Exhibit 10.5
AMENDED AND RESTATED RESTRICTED STOCK AGREEMENT
THIS AMENDED AND RESTATED RESTRICTED STOCK AGREEMENT (this
"AGREEMENT"), dated as of January 15, 2004, is entered into between
optionsXpress. Inc., a Delaware corporation (the "CORPORATION"), and Xxxxx Xxxx
("EXECUTIVE").
WHEREAS, Executive and the Corporation are parties to that certain
Restricted Stock Agreement dated as of November 13, 2000 (the "PRIOR
AGREEMENT");
WHEREAS, Executive currently owns 650,000 shares (the "SHARES") of
common stock ("COMMON STOCK") of the Corporation which are subject to certain
contractual restrictions set forth in the Prior Agreement;
WHEREAS, pursuant to the terms of the Prior Agreement, substantially
all of the Shares have vested; and
WHEREAS, in connection with the consummation of the transactions
contemplated by that certain Stock Purchase and Recapitalization Agreement,
dated as of December 17, 2003 (the "RECAPITALIZATION AGREEMENT"), among the
Corporation, the purchasers identified therein (collectively referred to herein
as the "INVESTORS") and the stockholders of the Corporation identified therein,
the Corporation and Executive wish to amend and restate the Prior Agreement in
its entirety in accordance with the terms contained herein.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants set forth in this Agreement and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto hove agreed, and do hereby agree, as follows:
1. RESTRICTED SHARES. Executive hereby acknowledges the restrictions
on the Shares pursuant to the terms and conditions herein set forth. Such
Shares, along with any shares of the Corporation's capital stock issued with
respect to such Shares by way of a stock-split, stock dividend or other
recapitalization affecting Common Stock subsequent to the date hereof, shall be
referred to herein as the "RESTRICTED SHARES."
2. VESTING. The Corporation and Executive acknowledge and agree
that, as of the date hereof, all of the Restricted Shares are vested in favor of
Executive (the "VESTED RESTRICTED SHARES").
3. RESTRICTIONS ON RESTRICTED SHARES.
(a) VESTED RESTRICTED SHARES.
(i) The Vested Restricted Shares may not be sold,
assigned, transferred, pledged, gifted, encumbered, alienated,
hypothecated or otherwise disposed of and any attempt to do so shall be
void and of no legal force or effect whatsoever.
(ii) Notwithstanding the foregoing, Executive may
transfer Vested Restricted Shares (A) if the majority of the
Corporation's board of directors approves
such transfer, (B) in connection with a Change in Control (as defined
below), (C) to the Corporation or the Other Stockholders as provided in
this SECTION 3 or SECTION 4, or (D) to a Permitted Transferee (as
defined below); PROVIDED that the Permitted Transferee thereof has
agreed in a writing (in a form approved by the Corporation) delivered
to the Corporation to be bound by the terms of this Agreement with all
of the rights and obligations of Executive as if such Permitted
Transferee was Executive; PROVIDED FURTHER, that all references to
Executive's employment shall remain in reference to Executive and shall
not refer to such Permitted Transferee.
(b) For purposes hereof, "CHANGE IN CONTROL" means a merger,
consolidation, sale or conveyance of all or substantially all of the
Corporation's assets or shares pursuant to which the holders of the voting
securities of the Corporation immediately before the transaction own immediately
after the transaction less than a majority of the outstanding voting securities
of the surviving entity (or its parent) or the purchasing entity (or its
parent), as the case may be.
(c) For purposes hereof, "PERMITTED TRANSFEREE" with respect to
Executive means (i) a transferee receiving Vested Restricted Shares pursuant to
applicable laws of descent and distribution; (ii) a trust whose beneficiary(ies)
is Executive, Executive's spouse or a member of Executive's immediate family;
PROVIDED that Executive is the trustee of such trust and the trust instrument
governing said trust provides that Executive, as trustee, retains sole and
exclusive control over the voting and disposition of said Vested Restricted
Shares until the termination of this Agreement; (iii) a partnership whose owners
are Executive, his spouse and/or his immediate family; PROVIDED that the
partnership agreement governing said partnership provides that Executive retains
sole and exclusive control over the voting and disposition of said Vested
Restricted Shares until the termination of this Agreement; (iv) a limited
liability company whose owners are Executive, his spouse and/or his immediate
family; PROVIDED that the limited liability company agreement governing such
limited liability company provides that Executive retains sole and exclusive
control over the voting and disposition of said Vested Restricted Shares until
the termination of this Agreement; (v) the Corporation; (vi) a transferee
receiving Vested Restricted Shares pursuant to a Change in Control; (vii) any
pledgee of up to 30% of the value of such Restricted Shares (as determined by
the Corporation's board of directors at the time of such loan transaction) in
support of a bona fide loan transaction for Executive's benefit (E.G., Executive
with Vested Restricted Shares valued at $10,000,000 at the time of such loan
transaction may pledge all of such shares as collateral security for a loan of
up to $3,000,000) so long as, as a condition to any such pledge, the third party
lender agrees to grant the Corporation and the Other Stockholders the right to
repurchase any such Vested Restricted Shares upon any default or foreclosure in
respect thereof by the applicable lender on terms and conditions satisfactory to
the board of directors of the Corporation (including the "Investor Director", as
such term is defined in the Stockholders Agreement); and (viii) a not-for-profit
charitable entity. For purposes of this Agreement, "STOCKHOLDERS AGREEMENT"
shall have the meaning assigned to such term in the Recapitalization Agreement.
(d) TRANSFERS BV OPERATION OF LAW. In the event that a transfer
of Restricted Shares to a person or entity (a "TRANSFEREE") is effected by
operation of law (including, but not limited to, bankruptcy, or divorce and
dissolution of marriage) other than by reason of the death
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of Executive and excluding transfers to a Permitted Transferee (an "OPERATION OF
LAW TRANSFER"), the following shall apply:
(i) The Corporation shall have the right, but not the
obligation, to purchase from the Transferee any or all of the
Restricted Shares transferred or proposed to be transferred pursuant to
the Operation of Law Transfer.
(ii) If the Corporation does not exercise its right under
clause (i) above to purchase from the Transferee any or all of the
Restricted Shares transferred or proposed to be transferred pursuant to
the Operation of Law Transfer (the "REMAINING INVOLUNTARY SHARES")
within six (6) months following the later of (A) the effective date of
the Operation of Law Transfer and (B) the date upon which the
Corporation's board of directors acquires actual notice of the
Operation of Law Transfer, then the Corporation shall promptly notify
in writing the Other Stockholders (as defined below), and the Other
Stockholders shall have the right to purchase all or any portion of
their pro rata portion of the Remaining Involuntary Shares (as such pro
rata portion is determined pursuant to the terms of the Stockholders
Agreement) on the terms set forth in this SECTION 3 and SECTION 5.
Notwithstanding anything to the contrary contained herein, the
restrictions contained in this Agreement shall not be applicable to any
Other Stockholders who exercise their rights to purchase any Restricted
Shares pursuant to this SECTION 3.
(iii) The purchase price for the Restricted Shares
purchased by the Corporation and/or the Other Stockholders pursuant to
this SECTION 3 shall be equal to eighty percent (80%) of the Fair
Market Value (as defined below) of the transferred Restricted Shares as
of the effective date of the Operation of Law Transfer.
(iv) The purchase options contained in clauses (i) and
(ii) above shall be exercisable by written notice to the Transferee
provided by the Corporation and, if applicable, the Other Stockholders
within one (1) year following the later of (A) the effective date of
the Operation of Law Transfer and (B) the date upon which the
Corporation's board of directors acquires actual notice of the
Operation of Law Transfer.
(v) If the purchase price to be paid to the Transferee
is in excess of five thousand dollars ($5,000), the Corporation may, in
its sole option, pay all or any portion of such purchase price by
delivering to the transferee a promissory note which: (A) shall be
payable in installments payable on the first three (3) anniversaries of
the date of purchase, each installment consisting of one-third (1/3) of
the principal amount of the note plus interest from the date of the
note at a rate of interest equal to the "APPLICABLE FEDERAL RATE" (as
defined in the United States Internal Revenue Code of 1986, as amended)
in effect at the time of purchase; (B) shall permit pre-payment in
whole or part at any time, without penalty; (C) shall be secured by a
pledge of the purchased Restricted Shares; (D) shall provide for
forgiveness of all outstanding principal and interest in the event of
the liquidation of the Corporation, in which event the Corporation
will be deemed to have purchased only that portion of the Restricted
Shares that is equal in proportion to the proportion of the purchase
price actually paid by the Corporation up to the date of such
liquidation; and (E) shall contain other details customary for notes
of this type.
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(vi) If the purchase price to be paid to the Transferee
is less than or equal to five thousand dollars ($5,000), the
Corporation shall pay such purchase price within sixty (60) calendar
days of the exercise of the option set forth in SECTION 3(c)(i).
4. REPURCHASE OF VESTED RESTRICTED SHARES.
(a) TERMINATION BY THE CORPORATION FOR CAUSE.
(i) If the Corporation terminates Executive's employment
with the Corporation for Cause (as defined below) (other than by reason
of the commission of fraud, theft or embezzlement by Executive in
connection with his duties to the Corporation or any of its customers
or other material business relations), then the Corporation shall have
the right, but not the obligation, at any time thereafter, to
repurchase, in accordance with this SECTION 4 and SECTION 5, all of the
Vested Restricted Shares at a price per share equal to seventy percent
(70%) of the Fair Market Value per share as of the effective date of
such termination.
(ii) If the Corporation terminates Executive's employment
for Cause by reason of the commission of fraud, theft or embezzlement
by Executive in connection with his duties to the Corporation or any of
its customers or other material business relations, then the
Corporation shall have the right, but not the obligation, at any time
thereafter, to repurchase all of the Vested Restricted Shares for
$O.0002 per share in accordance with SECTION 5.
(b) TERMINATIONS OTHER THAN FOR CAUSE OR WITH GOOD REASON.
(i) If, on or prior to the third anniversary of the date
of this Agreement, (A) the Corporation terminates Executive's
employment with the Corporation for any reason other than for Cause
(including termination by reason of death or disability under
Section 5(a)(iii) of the Employment Letter (as defined below)), or (B)
Executive resigns with Good Reason, then the Corporation shall have the
obligation, within one-hundred eighty (180) days (the "PUT PURCHASE
DATE") following its receipt of a written request of Executive (a "PUT
REQUEST"), which Put Request must be delivered (if at all) within sixty
(60) days following any such termination of employment described in
clauses (A) or (B) above, to repurchase in accordance with this
SECTION 4 AND SECTION 5 all of the Vested Restricted Shares at a
purchase price equal to seventy-five percent (75%) of the Fair Market
Value per share as of the effective date of such termination.
(ii) If (A) the circumstances enabling Executive to make
a Put Request occur but Executive does not make a Put Request, (B)
Executive's employment is terminated by the Corporation for any reason
other than for Cause subsequent to the third anniversary date of this
Agreement, or (C) Executive resigns for Good Reason subsequent to the
third anniversary date of this Agreement, the Corporation shall have
the right, but not the obligation, at any time thereafter, to
repurchase in accordance with this SECTION 4 AND SECTION 5 all or any
portion of the Vested Restricted Shares at a price equal to the Fair
Market Value per share as of the effective date of such termination.
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(iii) If Executive resigns without Good Reason, the
Corporation shall have the right, but not the obligation, at any time
thereafter, to repurchase in accordance with this SECTION 4 AND
SECTION 5 all or any portion of the Vested Restricted Shares at a price
equal to seventy-five percent (75%) of the Fair Market Value per share
as of the effective date of such termination.
If the funds of the Corporation legally available for repurchase of
Vested Restricted Shares upon a Put Request are insufficient to
repurchase the total number of Vested Restricted Shares to be
repurchased on such date, those funds which are legally available
(subject to regulatory capital requirements) will be used to purchase
the maximum possible number of Vested Restricted Shares. Thereafter,
when additional funds of the Corporation are legally available for the
repurchase of such shares, such funds (subject to regulatory capital
requirements) will be promptly used to repurchase the balance of the
Vested Restricted Shares which the Corporation became obligated to
repurchase upon the Put Request but which it has not repurchased.
(c) OTHER STOCKHOLDER OPTION. If the Corporation does not
exercise its purchase option under SECTION 4(a)(i) or SECTION 4(b), if
applicable, within ninety (90) days after the effective date of the termination
of Executive's employment with the Corporation, then the Corporation shall
promptly so notify the Other Stockholders in writing (the "CORPORATION
NOTICE"), and the Other Stockholders shall have the right to purchase all or
any portion of their pro rata portion of the Vested Restricted Shares (as such
pro rata portion is determined pursuant to the terms of the Stockholders
Agreement) on the terms set forth in this SECTION 4 and SECTION 5 by giving the
Corporation and Executive written notice of the exercise of such right within
ten (10) days after delivery of the Corporation Notice. Notwithstanding
anything to the contrary contained herein, the restrictions contained in this
Agreement shall not be applicable to any Other Stockholders who exercise their
rights to purchase any Vested Restricted Shares pursuant to this SECTION 4.
(d) CERTAIN DEFINED TERMS. For purposes hereof, the following
terms shall have the meanings set forth below:
(i) "CAUSE" shall have the definition given to such term
in that certain Employment Letter Agreement dated as of January 15,
2004, between the Corporation and Executive, as amended, restated or
otherwise modified from time to time (the "EMPLOYMENT LETTER").
(ii) "FAIR MARKET VALUE" shall mean the average of the
closing prices of the Common Stock's sales on all securities exchanges
on which such security may at the time be listed, or, if there has been
no sales on any such exchange on any day, the average of the highest
bid and lowest asked prices on all such exchanges at the end of such
day, or, if on any day such security is not so listed, the average of
the representative bid and asked prices quoted in the NASDAQ System as
of 4:00 P.M., New York time, or, if on any day such security is not
quoted in the NASDAQ System, the average of the highest bid and lowest
asked prices on such day in the domestic over-the-counter market as
reported by the National Quotation Bureau, Incorporated, or any similar
successor organization, in each such case averaged over a period of
twenty-one (21) days consisting
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of the day as of which "FAIR MARKET VALUE" is being determined and the
twenty (20) consecutive business days prior to such day. If at any time
such security is not listed on any securities exchange or quoted in the
NASDAQ System or the over-the-counter market, the "FAIR MARKET VALUE"
shall be the fair value thereof determined jointly by the Corporation
and Executive. If such parties are unable to reach agreement within a
reasonable period of time, not to exceed thirty (30) days, the "FAIR
MARKET VALUE" shall be determined by an independent appraiser
experienced in valuing securities jointly selected by the Corporation
and Executive in good faith and within five (5) days of the expiration
of such thirty-day period. The determination of such appraiser shall be
final and binding upon the parties, and the fees and expenses of such
appraiser shall be borne equally by the Corporation and the Executive.
The date on which the Fair Market Value is finally determined (as
opposed to the effective date as of which the Fair Market Value is
calculated for purposes of this Agreement) in accordance with the
foregoing provisions shall be referred to herein as the "VALUATION
DATE."
(iii) "GOOD REASON" shall have the definition given to
such term in the Employment Letter.
(iv) "OTHER STOCKHOLDERS" shall mean, collectively, the
Investors, G-Bar Limited Partnership, Xxxxx Xxxx Delta Trust and Xxx
Xxxxxxx.
5. CLOSING AND TERMS.
(a) PAYMENT TERMS. If the purchase price for the Restricted
Shares purchased in accordance with SECTION 4 is less than $500,000, it shall be
paid in one installment. If the purchase price is greater than $2,500,000, it
shall be paid in five equal annual installments. If the purchase price is
greater than $500,000 but less than $2,500,000, the purchase price will be paid
in consecutive annual installments of $500,000 until the unpaid balance of the
purchase price is less than $500,000, and a final annual installment shall be
payable thereafter equal to the unpaid balance of the purchase price. The first
installment of the purchase price shall be paid at the Closing (as defined
below), and subsequent annual installments, if any, shall be due on the
successive anniversary dates of the Closing. Interest shall accrue from the date
of the Closing on the balance of the purchase price remaining unpaid from time
to time at the prime rate published in the Midwest edition of THE WALL STREET
JOURNAL on the date of the Closing, and accrued interest shall be payable
together with each annual installment of the purchase price. All or part of the
purchase price may be prepaid without penalty or premium. Notwithstanding the
foregoing or any other provision contained herein, the purchase price for any
Restricted Shares (i) purchased by any Other Stockholders upon the exercise of
any rights under SECTIONS 3 or 4 hereof shall be paid in cash at the Closing (as
defined below), and (ii) shall accelerate and become immediately due and payable
upon a Change in Control.
(b) CLOSING.
(i) Except as otherwise provided herein, the Restricted
Shares shall be purchased and sold in accordance with these provisions
at the offices of the Corporation or its legal counsel at 10:00 a.m. on
the date set forth in this SECTION 5 (the "CLOSING").
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(ii) The Closing of any purchase of Restricted Shares by
the Corporation or the Other Stockholders pursuant to SECTION 4 shall
take place on the following dates, as applicable:
(A) If the purchase is pursuant to SECTION 4(a)(i),
SECTION 4(b)(ii) or SECTION 4(b)(iii), the Corporation (or the
Other Stockholders, if applicable) shall give Executive or its
representative, if applicable, written notice of the exercise of
such purchase option and the Closing shall occur on the later of
(A) the tenth (l0th) day following the Valuation Date and (B)
the sixtieth (60th) day following delivery of such notice.
(B) If the purchase is pursuant to SECTION 4(b)(i),
the Closing shall occur on the later of (A) the tenth (10th) day
following the Valuation Date and (B) the Put Purchase Date, but
in no event later than forty-five (45) days after the Put
Purchase Date; PROVIDED, HOWEVER, that the timing of the
Corporation's payment of the purchase price shall, if applicable,
be subject to the last paragraph of Section 4(b).
(iii) The Corporation shall give Executive, his Permitted
Transferees, or his heirs or personal representative, as the case may
be (the "SELLING STOCKHOLDER"), at least twenty (20) days' prior
written notice of the time, date and place of the Closing of any
purchase under SECTION 4(a)(ii).
(c) TRANSFER DOCUMENTS. At the Closing, the Selling Stockholder
shall deliver to the Corporation stock certificates duly endorsed for transfer,
or accompanied by duly endorsed stock powers, representing all of Restricted
Shares being sold, free and clear of all claims, liens, or encumbrances,
together with such other documentation as the Corporation's legal counsel may
reasonably require, and the Corporation shall act as agent for the Other
Shareholders with respect to any sale under SECTION 3.
(d) FAILURE TO TRANSFER RESTRICTED SHARES. If the Selling
Stockholder fails, for any reason, to tender any certificates representing
Restricted Shares in accordance with SECTION 3, 4 or 5, the Corporation may, at
its option, in addition to all other remedies it may have, send to the Selling
Stockholder the purchase price for such Restricted Shares as is herein
specified. Thereupon, the Corporation shall cancel on its books the certificate
or certificates representing the Restricted Shares to be repurchased and all of
the Selling Stockholder's rights in and to such Restricted Shares shall
terminate. If the Corporation and the Other Stockholders do not repurchase all
of the shares represented by such certificate, the Corporation will issue a new
certificate to the Selling Stockholder representing the Restricted Shares which
were not repurchased by the Corporation and the Other Stockholders.
6. ADDITIONAL RESTRICTIONS ON TRANSFER OF RESTRICTED SHARES.
(a) LEGEND. The certificates representing Restricted Shares
will bear the following legend:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
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AMENDED, AND MAY NOT BE SOLD OR OFFERED FOR SALE IN THE ABSENCE OF A
REGISTRATION STATEMENT WHICH IS EFFECTIVE UNDER THAT ACT AS TO SUCH
SECURITIES OR AN OPINION, IN FORM AND SUBSTANCE SATISFACTORY TO THE
CORPORATION AND GIVEN BY COUNSEL SATISFACTORY TO THE CORPORATION, TO
THE EFFECT THAT SUCH REGISTRATION IS NOT REQUIRED."
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO
ADDITIONAL RESTRICTIONS ON TRANSFER SET FORTH IN AN AMENDED AND
RESTATED RESTRICTED STOCK AGREEMENT (THE "AGREEMENT") BETWEEN THE
CORPORATION AND THE HOLDER HEREOF, DATED AS OF JANUARY 15, 2004, A COPY
OF WHICH MAY BE OBTAINED AT THE PRINCIPAL EXECUTIVE OFFICE OF THE
CORPORATION. ANY TRANSFER OR PLEDGE IN CONFLICT WITH, OR IN DEROGATION
OF, THE AGREEMENT IS VOID AND OF NO LEGAL FORCE, EFFECT OR VALIDITY
WHATSOEVER."
(b) SECURITIES ACT. In addition to any other restriction set
forth herein, no holder of Restricted Shares may sell, transfer, or dispose of
any Restricted Shares (except pursuant to an effective registration statement
under the Securities Act of 1933, as amended, and the rules and regulations
promulgated thereunder (the "SECURITIES ACT")) without first delivering to the
Corporation an opinion of counsel reasonably acceptable in form and substance to
the Corporation that registration under the Securities Act is not required in
connection with such transfer; provided, however, that such requirement may be
waived by the Corporation's Board of Directors in its sole discretion.
7. TAX CONSEQUENCES. The Corporation shall not be liable or
responsible in any way for the tax consequences to Executive relating to the
Restricted Shares or the lapse of the restrictions hereunder. Executive agrees
to determine and be responsible for any and all tax consequences to himself
relating to the Restricted Shares. If as a result of this Agreement or
otherwise, the Corporation is obligated to withhold an amount on account of any
tax imposed in connection with the termination of any restrictions or
limitations in respect of Restricted Shares, Executive shall be required to pay
such amount to the Corporation.
8. VOTING. Executive shall continue to have the right to vote all of
the Restricted Shares on all matters submitted to holders of Common Stock.
9. DISTRIBUTIONS. Executive shall have the right to receive all cash
dividends or other distributions with respect to all of the Restricted Shares.
10. NO EMPLOYMENT RIGHTS. No provision of this Agreement shall give
Executive any right to continue in the employ of the Corporation, create any
inference as to the length or term of Executive's employment, affect the right
of the Corporation to terminate Executive's employment, with or without Cause,
or give Executive any right to participate in any employee welfare or benefit
plan or other program of the Corporation.
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11. TERMINATION. Upon the consummation of a Qualified IPO, this
Agreement and, particularly, the provisions of SECTIONS 3, 4 and 5 hereof, shall
automatically terminate. At Executive's request, the second legend referenced in
SECTION 6(a) shall be removed from each certificate representing any of the
Restricted Shares upon the consummation of a Qualified IPO. For purposes hereof,
"QUALIFIED IPO" means an underwritten public offering of Common Stock or of
equity securities of a successor to the Corporation pursuant to the Securities
Act with gross proceeds in excess of $20,000,000.
12. NO DISCLOSURE RIGHTS. The Corporation shall have no duty or
obligation to affirmatively disclose to Executive or his representatives, and
Executive or his representatives shall have no right to be advised of, any
material information regarding the Corporation at any time prior to, upon or in
connection with the termination of Executive's employment with the Corporation,
either by Executive or by the Corporation, or in connection with the
Corporation's repurchase of Restricted Shares in accordance with the terms of
this Agreement.
13. NOTICES. Any notice, consents or other communications required to
be sent or given hereunder by any of the parties shall in every case be in
writing and shall be deemed properly served if (a) delivered personally, (b)
sent by registered or certified mail, in all such cases with first class postage
paid, return receipt requested, (c) delivered by a recognized overnight courier
service, or (d) sent by facsimile transmission (with written or facsimile
confirmation of receipt) to the parties at the addresses or facsimile number, as
the case may be, as set forth below or at such other addresses or facsimile
number as may be furnished in writing pursuant to this SECTION 13.
To the Corporation or
the Other Shareholders: optionsXpress, Inc.
00 X. XxXxxxx Xx., Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000
Attention: Chairman of the Board
Facsimile: (000)000-0000
With a copy to: Xxxxxx Xxxxxx Xxxxx Xxxxxxxx
000 Xxxx Xxxxxx Xxxxxx Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000-0000
Attention: Xxxxx X. Xxxxxxxx, Esq.
Facsimile: (000)000-0000
To Executive: Xx. Xxxxx Xxxx
0000 Xxxx Xxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Facsimile: (000)000-0000
With a copy to: Vedder, Price, Xxxxxxx & Kammholz, P.C.
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxxx, Esq.
Facsimile: (000)000-0000
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Any notice under this Agreement will be deemed to have been given (a) on the
date such notice is personally delivered, (b)three (3) days after the date of
mailing if sent by certified or registered mail, (c) one (1) day after the date
such notice is delivered to the overnight courier service if sent by overnight
courier or (d) if by facsimile transmission, on the date of transmission.
14. SEVERABILITY. Whenever possible, each provision of this Agreement
will be interpreted in such a manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be invalid,
illegal or unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability will not affect
any other provision or any other jurisdiction, but this Agreement will be
reformed, construed and enforced in such jurisdiction as if such invalid,
illegal or unenforceable provision had never been contained herein.
15. COMPLETE AGREEMENT. This Agreement embodies the complete
agreement and understanding among the parties and supersedes and preempts any
prior understandings, agreements or representations by or among the parties,
written or oral, which may have related to the subject matter hereof in any way.
16. REMEDIES. Each of the parties to this Agreement will be entitled
to enforce its rights under this Agreement specifically, to recover damages by
reason of any breach of any provision of this Agreement and to exercise all
other rights existing in its favor. Executive agrees and acknowledges that money
damages will not be an adequate remedy for any breach of the provisions of this
Agreement and that the Corporation shall be entitled to specific performance
and/or injunctive relief in order to enforce or prevent any violations of the
provisions of this Agreement.
17. AMENDMENTS AND WAIVERS. Any provision of this Agreement may he
amended or waived only with the prior written consent of the Corporation and
Executive.
18. GOVERNING LAW. This Agreement shall be construed and enforced in
accordance with, and all questions concerning the construction, validity,
interpretation and performance of this Agreement shall be governed by, the laws
of the State of Delaware, without giving effect to provisions thereof regarding
conflict of laws.
19. WAIVER; CUMULATIVE RIGHTS. The failure or delay of either party
hereto to require performance by the other party of any provision hereof shall
not affect its right to require performance of such provision unless and until
such performance has been waived in writing. Each and every right hereunder is
cumulative and may be exercised in part or in whole from time to time.
20. SUCCESSORS AND ASSIGNS. This Agreement shall inure to the benefit
of and be binding upon each successor and assign of the Corporation. All
obligations imposed upon Executive or his representative, and all rights granted
to the Corporation hereunder, shall be binding upon Executive's or his
representative's heirs, legal representatives and successors.
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21. HEADINGS. The captions set forth in this Agreement are for
convenience only and shall not be considered as part of this Agreement or as in
any way limiting the terms and provisions hereof.
22. COUNTERPARTS. This Agreement may be executed on separate
counterparts, each of which is deemed to be an original and all of which taken
together constitute one and the same agreement.
23. NO STRICT CONSTRUCTION. The language used in this Agreement will
be deemed to be the language chosen by the parties hereto to express their
mutual intent, and no rule of strict construction will be applied against any
party hereto.
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(SIGNATURE PAGE TO AMENDED AND RESTATED RESTRICTED STOCK AGREEMENT)
IN WITNESS WHEREOF, the Corporation has caused this Amended and
Restated Restricted Stock Agreement to be duly executed by an officer thereunto
duly authorized, and Executive has hereunto set his hand, all as of the day and
year first above written.
OPTIONSXPRESS, INC., a Delaware corporation
By: /s/ Xxxxx Xxxx
-----------------------------------
Xxxxx Xxxx, Chairman of the Board
EXECUTIVE:
/s/ Xxxxx Xxxx
-----------------------------------------
Xxxxx Xxxx
