POWER OF THE DREAM VENTURES, INC. RESTRICTED STOCK AGREEMENT
Exibit
10.26
POWER
OF THE DREAM VENTURES, INC.
This
Restricted Stock Agreement (this “Agreement”) is entered into as of the ____ day
of ________, 2007, by and between Power of the Dream Ventures, Inc., a Delaware
corporation (“Company”), and ____________________ (“Grantee”).
W
I T N E
S S E T H:
WHEREAS,
the Company has determined to grant restricted shares of its common stock,
par
value $0.0001 per share (the “Common Stock”) to Grantee, subject to the Grantee
agreeing to the terms and provisions of this Agreement.
NOW,
THEREFORE, in consideration of the foregoing and of the mutual covenants herein
contained and other good and valuable consideration, the parties hereto hereby
agree as follows:
1. Grant. Contemporaneously
herewith, the Company has issued _______ restricted shares of the Common Stock
(such shares hereinafter being referred to as the “Restricted Stock”),
registered in the name of Grantee, subject to the terms, restrictions and
provisions of this Agreement. This grant of Restricted Stock has not
been made pursuant to any of the Company’s existing benefit or incentive
plans.
2. Treatment
During Restricted Period.
a. Certificates. Each
certificate representing shares of Restricted Stock shall be registered in
the
name of Grantee and held, together with a stock power endorsed in blank, by
the
Company, subject to the provisions hereof. Each certificate of
Restricted Stock shall bear a legend reflecting the limitation of
transferability, the risk of forfeiture and other restrictions under this
Agreement and applicable securities law restrictions.
b. Restrictions
Applicable Prior to Vesting. Until they vest, the shares of
Restricted Stock shall be subject to the following restrictions:
i) Nontransferability. Except
as otherwise required by law, the shares of Restricted Stock that have not
vested may not be sold, assigned, exchanged, transferred, pledged, hypothecated
or otherwise disposed of, except to the Company as provided herein.
ii) Dividends
and Distributions. Any cash dividends or other distributions in respect of
the
shares of Restricted Stock, including, but not limited to, shares received
as a
result of a stock dividend, stock split, combination of shares or otherwise,
shall be retained by the Company and either delivered together with the
applicable shares in accordance with Section 2(e) hereof or forfeited together
with the applicable shares in accordance with Section 2(c) hereof.
iii) [Other
Restrictions. The Board may impose such other restrictions on the
Restricted Stock as it may deem advisable.]
c. Forfeiture. In
the event that Grantee’s relationship with the Company terminates prior to an
event which results in the vesting of all of the shares of Restricted Stock,
any
unvested shares of Restricted Stock shall be forfeited to the Company on the
date that the Grantee’s relationship with the Company
terminates.
d. Vesting;
Termination of Restricted Period.
i) The
shares of Restricted Stock shall no longer be subject to the forfeiture
provisions of Section 2(c) (i.e., the shares shall vest), based on the following
schedule, provided that the Grantee has continued a relationship with the
Company through such vesting date:
(1) 25%
of the shares of Restricted Stock will vest on ______________,
200___;
(2) 25%
of the shares of Restricted Stock will vest on ______________,
200___;
(3) 25%
of the shares of Restricted Stock will vest on ______________, 200___;
and
(4) 25%
of the shares of Restricted Stock will vest on ______________,
200___.
ii) In
the event that the shares of Restricted Stock have not vested in full and have
not been forfeited pursuant to Section 2(c), any unvested shares of Restricted
Stock will be deemed to have been vested in full on the date that:
(1) there
is a Change in Control. For the purposes of this Agreement, a “Change
of Control” means, with respect to the Company (x) a sale, lease, exchange or
other transfer, of all or substantially all of the Company’s assets, (y) a
merger in which the Company is not the surviving entity (other than a
transaction whereby the stockholders of the Company before such transaction
are
in control of the Company after the transaction), or (z) a sale of all or
substantially all of the Company’s then outstanding voting stock, in all such
cases in one or a series of related transactions;
(2) the
Company terminates the Grantee’s relationship with the Company or the Grantee
voluntarily terminates his or her relationship with the Company at the request
of the Company, provided that such termination or request for termination is
not
made for Cause. For purposes of this Agreement, “Cause” means that the Grantee
has (i) committed gross negligence in connection with his or her duties or
otherwise with respect to the business and affairs of the Company, which gross
negligence has a material adverse effect on the business of the Company or
the
Grantee’s ability to perform his or her duties; (ii) committed fraud in
connection with Grantee’s duties or otherwise with respect to the business and
affairs of the Company; (iii) engaged in “willful misconduct” with respect to
the business and affairs of the Company (i.e. misconduct committed
with actual knowledge that the actions violate legal directions and instructions
of senior management or the Board); (iv) materially breached the terms of this
Agreement or any policy or procedure of the Company; or (v) been found by a
court of competent jurisdiction to have committed or pled guilty to an unlawful
act whether or not related to the business of the Company if the commission
of
such act has a material adverse effect either on (a) the Grantee’s ability to
perform his or her duties or (b) the reputation and goodwill of the
Company.
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e. Delivery
following Vesting. Promptly after they become vested, the
Company shall deliver to Grantee (or Grantee’s legal representative) the shares
of vested Restricted Stock in certificate form, with appropriate securities
act
legends; provided, however, that the Company need not deliver such shares to
Grantee until Grantee has paid or caused to be paid all taxes required to be
withheld pursuant to Section 3 hereof.
3. Withholding. The
Company may withhold any taxes resulting from this Agreement that the Company
determines it is required to withhold under the laws and regulations of any
governmental authority, whether federal, state or local and whether domestic
or
foreign. Subject to applicable legal requirements, Grantee will be
required to satisfy such withholding requirements by (i) delivery to the Company
of a certified check prior to the delivery of shares of Restricted Stock which
are vested pursuant to Section 2, or (ii) any other method acceptable to the
Board of Directors of the Company.
THE
GRANTEE ACKNOWLEDGES THAT THE GRANTEE IS RESPONSIBLE FOR, AND IS ADVISED TO
CONSULT WITH THE GRANTEE’S OWN TAX ADVISORS REGARDING, THE TAX CONSEQUENCES TO
THE GRANTEE THAT MAY ARISE IN CONNECTION WITH THE RESTRICTED STOCK, INCLUDING
THE DECISION TO MAKE AND TIMELY FILE, AND THE CONSEQUENCES OF, ANY ELECTION
UNDER SECTION 83(B) OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED. THE
GRANTEE ALSO SHALL TIMELY DELIVER A COPY OF ANY SUCH SECTION 83(B) FILING TO
THE
COMPANY.
4. Rights
as Stockholder. Notwithstanding the foregoing vesting and transfer
restrictions that apply to the Restricted Stock, but subject to the terms of
this Agreement, the Grantee generally shall otherwise have the beneficial
ownership of the Restricted Stock and shall be entitled to exercise the rights
and privileges of a stockholder with respect to the Restricted Stock, including
the right to vote such shares.
5. Section
409A Compliance. All payments of “nonqualified deferred
compensation” (within the meaning of Section 409A of the Internal Revenue Code
of 1986, as amended (“Code”)) are intended to comply with the requirements of
Code Section 409A, and shall be interpreted in accordance
therewith. Neither party individually or in combination may
accelerate any such deferred payment, except in compliance with Code Section
409A, and no amount shall be paid prior to the earliest date on which it is
permitted to be paid under Code Section 409A. In the event that the
Grantee is determined to be a “key employee” (as defined in Code Section 416(i)
(without regard to paragraph (5) thereof)) of the Company at a time when its
stock is deemed to be publicly traded on an established securities market,
payments determined to be “nonqualified deferred compensation” payable following
termination of employment shall be made no earlier than the earlier of (i)
the
last day of the sixth (6th) complete calendar month following such termination
of employment, or (ii) the Grantee’s death, consistent with the provisions of
Code Section 409A. Unless otherwise expressly provided, any payment
of compensation by Company to the Grantee, whether pursuant to this Agreement
or
otherwise, shall be made within two and one-half months (2½ months) after the
end of the calendar year in which the Grantee’s right to such payment vests
(i.e., is not subject to a substantial risk of forfeiture for purposes
of Code Section 409A). Notwithstanding anything herein to the
contrary, no amendment may be made to this Agreement if it would cause the
Agreement or any payment hereunder not to be in compliance with Code Section
409A.
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6. Rule
144. For purposes of Rule 144 under the Securities Act of 1933,
the holding period for the shares of Restricted Stock will not commence until
the date that the shares of Restricted Stock vest pursuant to the terms of
this
Agreement. As of the date of this Agreement, a holder of Restricted
Stock may not sell such Restricted Stock pursuant to Rule 144 until the Grantee
has been deemed to hold the Restricted Stock for at least one year.
7. Registration
Rights. If (and on each occasion that) the Company proposes to
register any of its securities under the Securities Act for the account of
any
of its stockholders (other than pursuant to a Form S-4 or Form S-8 or comparable
form and other than pursuant to a demand registration right granted to other
persons to the extent that such rights prohibit the Company from including
securities of any other person in such registration statement) (each such
registration not withdrawn or abandoned prior to the effective date thereof
being herein called a “Piggyback Registration”), the Company will give written
notice to the Grantee of such proposal or registration requirement, as
applicable, not later than the tenth day prior to the filing of a registration
statement with the SEC. For the purposes of this Agreement, the term
“Registrable Securities” means the Restricted Stock.
The
Company will be obligated and required to include in each Piggyback Registration
all Registrable Securities with respect to which the Company shall receive
from
the Grantee, within 5 days after the date on which the Company has given written
notice of such Piggyback Registration to the Grantee, a written request for
inclusion in such Piggyback Registration. The Grantee is permitted to
withdraw all or any part of the Registrable Securities from any Piggyback
Registration at any time prior to the effective date of such Piggyback
Registration. The Company has the right to terminate or withdraw any
registration initiated by it prior to the effectiveness of such registration
whether or not the Grantee has elected to include shares of Restricted Stock
in
such registration.
8. Notices. Any
notices or other communications required or permitted to be given pursuant
to
this Agreement shall be in writing and shall be deemed given: (i) upon delivery,
if by hand; (ii) after two (2) business days if sent by express mail or air
courier; (iii) four (4) business days after being mailed (seven (7) business
days for international mailings), if sent by registered or certified mail,
postage prepaid, return receipt requested; or (iv) upon transmission, if sent
by
facsimile (provided that a confirmation copy is sent in the manner provided
in
clause (ii) or clause (iii) of this Paragraph 10 within thirty-six (36) hours
after such transmission), except that if notice is received by facsimile after
5:00 p.m. on a business day at the place of receipt, it shall be effective
as of
the following business day. All communications hereunder shall be
delivered to the respective parties at the following addresses:
If
to
Company, to it at:
Power
of
the Dream Ventures, Inc.
1095
Budapest
Soroksari
ut 94-96
Hungary
Attention:
Board of Directors
with
a
copy to:
Loeb
& Loeb LLP
000
Xxxx
Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attention:
Xxxxx X. Xxxxxxxxxx, Esq.
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If
to
Grantee, to him at his last known mailing address specified in the Company’s
records.
or
to
such other address as either party hereto shall specify by notice in writing
to
the other party in accordance with this Section.
9. Governing
Law/Jurisdiction. This Agreement shall be governed by and
construed in accordance with the law of the State of New York, regardless of
the
law that might otherwise govern under applicable principles of conflicts of
laws
thereof. The parties hereto hereby irrevocably consent to the
exclusive jurisdiction of the state or federal courts sitting in New York
County, State of New York, in connection with any controversy or claim arising
out of or relating to this Agreement, or the negotiation or breach thereof,
and
hereby waive any claim or defense that such forum is inconvenient or otherwise
improper. Each party hereby agrees that any such court shall have in
personam jurisdiction over it and consents to service of process in any matter
authorized by New York law.
10. Severability. Whenever
possible, each provision or portion of any provision of this Agreement shall
be
interpreted in such manner as to be effective and valid under applicable law,
but if any provision or portion of any provision of this Agreement is found
to
be invalid or unenforceable in any respect under any applicable law or rule
in
any jurisdiction, such finding or construction shall not affect the remainder
of
the provisions of this Agreement, which shall be given full force and effect
without regard to the invalid or unenforceable provision, and such invalid
or
unenforceable provision shall be modified automatically to the least extent
possible in order to render such provision valid and enforceable, but only
if
the provision as so modified remains consistent with the parties’ original
intent.
11. No
Right to Continue Relationship. Nothing herein contained shall
restrict in any way the right of the Company to terminate Grantee’s relationship
with the Company at any time, with or without cause. As used
throughout this Agreement, the term “relationship” includes a relationship of
employee, director or consultant with or to the Company, a subsidiary of the
Company or an affiliate of the Company.
12. Board
Determinations. In the event that any question or controversy
shall arise with respect to the nature, scope or extent of any one or more
rights conferred by this Agreement, the determination by the Board (or the
Committee established by the Board to administer compensation awards) of the
rights of Grantee shall be conclusive, final and binding upon Grantee and upon
any other person who shall assert any right pursuant to this
Agreement.
13. Assignment. Subject
to the transfer restrictions applicable to the Grantee hereunder and other
conditions hereof, this Agreement shall be binding upon and inure to the benefit
of the successors and assigns of the Company and the Grantee’s heirs, executors,
administrators, personal representatives, and assigns.
14. Counterparts. This
Agreement may be executed in two counterparts, each of which shall be an
original, but both of which together shall constitute one and the same
agreement.
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IN
WITNESS WHEREOF, the Company and Grantee have entered into this Agreement
as of
the grant date specified above.
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POWER
OF THE DREAM VENTURES, INC.
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By:
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Name:
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Title:
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GRANTEE:
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Name:
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