PRESTON HOLLOW COMMUNITY CAPITAL, INC. FORM OF RESTRICTED STOCK GRANT AND AGREEMENT
Exhibit 10.15
PRESTON
HOLLOW COMMUNITY CAPITAL, INC.
FORM OF RESTRICTED STOCK GRANT AND AGREEMENT
This Restricted Stock Grant and Agreement (this "Agreement"), is made effective as of the date set forth on the Company signature page (the "Signature Page") attached hereto, by and between Preston Hollow Community Capital, Inc., a Maryland corporation (together with its successors and assigns, the "Company") and the participant identified on the Signature Page ("Participant").
R E C I T A L S:
WHEREAS, the Company has adopted the Preston Hollow Community Capital, Inc. 2021 Equity Incentive Plan (as it may be amended, the "Plan"), the terms of which Plan are incorporated herein by reference and made a part of this Agreement, and capitalized terms not otherwise defined herein shall have the same meaning as in the Plan; and
WHEREAS, the Committee has determined that it would be in the best interests of the Company and its stockholders to grant the Restricted Stock provided for herein to Participant pursuant to the Plan and the terms set forth herein.
NOW THEREFORE, in consideration of the mutual covenants hereinafter set forth, the parties hereto agree as follows:
1. The Shares.
(a) Subject to the terms and conditions of the Plan and the additional terms and conditions set forth in this Agreement, the Company has granted [●] shares of Common Stock ("Shares") to the Participant on [insert date of grant] (the "Grant Date"), subject to adjustment as set forth in the Plan and this Agreement. Subject to the continued service of the Participant through each applicable vesting date, thirty-three and one-third percent (33⅓%) of the Shares granted hereunder shall become vested and nonforfeitable on each anniversary of the Grant Date (the "Vested Shares"). The Shares of granted hereunder that have not become Vested Shares are the "Unvested Restricted Shares." The Vested Shares and Unvested Restricted Shares are collectively, the "Restricted Shares".
(b) The Vested Shares shall not be subject to any forfeiture restrictions. The Unvested Restricted Shares shall vest and become nonforfeitable Vested Shares in accordance with paragraph 1(a) above.
(c) If Participant's employment or service with the Company Group is terminated at any time, all Unvested Restricted Shares shall automatically and immediately be forfeited and canceled without consideration.
(d) Participant may timely (within thirty (30) days following the Grant Date) file (via certified mail, return receipt requested) an election under Section 83(b) of the Internal Revenue Code of 1986, as amended, and the regulations promulgated thereunder using the form of Exhibit A attached hereto. If the Participant makes such an election, the Participant shall certify to the Company that Participant has made such timely filing and furnish a copy of such filing to the Company. Participant should consult Participant's tax advisor regarding the consequences of a Section 83(b) election, as well as the receipt, vesting, holding and sale of the Restricted Shares.
(e) Participant acknowledges that the Shares have not been registered under the Securities Act of 1933, as amended (the "Securities Act"), and accordingly, may not be sold or transferred except pursuant to an effective registration statement under the Securities Act or pursuant to an applicable exemption therefrom.
2. Restrictive Covenants.
(a) Restrictive Covenants. Participant agrees that, unless Participant has previously executed a confidentiality, non-interference and invention assignment agreement, Participant is required, as a condition to the grant of the Shares, to execute and return to the Company a copy of a confidentiality, non-interference and invention assignment agreement prepared by Company. Any restrictive covenants contained in confidentiality, non-interference and invention assignment agreements are referred to in this Agreement as the "Restrictive Covenants". Participant acknowledges and agrees that the Company's remedies at law for a breach or threatened breach of any of the Restrictive Covenants would be inadequate and the Company would suffer irreparable damages as a result of such breach or threatened breach. In recognition of this fact, Participant agrees that, in the event of such a breach or threatened breach, in addition to any remedies at law, the Company, without posting any bond, shall be entitled to cease making any payments or providing any benefit otherwise required by this Agreement and obtain equitable relief in the form of specific performance, temporary restraining order, temporary or permanent injunction or any other equitable remedy which may then be available. For the avoidance of doubt, the restrictive covenants contained in confidentiality, non-interference and invention assignment agreements prepared by Company are in addition to, and not in lieu of, any other restrictive covenants or similar covenants or agreements between Participant and the Company Group. For purposes of this Agreement, "Restrictive Covenant Violation" shall include Participant's breach of any of the Restrictive Covenants or any similar provision applicable to Participant.
(b) Repayment of Proceeds. If a Restrictive Covenant Violation occurs or the Company discovers after Participant's Termination that grounds existed for Cause at the time thereof, then Participant shall be required, in addition to any other remedy available (on a non-exclusive basis), to pay to the Company, within ten (10) business days' of the Company's request to Participant therefor, an amount equal to the excess, if any, of (i) the aggregate after-tax proceeds (taking into account all amounts of tax that would be recoverable upon a claim of loss for payment of such proceeds in the year of repayment) Participant received upon the sale or other disposition of, or distributions in respect of, (A) prior to the Exchange Date, the Units, and (B) the Shares issued to Participant on the Exchange Date over (ii) the aggregate Cost of such Shares. For purposes of this Agreement, "Cost" means, in respect of any Share, the amount paid by Participant for the Units that were exchanged for such Share, as proportionately adjusted for all subsequent distributions on the Shares and other recapitalizations and less the amount of any distributions made with respect to (x) prior to the Exchange Date, the Unit or (y) the Share pursuant to the Company's organizational documents; provided, that Cost may not be less than zero (0). Any reference in this Agreement to grounds existing for a Termination for Cause shall be determined without regard to any notice period, cure period, or other procedural delay or event required prior to a finding of or Termination for Cause.
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3. Book Entry; Certificates. The Company shall recognize Participant's ownership of Restricted Shares through uncertificated book entry. If elected by the Company, certificates evidencing the Restricted Shares may be issued by the Company and any such certificates shall be registered in Participant's name on the stock transfer books of the Company promptly after the date hereof, but shall remain in the physical custody of the Company or its designee at all times prior to the later of (x) the vesting of Unvested Restricted Shares pursuant to this Agreement and (y) the expiration of any transfer restrictions set forth in this Agreement or otherwise applicable to the Restricted Shares. As soon as practicable following such time, any certificates for the Shares shall be delivered to Participant or to Participant's legal guardian or representative along with the stock powers relating thereto. However, the Company shall not be liable to Participant for damages relating to any delays in issuing the certificates (if any) to Participant, any loss by Participant of the certificates, or any mistakes or errors in the issuance of the certificates or in the certificates themselves.
4. Rights as a Stockholder. Participant shall be the record owner of the Restricted Shares until or unless such Restricted Shares are forfeited pursuant to the terms of this Agreement, and as record owner shall be entitled to all rights of a common stockholder of the Company, including, without limitation, voting rights with respect to the Restricted Shares and rights to dividends or other distributions; provided, that the Shares shall be subject to the limitations on transfer and encumbrance set forth in Section 7.
5. Legend. To the extent applicable, all book entries (or certificates, if any) representing the Restricted Shares delivered to Participant as contemplated by Section 3 above shall be subject to the rules, regulations, and other requirements of the Securities and Exchange Commission, any stock exchange upon which such Shares are listed, and any applicable Federal or state laws, and the Company may cause notations to be made next to the book entries (or a legend or legends put on certificates, if any) to make appropriate reference to such restrictions. Any such book entry notations (or legends on certificates, if any) shall include a description to the effect of the restrictions set forth in Sections 1 and 7 hereof.
6. No Right to Continued Employment or Engagement. Neither the Plan nor this Agreement nor Participant's receipt of the Shares hereunder shall impose any obligation on the Company Group to continue the employment or engagement of Participant. Further, the Company Group may at any time terminate the employment or engagement of such Participant, free from any liability or claim under the Plan or this Agreement, except as otherwise expressly provided herein.
7. Assignment Restrictions.
(a) The Unvested Restricted Shares may not,
at any time prior to becoming vested pursuant to the terms of this Agreement, be Assigned, and any such purported Assignment shall be
void and unenforceable against the Company or any Affiliate; provided, that the designation of a beneficiary shall not constitute
an Assignment.
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(b) "Assign" or "Assignment" shall mean (in either the noun or the verb form, including with respect to the verb form, all conjugations thereof within their correlative meanings) with respect to any security, the gift, sale, assignment, transfer, pledge, hypothecation or other disposition (whether for or without consideration, whether directly or indirectly, and whether voluntary, involuntary or by operation of law) of such security or any interest therein.
8. Withholding. Participant may be required to pay to the Company or any Affiliate and the Company shall have the right and is hereby authorized to withhold, any applicable withholding taxes in respect of the Restricted Shares, their grant or vesting or any payment or transfer with respect to the Restricted Shares at the minimum applicable statutory rates, and to take such action as may be necessary in the opinion of the Committee to satisfy all obligations for the payment of such withholding taxes. The Committee may (but is not obligated to), in its sole discretion, permit or require a Participant to satisfy, all or any portion of the minimum income, employment and/or other applicable taxes that are statutorily required to be withheld by (A) the delivery of shares of Common Stock; or (B) having the Company withhold from the shares of Common Stock otherwise issuable or deliverable to, or that would otherwise be retained by, the Participant shares of Common Stock with an aggregate Fair Market Value equal to an amount not in excess of such minimum statutorily required withholding liability (or portion thereof).
9. Securities Laws; Cooperation. Upon the vesting of any Unvested Restricted Shares, Participant will make or enter into such written representations, warranties and agreements as the Committee may reasonably request in order to comply with applicable securities laws, the Plan or with this Agreement. Participant further agrees to cooperate with the Company in taking any action reasonably necessary or advisable to consummate the transactions contemplated by this Agreement.
10. Notices. Any notice necessary under this Agreement shall be addressed to the Company in care of its Corporate Secretary at the principal executive office of the Company and to Participant at the address appearing in the personnel records of the Company for such Participant or to either party at such other address as either party hereto may hereafter designate in writing to the other. Any such notice shall be deemed effective upon receipt thereof by the addressee.
11. Choice of Law; Jurisdiction; Venue. This Agreement shall be governed by and construed in accordance with the internal laws of the State of Maryland applicable to contracts made and performed wholly within the State of Maryland, without giving effect to the conflict of laws provisions thereof. Any suit, action or proceeding with respect to this Agreement (or any provision incorporated by reference), or any judgment entered by any court in respect of any thereof, shall be brought in any court of competent jurisdiction in the State of Maryland or the State of Texas, and each of Participant, the Company, and any Permitted Transferees who hold Shares pursuant to a valid Assignment, hereby submits to the exclusive jurisdiction of such courts for the purpose of any such suit, action, proceeding, or judgment. Each of Participant, the Company, and any Permitted Transferees who hold Shares pursuant to a valid Assignment hereby irrevocably waives (a) any objections which it may now or hereafter have to the laying of the venue of any suit, action, or proceeding arising out of or relating to this Agreement brought in any court of competent jurisdiction in the State of Maryland or the State of Texas, (b) any claim that any such suit, action, or proceeding brought in any such court has been brought in any inconvenient forum and (c) any right to a jury trial.
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12. Shares Subject to Plan; Amendment. By entering into this Agreement, Participant agrees and acknowledges that Participant has received and read a copy of the Plan. The Shares granted hereunder are subject to the Plan. The terms and provisions of the Plan, as it may be amended from time to time, are hereby incorporated herein by reference. In the event of a conflict between any term or provision contained herein and a term or provision of the Plan, the applicable terms and provisions of the Plan will govern and prevail. The Committee may waive any conditions or rights under, amend any terms of, or alter, suspend, discontinue, cancel or terminate this Agreement, but no such waiver, amendment, alteration, suspension, discontinuance, cancellation or termination shall materially adversely affect the rights of Participant hereunder without the consent of Participant.
[Signature Pages Follow]
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IN WITNESS WHEREOF, Participant acknowledges and accepts the terms of this Agreement which shall be effective as of the date set forth below and countersignature by the Company.
| Participant | ||
| By: | ||
| Name: | ||
| Title: | ||
| Dated: |
| Date of Grant: | [______] |
| Number of Restricted Shares Granted: | [______] |
| Grant Date: | [______] |
Participant Signature Page
Restricted Stock Grant and Agreement
| Acknowledged and confirmed: | ||
| PRESTON HOLLOW COMMUNITY CAPITAL, INC. | ||
| By: | ||
| Name: | ||
| Title: | ||
Company Signature Page
Restricted Stock Grant and Agreement
EXHIBIT A
ELECTION TO INCLUDE SHARES IN GROSS
INCOME PURSUANT TO SECTION 83(b) OF THE
INTERNAL REVENUE CODE
The undersigned acquired shares of common stock (the "Shares") of PRESTON HOLLOW COMMUNITY CAPITAL, INC. (the "Company") on [______] (the "Transfer Date").
The undersigned desires to make an election to have the Shares taxed under the provision of Section 83(b) of the Internal Revenue Code of 1986, as amended ("Code §83(b)"), at the time the undersigned acquired the Shares.
Therefore, pursuant to Code §83(b) and Treasury Regulation §1.83-2 promulgated thereunder, the undersigned hereby makes an election, with respect to the Shares (described below), to report as taxable income for calendar year 2020 the excess, if any, of the Shares' fair market value on the Transfer Date over the acquisition price thereof.
The following information is supplied in accordance with Treasury Regulation §1.83-2(e):
1. The name, address and social security number of the undersigned:
| Name: | |
| Address: | |
| SSN: | ________-_____-________ |
2. A description of the property with respect to which the election is being made: [________] Shares.
3. The date on which the property was transferred: the Transfer Date. The taxable year for which such election is made: calendar year 2020.
4. The restrictions to which the property is subject: The Shares are subject to time based vesting conditions. If the undersigned ceases to be employed by any of the Company or an affiliate under certain circumstances, all or a portion of the Shares may be subject to forfeiture. The Shares are also subject to transfer restrictions.
5. The aggregate fair market value on the Transfer Date of the property with respect to which the election is being made, determined without regard to any lapse restrictions: $[________].
6. The aggregate amount paid for such property: $[________].
Exh. A-1
7. Copies of this statement have been furnished to the person for whom the services are to be performed and the service recipient.
| Dated: ________ __, 20____ | ||
| By: | ||
| Name: | ||
| Title: | ||
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