EXHIBIT 10.64
ARCADIA RESOURCES, INC.
RESTRICTED STOCK GRANT AGREEMENT
This RESTRICTED STOCK GRANT AGREEMENT (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 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 in the
Notice of Award, provided that in the event of a Change in Control of the
Company while Holder is employed by the Company, all Non-Vested Shares shall
automatically become Vested. All shares of the Restricted Stock which have not
Vested are "Non-Vested Shares." Holder shall have rights as a shareholder in
Vested Shares of the Restricted Stock. Any purported attempt by Holder 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
shall vest in advance,
not in arrears, and upon any termination of employment, whether by the Company
or Holder, whether for cause or without cause, all Non-Vested Shares of the
Restricted Stock shall be automatically forfeited and shall be null and void. As
used herein, the term "Change in Control" shall have the same meaning given to
such term in the Corporation's 2002 Employee Stock Incentive Plan. Nothing
herein shall be construed to modify Holder's terms of employment with the
Company.
3. ADDITIONAL PROVISIONS. Vesting of Shares of the Restricted Stock shall
additionally 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 Shares shall have been registered under the Securities Act
of 1933, as amended, and under any applicable state securities laws, or
shall qualify for an exemption from registration under the Act and
applicable state law.
3.4. No more than the total aggregate number of Shares of Restricted
Stock specified in the Notice of Award shall be subject to Vesting.
4. TAX OBLIGATIONS AND WITHHOLDINGS. Holder shall be responsible for all
tax obligations arising from the grant and vesting of the Restricted Stock.
Holder agrees to the withholding of taxes as the Company deems necessary as
required by law or regulation.
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.
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
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
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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. 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.
6.2. In the event of the proposed dissolution or liquidation of the
Company, or, except as provided in Section 6.3 below, the sale of
substantially all the assets of the Company for other than stock/and or
securities, all Non-Vested Shares of Restricted Stock shall automatically
terminate, unless otherwise provided by the Company's Board of Directors.
6.3. Unless terminated pursuant to Section 6.2, above, 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. REGISTRATION OF RESALE OF SHARES BY HOLDER. The Company agrees to
register under the Securities Act of 1933, as amended, Holder's resale of Shares
of Restricted Stock in the event that the Company registers other securities on
a form for which the Shares of Restricted Stock may be included, subject to
applicable law, rules and regulations and the terms of this Agreement.
8. 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 vesting of the Shares of Restricted
Stock, each of the following:
8.1. All Shares 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.
8.2. 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.
8.3. 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.
8.4. 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
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"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.
8.5. 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.
8.6. 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.
8.7. Holder agrees and acknowledges that 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.
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 agrees to sell, transfer or otherwise dispose of
Vested Shares only in compliance with applicable state and federal
securities laws, including in the absence of an effective registration
statement public resale 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.
9. ISSUANCE OF SHARE CERTIFICATES. The Company shall not be required to
issue or deliver any certificate evidencing the Shares, except if required by
applicable state law. The Company may place a "stop transfer" order with its
transfer agent and place a restrictive legend on any stock certificate
evidencing the Shares, including a legend stating that the Shares are Restricted
Shares subject to the terms of this Agreement, including forfeiture as provided
herein. In addition, 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 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.
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Holder agrees that any removal of the restrictive legend from certificates
representing 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.
10. 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.
11. 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.
12. 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.
13. 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.
14. SURVIVAL OF PROVISIONS. The representations, warranties, covenants,
obligations and undertakings of Holder under this Agreement are continuing and
shall survive performance hereunder.
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15. 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.
16. 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.
17. 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.
18. 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.
19. 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.
20. 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: ________________________________________
Its: ________________________________________
ACCEPTED AND AGREED TO BY HOLDER:
_____________________________________________
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NOTICE OF AWARD
NAME OF HOLDER: _______________
EFFECTIVE DATE OF AGREEMENT/GRANT OF AWARD: ______________
AGGREGATE NUMBER OF SHARES OF RESTRICTED STOCK SUBJECT TO AWARD: Up to _______
Shares.
VESTING: Shares of the Restricted Stock shall Vest as follows: ________________.
OTHER: ______________________________.
ARCADIA RESOURCES, INC.,
a Nevada corporation
By: ________________________________________
Its:
ACCEPTED AND AGREED TO BY HOLDER:
_____________________________________________
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