EXHIBIT 10.1
RESTRICTED STOCK AWARD AGREEMENT
ACIES CORPORATION
RESTRICTED STOCK AWARD AGREEMENT
This Restricted Stock Award Agreement (the "Agreement") is made as of the
1st day of February, 2006 ("Date of Award"), between Acies Corporation, a Nevada
corporation (the "Company"), and Xxxxxxx X. Xxxxxxxx (the "Awardee").
WHEREAS, the Company desires to award the Awardee a restricted stock award
with respect to shares of the Company's common stock, par value $0.001 per
share (the "Common Stock"), as hereinafter provided;
NOW, THEREFORE, in consideration of the mutual covenants hereinafter set
forth and for other good and valuable consideration, the parties hereto have
agreed, and do hereby agree, as follows:
1. Grant. A restricted stock award ("Award") of 1,650,000 shares ("Award
Shares") of Common Stock is hereby granted by the Company to the Awardee subject
to the following terms and conditions.
2. Transfer Restrictions. Subject to Section 3 below, none of the Award
Shares shall be sold, assigned, pledged or otherwise transferred, voluntarily or
involuntarily, by the Awardee. Award Shares with respect to which the
restrictions set forth in Section 3 of this Agreement have lapsed are referred
to herein as "Vested Shares". For purposes of this Agreement, the term "Shares"
shall refer to both Award Shares and Vested Shares.
3. Release of Restrictions.
(a) The restrictions set forth in Section 2 above shall lapse with
respect to 50% of the Award Shares on the Date of Award and with respect to the
remaining 50% of the Award Shares on the annual anniversary date of the Date of
Award such that all restrictions set forth in Section 2 above with respect to
the Award Shares shall have lapsed on the first anniversary of the Date of
Award; provided, however, that the Award Shares shall, to the extent that the
restrictions of Section 2 have not lapsed, be forfeited to the Company upon the
date that the Awardee no longer has an employment or service relationship with
the Company (or any Related Company) unless such employment or service
relationship has terminated due to the death or Disability of the Awardee. For
purposes of this Agreement, the term "Disability" shall mean a mental or
physical impairment of the Awardee that is expected to result in death or that
has lasted or is expected to last for a continuous period of 12 months or more
and that causes the Awardee to be unable, in the opinion of the Company, to
perform his or her duties for the Company or a Related Company and to be engaged
in any substantial gainful activity; and the term "Related Company" shall mean
any entity that, directly or indirectly, is in control of or is controlled by
the Company.
(b) The restrictions set forth in Section 2 above with respect to
the Award Shares, to the extent they have not lapsed in accordance with
subsection (a) of this Section 3 and to the extent not related to shares which
previously have been forfeited to the Company, also shall lapse upon the
consummation of a Corporate Transaction.
For purposes of the foregoing, a "Corporate Transaction" means the
consummation of either:
(i) a merger or consolidation of the Company with or into any
other corporation, entity or person; or
(ii) a sale, lease, exchange or other transfer in one
transaction or a series of related transactions of all or substantially all the
Company's outstanding securities or all or substantially all the Company's
assets.
Notwithstanding the foregoing, a Corporate Transaction shall
not include a Related Party Transaction. A "Related Party Transaction" means (A)
a merger or consolidation of the Company in which the holders of shares of
Common Stock immediately prior to the merger hold at least a majority of the
shares of Common Stock in the successor corporation (or any parent of such
successor corporation) immediately after the merger; (B) a sale, lease, exchange
or other transaction in one transaction or a series of related transactions of
all or substantially all the Company's assets to a wholly-owned subsidiary
corporation; (C) a mere reincorporation of the Company or change in its state of
incorporation; or (D) a transaction undertaken for the sole purpose of creating
a holding company that will be owned in substantially the same proportion by the
persons who held the Company's securities immediately before such transaction.
4. Effect of Prohibited Transfer. The Company shall not be required to (a)
transfer on its books any Shares that have been sold or transferred in violation
of any of the provisions set forth in this Agreement, or (b) treat as owner of
such Shares or to pay dividends or other distributions to any transferee to whom
any such Shares shall have been so sold or transferred.
5. Restrictive Legend. All certificates representing Vested Shares shall
have affixed thereto a legend in substantially the following form, in addition
to any other legends that may be required under federal or state securities
laws:
The shares of stock represented by this certificate are subject to
restrictions on transfer and a market stand-off agreement set forth in a certain
Restricted Stock Award Agreement between the corporation and the registered
owner of this certificate (or his predecessor in interest), and no transfer of
such shares may be made without compliance with that Agreement. A copy of that
Agreement is available for inspection at the office of Acies Corporation upon
appropriate request and without charge.
The securities represented by this stock certificate have not been
registered under the Securities Act of 1933 (the "Act") or applicable state
securities laws (the "State Acts"), and shall not be sold, pledged,
hypothecated, donated, or otherwise transferred (whether or not for
consideration) by the holder except upon the issuance to the corporation of a
favorable opinion of its counsel and/or submission to the corporation of such
other evidence as may be satisfactory to counsel for the corporation, to the
effect that any such transfer shall not be in violation of the Act and the State
Acts."
6. Investment Representations. Awardee understands that (i) the Shares
have not been registered under the Securities Act and are "restricted
securities" within the meaning of Rule 144 under the Securities Act; (ii) the
Shares cannot be sold, transferred or otherwise disposed of unless they are
subsequently registered under the Securities Act or an exemption from
registration is then available; (iii) in any event, the exemption from
registration under Rule 144 will not be available for at least one year and even
then will not be available unless a public market then exists for the Common
Stock, adequate information concerning the Company is then available to the
public, and other terms and conditions of Rule 144 are met; and (iv) there is
now no registration statement on file with the Securities and Exchange
Commission with respect to any stock of the Company and the Company has no
obligation or current intention to register the Shares under the Securities Act.
7. Market Stand-Off. Following the effective date of a registration
statement of the Company filed under the Securities Act, the Awardee, for the
duration specified by and to the extent requested by the Company and an
underwriter of Common Stock or other securities of the Company, shall not
directly or indirectly sell, offer to sell, contract to sell (including, without
limitation, any short sale), grant any option to purchase, or otherwise transfer
or dispose of (other than to a donee who agrees to be similarly bound) any
securities of the Company held by the Awardee at any time during such period
except Common Stock (or other securities) included in such registration,
provided however, that all officers and directors of the Company and all persons
with registration rights with respect to the Company's capital stock enter into
similar agreements.
8. Invalidity or Unenforceability. It is the intention of the Company and
the Awardee that this Agreement shall be enforceable to the fullest extent
allowed by law. In the event that a court having jurisdiction holds any
provision of this Agreement to be invalid or unenforceable, in whole or in part,
the Company and the Awardee agree that, if allowed by law, that provision shall
be reduced to the degree necessary to render it valid and enforceable without
affecting the rest of this Agreement.
9. Waiver. No delay or omission by the Company in exercising any right
under this Agreement shall operate as a waiver of that or any other right. A
waiver or consent given by the Company on any one occasion shall be effective
only in that instance and shall not be construed as a bar or waiver of any right
on any other occasion.
10. Rights as Stockholder. The Awardee shall be entitled to all of the
rights of a stockholder with respect to the Shares including the right to vote
such Shares and to receive dividends and other distributions payable with
respect to such shares since the Date of Award.
11. Custody of Share Certificates. Certificates for Award Shares shall be
issued in the Awardee's name and shall be held in the custody of the Company
until the restrictions with respect thereto lapse or such Shares are forfeited.
A certificate or certificates representing the Vested Shares as to which
restrictions have lapsed shall be delivered to the Awardee upon such lapse. This
Award is conditioned upon the Awardee endorsing in blank a stock power for the
Award Shares in the form of Exhibit A, such stock power to be held by the
Company until all Award Shares have become Vested Shares or have been forfeited.
12. Government Regulations. Notwithstanding anything contained herein to
the contrary, the Company's obligation to issue or deliver certificates
evidencing the Vested Shares shall be subject to all applicable laws, rules and
regulations and to such approvals by any governmental agencies or national
securities exchanges as may be required.
13. Section 83(b) Election. The Awardee hereby acknowledges that the
Awardee has been informed that, with respect to the Restricted Shares, the
Awardee may file an election with the Internal Revenue Service, within 30 days
of the issuance of the Restricted Shares, electing pursuant to Section 83(b) of
the Internal Revenue Code of 1986, as amended, (the "Code") to be taxed
currently on any difference between the purchase price of the Restricted Shares
and their fair market value on the date of purchase. Absent such an election,
taxable income will be measured and recognized by the Awardee at the time or
times at which the forfeiture restrictions on the Restricted Shares lapse. The
Awardee is strongly encouraged to seek the advice of his own tax consultants in
connection with the issuance of the Restricted Shares and the advisability of
filing of the election under Section 83(b) of the Code. A form of Election under
Section 83(b) is attached hereto as Exhibit B for reference.
THE AWARDEE ACKNOWLEDGES THAT IT IS NOT THE COMPANY'S, BUT RATHER THE AWARDEE'S
SOLE RESPONSIBILITY TO FILE THE ELECTION UNDER SECTION 83(b) TIMELY.
14. Withholding Taxes. The Company shall have the right to require the
Awardee to remit to the Company, or to withhold from amounts payable to the
Awardee, as compensation or otherwise, an amount sufficient to satisfy all
federal, state and local withholding tax requirements (including, without
limitation, any tax resulting from (i) the expiration of restrictions set forth
hereunder that are applicable to any particular Restricted Shares or (ii) an
election made by the Awardee under Section 83(b) of the Code).
15. Awardee Representations. (a) The Awardee has reviewed with his own tax
advisors the federal, state, local and foreign tax consequences of the
transactions contemplated by this Agreement. The Awardee is relying solely on
such advisors and not on any statements or representations of the Company or any
of its agents, if any, made to the Awardee. The Awardee understands that the
Awardee (and not the Company) shall be responsible for the Awardee's own tax
liability arising as a result of the transactions contemplated by this
Agreement.
(b) Circular 230 Disclaimer: Nothing contained in this discussion of
certain federal income tax considerations is intended or written to be used, and
cannot be used, for the purpose of (i) avoiding tax-related penalties under the
Internal Revenue Code or (ii) promoting, marketing, or recommending to another
party any transactions or tax-related matters addressed herein.
16. Employment. Neither this Agreement nor any action taken hereunder
shall be construed as giving the Awardee any right of continuing employment by
the Company.
17. Governing Law. This Agreement shall be construed under the laws of the
State of Nevada, without regard to choice of law principles.
18. Other Agreements. This Agreement constitutes the entire understanding
between Awardee and the Company relatng to the Award and any prior agreements,
commitments, understandings and/or negatiations concerning this Award are hereby
superseded. This Agreement may only be amended by written agreement between the
Awardee and the Company.
IN WITNESS WHEREOF, the Company has caused this Award to be granted on the
date first above written.
ACIES CORPORATION
By:/s/ Xxxx Xxxxx
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Name: Xxxx Xxxxx
Title: Chief Executive Officer
Accepted:
Awardee
/s/ Xxxxxxx X. Xxxxxxxx
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Xxxxxxx X. Xxxxxxxx
Chief Financial Officer
