Exhibit 10.5
Draft of October 8, 2007
Chief Executive Officer
RESTRICTED STOCK AGREEMENT
PURSUANT TO THE
XXXXXX XXXXXX, LTD. 2006 STOCK INCENTIVE PLAN
This agreement (the "Agreement) evidences a grant of shares by Xxxxxx
Xxxxxx, Ltd. (the "Company") under the Xxxxxx Xxxxxx, Ltd. 2006 Stock Incentive
Plan (the "Plan") of Company common stock, par value $0.0001 per share ("Common
Stock" or the "Shares"), subject to certain restrictions, (the "Restricted
Stock"), to the Participant named below. Unless otherwise indicated, any
capitalized term used but not defined herein shall have the meaning ascribed to
such term in the Plan.
1. Participant: [________________________]
2. Grant Date: [________], 200_
3. Number of Shares granted subject to restriction: [_________].
4. Restrictions on Transfer. The Participant shall not sell, transfer,
pledge, hypothecate, assign or otherwise dispose of the Shares, except as set
forth in the Plan or Agreement. Any attempted sale, transfer, pledge,
hypothecation, assignment or other disposition of the Shares in violation of the
Plan or this Agreement shall be void and of no effect and the Company shall have
the right to disregard the same on its books and records and to issue "stop
transfer" instructions to its transfer agent.
5. Restricted Stock.
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(a) Retention of Certificates. Promptly after the date of this
Agreement, the Company shall issue stock certificates representing the
Restricted Stock unless, to the extent permitted under applicable law, it elects
to issue the Shares in the form of uncertificated shares and recognize such
ownership through an uncertificated book entry account maintained by the Company
(or its designee) on behalf of the Participant or through another similar
method. The stock certificates shall be registered in the Participant's name and
shall bear any legend required under the Plan or Section 6 of this Agreement.
Unless held in uncertificated book entry form, such stock certificates shall be
held in custody by the Company (or its designated agent) until the restrictions
thereon shall have lapsed. Upon the Company's request, the Participant shall
deliver to the Company a duly signed stock power, endorsed in blank, relating to
the Restricted Stock. If the Participant receives a stock dividend or
extraordinary cash dividend on the Restricted Stock or the Participant receives
any other shares, securities, moneys or property (other than regular cash
dividends on and after the date of this Agreement) representing a distribution
or return of capital upon or in respect of the Restricted Stock pursuant to a
stock split, reclassification or other like changes of the Restricted Stock, or
otherwise received in exchange therefor, and any warrants, rights or options
issued to the Participant in respect of the Restricted Stock (collectively "RS
Property") as long as the Restricted Stock remains "Restricted Stock," such RS
Property shall be subject to the same restrictions as the Restricted Stock with
regard to which they are issued and shall herein be encompassed within the term
"Restricted Stock."
(b) Rights with Regard to Restricted Stock. The Participant will
have the right to vote the Restricted Stock, to receive and retain all dividends
payable to holders of Shares of record on and after the transfer of the
Restricted Stock (although such dividends shall be treated, to the extent
required by applicable law, as additional compensation for tax purposes if paid
on Restricted Stock and stock dividends will be subject to the restrictions
provided in Section 5(c)), and to exercise all other rights, powers and
privileges of a holder of Common Stock with respect to the Restricted Stock set
forth in the Plan, with the exceptions that: (i) the Participant will not be
entitled to delivery of the stock certificate or certificates representing the
Restricted Stock until the Restriction Period shall have expired; (ii) the
Company (or its designated agent) will retain custody of the stock certificate
or certificates representing the Restricted Stock and the other RS Property
during the Restriction Period; (iii) no RS Property shall bear interest or be
segregated in separate accounts during the Restriction Period; and (iv) the
Participant may not sell, assign, transfer, pledge, exchange, encumber or
dispose of the Restricted Stock during the Restriction Period.
(c) Vesting. The Restricted Stock shall become vested and cease to
be Restricted Stock (but shall remain subject to Sections 5(g) and 7 of this
Agreement) 25% on the first anniversary of the Grant Date, 25% on the second
anniversary of the Grant Date, 25% on the third anniversary of the Grant Date
and 25% on the fourth anniversary of the Grant Date; provided that the
Participant has not had a Termination any time prior to the applicable vesting
date.
The Shares of Restricted Stock will become fully vested on a Change in
Control.
Upon vesting, the Company shall promptly issue and deliver, unless the
Company is using book entry, to the Participant a new stock certificate
registered in the name of the Participant for such Shares without the legend set
forth in Section 6 hereof and deliver to the Participant any related other RS
Property, subject to applicable withholding.
(d) Termination; Forfeiture.
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(i) Except as provided in Section 5(d)(ii), the Participant
shall forfeit to the Company, without compensation, any and all Shares of
Restricted Stock that are not vested (but no vested portion of the Shares) and
RS Property upon the Participant's Termination of Employment for any reason.
(ii) The terms of the employment agreement between the
Participant and the Company shall control the vesting of the Restricted Stock on
any Termination. In addition, in the event of: (A) any non-renewal of the
Participant's employment agreement with the Company or (B) a termination of the
Participant's employment by the Company without Cause (as defined in such
employment agreement), all restrictions on the Shares shall lapse and the
Restricted Stock shall immediately vest and cease to be Restricted Stock (but
shall remain subject to Sections 5(g) and 7 of this Agreement).
(e) Withholding. Participant shall pay, or make arrangements to
pay, in a manner satisfactory to the Company, an amount equal to the amount of
all applicable federal, state and local or foreign taxes that the Company is
required to withhold at any time. In the absence of such arrangements, the
Company or one of its Affiliates shall have the right to withhold such taxes
from the Participant's normal pay or other amounts payable to the Participant.
In addition, any statutorily required withholding obligation may be satisfied,
in whole or in part, at the Participant's election, in the form and manner
prescribed by the Committee, by delivery of Shares of Common Stock (including
Shares issuable under this Agreement).
(f) Section 83(b). If the Participant properly elects (as required
by Section 83(b) of the Code) within 30 days after the issuance of the
Restricted Stock to include in gross income for federal income tax purposes in
the year of issuance the fair market value of such Shares of Restricted Stock,
the Participant shall pay to the Company or make arrangements satisfactory to
the Company to pay to the Company upon such election, any federal, state or
local taxes required to be withheld with respect to the Restricted Stock. If the
Participant shall fail to make such payment, the Company shall, to the extent
permitted by law, have the right to deduct from any payment of any kind
otherwise due to the Participant any federal, state or local taxes of any kind
required by law to be withheld with respect to the Restricted Stock, as well as
the rights set forth in Section 5(e) hereof. The Participant acknowledges that
it is his or her sole responsibility, and not the Company's, to file timely and
properly the election under Section 83(b) of the Code and any corresponding
provisions of state tax laws if he or she elects to utilize such election.
(g) Delivery Delay. The delivery of any certificate representing
the Restricted Stock or other RS Property may be postponed by the Company for
such period as may be required for it to comply with any applicable federal or
state securities law, or any national securities exchange listing requirements
and the Company is not obligated to issue or deliver any securities if, in the
opinion of counsel for the Company, the issuance of such Shares shall constitute
a violation by the Participant or the Company of any provisions of any law or of
any regulations of any governmental authority or any national securities
exchange.
6. Legend. All certificates representing the Restricted Stock shall have
endorsed thereon the legends (a) required under Section 8.2(d) of the Plan and
(b) any legend required to be placed thereon by applicable blue sky laws of any
state. Notwithstanding the foregoing, in no event shall the Company be obligated
to issue a certificate representing the Restricted Stock prior to the vesting
dates set forth above.
7. Securities Representations. The Shares are being issued to the
Participant and this Agreement is being made by the Company in reliance upon the
following express representations and warranties of the Participant.
The Participant acknowledges, represents and warrants that:
(a) He or she has been advised that he or she may be an
"affiliate" within the meaning of Rule 144 under the Securities Act of 1933, as
amended (the "Act") and in this connection the Company is relying in part on his
or her representations set forth in this section.
(b) If he or she is deemed an affiliate within the meaning of Rule
144 of the Act, the Shares must be held indefinitely unless an exemption from
any applicable resale restrictions is available or the Company files an
additional registration statement (or a "re-offer prospectus") with regard to
such Shares and the Company is under no obligation to register the Shares (or to
file a "re-offer prospectus").
(c) If he or she is deemed an affiliate within the meaning of Rule
144 of the Act, he or she understands that the exemption from registration under
Rule 144 will not be available unless (i) a public trading market then exists
for the Common Stock of the Company, (ii) adequate information concerning the
Company is then available to the public, and (iii) other terms and conditions of
Rule 144 or any exemption therefrom are complied with; and that any sale of the
Shares may be made only in limited amounts in accordance with such terms and
conditions.
8. No Obligation to Continue Employment. This Agreement is not an
agreement of employment. This Agreement does not guarantee that the Company or
its Affiliates will employ or retain, or to continue to, employ or retain the
Participant during the entire, or any portion of the, term of this Agreement,
including but not limited to any period during which the Restricted Stock is
outstanding, nor does it modify in any respect the Company or its Affiliate's
right to terminate or modify the Participant's employment or compensation.
9. Power of Attorney. The Company, its successors and assigns, is hereby
appointed the attorney-in-fact, with full power of substitution, of the
Participant for the purpose of carrying out the provisions of this Agreement and
taking any action and executing any instruments which such attorney-in-fact may
deem necessary or advisable to accomplish the purposes hereof, which appointment
as attorney-in-fact is irrevocable and coupled with an interest. Nevertheless,
the Participant shall, if so requested by the Company, execute and deliver to
the Company all such instruments as may, in the judgment of the Company, be
advisable for the purpose.
10. Rights as a Stockholder. The Participant shall have no rights as a
stockholder with respect to any Shares covered by the Restricted Stock unless
and until the Participant has become the holder of record of the Shares, and no
adjustments shall be made for dividends in cash or other property, distributions
or other rights in respect of any such Shares, except as otherwise specifically
provided for in the Plan.
11. Provisions of Plan Control. This Agreement is subject to all the terms,
conditions and provisions of the Plan, including, without limitation, the
amendment provisions thereof, and to such rules, regulations and interpretations
relating to the Plan as may be adopted by the Committee and as may be in effect
from time to time. The Plan is incorporated herein by reference and all
capitalized terms in this Agreement that are not otherwise defined shall have
the same meaning as set forth in the Plan. If and to the extent that this
Agreement conflicts or is inconsistent with the terms, conditions and provisions
of the Plan, the Plan shall control, and this Agreement shall be deemed to be
modified accordingly. This Agreement contains the entire understanding of the
parties with respect to the subject matter hereof and supersedes any prior
agreements between the Company and the Participant with respect to the subject
matter hereof.
12. Acceptance. As required by Section 8.2(b) of the Plan, the Participant
shall forfeit the Restricted Stock if the Participant does not execute this
Agreement with a period of 60 days from the date the Participant receives this
Agreement (or such other period as the Committee shall provide).
13. Miscellaneous.
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(a) This Agreement shall inure to the benefit of and be binding
upon the parties hereto and their respective heirs, legal representatives,
successors and assigns.
(b) This Agreement shall be governed and construed in accordance
with the laws of Delaware (regardless of the law that might otherwise govern
under applicable Delaware principles of conflict of laws).
(c) This Agreement may be executed in one or more counterparts,
all of which taken together shall constitute one contract.
(d) The failure of any party hereto at any time to require
performance by another party of any provision of this Agreement shall not affect
the right of such party to require performance of that provision, and any waiver
by any party of any breach of any provision of this Agreement shall not be
construed as a waiver of any continuing or succeeding breach of such provision,
a waiver of the provision itself, or a waiver of any right under this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed on the Grant Date.
XXXXXX XXXXXX, LTD.
By: _________________________________
Title:_______________________________
PARTICIPANT
__________________________________________
[Name]
