EXHIBIT 10.3
ARCADIA RESOURCES, INC.
RESTRICTED STOCK GRANT AGREEMENT
THIS RESTRICTED STOCK GRANTAGREEMENT (the "Agreement") is made as of the
effective date specified below (the "Effective Date") by and between ARCADIA
RESOURCES, INC., a Nevada corporation (the "Company"), and the undersigned
employee of the Company or one or more of the Company's subsidiaries (the
"Holder"). The Company and Holder are sometimes referred to individually as a
"Party" and collectively as the "Parties."
RECITALS
A. The Company desires that Holder exert his or her utmost efforts to
improve the business and increase the assets of the Company.
B. As a matter of separate inducement and not in lieu of salary, other
compensation or benefits payable for the services of Holder, the Company,
contingent on and subject to the terms and conditions of this Agreement, desires
to xxxxx Xxxxxx shares of the Company's fully-paid and non-assessable common
stock, $0.001 par value per share, which are restricted securities within the
meaning of and subject to the holding period and other restrictions prescribed
by Rule 144 promulgated by the U.S. Securities and Exchange Commission and as
provided herein (the "Restricted Stock"). Shares of the Restricted Stock are
individually referred to as a "Share" and collectively as the "Shares."
AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants set forth below,
and other good and valuable consideration, the adequacy and receipt of which are
acknowledged, the Parties agree as follows:
1. GRANT OF RESTRICTED STOCK. Subject to and contingent on satisfaction of
all of the terms and conditions of this Agreement, the Company hereby grants to
Holder up to that total number of Shares of the Company's Restricted Stock as
are specified on the Notice of Award attached and incorporated herein by this
reference, contingent on and subject to Vesting and forfeiture as specified
herein and the other terms and conditions, if any, specified in the Notice of
Award. Nothing in this Agreement shall confer upon Holder any right to commence
or continue employment with the Company or of any of its subsidiaries, nor
interfere in any way with the right of the Company or any subsidiary to
terminate Holder's employment in accordance with Holder's employment agreement.
2. VESTING. Shares of the Restricted Stock shall vest as described on the
Notice of Award. All shares of the Restricted Stock which have not Vested and
have not been issued to Employee are "Non-Vested Shares." Employee shall have no
rights as a shareholder or otherwise in Non-Vested Shares of the Restricted
Stock and any purported attempt by Employee to transfer any interest in
Non-Vested Shares of the Restricted Stock shall be null and void and not binding
on the Company. All shares of the Restricted Stock which are Vested shall be
deemed issued in advance, not in arrears, and upon any termination of
employment, whether by Employer or Employee, whether for cause or without cause,
all Non-Vested Shares of the Restricted Stock shall be automatically forfeited
and shall be null and void.
3. ISSUANCE OF RESTRICTED SHARES. The issuance to the Holder of Shares of
the Restricted Stock, to the extent Vested, shall be conditioned and contingent
on the satisfaction of all of the terms and conditions of this Agreement,
including but not limited to each of the following:
3.1. Holder shall have been in compliance with, and shall not have
breached, the terms of Holder's employment agreement with the Company or
its subsidiary, including confidentiality and covenant not to compete
provisions.
3.2. Holder shall be in compliance with the Company's policies on
xxxxxxx xxxxxxx and policies relating to the purchase and sale of Company
securities by Company employees, to the extent applicable.
3.3. The issuance of the Shares to Holder shall have been registered
under the Securities Act of 1933, as amended, and under any applicable
state securities laws, or counsel to the Company shall have given an
opinion that the issuance of the Shares qualify for an exemption from
registration under the Act and applicable state law.
3.4. The issuance shall not result in the issuance to Holder of more
than that total aggregate number of Shares of Restricted Stock specified
in the Notice of Award.
3.5. Holder shall agree to and execute such representations,
warranties, covenants and other documents as the Company may then require.
4. TAX OBLIGATIONS AND WITHHOLDINGS. Holder shall be responsible for all
tax obligations arising from the grant and each issuance of the Restricted
Stock. Holder agrees to cooperate with the Company as it deems necessary for the
withholding of taxes by the Company required by law or regulation in connection
with a grant of Restricted Stock. If Holder does not make the required
withholding payment at the time of exercise, the Company, in its discretion, may
decline to permit the grant or it may elect to take such steps as it may deem
necessary or appropriate for the withholding of any taxes including, but not
limited to, withholding the amount due from Holder's compensation.
5. NONTRANSFERABILITY. This Agreement and Non-Vested Shares shall not be
transferred, pledged, assigned, hypothecated or disposed of in any manner,
including by will or the laws of descent and distribution and by operation of
law, and shall not be subject to execution, attachment, or similar process. Any
attempted assignment, transfer, pledge, hypothecation, or other disposition
contrary to the provisions hereof, including the levy of any execution,
attachment, or similar process, shall be null and void and not binding on the
Company.
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6. CHANGES IN CAPITAL STRUCTURE.
6.1. In the event of changes in the outstanding Common Stock of the
Company by reason of a stock dividend, stock split, reverse stock split,
reorganization, recapitalization, merger, consolidation, liquidation,
separation, combination or exchange of stock, change in the Company's
business structure or sale or transfer of all or any part of the Company's
business or assets (referred to as a "Capital Adjustment"), the number of
Non-Vested Shares of Restricted Stock subject to this Agreement shall be
adjusted by the Company consistent with such Capital Adjustment. No such
adjustment shall be made with respect to (i) stock dividends or stock
splits which do not exceed five percent (5%) in any fiscal year, (ii) cash
dividends, or (iii) the issuance to shareholders of the Company or others
of rights to subscribe for additional Shares of Common Stock or other
securities.
6.2. In the event of the proposed dissolution or liquidation of the
Company, or, except as provided in Section 6.4 below, the sale of
substantially all the assets of the Company for other than stock/and or
securities, the grant and all Non-Vested Shares of Restricted Stock shall
automatically terminate, unless otherwise provided by the Company's Board
of Directors.
6.3. Any adjustment in the number of Restricted Shares of Common
Stock shall apply proportionately to only the number of Non-Vested Shares
of Restricted Stock. If fractions of a Share of Restricted Stock would
result from any such adjustment, the adjustment shall be revised to the
next lowest whole number of Shares, so that no fraction of a Share shall
be issued.
6.4. If the grant and all Non-Vested Shares are not terminated
pursuant to Section 6.2, above, the Non-Vested Shares may, at the
discretion of the Board of Directors of the Company and the other
corporation, be exchanged for restricted capital stock of another
corporation which the Company and/or a subsidiary thereof is merged into,
consolidated with, or all or a substantial portion of the property or
stock of which is acquired by or separated or reorganized into. The terms,
provisions and benefits to Holder of such substitute securities shall in
all respects be identical to the terms, provisions and benefits of Holder
under this Agreement prior to such substitution.
7. NON-REGISTRATION OF ISSUANCE OF VESTED SHARES TO HOLDER. The Company
shall be under no obligation to register under the Securities Act of 1933, as
amended, or any state law a transaction by which the grants Restricted Stock to
Holder or the Company issues Vested Shares to Holder, or to effect compliance
with the registration, qualification or listing requirements of any state
securities laws, stock exchange or automated quotation system, and the Company
will have no liability for any inability or failure to do so.
8. NON-REGISTRATION OF RESALE OF SHARES BY HOLDER. The Company shall be
under no obligation to register under the Securities Act of 1933, as amended,
Holder's resale of any Vested Shares of Restricted Stock, or to effect
compliance with the registration, qualification or listing requirements of any
state securities laws, stock exchange or automated quotation system, and the
Company will have no liability for any inability or failure to do so.
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9. REPRESENTATIONS BY HOLDER. Holder acknowledges, covenants, represents
and warrants to Company, as of the Effective Date and on a continuing basis
thereafter, including as of the date of each issuance of Vested Shares, each of
the following:
9.1. All Shares issuable hereunder shall be acquired for investment
purposes only, for Holder's own account, and not with a view towards, or
for resale in connection with, the public sale or distribution thereof.
Holder does not have any agreement or understanding, directly or
indirectly, with the Company or any other person to distribute or resell
any of the Shares.
9.2. The Company has granted the Shares without the payment or
exchange of consideration or value by Holder, other than Holder's
agreement to the terms and conditions of this Agreement and Holder's
employment agreement with the Company or its subsidiary, including
confidentiality and covenant not to compete provisions.
9.3. Holder has not acquired the Shares as a result of any
advertisement, article, notice or other communication regarding the Shares
published in any newspaper, magazine or similar media or broadcast over
television or radio or presented at any seminar or any other general
solicitation or general advertisement.
9.4. Holder is (i) an "accredited investor" as defined in Rule
501(a) of Regulation D promulgated by the U.S. Securities and Exchange
Commission (the "Commission") or (ii) if not an "accredited investor,"
either alone or with its purchaser representative(s), has such knowledge
and experience in financial and business matters that it is capable of
evaluating the merits and risks of investment in the Shares and
acknowledges that the Company reasonably believes that Holder comes within
this description.
9.5. Holder understands that Holder is obligated to comply with all
tax obligations applicable to Holder relative to the Restricted Stock and
that Holder may not be permitted by the terms of this Agreement or
applicable law to sell Shares of the Restricted Stock in order to satisfy
such tax obligations.
9.6. Holder and/or its purchaser representative(s), if any, have
obtained or have been furnished and are familiar with all publicly
available financial, operational, business and other data, statements,
information and materials relating to the business, finances, prospects
and operations of the Company and such other publicly available materials
as have been requested from the Company.
9.7. Holder agrees and acknowledges that the issuance of Vested
Shares to Holder and Holder's ability to sell Vested Shares is conditioned
and contingent on registration under the Securities Act of 1933, as
amended, and under any applicable state securities laws, or the furnishing
by counsel to the Company of an opinion that such transaction(s) qualify
for an exemption from registration. In the event that Shares are issued to
Holder on the basis of an exemption from registration, the Shares shall be
deemed restricted stock within the meaning of Rule 144 promulgated by the
Commission, in which event the Shares cannot be publicly resold by Holder
unless the Company registers the
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resale transaction or an exemption from registration is available under
federal and state law. Unless otherwise provided in this Agreement, the
Company shall have no obligation to undertake any such registration.
Holder's right or ability to sell, transfer, pledge or otherwise dispose
of the Shares is severely limited by applicable federal and state
securities laws. Holder understands that in the absence of an effective
registration statement covering the Shares, any public resale may be made
only in compliance with Rule 144 promulgated by the Commission which,
among other requirements, shall require Holder to comply with the volume
limitation, manner of sale and minimal one-year holding period. Holder
agrees to sell, transfer or otherwise dispose of the Shares only in
compliance with applicable state and federal securities laws.
10. ISSUANCE OF SHARE CERTIFICATES. The Company shall not be required to
issue or deliver any certificate evidencing Non-Vested Shares. The Company shall
not be required to issue or deliver any certificate for Vested Shares issuable
hereunder unless (a) the issuance of such shares has been registered with the
Securities and Exchange Commission under the Securities Act of 1933, as amended,
or counsel to the Company shall have given an opinion that such registration is
not required; (b) approval, to the extent required, shall have been obtained
from any state regulatory body having jurisdiction thereover, and (c), if
applicable, permission for the listing of such Shares shall have been given by
any national securities exchange on which the Common Stock of the Company is at
the time listed. The Company may place a "stop transfer" order with its transfer
agent and place a restrictive legend on any stock certificate evidencing Vested
Shares. Holder agrees to the imprinting, so long as the Company determines is
required under applicable federal and state securities laws, of a legend on any
stock certificate evidencing Vested Shares in substantially the following form
or such other form as the Company shall require:
THE SHARES OF STOCK REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY STATE LAW.
THE SHARES HAVE BEEN ACQUIRED FOR INVESTMENT AND MAY NOT BE SOLD,
TRANSFERRED OR ASSIGNED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION
STATEMENT FOR THESE SHARES UNDER THE SECURITIES ACT OF 1933 AND ANY
APPLICABLE STATE LAW OR AN OPINION OF THE COMPANY'S COUNSEL THAT
REGISTRATION IS NOT REQUIRED.
Holder agrees that any removal of the restrictive legend from certificates
representing Vested Shares, which removal shall first be authorized by the
Company, is predicated on the Company's reliance on, and Holder's agreement,
that it will not sell any Shares except pursuant to either the registration
requirements of the Act or an exemption therefrom. If required by the Company,
Holder shall pay the Company's reasonable expenses in connection a request to
remove such legend.
11. NO SHAREHOLDER RIGHTS. Holder shall have no rights as a shareholder relative
to any Non-Vested Shares.
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12. Governing Law and Arbitration. This Agreement and all disputes related
to this Agreement or the Restricted Stock shall be governed by and construed in
accordance with the laws of the State of Florida, notwithstanding the fact that
either party hereto is or may hereafter become domiciled or located in a
different state. Any dispute, controversy or claim arising out of or relating to
this to this Agreement or the Restricted Stock shall be resolved at arbitration
in accordance with the rules of the American Arbitration Association, except for
any equitable or injunctive relief sought by the Company. The arbitration shall
be held at a location within Xxxxxxx County, Florida. The parties hereto agree
that any arbitration award rendered on any claim submitted to arbitration shall
be final and binding upon the parties and not subject to appeal and that
judgment may be entered upon any arbitration award by any court of competent
jurisdiction. The parties hereto agree that the expenses of any arbitration
shall be borne equally by the parties to the proceeding, except that the party
determined to have prevailed shall be awarded its reasonable attorneys fees and
costs of its own experts, evidence and the like. Holder acknowledges and agrees
that by making this agreement to submit all claims to binding arbitration,
Holder hereby waives the right to litigate in a court of law, and to trial by
jury if applicable.
13. BINDING EFFECT AND WAIVER OF BREACH. Except as herein otherwise
expressly provided, this Agreement shall be binding upon and inure to the
benefit of the Parties and their respective successors and assigns. The waiver
of breach of any provision of this Agreement shall not operate or be construed
as a waiver of any subsequent breach. Each and every right, remedy and power
hereby granted to any Party or allowed it by law shall be cumulative and not
exclusive of any other.
14. Severability. If any of the provisions of this Agreement or the
application thereof to any Party under any circumstances is adjudicated to be
invalid or unenforceable, such invalidity or unenforceability shall not affect
any other provision of this Agreement or the application thereof.
15. Interpretation of Agreement. Where appropriate in this Agreement,
words used in the singular shall include the plural, and words used in the
masculine shall include the feminine and neuter. All headings that are used in
this Agreement are for the convenience of the reader only and shall not be used
to limit or construe any of the provisions hereof.
16. Survival of Provisions. The representations, warranties, covenants,
obligations and undertakings of Holder under this Agreement are continuing and
shall survive performance hereunder.
17. Amendment of Agreement. The terms and provisions of this Agreement may
be altered or amended in any of their provisions only by the mutual written
agreement of the Parties hereto.
18. Successors. The Agreement shall inure to the benefit of the Company
and its successors and assigns, but may not be assigned or delegated by Holder.
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19. Advice of Counsel. Holder is entering into this contract freely and
voluntarily and has been advised to seek the advice of her legal counsel prior
to entering into this Agreement.
20. Entire Agreement. This Agreement constitutes the entire agreement
between the Parties with respect to the subject matter hereof and supersedes any
and all other previous or contemporaneous communications, representations,
understandings, agreements, negotiations and discussions, either oral or
written, between the Parties with respect to the subject matter hereof,
including Holder's employment agreement with the Company to the extent, if any,
that it purports to contradict or vary the terms of this Agreement. The Parties
acknowledge and agree that there are no written or oral agreements,
understandings, or representations, directly or indirectly related to this
Agreement that are not set forth herein.
21. Counterpart/Facsimile Signatures. This Agreement may be executed in
two or more counterparts, each of which shall be deemed an original, and all of
which together shall constitute one and the same Agreement. For purposes of this
Agreement, a facsimile or PDF signature shall be valid and enforceable as an
original.
22. Incorporation of Recitals. The Recitals set forth above are
incorporated herein by reference.
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of
the Effective Date.
ARCADIA RESOURCES, INC.,
a Nevada corporation
By: /s/ Xxxx X. Xxxxxxx, XX
---------------------------------------
Its: Chairman and CEO
December 7, 2005
ACCEPTED AND AGREED TO BY HOLDER:
/s/ Xxxxx X. Xxxxxxx
--------------------------------------------
December 7, 2005
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NOTICE OF AWARD
NAME OF HOLDER: Xxxxx X. Xxxxxxx.
EFFECTIVE DATE OF AGREEMENT/GRANT OF AWARD: December 7, 2005.
AGGREGATE NUMBER OF SHARES OF RESTRICTED STOCK SUBJECT TO AWARD: Up to 150,000
Shares.
VESTING: Shares of the Restricted Stock shall "Vest" as follows: (a) upon the
Effective Date of this Agreement, the Company shall issue Holder
9,375 shares of the Restricted Stock, which shares shall be fully
Vested as of such grant date; and (b) on the first day of each
fiscal quarter beginning after the Effective Date of this Agreement,
the Company shall issue Holder 9,375 shares of the Restricted Stock,
which shares shall be fully Vested as of such grant date, provided
that Holder has been continuously employed by the Company through
and as of such grant date.
OTHER: The Grant/Award is subject to the terms and conditions of the
Restricted Stock Grant Agreement and Holder's employment agreement
with the Company, including but not limited to the covenant not to
compete and confidentiality provisions thereof.
ARCADIA RESOURCES, INC.,
a Nevada corporation
By: /s/ Xxxx X. Xxxxxxx, XX
---------------------------------
Dated: December 7, 2005 Its: Chairman and CEO
ACCEPTED AND AGREED TO BY HOLDER:
/s/ Xxxxx X. Xxxxxxx
--------------------------------------
Dated: December 7, 2005
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