORM OF
LP Innovations, Inc.
Restricted Stock Grant Agreement
This Agreement, dated this ____ day of ______________ between LP
Innovations, Inc. (the "Company") and _______________ (the "Participant").
WHEREAS, the Company has adopted and maintains the LP Innovations,
Inc. 2002 Stock Incentive Plan (the "Plan") to encourage and enable the
officers, employees and directors of the Company and its Affiliates, upon whose
judgment, initiative and efforts the Company largely depends for the successful
conduct of its business, to acquire a proprietary interest in the Company;
WHEREAS, the Plan provides that a committee (the "Committee") of the
Company's Board of Directors (which may be the entire Board of Directors) shall
administer the Plan; and
WHEREAS, the Committee has determined that the purposes of the Plan
would be advanced by granting an award to the Participant as set forth below;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants hereinafter set forth, the parties hereto hereby agree as follows:
1. Grant of Restricted Stock. Pursuant to, and subject to, the
restrictions, terms and conditions set forth herein and in the Plan, the Company
will grant to the Participant (the "Grant") __________ shares of the common
stock of the Company, par value $.01 per share ("Restricted Stock").
2. The Grant shall be subject to and contingent on:
A. consummation of the distribution (the "Distribution") of
shares of the Company's common stock to the holders of common stock
of Casual Male Retail Group, Inc., a Nevada corporation, and
B. the Participant's continuing to be employed by or otherwise in
the service of the Company as of the Grant Date.
3. Consent of Spouse. If the Participant is married, the
Participant agrees to deliver to the Company the Consent of Spouse, attached
hereto as Exhibit A, prior to the Grant Date.
4. Grant Date. The Grant Date of the Grant shall be the date of
the Distribution.
5. Incorporation of Plan. All terms, conditions and restrictions
of the Plan are incorporated herein and made part hereof as if stated herein. If
there is any conflict between the terms and conditions of the Plan and this
Agreement, the terms and conditions of the Plan, as interpreted by the
Committee, shall govern. Except as otherwise provided herein, all capitalized
terms used herein shall have the meaning given to such terms in the Plan.
6. Vesting. The Grant shall vest with respect to (i) a number of
whole shares as close as possible to 33 1/3% of the Grant, on the Grant Date;
(ii) a number of whole shares as close
as possible to 33 1/3% of the Grant, on the first one-year anniversary of the
Distribution; and (iii) the remaining shares subject to the Grant, on the second
one-year anniversary of the Distribution. Notwithstanding the foregoing, in the
event of a Change of Control, all unvested shares of Restricted Stock that had
not theretofore been forfeited will become fully vested.
7. Restrictions on Transferability.
(a) Forfeiture of Unvested Shares. Until a share of Restricted
Stock vests, the Participant shall not transfer the Participant's rights to such
share of Restricted Stock or to any rights related thereto. Any attempt to
transfer such unvested shares or any rights related thereto, whether by
transfer, pledge, hypothecation or otherwise and whether voluntary or
involuntary, by operation of law or otherwise, shall not vest the transferee
with any interest or right in or with respect to such shares of Restricted Stock
or such related rights, but immediately upon any such attempt, the portion of
the Grant represented by such shares of Restricted Stock and any related rights
shall be forfeited by the Participant, and the transfer shall be of no force or
effect.
(b) Right of First Refusal of Vested Shares. Prior to sale or
other transfer of any shares of Restricted Stock that have vested, the
Participant shall provide the Company with written notice of the proposed sale
or transfer. The Company shall have the right (but no obligation) to purchase
some or all of such shares from the Participant within ten (10) business days
after the receipt of such notice, in exchange for the Fair Market Value of such
shares on the date of such purchase by the Company. Payment shall be made in
cash or cash equivalents or by canceling indebtedness to the Company, if any,
incurred by the Participant. The Participant only may sell or transfer such
shares (i) after the end of such ten-business day period or (ii) during such
ten-business day period if the Company has given written notice that it does not
intend to exercise its right to purchase such shares.
Termination of Employment. In the event that the Participant's
employment with the Company terminates for any reason, all shares of Restricted
Stock that have not vested as of the date of such termination, together with any
other property in respect of such shares held by the custodian pursuant to
Section 11 hereof, shall be forfeited immediately as of the date of such
termination.
8. Issuance of Certificates.
(a) Reasonably promptly after the Grant Date for any shares of
Restricted Stock that have not theretofore been forfeited, provided that the
Company has received a stock power endorsed by the Participant in blank with
respect to such shares of Restricted Stock, the Company shall issue stock
certificates, registered in the name of the Participant, evidencing such shares
of Restricted Stock. Each such certificate shall bear the following legend:
"THE SALE, TRANSFER, ASSIGNMENT, PLEDGE, HYPOTHECATION ENCUMBRANCE OR
OTHER DISPOSAL OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE
SUBJECT TO THE TERMS OF THE LP INNOVATIONS, INC. 2002 STOCK INCENTIVE
PLAN AND A RESTRICTED STOCK GRANT AGREEMENT BETWEEN LP INNOVATIONS,
INC. AND THE HOLDER OF RECORD OF THE SECURITIES REPRESENTED BY THIS
CERTIFICATE. NO TRANSFER OF THE SECURITIES REPRESENTED BY THIS
CERTIFICATE IN CONTRAVENTION OF SUCH PLAN AND AGREEMENT SHALL BE
VALID OR EFFECTIVE. COPIES OF SUCH AGREEMENT MAY BE OBTAINED BY
WRITTEN
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REQUEST MADE BY THE HOLDER OF RECORD OF THE CERTIFICATE TO THE
SECRETARY OF LP INNOVATIONS, INC."
Such legend shall not be removed from such certificates until such shares of
Restricted Stock vest.
(b) Each certificate issued pursuant to Section 9(a) hereof,
together with the stock powers relating to such shares of Restricted Stock,
shall be deposited by the Company with a custodian designated by the Company.
The Company may designate itself as custodian hereunder. The Company shall cause
such custodian to issue to the Participant a receipt evidencing the certificates
held by it which are registered in the name of the Participant.
(c) Reasonably promptly after any such shares of Restricted Stock
vest pursuant to Section 6 hereof, the Company shall cause to be issued
certificates evidencing such shares of Restricted Stock, free of the legend
provided in Section 9(a) hereof and shall cause such certificates to be
delivered to the Participant (or such Participant's legal representative,
beneficiary or heir), together with any other property in respect of such shares
held by the custodian pursuant to Section 11 hereof. The Company may require as
a condition of such delivery that the Participant remit to the Company an amount
sufficient in the opinion of the Company to satisfy any federal, state and other
governmental tax withholding requirements related to the expiration of
restrictions on the shares represented by such certificate. The Company, in its
sole discretion and upon the request of the Participant, may withhold from
delivery shares having a Fair Market Value on the vesting date equal to the
amount of tax to be withheld.
(d) The Participant shall not be deemed for any purpose to be, or
have rights as, a shareholder of the Company by virtue of the Grant, except to
the extent a stock certificate is issued therefor pursuant to Section 9(a)
hereof, and then only from the date such certificate is issued.
9. Securities Matters. Notwithstanding anything herein to the
contrary, the Company shall be under no obligation (i) to effect the
registration pursuant to the Securities Act of 1933 of any shares of Restricted
Stock to be issued hereunder or to effect similar compliance under any state
laws; or (ii) to cause to be issued or delivered any certificates evidencing
shares of Restricted Stock awarded by this Agreement unless and until the
Company is advised by its counsel that the issuance and delivery of such
certificates is in compliance with all applicable laws, regulations of
governmental authority and the requirements of any securities exchange on which
shares of the Company's Stock are traded. The Committee may require, as a
condition of the issuance and delivery of certificates evidencing shares of
Restricted Stock pursuant to the terms hereof, that the recipient of such shares
make appropriate covenants, agreements and representations, and that such
certificates bear appropriate legends.
10. Dividends, etc. Unless the Committee otherwise determines, any
securities and other property, including cash dividends, received by a
Participant with respect to a share of Restricted Stock as a result of any
dividend, stock split, recapitalization, merger, consolidation, combination,
exchange of shares or otherwise and for which the Grant Date occurs prior to
such event but which has not vested as of the date of such event will not vest
until such share of Restricted Stock vests, and shall be promptly deposited with
the custodian designated by the Company to be held in custody in accordance with
Section 9(b) hereof as though such securities and other property were part of
such share.
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11. Notices. Any notice that either party hereto or the Committee
may be required or permitted to give to the other with respect to the Plan or
this Agreement shall be in writing, and may be delivered personally or by mail,
postage prepaid, addressed as follows:
(a) if to the Company:
LP Innovations, Inc.
000 Xxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attn: [ ]
(b) if to the Committee:
Compensation Committee of the Board of Directors
LP Innovations, Inc.
000 Xxxxxxxx Xxxxxx
Xxxxxx, XX 00000 Attn: [ ]
(c) if to the Participant:
[Participant]
[Home address]
or to such other address as the person to whom the notice is directed shall have
designated in writing to others.
12. Delays or Omissions. No delay or omission to exercise any
right, power or remedy accruing to either party hereto upon any breach or
default of either party under this Agreement, shall impair any such right, power
or remedy of such party, nor shall it be construed to be a waiver of any such
breach or default, or an acquiescence therein, or of or in any similar breach or
default thereafter occurring, nor shall any waiver of any single breach or
default be deemed a waiver of any other breach or default theretofore or
thereafter occurring. Any waiver, permit, consent or approval of any kind or
character on the part of either party of any breach or default under this
Agreement, or any waiver on the part of either party of any provisions or
conditions of this Agreement, must be in a writing signed by such party and
shall be effective only to the extent specifically set forth in such writing.
13. Integration. This Agreement, and the Plan, contains the entire
understanding of the parties with respect to its subject matter. There are no
restrictions, agreements, promises, representations, warranties, covenants or
undertakings with respect to the subject matter hereof other than those
expressly set forth herein. This Agreement, including, without limitation, the
Plan, supersedes all prior agreements and understandings between the parties
with respect to its subject matter.
14. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which shall
constitute one and the same instrument.
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15. Governing Law. This Agreement shall be governed by and
construed and enforced in accordance with the laws of the Commonwealth of
Massachusetts, without regard to the provisions governing conflict of laws.
16. Successors and Assigns. Except as otherwise expressly provided
to the contrary, the provisions of this Agreement shall inure to the benefit of,
and be binding upon, the Company and its successors and assigns and be binding
upon the Participant and the Participant's legal representatives, heirs,
legatees, distributees, assigns and transferees by operation of law, whether or
not any such person has become a party to this Agreement or has agreed in
writing to join herein and to be bound by the terms, conditions and restrictions
hereof.
17. No Retention Rights. Nothing in this Agreement shall confer
upon the Participant any right to continue as an employee or in other service of
the Company, whether as an employee, consultant or otherwise, or interfere with
or otherwise restrict in any way the rights of the Company (or any Affiliate) or
of the Participant, which rights are hereby expressly reserved by each, to
terminate such employment or service at any time and for any reason.
18. Obligation to Notify. If the Participant makes the election
permitted under section 83(b) of the Internal Revenue Code of 1986, as amended
(that is, an election to include in gross income in the year of transfer the
amounts specified in Section 83(b)), the Participant shall notify the Company of
such election within 10 days of filing notice of the election with the Internal
Revenue Service and shall within the same 10-day period remit to the Company an
amount sufficient in the opinion of the Company to satisfy any federal, state
and other governmental tax withholding requirements related to such inclusion in
Participant's income. The Participant should consult with his or her tax advisor
to determine the tax consequences of acquiring the Restricted Stock and the
advantages and disadvantages of filing the Section 83(b) election. The
Participant acknowledges that it is his or her sole responsibility, and not the
Company's, to file a timely election under Section 83(b), even if the
Participant requests the Company or its representatives to make this filing on
his or her behalf.
19. Waiver of Jury Trial. Each of Participant and the Company, to
the fullest extent permitted by applicable law, hereby irrevocably waives all
right to trial by jury as to any issue relating hereto in any action, proceeding
or counterclaim arising out of or relating to this agreement.
20. Participant Acknowledgment. The Participant hereby
acknowledges that Participant (A) has received a copy of the Plan; (B) has read
this Agreement; (B) understands that the Company has been represented by counsel
in the preparation and execution of this Agreement; (C) has had the opportunity
to be represented by legal counsel of its own choice in the preparation,
negotiation and execution of this Agreement; (D) understands the terms and
consequences of this Agreement and is fully aware of the legal and binding
effect of this Agreement; and (E) agrees that all decisions, determinations and
interpretations of the Committee in respect of the Plan, this Agreement and the
Grant shall be final and conclusive. Participant further acknowledges that no
other person has acted as an agent or broker for Participant in connection with
the acquisition of the Restricted Stock hereunder and that no one will be acting
as an agent for Participant in connection with monitoring its investment in the
Company.
IN WITNESS WHEREOF, the Company has caused this Agreement to be
executed by its duly authorized officer, and the Participant has hereunto signed
this Agreement on his own
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behalf, thereby representing that he has carefully read and understands this
Agreement and the Plan as of the day and year first above written.
PARTICIPANT: LP INNOVATIONS, INC.:
_____________________________ By:___________________________
Name: Name:
Title:
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EXHIBIT A
CONSENT OF SPOUSE
I, __________________________, spouse of __________________________, have
read and approved the foregoing Restricted Stock Grant Agreement. In
consideration of the right of my spouse to acquire restricted shares of common
stock of LP Innovations, Inc., as set forth in such Agreement, I hereby appoint
my spouse as my attorney-in-fact in respect to the exercise of any rights of
such Agreement insofar as I may have any rights under such community property
laws or similar laws relating to marital property in effect in the state of our
residence as of the date of the signing of the foregoing Agreement.
Dated:_________________________ By:____________________________
_____________________________
Printed Name
B-7
