EXHIBIT 4.5
RESTRICTED STOCK AGREEMENT
PARTICIPANT: (First Name) (Middle Name) (Last Name)
DATE OF XXXXX:
AGREEMENT between Xxxxx'x Liquid Gold-Inc. (the "Company"),
and the above named Participant ("Participant"), an employee of
the Company or a Subsidiary thereof.
The Company and Participant agree as follows:
1. Grant of Restricted Stock.
Participant is hereby granted shares of Common Stock
of the Company (the "Restricted Stock") pursuant to the Xxxxx'x
Liquid Gold-Inc. 2005 Incentive Stock Plan (the "Plan"). This
Agreement is subject to and shall be construed in accordance with
the terms and conditions of the Plan, as now or hereinafter in
effect. Any capitalized terms that are used in this Agreement
without being defined and that are defined in the Plan shall
have the meaning specified in the Plan.
2. Date of Grant.
The date of the grant of the Restricted Stock is the date
first set forth above.
3. Number and Price of Shares.
The number of shares of Restricted Stock that are granted is
the number set forth in Schedule 3A to this Agreement. The
purchase price per share, if any, is the amount set forth in
Schedule 3B to this Agreement. This Agreement shall expire
and shall be null and void to the extent Participant fails to
pay the purchase price, if any, for the Restricted Stock in the
manner specified by the Plan by the 30th day following the date
of grant.
4. Vesting of Restricted Stock.
The Restricted Stock shall become vested in the installments,
on the dates and subject to the conditions set forth in Schedule 4
to this Agreement; provided, however, that Participant must have
been in Continuous Service from the date of grant of the
Restricted Stock until the later of the date specified in the
vesting schedule set forth above or the date on which the
conditions specified in the vesting schedule have been satisfied.
The period during which the Restricted Stock is not vested and
is subject to transfer restrictions is referred to herein as
the "Restriction Period."
In the event that Participant terminates Continuous
Service for any reason, or otherwise fails to meet any
conditions to the vesting of the Restricted Stock within the
allotted time period, any Restricted Stock held by Participant
as of the date of such termination of Continuous Service, and
any Restricted Stock subject to such conditions, shall be
forfeited and ownership shall be transferred to the Company
and the Restricted Stock shall become authorized but unissued
shares. Except as provided in Schedule 4, the Company shall,
within ten days of such forfeiture, pay to Participant the
purchase price, if any, paid by Participant for the shares of
Restricted Stock so forfeited.
5. Conditions of Award.
Participant shall complete and deliver to the Company three
Stock Assignments, each in substantially the form attached hereto
as Attachment A and each endorsed in blank. Execution and
delivery of the Stock Assignments prior to the transfer or
delivery of any shares shall be a condition precedent to the
right to purchase such shares. Participant shall deliver to the
Company an executed copy of any written election under
Section 83(b) of the Internal Revenue Code with respect to
such shares.
6. Issuance of Certificates.
The Company may provide for the transfer of the Restricted
Stock by the registration of stock certificates in Participant's
name, by the credit of shares to Participant's account with a
designated transfer agent (as confirmed in a letter to
Participant), or such other appropriate method as the Company may
provide. (Certificates, if issued, may, at the Company's option,
either be held by the Company in escrow until the Restriction
Period expires or until the restrictions thereon otherwise lapse
and/or be issued to the Participant and registered in the name of
the Participant, bearing an appropriate restrictive legend that
refers to this Agreement and remaining subject to appropriate
stop-transfer orders.) In the event the grant is certificated,
if and when the Restricted Stock vests and is no longer subject to
forfeiture or transfer restrictions, unlegended certificates for
such Restricted Stock shall be delivered to the Participant
(subject to the withholding of taxes and the Securities Act of
1933, as amended (the "Securities Act"); provided, however, that
the Plan Administrator may cause such legend or legends to be
placed on any such certificates as it may deem advisable under
applicable law.
7. Adjustments to Stock.
If there is any change, increase or decrease, in the
outstanding shares of the Company's Common Stock which is
effected without receipt of additional consideration by the
Company, by reason of a stock dividend, stock split,
recapitalization, merger, consolidation, combination or
exchange of stock, or other similar circumstances, or if there
is a spin-off or other distribution of assets to the Company's
stockholders, the Company shall make an appropriate adjustment
in the aggregate number of shares of Stock which then constitute
Restricted Stock and the vesting schedule set forth above. Such
adjustment shall be identical to the adjustment made generally
with respect to outstanding shares of the Company's Common Stock.
Any additional securities or other property issued to Participant
or a Stockholder as a result of any of the foregoing events shall
continue to be subject to the terms of this Agreement to the same
extent as the Stock giving rise to the right to receive such
additional securities or other property.
8. Securities Act.
The issuance and delivery of the Restricted Stock to the
Participant have been registered under the Securities Act by a
Registration Statement on Form S-8 that has been filed with the
Securities and Exchange Commission ("SEC") and has become
effective. The Participant acknowledges receipt from the
Company of its Prospectus dated June 22, 2005, relating to
the Restricted Stock
If the Participant is an "affiliate" of the Company, which
generally means a director, executive officer or holder of 10% or
more of its outstanding shares, at the time certificates
representing Restricted Stock are delivered to the Participant,
such certificates shall bear the following legend, or other similar
legend then being generally used by the Company for certificates
held by its affiliates:
"THESE SHARES MUST NOT BE OFFERED FOR SALE, SOLD, ASSIGNED OR
TRANSFERRED EXCEPT IN A TRANSACTION WHICH, IN THE OPINION OF
COUNSEL FOR THE ISSUER, IS EXEMPT FROM REGISTRATION THROUGH
COMPLIANCE WITH RULE 144 OR WITH ANOTHER EXEMPTION FROM
REGISTRATION."
The Company shall remove such legend upon request by the
Participant if, at the time of such request, the shares are
eligible for sale under SEC Rule 144(k), or any provision that
has replaced it, in the opinion of the Company's counsel.
9. Validity of Share Issuance.
The shares of Restricted Stock have been duly authorized
by all necessary corporate action of the Company and are validly
issued, fully paid and non-assessable.
10. Rights as a Stockholder.
Except as otherwise provided in this Agreement or the Plan,
during the Restriction Period the Participant shall have, with
respect to the Restricted Stock, all of the rights of a
stockholder of the Company, including the right to vote the
Restricted Stock and the right to receive any dividends or other
distributions with respect thereto.
11. Transfer Restrictions.
Common Stock acquired pursuant to this Agreement shall be
subject to such transfer restrictions as the Company shall deem
reasonably necessary or desirable, including, without limitation,
restrictions on the transfer of the Common Stock until there has
been compliance with federal and state securities laws and until
Participant or any other holder of the Common Stock has paid the
Company such amounts as may be necessary in order to satisfy any
withholding tax liability of the Company. In the event the
Common Stock is certificated, the certificate(s) may contain
legends restricting such transfers.
12. Assignment.
This Agreement shall be binding upon the parties and their
respective legal representatives, beneficiaries, successors and
assigns.
13. Withholding for Taxes.
Participant shall reimburse the Company, in cash or by
certified or bank cashier's check, for any federal, state or
local taxes required by law to be withheld with respect to the
grant or vesting of the Restricted Stock, as applicable. The
Company shall have the right to deduct from any salary or other
payments to be made to Participant any federal, state or local
taxes required by law to be so withheld. The Company's
obligation to deliver a certificate representing the Common
Stock, transfer Common Stock to Participant's name, or otherwise
credit of shares to Participant's account with a designated
transfer agent upon vesting is subject to the payment by
Participant of any applicable federal, state and local
withholding tax.
14. Employee Benefits.
Participant agrees that the Award will constitute special
incentive compensation that will not be taken into account as
"salary" or "compensation" or "bonus" in determining the amount
of any payment under any pension, retirement, profit sharing or
other remuneration plan of the Company unless so provided in
such plan.
15. Amendment.
The Plan Administrator may, at any time, without consent of
or receiving further consideration from the Participant, amend
this Agreement and the related Restricted Stock Award in response
to, or to comply with changes in, Applicable law. To the extent
not inconsistent with the terms of the Plan, the Plan Administrator
may, at any time, amend this Agreement in a manner that is not
unfavorable to the Participant without the consent of the
Participant. The Plan Administrator may amend this Agreement
and the terms of the related Restricted Stock otherwise with
the written consent of the Participant.
16. Interpretation.
The interpretations and constructions of any provision of and
determinations on any question arising under the Plan or this
Agreement shall be made by the Board of Directors, and all such
interpretations, constructions and determinations shall be final
and conclusive as to all parties.
17. Receipt of Plan.
By entering into this Agreement, Participant acknowledges
(i) that he or she has received and read a copy of the Plan; and
(ii) that this Agreement is subject to and shall be construed in
accordance with the terms and conditions of the Plan, as now or
hereinafter in effect.
18. Governing Law.
This Agreement and the rights and obligations of the parties
hereto shall be governed by and construed and enforced in
accordance with the laws of the State of Colorado without regard
to conflicts of laws principles.
19. Miscellaneous.
This Agreement constitutes the entire understanding and
agreement of the parties with respect to the subject matter hereof
and supersedes all prior and contemporaneous agreements or
understandings, inducements or conditions, express or implied,
written or oral, between the parties with respect hereto.
If any provision of this Agreement, or the application thereof,
shall for any reason and to any extent be invalid or
unenforceable, the remainder of this Agreement and the
application of such provision to other circumstances shall be
interpreted so as best to reasonably effect the intent of the
parties hereto. All notices or other communications which are
required to be given or may be given to either party pursuant to
the terms of this Agreement shall be in writing and shall be
delivered personally or by registered or certified mail, postage
prepaid, to the address of the parties as set forth following the
signature of such party. Notice shall be deemed given on the
date of delivery in the case of personal delivery or on the
delivery or refusal date as specified on the return receipt in
the case of registered or certified mail. Either party may
change its address for such communications by giving notice
thereof to the other party in conformity with this section.
IN WITNESS WHEREOF, the Company by a duly authorized
officer of the Company and Participant have executed this
Agreement on __________, 2005, effective as of the date of grant.
XXXXX'X LIQUID GOLD-INC.
By: ___________________________
(Signed By)
PARTICIPANT
_________________________________
(First Name) (Middle Name) (Last Name)
SCHEDULES TO RESTRICTED STOCK AGREEMENT
Schedule
3A Number of shares of stock: (Total)
3B Purchase price per share: (Purchase price, if any)
4 Vesting schedule:
Vesting date:
Shares that become exercisable:
(Date 1)
(Portion 1)
(Date 2)
(Portion 2)
(Date 3)
(Portion 3)
(Date 4)
(Portion 4)
Additional Conditions to Vesting: Notwithstanding the
foregoing, no portion of the Option shall be vested and
exercisable until the following conditions have been satisfied:
(First Name) (Middle Name) (Last Name)
(Address)
(CityStateZip)
ATTACHMENT A
STOCK ASSIGNMENT SEPARATE FROM CERTIFICATE
FOR VALUE RECEIVED and pursuant to that certain Restricted
Stock Agreement (the "Agreement") dated as of ____________, 20__,
the undersigned hereby sells, assigns and transfers unto
___________, _______________(_____) shares of common stock of
Xxxxx'x Liquid Gold-Inc., standing in the undersigned's name on
the books of said corporation (if certificated, represented by
Certificate No. herewith), and does hereby irrevocably
constitute and appoint _________________ attorney to transfer
the said stock on the books of the said corporation with full
power of substitution in the premises. This Assignment may be
used only in accordance with and subject to the terms and
conditions of the Agreement, in connection with the repurchase
of shares of common stock issued to the undersigned pursuant to
the Agreement, and only to the extent that any unvested shares
remain subject to the Company's purchase option under the Agreement.
Dated:___________________ ___________________________
Signature
___________________________
Print Name
