EXHIBIT 10.02
RESTRICTED STOCK AGREEMENT
XXXXXX INDUSTRIES, INC.
This Restricted Stock Grant ("Restricted Stock Grant") that is effective
the ____ day of _______________, 200__ is between Xxxxxx Industries, Inc.
("NII"), acting on behalf of Xxxxxx Industries Ltd. ("NIL" or the "Company") and
at the request of a subsidiary of NIL (the "Subsidiary"), and [NAME]
("Grantee"), an employee of Subsidiary.
Upon the Date of Grant, the fair market value of a share of Common Stock of NIL
was _______.
RECITALS
Under the Xxxxxx Industries Inc., 2003 Employee Stock Plan ("2003 Plan"),
the Compensation Committee of the Board of Directors (the "Committee") has
determined the form of this Restricted Stock Grant and selected the Grantee, an
Eligible Person, to receive this Restricted Stock Grant and the shares of Common
Stock that are subject hereto. The applicable terms of the 2003 Plan are
incorporated in this Restricted Stock Grant by reference, including the
definition of terms contained in the 2003 Plan.
RESTRICTED STOCK GRANT
In accordance with the terms of the 2003 Plan, the Committee has made this
Restricted Stock Grant and concurrently has issued or transferred to the Grantee
shares of Common Stock upon the following terms and conditions:
SECTION 1. Number of Shares. The number of shares of Common Stock awarded
under this Restricted Stock Grant is _______________ (the "Award").
SECTION 2. Rights of the Grantee as Shareholder. The Grantee, as the owner
of the shares of Common Stock issued or transferred pursuant to this Restricted
Stock Grant, is entitled to all the rights of a shareholder of NIL, including
the right to vote, the right to receive dividends payable either in stock or in
cash, and the right to receive shares in any recapitalization of the Company,
subject, however, to the restrictions stated in this Restricted Stock Grant. If
the Grantee receives any additional shares by reason of being the holder of the
shares of Common Stock issued or transferred under this Restricted Stock Grant
or of the additional shares previously distributed to the Grantee, all of the
additional shares shall be subject to the provisions of this Restricted Stock
Grant. Initially, the shares of Common Stock will be held in an account
maintained with the processor under the 2003 Plan (the "Account"). At the
discretion of NIL, NIL may provide the Grantee with a certificate for the
shares, which would bear a legend as described in Section 6.
SECTION 3. Restriction Period. The period of restriction ("Restriction
Period") for the shares of Common Stock issued under this Restricted Stock Grant
shall commence on the Date of Grant and shall expire in four equal annual
installments beginning on the first calendar year anniversary hereof (i.e., the
award will vest 25% per year). In addition, the Restriction Period shall expire
earlier as to all shares of Common Stock issued under this Restricted Stock
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Grant upon the earlier of (i) the date of death of the Grantee, or (ii) the date
of qualifying disability of the Grantee.
SECTION 4. Terms and Conditions. The Award is subject to the following
terms and conditions:
a. If Grantee ceases for any reason to be an employee of the
Subsidiary (or an employee of any other subsidiary of NIL) any
unvested portion of this Award shall be forfeited, the Grantee
will assign, transfer, and deliver the certificates or any other
evidence of ownership of such shares to NIL or the Subsidiary,
all interest of the Grantee in such shares shall terminate, and
Grantee shall cease to be a shareholder with respect to such
shares.
b. During the Restriction Period, the Grantee must not, voluntarily
or involuntarily, sell, assign, transfer, pledge, or otherwise
dispose of any unvested portion of the Award. Any attempted sale,
assignment, transfer, pledge or other disposition of any unvested
portion of the Award whether voluntary or involuntary, shall be
ineffective and NIL (i) shall not be required to transfer the
shares, (ii) may impound any certificates for the shares or
otherwise restrict Grantee's account and (iii) hold the
certificates until the expiration of the Restriction Period.
c. If the Board of Directors of NIL or any committee of the Board of
Directors, prior to or following the date Grantee ceases for any
reason whatsoever to be an employee of the Subsidiary (or any
other subsidiary of NIL), and after full consideration of the
facts, find by majority vote that Grantee has engaged in fraud,
embezzlement, theft, commission of a felony, dishonesty, or any
other conduct inimical to NII, NIL or Subsidiary, Grantee shall
forfeit this entire Award, whether or not vested. The decision of
the Board of Directors of NIL or such committee shall be final.
d. During the term of employment and for a period of one (1) year
following the termination of employment with the Subsidiary (or
any other subsidiary of NIL), a Grantee, who has received $80,000
(eighty thousand) or more in base salary and cash bonus in the
aggregate from the Subsidiary (or any other subsidiary of NIL)
during a one (1) year period preceding the date of termination,
agrees that he or she will not (i) individually or on behalf of
his or her employer or any other person or entity, directly or
indirectly, solicit, divert, or recruit any employee of NIL, NII,
Subsidiary or affiliated companies, or induce any employee of
NIL, NII, Subsidiary or affiliated companies, to terminate his or
her employment, or (ii) directly or indirectly, as an employee,
principal, agent, trustee or otherwise, engage in any business
through a corporation, partnership or other entity that competes
directly with any business that is conducted by NIL, NII,
Subsidiary or affiliated companies. If the Board of Directors of
NIL or any committee of the Board of Directors, prior to or
following the date a Grantee ceases, for any reason whatsoever,
to be an employee of the Subsidiary (or any other subsidiary of
NIL) and after full consideration of the facts, find by majority
vote that Grantee has engaged in any of the activities mentioned
in (i) or (ii) above, Grantee shall forfeit any unvested portion
of the Award. The decision of the Board of Directors of NIL or
any committee of the Board of Directors shall be final.
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e. Nothing in this Restricted Stock Grant shall confer on any
individual any right to continue in the employ of the Subsidiary
or to interfere in any way with the right of the Subsidiary to
terminate the Grantee's employment at any time.
f. This Restricted Stock Grant is subject to, and the Subsidiary and
the Grantee agree to be bound by, all the terms and conditions of
the 2003 Plan under which this Restricted Stock Grant was
granted, as the same may have been amended from time to time in
accordance with its terms. Pursuant to said 2003 Plan, the Board
of Directors of NIL or its Committee established for such
purposes is vested with conclusive authority to interpret and
construe the 2003 Plan and this Agreement, and is authorized to
adopt rules and regulations for carrying out the 2003 Plan. A
copy of the 2003 Plan in its present form is available to
inspection during business hours by the Grantee or other persons
entitled to exercise this Restricted Stock Grant at NII's
principal office.
For purposes of this Restricted Stock Grant, NIL will determine when
employment terminates. A Grantee's employment will not be deemed to have
terminated if the Grantee goes on military leave, medical leave or other bona
fide leave of absence, if the leave was approved by NIL or any of its
Subsidiaries in writing and if continued crediting of employment is required by
applicable law, the Company's policies or the terms of Grantee's leave; provided
that vesting dates may be adjusted in accordance with NIL's policies or the
terms of Grantee's leave.
SECTION 5. Lapse of Restrictions. At the end of the Restriction Period, if
the condition specified in Section 4.a has been satisfied during the Restriction
Period, all restrictions shall terminate on the related shares, and the Grantee
shall be entitled to transfer the shares from the Account or receive
certificates without the legend prescribed in Section 6. However, in the event
of an attempted violation of the condition specified in Section 4.b, NIL shall
be entitled to delay transfers or withhold delivery of any of the certificates
if, and for so long as, in the judgment of NIL's counsel, NIL would incur a risk
of liability to any party to whom such shares were purported to be sold,
transferred, pledged or otherwise disposed.
SECTION 6. Legend on Certificates. Any certificate evidencing ownership of
shares of Common Stock issued or transferred pursuant to this Restricted Stock
Grant that is delivered during the Restriction Period shall bear the following
legend on the back side of the certificate:
These shares have been issued or transferred subject to a Restricted
Stock Grant and are subject to substantial restrictions, including but
not limited to, a prohibition against transfer, either voluntary or
involuntary, and a provision requiring transfer of these shares to
Xxxxxx Industries Ltd. ("NIL") without any payment in the event of
termination of the employment of the registered owner, all as more
particularly set forth in a Restricted Stock Grant, a copy of which is
on file with Xxxxxx Corporate Services, Inc.
At the discretion of NIL, NIL may hold the shares of Common Stock issued or
transferred pursuant to this Restricted Stock Grant in an Account as described
in Section 2, otherwise hold them in escrow during the Restriction Period, or
issue a certificate to the Grantee bearing the legend set forth above.
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SECTION 7. Specific Performance of the Grantee's Covenants. By accepting
this Restricted Stock Grant and the issuance and delivery of the shares of
Common Stock pursuant to this Restricted Stock Grant, the Grantee acknowledges
that NIL does not have an adequate remedy in damages for the breach by the
Grantee of the conditions and covenants set forth in this Restricted Stock Grant
and agrees that NIL is entitled to and may obtain an order or a decree of
specific performance against the Grantee issued by any court having
jurisdiction.
SECTION 8. Employment with NIL. Nothing in this Restricted Stock Grant or
in the 2003 Plan shall confer upon the Grantee the right to continued employment
with NIL or any of its subsidiaries.
SECTION 9. Section 83(b) Election. If the Grantee makes an election
pursuant to Section 83(b) of the Internal Revenue Code, the Grantee shall
promptly (but in no event after thirty (30) days from grant) file a copy of such
election with NIL, and cash payment for taxes shall be made at the time of such
election.
SECTION 10. Withholding Tax. Before NIL removes restrictions on transfer
from the Account or delivers a certificate for shares of Common Stock issued or
transferred pursuant to this Restricted Stock Grant that bears no legend or
otherwise delivering shares free from restriction, the Grantee shall be required
to pay to NIL (or to the Subsidiary, if so designated by NII or NIL) the amount
of federal, state or local taxes, if any, required by law to be withheld
("Withholding Obligation"). Subject to any subsequent Committee determination,
NIL will withhold the number of shares required to satisfy any Withholding
Obligation, and provide to Grantee a net balance of shares ("Net Shares") unless
NIL receives notice not less than five (5) days before any Withholding
Obligation arises that Grantee intends to deliver funds necessary to satisfy the
Withholding Obligation in such manner as NIL may establish or permit.
Notwithstanding any such notice, if Grantee has not delivered funds within
fifteen (15) days of after the Withholding Obligation arises, NIL may elect to
deliver Net Shares.
SECTION 11. Notices and Payments. Any notice to be given by the Grantee
under this Restricted Stock Grant shall be in writing and shall be deemed to
have been given only upon receipt by the Stock Plan Administrator of Xxxxxx
Corporate Services, Inc. at the offices of Xxxxxx Corporate Services, Inc. in
Houston, Texas, or at such address as may be communicated in writing to the
Grantee from time to time. Any notice or communication by NIL, NII, or the
Subsidiary to the Grantee under this Restricted Stock Grant shall be in writing
and shall be deemed to have been given if sent to the Grantee's e-mail address
maintained by the Company or any of its subsidiaries, made through the employee
portal maintained by the Company or any of its subsidiaries, or if mailed or
delivered to the Grantee at the address listed in the records of NIL or at such
address as specified in writing to NIL by the Grantee.
SECTION 12. Waiver. The waiver by NIL of any provision of this Restricted
Stock Grant shall not operate as, or be construed to be, a waiver of the same or
any other provision of this Restricted Stock Grant at any subsequent time for
any other purpose.
SECTION 13. Termination or Modification of Restricted Stock Grant. This
Restricted Stock Grant shall be irrevocable except that NIL shall have the right
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to revoke this Restricted Stock Grant at any time during the Restriction Period
if it is contrary to law or modify this Restricted Stock Grant to bring it into
compliance with any valid and mandatory law or government regulation. Upon
request in writing by NIL, the Grantee will tender any certificates for
amendment of the legend or for change in the number of shares of Common Stock
issued or transferred as NIL deems necessary in light of the amendment of this
Restricted Stock Grant. In the event of revocation of this Restricted Stock
Grant pursuant to the foregoing, NIL may give notice to the Grantee that the
shares of Common Stock are to be assigned, transferred and delivered to NIL as
though the Grantee's employment with NIL terminated on the date of the notice.
SECTION 14. Governing Law & Severability. The Plan and all rights and
obligations thereunder shall be construed in accordance with and governed by the
laws of the State of Delaware. If any provision of this Agreement should be held
invalid, the remainder of this Agreement shall be enforced to the greatest
extent permitted by applicable law, it being the intent of the parties that
invalid or unenforceable provisions are severable.
SECTION 15. Entire Agreement. This Agreement, together with the Plan,
contains the entire agreement between the parties with respect to the subject
matter and supersedes any and all prior understandings, agreements or
correspondence between the parties.
SECTION 16. Dispute. Any dispute, controversy or claim arising out of, or
relating to, this Agreement or the breach, termination or invalidity thereof,
shall be settled by arbitration before a single arbitrator in accordance with
the rules of the American Arbitration Association. The place of arbitration
shall be at Houston, Texas. Nothing herein shall preclude either party from
seeking injunctive relief or other provisional remedy in aid of arbitration or
arbitration panel in case of any such breach, without limiting any other relief
to which such party may be entitled at law or equity or under this Agreement by
the Subsidiary. The losing party shall bear all the costs of any proceeding
including reasonable attorney fees.
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as
of the day and year first written above.
XXXXXX INDUSTRIES, INC.
By:-----------------------
GRANTEE
--------------------------
[NAME]
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