EXHIBIT 10.79
XXXXXXXX-SONOMA, INC.
RESTRICTED STOCK AGREEMENT
THIS RESTRICTED STOCK AGREEMENT (the "AGREEMENT") is made and entered
into as of August 22, 2001 by and between Xxxxxxxx-Sonoma, Inc., a California
corporation (the "COMPANY"), and Xxxx X. Xxxxxxx (the "GRANTEE"), with reference
to the following facts:
A. The Grantee is the Chief Executive Officer of the Company.
B. Pursuant to the Company's 2001 Incentive Bonus Plan (the "PLAN"), the
Administrative Committee of the Plan determined to grant to the Grantee 250,000
shares of the Common Stock of the Company (the "SHARES") if the Company met
certain objective performance goals for the second quarter of its 2001 fiscal
year, with such grant being subject to certain vesting conditions.
C. The Administrative Committee of the Plan has certified that the
Company met the objective performance goals for the second quarter of its 2001
fiscal year.
D. Accordingly, the Company wishes to grant the Shares to the Grantee,
and the Grantee wishes to accept such grant, on the terms and conditions set
forth in this Agreement.
NOW, THEREFORE, in consideration of the mutual agreements contained
herein, the Grantee and the Company hereby agree as follows:
1. Grant and Terms of Shares.
1.1 Grant of Shares. The Company hereby grants the Shares to the
Grantee, subject to the terms and conditions set forth in this Agreement.
1.2 Vesting. As of the date of grant of the Shares, all of the Shares
shall be unvested, and shall become fully vested on March 31, 2004 if the
Grantee remains continuously employed by the Company from the date of this
Agreement until March 31, 2004. Notwithstanding the foregoing, the Shares shall
immediately vest in full in the event that, before March 31, 2004, (a) the
Grantee dies, (b) the employment of the Grantee is terminated under Section 6 of
the Employment Agreement dated as of February 5, 2001 by and between the Company
and the Grantee (the "EMPLOYMENT AGREEMENT") on account of physical or mental
incapacity of the Grantee, (c) the Grantee retires in accordance with the
policies of the Company then in effect, (d) the Company involuntarily terminates
the Grantee's employment without "cause," as such term is defined in the
Employment Agreement, (e) the Grantee terminates his employment with the Company
under Section 8 of the Employment Agreement on account of a "Triggering Event,"
as such term is defined in the Employment Agreement, or (f) a "Change in
Control," as such term is defined in the Employment Agreement, occurs. If,
before March 31, 2004, the Company terminates the Grantee's employment for
"cause," as such term is defined in the Employment Agreement, or the Grantee
voluntarily terminates his employment with the Company other than in
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accordance with Section 8 of the Employment Agreement following a "Triggering
Event," as defined in the Employment Agreement, the Shares shall not vest and
all unvested Shares be cancelled without payment of consideration to the
Grantee.
2. General Restrictions on Transfer of Shares.
2.1 Conditions to Transfer. No Transfer (including a Permitted Transfer)
of any Shares may occur unless and until (a) the Company shall have received
written notice of the proposed Transfer, setting forth the circumstance and
details thereof at least 30 days prior to its effectiveness; (b) the Company
shall (at its option) have received a written opinion, from an attorney and in a
form reasonably satisfactory to the Company, specifying the nature and
circumstances of the proposed Transfer, and stating that the proposed Transfer
will not be in violation of any Applicable Laws; (c) the Company shall have
received from the Transferee (and the Transferee's spouse if such spouse will
have a community property interest in the Shares) a written consent to be bound
by all of the terms and conditions of this Agreement; and (d) the Company shall
have received reasonable assurances (in its sole and absolute discretion) that
the Transfer complies with all other applicable requirements of this Agreement.
2.2 No Transfers of Unvested Shares. In no event shall the Grantee
Transfer any Shares that are not vested (or any right or interest therein) to
any Person in any manner whatsoever, whether voluntarily or by operation of law
or otherwise, other than in a Permitted Transfer.
2.3 Transferee Bound by Agreement. The Shares owned or controlled by a
Transferee (including a Permitted Transferee) shall for all purposes be subject
to the terms of this Agreement (as if the Transferee were the Grantee), whether
or not such Transferee has executed a consent to be bound by this Agreement.
2.4 Invalid Sales. Any purported Transfer of Shares made without fully
complying with all of the provisions of this Agreement shall be null and void
and without force or effect.
2.5 Termination of Transfer Restrictions. The restrictions set forth in
this Section 2 shall terminate upon the written agreement of the Company and the
Grantee.
3. Permitted Transfers of Shares. Subject to compliance with the restrictions
and conditions set forth in Section 2, the Grantee shall be permitted to
Transfer Shares (i) to his or her spouse, lineal or legally adopted descendants
or ancestors (and their spouses), (ii) to the trustee of a trust for the sole
benefit of such persons, or (iii) to an entity in which such Grantee or his
Permitted Transferees own, directly or indirectly, 100% of the equity interests
(any such Transfer shall be referred to as a "PERMITTED TRANSFER"), provided in
each case that the Grantee retains all voting rights in the Shares. No Permitted
Transferee of the Grantee shall be permitted to Transfer Shares to any Person to
whom the Grantee would not be permitted to Transfer Shares pursuant to the terms
of this Agreement.
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4. Voting and Distribution Rights.
The Grantee shall have the right to vote all Shares, and to receive all
distributions and dividends with respect to all Shares, whether or not such
Shares have vested.
5. Compliance With Applicable Laws.
The Grantee will do all acts and things, execute, acknowledge and
deliver all documents and instruments, and make all representations and
warranties that are necessary or appropriate, in the judgment of the Company,
for the grant, vesting, holding or Transfer of the Shares to comply with
Applicable Laws. Without limiting the generality of the foregoing, the Grantee
hereby represents and warrants that:
(a) He is sufficiently aware of the Company's business affairs and
financial condition to reach an informed and knowledgeable decision to acquire
the Shares. He is purchasing the Shares for his own account for investment
purposes only and not with a view to, or for the resale in connection with, any
"distribution" thereof for purposes of the Securities Act of 1933, as amended,
and the rules promulgated thereunder (the "SECURITIES ACT").
(b) He understands that the Shares have not been registered under the
Securities Act in reliance upon a specific exemption therefrom, which exemption
depends upon, among other things, the bona fide nature of my investment intent
as expressed herein. In addition, he understands that the Shares have not been
registered under any state securities law.
(c) He further understands that the Shares must be held indefinitely
unless subsequently registered under the Securities Act or unless an exemption
from registration is otherwise available (such as Rule 144 under the Securities
Act). In addition, he understands that the certificate evidencing the Shares
will be imprinted with a legend which prohibits the transfer of the Shares
unless they are registered or such registration is not required in the opinion
of counsel for the Company.
(d) He understands that at the time he wishes to sell the Shares, there
may be no public market upon which to make such a sale, and that, even if such a
public market then exists, the Company may not be satisfying the current public
information requirements of Rule 144, and that, in such event, he would be
precluded from selling the Shares under Rule 144 even if the minimum holding
periods had been satisfied.
The Company agrees that if, when the Shares become vested, the Grantee
(or other holder of such Shares in accordance with this Agreement) is not
permitted to sell such Shares in the public market by reason of the Securities
Act, the Company shall, upon the demand of the Grantee (or of such holder) file,
and use its best efforts to make effective and keep in effect for at least a one
year period, a registration statement with the Securities and Exchange
Commission to permit the lawful sale of such Shares in the public market by the
Grantee (or such holder).
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6. Tax Withholding.
To the extent that the grant or the vesting of the Shares results in
taxable income to the Grantee for federal, state or local income tax purposes,
the Grantee shall pay to the Company withholding taxes with respect to such
taxable income (in such amounts as determined by the Grantee, but at least equal
to the minimum required amounts) through the payment of cash or tender of shares
of the common stock of the Company (which may include a portion of the Shares),
as elected by the Grantee. If shares of the common stock of the Company are so
tendered, the value thereof for purposes of such tender shall be the value of
such shares that is used in determining the applicable income tax.
7. Certain Definitions.
For purposes of this Agreement, the following terms are defined as
follows:
7.1 "APPLICABLE LAWS" means the legal requirements relating to the
grant, vesting, holding, or Transfer of the Shares, including, without
limitation, the requirements of state corporations law, federal and state
securities law, federal and state tax law, and the requirements of any stock
exchange or quotation system upon which the Shares may then be listed or quoted.
For all purposes of this Agreement, references to statutes and regulations shall
be deemed to include any successor statutes and regulations, to the extent
reasonably appropriate as determined by the Company.
7.2 "PERMITTED TRANSFEREE" shall mean any Person to whom a Permitted
Transfer of Shares is made, but only with regard to the Shares which were the
subject of a Permitted Transfer.
7.3 "PERSON" shall mean a company, a corporation, an association, a
partnership, a limited liability company, an organization, a joint venture, a
trust or other legal entity, an individual, a government or political
subdivision thereof or a governmental agency.
7.4 "TRANSFER" shall mean any sale, transfer, assignment, hypothecation,
encumbrance, placement in trust (voting or otherwise) or transfer by operation
of law (other than by way of a merger or consolidation of the Company) or other
disposition, whether direct or indirect, whether voluntary or involuntary,
whether by gift, bequest or otherwise, of Shares. In the case of a
hypothecation, the Transfer shall be deemed to occur both at the time of the
initial pledge and at any pledgee's sale or a sale by any secured creditor or a
retention by the secured creditor of the pledged Shares in complete or partial
satisfaction of the indebtedness for which the Shares are security.
7.5 "TRANSFEREE" shall mean any Person (including a Permitted
Transferee) to whom the Grantee wishes to Transfer any Shares.
8. General.
8.1 Governing Law. This Agreement shall be governed by and construed
under the laws of the state of California applicable to Agreements made and to
be performed entirely in California, without regard to the conflicts of law
provisions of California or any other jurisdiction.
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8.2 Notices. Any notice required or permitted under this Agreement shall
be given in writing by express courier or by postage prepaid, United States
registered or certified mail, return receipt requested, to the address set forth
below or to such other address for a party as that party may designate by 10
days advance written notice to the other parties. Notice shall be effective upon
the earlier of receipt or 3 days after the mailing of such notice.
If to the Company: Xxxxxxxx-Sonoma, Inc.
0000 Xxx Xxxx Xxxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Chief Financial Officer
If to the Grantee: Xxxx X. Xxxxxxx
0 Xxxx Xxxxx
Xxxx Xxxxxx, Xxxxxxxxxx 00000
8.3 Legend. In addition to any other legend which may be required by
agreement or Applicable Laws, each share certificate representing Shares shall
have endorsed upon its face a legend in substantially the form set forth below:
THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO CERTAIN
RESTRICTIONS ON TRANSFER, SALE AND HYPOTHECATION AND CERTAIN
REPURCHASE RIGHTS. A COMPLETE STATEMENT OF THE TERMS AND
CONDITIONS GOVERNING SUCH RESTRICTIONS IS SET FORTH IN AN
AGREEMENT, DATED AS OF AUGUST 22, 2001, A COPY OF WHICH IS ON
FILE AT THE CORPORATION'S PRINCIPAL OFFICE.
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY
STATE SECURITIES LAWS, AND MAY NOT BE OFFERED, SOLD OR
TRANSFERRED EXCEPT PURSUANT TO (I) AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND IN
COMPLIANCE WITH APPLICABLE STATE SECURITIES LAWS, OR (II) AN
APPLICABLE EXEMPTION FROM REGISTRATION THEREUNDER AND AN OPINION
OF COUNSEL REASONABLY SATISFACTORY TO THE COMPANY THAT
REGISTRATION IS NOT REQUIRED.
8.4 Deposit of Certificates With Company. In order to ensure that the
Grantee complies with the provisions of this Agreement, and that no Transfers of
Shares are made in
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violation hereof, the Grantee shall deposit all certificates representing Shares
with the Company.
8.5 Community Property. Without prejudice to the actual rights of the
spouses as between each other, for all purposes of this Agreement, the Grantee
shall be treated as agent and attorney-in-fact for that interest held or claimed
by his or her spouse with respect to any Shares and the parties hereto shall act
in all matters as if the Grantee was the sole owner of such Shares. This
appointment is coupled with an interest and is irrevocable.
8.6 Modifications. This Agreement may be amended, altered or modified
only by a writing signed by each of the parties hereto.
8.7 Application to Other Stock. In the event any capital stock of the
Company or any other corporation shall be distributed on, with respect to, or in
exchange for shares of Common Stock as a stock dividend, stock split,
reclassification or recapitalization in connection with any merger or
reorganization or otherwise, all restrictions, rights and obligations set forth
in this Agreement shall apply with respect to such other capital stock to the
same extent as they are, or would have been applicable, to the Shares on or with
respect to which such other capital stock was distributed.
8.8 Additional Documents. Each party agrees to execute any and all
further documents and writings, and to perform such other actions, which may be
or become reasonably necessary or expedient to be made effective and carry out
this Agreement.
8.9 No Third-Party Benefits. Except as otherwise expressly provided in
this Agreement, none of the provisions of this Agreement shall be for the
benefit of, or enforceable by, any third-party beneficiary.
8.10 Successors and Assigns. Except as provided herein to the contrary,
this Agreement shall be binding upon and inure to the benefit of the parties,
their respective successors and permitted assigns.
8.11 No Assignment. Except as otherwise provided in this Agreement, the
Grantee may not assign any of his its rights under this Agreement without the
prior written consent of the Company, which consent may be withheld in its sole
discretion. The Company shall be permitted to assign its rights or obligations
under this Agreement, but no such assignment shall release the Company of any
obligations pursuant to this Agreement.
8.12 Severability. The validity, legality or enforceability of the
remainder of this Agreement shall not be affected even if one or more of the
provisions of this Agreement shall be held to be invalid, illegal or
unenforceable in any respect.
8.13 Equitable Relief. The Grantee acknowledges that, in the event of a
threatened or actual breach of any of the provisions of this Agreement, damages
alone will be an inadequate remedy, and such breach will cause the Company
great, immediate and irreparable injury and damage. Accordingly, the Grantee
agrees that the Company shall be entitled to injunctive and other equitable
relief, and that such relief shall be in addition to, and not in lieu of, any
remedies they may have at law or under this Agreement.
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8.14 Arbitration.
8.14.1 General. Any controversy, dispute, or claim between the
parties to this Agreement, including any claim arising out of, in connection
with, or in relation to the formation, interpretation, performance or breach of
this Agreement shall be settled exclusively by arbitration, before a single
arbitrator, in accordance with this section 8.14 and the then most applicable
rules of the American Arbitration Association. Judgment upon any award rendered
by the arbitrator may be entered by any state or federal court having
jurisdiction thereof. Such arbitration shall be administered by the American
Arbitration Association. Arbitration shall be the exclusive remedy for
determining any such dispute, regardless of its nature. Notwithstanding the
foregoing, either party may in an appropriate matter apply to a court pursuant
to California Code of Civil Procedure Section 1281.8, or any comparable
provision, for provisional relief, including a temporary restraining order or a
preliminary injunction, on the ground that the award to which the applicant may
be entitled in arbitration may be rendered ineffectual without provisional
relief. Unless mutually agreed by the parties otherwise, any arbitration shall
take place in the City of San Francisco, California.
8.14.2 Selection of Arbitrator. In the event the parties are
unable to agree upon an arbitrator, the parties shall select a single arbitrator
from a list of nine arbitrators drawn by the parties at random from a list of
nine persons (which shall be retired judges or corporate or litigation attorneys
experienced in stock options and buy-sell agreements) provided by the office of
the American Arbitration Association having jurisdiction over San Francisco,
California. If the parties are unable to agree upon an arbitrator from the list
so drawn, then the parties shall each strike names alternately from the list,
with the first to strike being determined by lot. After each party has used four
strikes, the remaining name on the list shall be the arbitrator. If such person
is unable to serve for any reason, the parties shall repeat this process until
an arbitrator is selected.
8.14.3 Applicability of Arbitration; Remedial Authority. This
agreement to resolve any disputes by binding arbitration shall extend to claims
against any parent, subsidiary or affiliate of each party, and, when acting
within such capacity, any officer, director, shareholder, employee or agent of
each party, or of any of the above, and shall apply as well to claims arising
out of state and federal statutes and local ordinances as well as to claims
arising under the common law. In the event of a dispute subject to this
paragraph the parties shall be entitled to reasonable discovery subject to the
discretion of the arbitrator. The remedial authority of the arbitrator (which
shall include the right to grant injunctive or other equitable relief) shall be
the same as, but no greater than, would be the remedial power of a court having
jurisdiction over the parties and their dispute. The arbitrator shall, upon an
appropriate motion, dismiss any claim without an evidentiary hearing if the
party bringing the motion establishes that he or it would be entitled to summary
judgement if the matter had been pursued in court litigation. In the event of a
conflict between the applicable rules of the American Arbitration Association
and these procedures, the provisions of these procedures shall govern.
8.14.4 Fees and Costs. Any filing or administrative fees shall
be borne initially by the party requesting arbitration. The Company shall be
responsible for the costs and fees of the arbitration, unless the Grantee wishes
to contribute (up to 50%) of the costs
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and fees of the arbitration. Notwithstanding the foregoing, the prevailing party
in such arbitration, as determined by the arbitrator, and in any enforcement or
other court proceedings, shall be entitled, to the extent permitted by law, to
reimbursement from the other party for all of the prevailing party's costs
(including but not limited to the arbitrator's compensation), expenses, and
attorneys' fees.
8.14.5 Award Final and Binding. The arbitrator shall render an
award and written opinion, and the award shall be final and binding upon the
parties. If any of the provisions of this paragraph, or of this Agreement, are
determined to be unlawful or otherwise unenforceable, in whole or in part, such
determination shall not affect the validity of the remainder of this Agreement,
and this Agreement shall be reformed to the extent necessary to carry out its
provisions to the greatest extent possible and to insure that the resolution of
all conflicts between the parties, including those arising out of statutory
claims, shall be resolved by neutral, binding arbitration. If a court should
find that the arbitration provisions of this Agreement are not absolutely
binding, then the parties intend any arbitration decision and award to be fully
admissible in evidence in any subsequent action, given great weight by any
finder of fact, and treated as determinative to the maximum extent permitted by
law.
8.15 Headings. The section headings in this Agreement are inserted only
as a matter of convenience, and in no way define, limit, extend or interpret the
scope of this Agreement or of any particular section.
8.16 Number and Gender. Throughout this Agreement, as the context may
require, (a) the masculine gender includes the feminine and the neuter gender
includes the masculine and the feminine; (b) the singular tense and number
includes the plural, and the plural tense and number includes the singular; (c)
the past tense includes the present, and the present tense includes the past;
(d) references to parties, sections, paragraphs and exhibits mean the parties,
sections, paragraphs and exhibits of and to this Agreement; and (e) periods of
days, weeks or months mean calendar days, weeks or months.
8.17 Counterparts. This Agreement may be executed simultaneously in two
or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
8.18 Complete Agreement. This Agreement constitutes the parties' entire
agreement with respect to the subject matter hereof and supersede all
agreements, representations, warranties, statements, promises and
understandings, whether oral or written, with respect to the subject matter
hereof.
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IN WITNESS WHEREOF, the Company and the Grantee have executed this
Agreement, to be effective as of the date first above written.
The "Company"
XXXXXXXX-SONOMA, INC.,
a California corporation
By: /S/ XXXXXX X. XxXXXXXX
---------------------------------
The "Grantee"
/S/ XXXX X. XXXXXXX
-----------------------------------
Xxxx X. Xxxxxxx
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