Exhibit 10.17
MIDNIGHT HOLDINGS GROUP, INC.
RESTRICTED STOCK AWARD AGREEMENT
This RESTRICTED STOCK AWARD AGREEMENT (the "Agreement") is made as of
March 30, 2007 (the "Effective Date"), by and between MIDNIGHT HOLDINGS GROUP,
INC., a Delaware corporation (the "Company"), and XXXXXXX X. XXXXXXXX
("Xxxxxxxx").
RECITALS
A. Concurrently herewith the Company and Xxxxxxxx are entering into an
Employment Agreement (the "Employment Agreement") providing for the grant by the
Company to Xxxxxxxx of 1,000,000 shares of restricted common stock of the
Company, par value $.00005 per share (the "Common Stock");
B. The shares of Common Stock to be granted to Xxxxxxxx will be subject to
certain restrictions on transfer and other terms and conditions; and
C. Capitalized terms not otherwise defined herein shall have the meaning
given to them in the Employment Agreement.
NOW, THEREFORE, for and in consideration of the foregoing and the mutual
covenants and promises hereinafter set forth, and for other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the
parties hereby agree as follows:
1. GRANT OF STOCK. Concurrently with the execution and delivery of this
Agreement, the Company shall cause its transfer agent to issue and deliver to
Xxxxxxxx a stock certificate in his name for 1,000,000 shares (the "Shares") of
Common Stock pursuant to the Employment Agreement (the "Certificate"). The
Shares and the Certificate shall be subject to all the terms, conditions and
restrictions set forth in this Agreement. In the event Xxxxxxxx is not in
possession of the Certificate by 5:00 p.m. Central Time on Monday, April 9,
2007, the Company and its affiliates and subsidiaries shall be in breach of the
Employment Agreement, the Asset Purchase Agreement entered into by the parties
on March 30, 2007 (the "Asset Purchase Agreement") and any exhibits thereto, and
the Additional Agreements, as that term is defined in the Asset Purchase
Agreement
2. VESTING AND COMPANY'S RIGHT OF REPURCHASE. The Shares shall become
fully vested upon the second anniversary of the date hereof, provided that
Xxxxxxxx has continuously served as an employee of the Company or its affiliates
during such two year period. Notwithstanding the foregoing, if the Xxxxxxxx'x
employment is terminated by the Company for other than "Good Cause" or if the
Xxxxxxxx terminates his employment with the Company for Good Reason, the Shares
shall immediately vest. If Xxxxxxxx'x employment is terminated prior to such
second anniversary by the Company for Good Cause, or by Xxxxxxxx for other than
Good Reason, then the Company shall have the
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right to repurchase all such Shares for an aggregate purchase price for all
Shares of One Dollar ($1.00).
3. EMPLOYMENT AGREEMENT. The Shares are subject to all of the terms and
provisions of the Employment Agreement. In the event of any conflict between the
terms of this Agreement and the Employment Agreement, the terms of this
Agreement shall control.
4. SHARES RECEIVED IN CERTAIN CORPORATE TRANSACTIONS. The terms of this
Agreement shall apply to any stock or securities received by Xxxxxxxx in
exchange for the Shares pursuant to a plan of merger, consolidation,
recapitalization or reorganization of the Company. The terms of this Agreement
shall also apply to any security received as a result of a stock split or stock
dividend with respect to the Shares, and such securities shall become Shares
pursuant to the terms of this Agreement.
5. STOCK LEGEND. The Company and Xxxxxxxx agree that all certificates
representing all Shares that at any time are subject to the provisions of this
Agreement will have endorsed upon them in bold-faced type a legend in
substantially the following form:
RESTRICTIONS ON THE OWNERSHIP RIGHTS OF THE STOCK REPRESENTED BY THIS
CERTIFICATE HAVE BEEN IMPOSED PURSUANT TO A RESTRICTED STOCK AWARD AGREEMENT
DATED MARCH 30, 2007. A COPY OF THE RESTRICTED STOCK AWARD AGREEMENT IS ON FILE
AT THE PRINCIPAL OFFICE OF THE COMPANY AND WILL BE FURNISHED WITHOUT CHARGE TO
THE HOLDER OF THIS CERTIFICATE UPON RECEIPT BY THE COMPANY AT ITS PRINCIPAL
PLACE OF BUSINESS OR REGISTERED OFFICE OF A WRITTEN REQUEST FROM THE HOLDER
REQUESTING SUCH COPY.
6. NOTICES. Any notice required to be given hereunder will be deemed to be
duly given on the date of delivery if delivered in person or on the date of
mailing if mailed by registered or certified mail, postage prepaid, return
receipt requested, to the party or parties that are to receive such notice at
the addresses indicated on the Company's books and records. The address of
Xxxxxxxx or the Company may be changed only by giving written notice to the
other party of such change of address.
7. TAXES. To the extent the lapse of restrictions results in the receipt
of compensation by Xxxxxxxx for tax purposes, the Company shall withhold from
any cash compensation then or thereafter payable to Xxxxxxxx any tax required to
be withheld by reason thereof. To the extent the Company determines that such
cash compensation is or may be insufficient to fully satisfy such withholding
requirement, Xxxxxxxx shall deliver to the Company cash in an amount determined
by the Company to be sufficient to satisfy any such withholding requirement. If
Xxxxxxxx makes the election authorized by Section 83(b) of the Internal
Revenue Code of 1986, as amended, Xxxxxxxx shall submit to the Company a copy of
the statement filed by Xxxxxxxx to make such election.
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8. ENTIRE AGREEMENT; COUNTERPARTS. This Agreement contains the entire
understanding between the parties concerning the subject contained in this
Agreement, provided that the Shares are also subject to certain restrictions on
transfer and other conditions contained in the Employment Agreement. Except for
such Agreement, there are no representations, agreements, arrangements, or
understandings, oral or written, between or among the parties hereto, relating
to the subject matter of this Agreement, that are not fully expressed herein.
This Agreement may be signed in one or more counterparts, all of which shall be
considered one and the same agreement.
9. TERM. This Agreement will terminate upon the earlier of (a) the
agreement of the Company and Xxxxxxxx to terminate this Agreement, or (b) thirty
days following the second anniversary of the Effective Date.
10. FURTHER ASSURANCES. Each party to this Agreement agrees to perform all
further acts and to execute and deliver all further documents as may be
reasonably necessary to carry out the intent of this Agreement.
11. SEVERABILITY. In the event that any of the provisions, or portions
thereof, of this Agreement are held to be unenforceable or invalid by any court
of competent jurisdiction, the validity and enforceability of the remaining
provisions, or portions thereof, will not be affected, and such unenforceable
provisions shall be automatically replaced by a provision as similar in terms as
may be valid and enforceable.
12. CONSTRUCTION. Whenever used in this Agreement, the singular number
will include the plural, and the plural number will include the singular, and
the masculine or neuter gender shall include the masculine, feminine, or neuter
gender. The headings of the Sections of this Agreement have been inserted for
purposes of convenience and shall not be used for interpretive purposes.
13. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware.
14. SUCCESSORS. The provisions of this Agreement will benefit and will be
binding upon the assigns, successors in interest, personal representatives,
estates, heirs and legatees of each of the parties hereto.
15. SPECIFIC PERFORMANCE. Each of the parties hereto acknowledges and
agrees that in the event of any breach of this Agreement, the nonbreaching
parties would be irreparably harmed and could not be made whole by monetary
damages. Each of the parties hereto accordingly agrees to waive the defense in
any action for injunction or specific performance that a remedy at law would be
adequate and that the parties hereto, in addition to any other remedy to which
they may be entitled at law or in equity, shall be entitled to an injunction or
to compel specific performance of this Agreement.
16. AMENDMENT. This Agreement may only be amended by the written consent
of both of the parties to this Agreement at the time of such amendment.
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IN WITNESS WHEREOF, the parties hereto have entered into this Agreement as
of the Effective Date.
XXXXXXXX:
_________________________________
XXXXXXX X. XXXXXXXX
COMPANY:
MIDNIGHT HOLDINGS GROUP, INC., A
DELAWARE CORPORATION
By: _________________________________
Xxxxxxxx X. Xxxxx, Chairman, President
and CEO
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