Exhibit 10.1
RESTRICTED STOCK AGREEMENT
New America Network, Inc. - Common Stock
This Agreement dated this __ day of ________ is made by and between NEW AMERICA
NETWORK, INC., a Delaware corporation having a mailing address of X.X. Xxx 000,
Xxxxxxxxxx, Xxx Xxxxxx 00000 (the "Company") and, ___________________ (the
"Grantee").
WHEREAS, pursuant to this Agreement, the Company shall transfer to the Grantee
_____ shares of the Company's $.01 par value Common Stock (the "Shares") in
consideration of past and future services provided to the Company; and
WHEREAS, THE SHARES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED (THE "ACT"), OR THE SECURITIES LAWS OF ANY STATE AND THE SHARES MAY
NOT BE SOLD, PLEDGED, HYPOTHECATED OR OTHERWISE TRANSFERRED IN THE ABSENCE OF
REGISTRATION UNDER THE ACT AND UNDER THE APPLICABLE SECURITIES LAWS OF ANY STATE
WHERE THE SHARES ARE OFFERED OR SOLD, OR AN OPINION OF COUNSEL SATISFACTORY TO
THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED; and
WHEREAS, the Shares are being transferred to the Grantee pursuant to (i) the
Company's understanding that the issuance of the Shares does not constitute a
sale or offer to sell securities under the Act and any applicable state
securities laws, or, (ii) in the alternative, an exemption from the registration
requirements of the Act provided for in Regulation D (17 C.F.R.S. 240.50 et
seq.) promulgated under the Act; and
WHEREAS, the Grantee is aware that the Shares are and will be, when issued,
"restricted securities" as that term is, defined in Rule 144 (17 C.F.R. S
240.144), promulgated under the Act ("Rule 144"); and
WHEREAS, the Grantee has agreed to grant the Company an irrevocable option to
repurchase the Shares under certain circumstances; and
WHEREAS, Grantee is an employee of the Company at the date hereof. This grant
has been made without cost to Grantee in recognition of services performed and
in anticipation of future services; and
WITNESSETH:
NOW, THEREFORE, IN CONSIDERATION of the mutual covenants and agreements
hereinafter set forth, and other good and valuable consideration the receipt and
sufficiency of which are hereby acknowledged by the parties to each other, the
Parties hereto agree as follows:
ARTICLE I
Issuance of the Shares
Section 1.01 Subject to the terms and conditions of this Agreement, the Company
will deliver a stock certificate evidencing ownership of the Shares to the
Grantee which shall be registered on the books and records of the Company in the
Grantee's name within a reasonable time following the execution of this
Agreement by the parties.
Section 1.02 The Shares are being issued to the Grantee in recognition of prior
services and in anticipation of the Grantee's future services to the Company.
This transfer is not in lieu of other remuneration or compensation to which the
Grantee may be otherwise entitled.
ARTICLE II
Representations and Warranties of the Company
Section 2.01 The Company represents and warrants as follows:
(a) Good Standing: The Company is a corporation duly incorporated,
validly existing, and in good standing, under the laws of the
State of Delaware, with all requisite power to carry on the
business which it conducts and to execute, deliver and perform
all of its obligations under this Agreement.
(b) Capitalization: The Company is authorized to issue (i)
twenty (20) million shares of Common Stock, of which on
the date hereof over 50% of such shares are issued and
outstanding, and (ii) 1,000,000 shares of Preferred
Stock of which on the date hereof less than 50% of such
shares are issued and outstanding. Except for the
shares of Common Stock reserved pursuant to the
Company's stock option plan, no shares of Common stock
or Preferred Stock are reserved for issuance. All
outstanding shares of Common Stock have been duly
authorized, validly issued, and are fully paid and non
assessable.
(c) Litigation: To the best of the Company's knowledge,
information and belief, there is no action or proceedings
pending or threatened against the Company before any court or
administrative agency which might have a material adverse
effect upon the business or
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financial condition of the Company or upon its ability
to perform its obligations hereunder.
(d) Authority Relative to this Agreement: The execution
and performance by the Company of this Agreement have
been duly and validly authorized; this Agreement has
been duly executed and delivered by the Company and
constitutes the legal, valid and binding obligation of
the Company enforceable in accordance with its terms;
and the entering into and the consummation of the
transactions contemplated hereby will not violate, or
result in a default under any of the provisions of the
Company's Certificate of Incorporation, By-Laws, any
mortgage, indenture, contract, agreement, license,
franchise, permit, instrument, trust, power, judgment,
decree, order, statute, regulation or ruling to which
the Company is a party or which is applicable to it.
ARTICLE III
Representations and Warranties
Section 3.01 The Grantee represents and warrants as follows:
(a) The Grantee hereby acknowledges that the transfer of the
Shares hereunder could be taxable as compensation for purposes
of Federal income taxation and may also be taxable within the
state in which the Grantee is a resident. The Grantee hereby
further acknowledges that he may be entitled to make certain
elections which will affect the tax period within which the
receipt of compensation hereunder is reportable for tax
purposes. It shall be the Grantee's full responsibility to
make such inquiries of his personal tax adviser as he may deem
necessary to determine the impact of the issuance of the
Shares hereunder upon his individual compliance with all
applicable Federal and state income tax laws and the Company
hereby expressly disclaims any and all responsibility for
making such determination or otherwise rendering tax advice
pertaining hereto to the Grantee.
(b) The Grantee understands and acknowledges that as of the date
hereof (i) the Shares have not been registered under the Act
or any other Federal law or securities regulation and are
being issued to the Grantee in partial reliance upon an
exemption therefrom for transactions of the type contemplated
by this Agreement, (ii) the Shares have not been registered
under the securities laws of any state, including without
limitation the New Jersey Uniform Securities Law, in partial
reliance on statutory exemptions provided for in such laws,
(iii) the exemptions
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referred to in subparagraphs (b) (i) and (b) (ii) would not be
available if the representations made in this subparagraph (b)
were not true, complete and accurate.
(c) The Grantee is acquiring the Shares for his own account for
investment and not with a view to the distribution, assignment
or resale to others and no other person or entity has a direct
or indirect beneficial interest therein, except the Company.
The Grantee will not sell the Shares hereunder unless the
Shares are subsequently registered under the Act and all
applicable states' securities laws, or an exemption from such
registration is available. The Grantee further understands
that the Company is the only entity which may register the
Shares under the Act and applicable state's securities laws
and is under no obligation to register the Shares. There is no
public market for the Shares. Since the Shares are
unregistered, the Shares must be held by the Grantee
indefinitely and he will not be able to sell or dispose of the
Shares, except as provided herein. The exemption from
registration provided by Rule 144 is currently unavailable to
holders of the Company's Common Stock.
(d) The Grantee understands and acknowledges that his right to
transfer the Shares is subject to the conditions set forth in
this Agreement, including without limitation the restrictions
on transfer and the option to purchase set forth in Articles
IV and V hereof.
ARTICLE IV
Transfer Restrictions
Section 4.01 Subject to the option granted in Article V hereof, the Shares shall
not be offered, sold, transferred, pledged or hypothecated (collectively
hereinafter referred as "transfer") by the Grantee except upon the conditions
and in the manner specified in this Article IV.
Section 4.02 The Shares, and any other securities of the Company acquired by the
Grantee in substitution or replacement thereof, or in addition thereto, shall be
stamped, or otherwise imprinted, with a legend in substantially the following
form:
"The shares represented by this certificate have not been registered
under the Securities Act of 1933, as amended (the "Act"), or under the
securities laws of any state and were acquired by the registered holder
pursuant to a representation that such holder was acquiring such shares
for investment. These securities may not be offered, sold, transferred,
pledged or hypothecated in the absence of an effective
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registration statement under the Act, unless (i) an exemption from the
registration requirements of the Act and all applicable state
securities laws are available with respect thereto and (ii) the
transferor shall have provided to the Company a written opinion of
legal counsel acceptable to the Company stating that the proposed
disposition is exempt from the registration requirements of the Act
and, all applicable state securities laws.
Sale, transfer, pledge, hypothecation or other disposition of these
shares is restricted by the terms and conditions of a certain Grantee
Restricted Stock Agreement between the Company and _______________
dated July 28, 1997, which may be examined at the office of the
Company.
Section 4.03 No transfer of the Shares, or any part thereof, may be made without
the prior written consent of the Company which reserves the sole right to
approve or disapprove of any transfer of the Shares. Prior to the transfer of
any of the Shares, in whole or in part, to a person other than the Company, the
Grantee shall give notice to the Company of the prospective transfer. Each such
notice shall describe the purchase price, manner, terms, and conditions of the
proposed transfer in all material respects. The Grantee shall also furnish such
further information as may be reasonably requested by the Company.
Section 4.04 After any such notice has been given by the Grantee to the Company,
the following procedures shall be followed:
(i) If, in the opinion of counsel to the Company, the proposed
transfer of the Shares may be effected without registration
under the Act and all applicable states securities laws and
the Company consents to the transfer of the Shares, the
Company shall so notify the Grantee who shall thereupon be
entitled to transfer to the proposed transferee in accordance
with the terms of and notice. Each certificate evidencing the
shares of common stock issued pursuant to any such transfer
(and each certificate evidencing any balance of the Shares
retained by the Grantee), shall bear the restrictive legend
set forth above, unless in the opinion of counsel to the
Company, such certificate may be issued without such legend.
(ii) If, in the opinion of counsel to the Company, the proposed
transfer of the Shares, or any part thereof, may not be
effected without registration thereof under the Act or under
any applicable states' securities laws, or the Company does
not consent to the transfer, the Company shall so notify the
Grantee and the Grantee
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shall not so transfer the Shares pursuant to the notice it
gave to the Company under Section 4.03 hereof.
(iii) In the event that the Grantee shall not be entitled to
transfer all or any part of the Shares under this Section
4.04, the Company shall have the right, exercisable without
any further notice to the Grantee, to issue stop transfer
instructions to its transfer agent or to note stop transfer
instructions in its stock transfer ledger.
(iv) Anything herein to the contrary notwithstanding, the Company's
failure to give notice to the Grantee under subparagraph (ii)
or (iii) within sixty (60) days of the Grantee giving written
notice to the Company under Section 4.03 shall be deemed to
constitute the Company giving notice to the Grantee of its
disapproval of the proposed transfer.
ARTICLE V
Company's Option
Section 5.01 Grant of Option. The Grantee hereby grants to the Company during
the Option Term (hereinafter defined) the right, privilege, and option (the
"Option") to repurchase the Shares at the purchase price per share, in the
manner and subject to the conditions, hereinafter provided. As used herein, the
term "Option Term" shall mean the period of time commencing on the date
specified in Section 5.04 hereof and ending three years after the date
specified.
Section 5.02 Time of Exercise of Option. During the Option Term, the Option may
be exercised by notice of such exercise given by the Company to the Grantee,
within ninety (90) days after the Grantee's services to the Company are
terminated for any reason (said event is hereinafter referred to as
"Termination"). If the Option is not exercised within the Option Term and the
time set forth in this Section 5.02, this option to repurchase the Shares shall
terminate and the Shares shall be free of the restrictions imposed by Article IV
and this Article V (except Section 5.05).
Section 5.03 Method of Exercise. (i) Within fifteen (15) days of the Company
giving written notice of its exercise of the within option to the Grantee, the
Grantee shall deliver the certificates evidencing the Shares to the Company
endorsed for transfer on the Company's books and records, or accompanied by
fully executed stock powers authorizing such transfer, of the Shares to the
Company. Within seven (7) business days of its receipt of said certificates, the
Company shall issue its check for payment of the option price which shall be
determined in the manner set forth in Section 5.04, hereof (ii) In the event
that
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the Grantee fails to deliver the certificates evidencing the Shares as herein
above required, the Company may, in its sole and absolute discretion, cancel the
Shares on its books and records and the prescribed repurchase payment shall be
escrowed in a segregated, non interest bearing bank account. The Grantee hereby
constitutes and appoints the Secretary of the Company as its attorney in fact to
execute and deliver to the Company any and all instruments and other
documentation necessary in order for the Company to effectuate the cancellation
of the Shares pursuant to the immediately preceding sentence. This power of
attorney shall survive the physical or mental disability of the Grantee.
Section 5.04 Option Price. The Option Price which the Company shall pay the
Grantee for repurchase of the Shares pursuant to this Article V shall be as
follows:
(a) If Termination occurs on or before July 28, 1998 the Option
Price shall be $.10 per Share;
(b) If Termination occurs after July 28, 1998 but on or before
July 28, 1999 the Option Price shall be $.20 per Share; and
(c) If Termination occurs after July 28, 2000 the Option Price
shall be $.30 per Share.
Section 5.05 Market Share. In addition to the foregoing option to purchase the
Shares and in the event that the Shares are registered under the Act and the
Grantee desires to sell the Shares, in whole or in part, on the public market,
the Grantee shall first offer, by notice, to sell to the Company the number of
Shares proposed to be sold at the price of the Shares on the public market.
Within twenty (20) days of the Grantee giving such notice to the Company, the
Company shall notify the Grantee of its decision whether to purchase such Shares
pursuant to this right of first refusal. The failure of the Company to so notify
the Grantee shall constitute notice to the Grantee of its decision not to
purchase such Shares and the Grantee shall be entitled to sell such Shares on
the public market. Neither the obligation to offer to sell nor the right to
purchase granted in this Section 5.05 shall be exhausted by a single exercise
thereof. If the Grantee has not disposed of the Shares on the public market
within twenty (20) days after first offering the Shares to the Company, pursuant
to the terms of this Section 5.05, then prior to any subsequent disposition he
must again comply with the provisions of this Section 5.05.
ARTICLE VI
Grantee's Tag Along Rights
Section 6.01 In the event that the Company or the beneficial owner(s) of a
majority of the Company's Common Stock desire to sell 25% or more of the
outstanding shares of the Company's
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Common Stock to any person or entity, other than the Company or a person or
entity beneficially owning 10% or more of the Company's Common Stock prior to
such sale, the Company shall use its efforts to enable the Grantee to sell (free
of all restrictions herein above set forth) the Grantee shares to the
prospective purchaser at a per share price at least equal to that to be received
by the seller. Notwithstanding the aforesaid, the Company shall not require the
Grantee to sell any or all of the latter's Shares; nor shall the Company, having
utilized its best efforts as herein described, have any further obligation to
effectuate the sale of all or part of the Grantee's Shares to such purchaser.
ARTICLE VII
Miscellaneous
Section 7.01 Successors and Assigns. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
assigns.
Section 7.02 Governing Law. This Agreement shall be construed in accordance with
and governed by the laws of the State of New Jersey. Subject only to the
provisions of Section 7.04 hereof, the parties hereto agree that all disputes
arising from or relating to this Agreement shall be resolved in the State or
Federal courts located in the State of New Jersey and further agree to submit to
the exclusive jurisdiction of those courts for that purpose. Each party
irrevocably agrees, to the fullest extent permitted by law, not to make any
objection which it may now or hereafter have to the laying of venue of any such
action or proceeding brought in any such court or any claim that such action or
proceeding brought in any such court has been brought in an inconvenient forum.
Final judgment in any such action shall be binding upon the parties hereto and
may be enforced in the State and Federal courts located in New Jersey, or in the
courts of any country or state to the jurisdiction of which the party against
whom such judgment is rendered or any of its assets is subject. The Grantee
hereby agrees that process in connection with any proceedings pertaining to this
Agreement may be served on him in the manner provided in Section 7.07 hereof, or
in any other manner authorized by applicable law or court rule.
Section 7.03 Counterparts. This Agreement may be executed in several
counterparts and each counterpart, when so executed and delivered, shall
constitute an original instrument, but such separate counterparts shall
constitute but one and the same instrument.
Section 7.04 Arbitration. Any controversy or claim arising out of or relating to
this Agreement (including any controversy with respect to the fixing of any
values) or any breach thereof shall be settled by arbitration in the State of
New Jersey in
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accordance with the rules then obtaining to the American Arbitration
Association, and judgment on the award may be entered in any court having
jurisdiction thereunder.
Section 7.05 Specific Performance. The parties recognize that the Common Stock
of the Company is unique and is not readily purchasable or resalable, and that
irreparable damage will be suffered by the parties if all the terms of this
Agreement are not specifically enforced. Therefore, it is agreed that such
rights or remedies as any party may have hereunder, all such rights and remedies
being cumulative, may be enforced by injunction or specific performance.
Section 7.06 Notice. Any notice to be given to the Company or Grantee hereunder
shall be in writing and shall be either delivered or mailed by registered or
certified mail, return receipt requested, to the Company at its principal office
and to the Grantee at his address as shown in the records of the Company, or
such other address as the Grantee may direct by notice given in the manner
herein above set forth. All such notices shall be effective upon mailing or
delivery and shall be deemed to have been received on the earlier of the date of
delivery or three days after mailing, as the case may be.
Section 7.07 Severability. If any provision of this Agreement shall be held to
be invalid or unenforceable, such invalidity or unenforceability shall attach
only to such provision and not in affect or render invalid or unenforceable any
other provisions of this Agreement, and this Agreement shall be carried out as
if such invalid or unenforceable provision were not contained herein.
Section 7.08 Modification and Changes. This Agreement cannot be changed or
modified except by in writing signed by the party sought to be charged
therewith.
Section 7.09 Understanding and Agreements. This Agreement constitutes all of the
understandings and agreements of whatsoever nature or kind existing between the
Parties with respect to the subject matter of this Agreement and supersedes all
prior understandings and writings between the Parties with respect to the
subject matter hereof.
Section 7.10 Headings. The Article and Section headings contained herein are for
convenience of reference only and are not intended to define, limit or describe
the scope or intent of any provision of this Agreement.
Section 7.11 Prior Agreements. Any and all other agreements heretofore made or
presently in effect between the Company and the Grantee, with respect to the
Shares or relating to the
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matters covered herein, are hereby terminated and superseded by this Agreement
and shall be of no further force and effect.
IN WITNESS WHEREOF, the parties hereto have executed or caused this Agreement to
be duly executed, all as of the day and year first above written.
ATTEST: NEW AMERICA NETWORK, INC.
_________________________ By:_________________________
Xxxxx Xxxx, Secretary Xxxxxxx X. Xxxx,
President & COO
Dated:_______________
WITNESS: GRANTEE:
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Signature Signature
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Print Name Print Name
Dated:_______________
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