STOCK RESTRICTION AGREEMENT
Exhibit
10.9
THIS STOCK RESTRICTION AGREEMENT
(the “Agreement”)
is made and entered into as of the 30th day of December, 2010 (the “Effective Date”) by and
between SIBLING ENTERTAINMENT GROUP HOLDINGS, INC., a Texas corporation (“SIBE”) and XXXXXXX X. XXXXXXX, a resident
of the State of Georgia (“Holder”).
Agreement
For and
in consideration of the premises, the mutual covenants contained herein, and
other good and valuable consideration the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree:
1. Definitions
The
following capitalized terms are used in this Agreement with the meanings
thereafter ascribed.
“Effective Date of Termination”
means the effective date of Termination of Employment as determined in
good faith by the Board of Directors based upon the facts and circumstances
including the dates set forth in any notice of termination provided by SIBE or
Holder, and if no notice of termination is given by SIBE or Holder, the date on
which such Holder last performs the duties or services of Holder’s employment or
other relationship with SIBE, as determined by the Board of
Directors. The determination of the Board of Directors is final,
binding, and nonappealable.
“Employment” means the
relationship between Holder and SIBE (or its parents or subsidiaries) pursuant
to which Holder provides services to SIBE (or its parents or subsidiaries) as a
consultant, employee, director, or any other capacity in which Holder receives
compensation from SIBE (or its parents or subsidiaries) for services
rendered.
“Holding Period” means a
period of ninety (90) days that commences on the Effective Date of
Termination.
“Price” means the aggregate
purchase price for all Restricted Subject Shares of $1.00, regardless of the
number of Restricted Subject Shares purchased.
“Subject Shares” means 461,000
shares of Series Common Stock of SIBE held by Holder on the date of this
Agreement and any securities issued upon conversion or replacement
thereof.
“Termination of Employment”
means the termination of the Employment Holder. Such
termination may be for any reason, including, without limitation, a termination
by resignation, termination with Cause, discharge, death, disability, or
retirement. The Board of Directors shall, in its absolute discretion,
determine the effect of all matters and questions relating to Termination of
Employment, and such determination shall be conclusive, final, binding, and
nonappealable.
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2.1. Company’s
Right to Repurchase Restricted Subject Shares.
(a) Upon
Termination of Employment of Holder prior to the 2nd
anniverary of the Effective Date, SIBE shall have the sole option and right,
during the Holding Period to purchase all Restricted Subject Shares for the
Price. For purposes of this Agreement: “Restricted Subject Shares” as
of any particular date means the number of Subject Shares minus the
number of Unrestricted Subject Shares on
such date; and “Unrestricted
Subject
Shares” as of any
particular date means the number of Subject Shares multiplied
by the applicable percentage from the table below for the applicable time
period.
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Date
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Percentage
of Subject
Shares
which are
Unrestricted
Subject
Shares
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|||
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From
the Effective Date until the day before the 1st
anniversary of the Effective Date
|
33.00 | % | ||
|
From
the 1st
anniversary of the Effective Date until the day before the 2nd anniversary
of the Effective Date
|
66.66 | % | ||
|
From
and after the 2nd anniversary of the Effective Date
|
100.00 | % | ||
(b) If
SIBE elects to exercise its right to purchase Restricted Subject Shares pursuant
to this Section 2.1, SIBE shall give written notice of such election to Holder
(or the personal representative, executor, or administrator of Holder, as the
case may be). The closing of any purchase of Restricted Subject
Shares pursuant to Section 2.1 shall take place at the principal office of SIBE
not earlier than thirty (30), nor later than forty-five (45) days after the date
of SIBE’s written notice of its election to exercise its right to purchase such
Restricted Subject Shares.
(c) At
the closing of any purchase of Restricted Subject Shares pursuant to Section
2.1, Holder shall deliver all certificates representing the Restricted Subject
Shares to be purchased, properly endorsed for transfer, and SIBE shall pay
Holder the Price.
2.2. Restriction
on Holder’s Right to Transfer the Restricted Subject Shares.
Holder
shall not sell, assign, transfer, grant options to purchase, or hypothecate
Restricted Subject Shares, without the prior approval of the Board of
Directors.
3. Miscellaneous.
3.1. Legends.
Each
certificate evidencing Subject Shares shall bear the following
legends:
On the
face of the certificate:
“transfer
of the shares evidenced by this certificate is restricted in accordance with
conditions printed on the reverse of this certificate.”
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On the
reverse:
“the
shares evidenced by this certificate are subject to, and transferable only in
accordance with, that certain stock restriction agreement, a copy of which is on
file at the principal office of the issuer. no transfer or pledge of
the shares evidenced hereby may be made except in accordance with, and subject
to, the provisions of said agreement.”
“shares
of stock represented by this certificate have been acquired by the holder for
investment purposes only and not for resale, transfer or distribution, have been
issued pursuant to exemptions from the registration requirements of applicable
state and federal securities laws, and may not be offered for sale, sold or
transferred other than pursuant to effective registration under such laws, or in
transactions otherwise in compliance with or exempt from such laws, and upon
evidence satisfactory to the issuer of compliance with or exemption from such
laws, as to which the issuer may rely upon an opinion of counsel satisfactory to
the issuer.”
Holder
agrees upon request to promptly surrender the certificates representing Subject
Shares to SIBE so that SIBE may affix the foregoing legends
thereto.
3.2. Governing
Laws. This
Agreement and the rights of the parties hereunder shall be governed by and
construed in accordance with the laws of the State of Georgia, without regard to
its conflicts of laws rules. The parties agree that any appropriate
state court sitting in Xxxxxx County, Georgia or any Federal Court sitting in
the Northern District of Georgia (Atlanta Division) (collectively, the “Permitted Courts”), shall
have exclusive jurisdiction of any case or controversy arising under or in
connection with this Agreement and shall be a proper forum in which to
adjudicate such case or controversy, and each party irrevocably:
(a) consents to the jurisdiction of the Permitted Courts in such actions,
(b) agrees not to plead or claim that such litigation brought in the
Permitted Courts has been brought in an inconvenient forum, and (c) waives
the right to object, with respect to such suit, action, or proceeding, that such
court does not have jurisdiction over such party. In any suit,
arbitration, mediation, or other proceeding to enforce any right or remedy under
this Agreement or to interpret any provision of this Agreement, the prevailing
party will be entitled to recover its costs, including reasonable attorneys’
fees, and all costs and fees incurred on appeal or in a bankruptcy or similar
action.
3.3. No
Employment Right. This
Agreement shall not be construed as giving Holder the right to any continued
employment, or other relationship, with SIBE.
3.4. Successors.
This
Agreement shall be binding upon and inure to the benefit of the heirs, legal
representatives, successors, and permitted assigns of the parties.
3.5. Notice.
Except as
otherwise specified herein, all notices and other communications under this
Agreement shall be in writing and shall be deemed to have been given if
personally delivered or if sent by registered or certified United States mail,
return receipt requested, postage prepaid, addressed to the proposed recipient
at the last known address of the recipient. Any party may designate
any other address to which notices shall be sent by giving notice of the address
to the other parties in the same manner as provided herein.
3.6. Severability.
In the
event that any one or more of the provisions or portion thereof contained in
this Agreement shall for any reason be held to be invalid, illegal, or
unenforceable in any respect, the same shall not invalidate or otherwise affect
any other provisions of this Agreement, and this Agreement shall be construed as
if the invalid, illegal or unenforceable provision or portion thereof had never
been contained herein.
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3.7. Entire
Agreement. This
Agreement expresses the entire understanding and agreement of the parties with
respect to the transactions contemplated herein and the subject matter described
herein.
3.8. Headings.
Section
headings used herein are for convenience of reference only and shall not be
considered in construing this Agreement.
3.9. Specific
Performance. In the
event of any actual or threatened default in, or breach of, any of the terms,
conditions and provisions of this Agreement, the party or parties who are
thereby aggrieved shall have the right to specific performance and a temporary
or permanent injunction without showing any actual damage, in addition to any
and all other rights and remedies at law or in equity, and all such rights and
remedies shall be cumulative.
3.10. Construction.
The
language used in this Agreement, including the documents, instruments,
agreements, exhibits, schedules, and annexes hereto will be deemed to be
language chosen by the parties to express their mutual intent, and no rule of
strict construction shall be implied against any party.
3.11. Amendment.
This
Agreement may be amended, supplemented, and modified only by a written
instrument duly executed by the parties hereto.
3.12. Waiver.
The
failure of any party hereto to require the performance of any provisions of this
Agreement shall in no manner affect the right to enforce the same. No
waiver by any party hereto of any provisions or of any breach of any provisions
of this Agreement shall be deemed or construed either as a further or continuing
waiver of any such provision or breach or as a waiver of any other provision or
breach of any other provision of this Agreement. No waiver of any
provision or any breach of any provision of this Agreement shall be valid or
binding on the parties hereto unless made in a writing signed by an authorized
representative of the party against whom the same is sought to be
enforced.
3.13. Further
Assurance. Each
party hereto shall do and perform, or cause to be done and performed, all such
further acts and things and shall execute and deliver all such other agreements,
certificates, instruments and documents as any other party hereto may reasonably
request in order to carry out the intent and accomplish the purposes of this
Agreement and the consummation of the transactions contemplated
hereby.
3.14. Counterparts.
This
Agreement may be executed in any number of counterparts, each of which will be
deemed an original, but all of which together will constitute one and the same
instrument.
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IN WITNESS WHEREOF, the
parties have executed this Agreement as of the day and year first set forth
above.
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Sibling
Group Entertainment Holdings, Inc.
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By:
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/s/ Xxxxxxxx Xxxxxxx | |
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Xxxxxxxx
Xxxxxxx, Chief Executive Officer
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Holder
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/s/
Xxxxxxx X. Xxxxxxx
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Xxxxxxx
X. Xxxxxxx
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