ACIES CORPORATION RESTRICTED STOCK AWARD AGREEMENT
EXHIBIT
10.1
ACIES
CORPORATION
This
Restricted Stock Award Agreement (the “Agreement”)
is
made as of the 1st day of February, 2006 (“Date
of Award”),
between Acies Corporation, a Nevada corporation (the “Company”),
and
Xxxxxxx X. Xxxxxxxx (the “Awardee”).
WHEREAS,
the Company desires to award the Awardee a restricted stock award with respect
to shares of the Company’s common stock, par value $0.001 per share (the
“Common
Stock”),
as
hereinafter provided;
NOW,
THEREFORE, in consideration of the mutual covenants hereinafter set forth and
for other good and valuable consideration, the parties hereto have agreed,
and
do hereby agree, as follows:
1. Grant.
A
restricted stock award (“Award”) of 1,650,000 shares (“Award
Shares”)
of
Common Stock is hereby granted by the Company to the Awardee subject to the
following terms and conditions.
2. Transfer
Restrictions.
Subject
to Section 3 below, none of the Award Shares shall be sold, assigned, pledged
or
otherwise transferred, voluntarily or involuntarily, by the Awardee. Award
Shares with respect to which the restrictions set forth in Section 3 of this
Agreement have lapsed are referred to herein as “Vested
Shares”.
For
purposes of this Agreement, the term “Shares”
shall
refer to both Award Shares and Vested Shares.
3. Release
of Restrictions.
(a) The
restrictions set forth in Section 2 above shall lapse with respect to 50% of
the
Award Shares on the Date of Award and with respect to the remaining 50% of
the
Award Shares on the annual anniversary date of the Date of Award such that
all
restrictions set forth in Section 2 above with respect to the Award Shares
shall
have lapsed on the first anniversary of the Date of Award; provided,
however,
that
the Award Shares shall, to the extent that the restrictions of Section 2 have
not lapsed, be forfeited to the Company upon the date that the Awardee no longer
has an employment or service relationship with the Company (or any Related
Company) unless such employment or service relationship has terminated due
to
the death or Disability of the Awardee. For purposes of this Agreement, the
term
“Disability”
shall
mean a mental or physical impairment of the Awardee that is expected to result
in death or that has lasted or is expected to last for a continuous period
of 12
months or more and that causes the Awardee to be unable, in the opinion of
the
Company, to perform his or her duties for the Company or a Related Company
and
to be engaged in any substantial gainful activity; and the term “Related
Company”
shall
mean any entity that, directly or indirectly, is in control of or is controlled
by the Company.
(b) The
restrictions set forth in Section 2 above with respect to the Award Shares,
to
the extent they have not lapsed in accordance with subsection (a) of this
Section 3 and to the extent not related to shares which previously have been
forfeited to the Company, also shall lapse upon the consummation of a Corporate
Transaction.
For
purposes of the foregoing, a “Corporate
Transaction”
means
the consummation of either:
(i) a
merger
or consolidation of the Company with or into any other corporation, entity
or
person; or
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(ii) a
sale,
lease, exchange or other transfer in one transaction or a series of related
transactions of all or substantially all the Company’s outstanding securities or
all or substantially all the Company’s assets.
Notwithstanding
the foregoing, a Corporate Transaction shall not include a Related Party
Transaction. A “Related
Party Transaction”
means
(A) a merger or consolidation of the Company in which the holders of shares
of
Common Stock immediately prior to the merger hold at least a majority of the
shares of Common Stock in the successor corporation (or any parent of such
successor corporation) immediately after the merger; (B) a sale, lease, exchange
or other transaction in one transaction or a series of related transactions
of
all or substantially all the Company’s assets to a wholly-owned subsidiary
corporation; (C) a mere reincorporation of the Company or change in its state
of
incorporation; or (D) a transaction undertaken for the sole purpose of creating
a holding company that will be owned in substantially the same proportion by
the
persons who held the Company’s securities immediately before such
transaction.
4. Effect
of Prohibited Transfer.
The
Company shall not be required to (a) transfer on its books any Shares that
have been sold or transferred in violation of any of the provisions set forth
in
this Agreement, or (b) treat as owner of such Shares or to pay dividends or
other distributions to any transferee to whom any such Shares shall have been
so
sold or transferred.
5. Restrictive
Legend.
All
certificates representing Vested Shares shall have affixed thereto a legend
in
substantially the following form, in addition to any other legends that may
be
required under federal or state securities laws:
The
shares of stock represented by this certificate are subject to restrictions
on
transfer and a market stand-off agreement set forth in a certain Restricted
Stock Award Agreement between the corporation and the registered owner of this
certificate (or his predecessor in interest), and no transfer of such shares
may
be made without compliance with that Agreement. A copy of that Agreement is
available for inspection at the office of Acies Corporation upon appropriate
request and without charge.
The
securities represented by this stock certificate have not been registered under
the Securities Act of 1933 (the “Act”)
or
applicable state securities laws (the “State
Acts”),
and
shall not be sold, pledged, hypothecated, donated, or otherwise transferred
(whether or not for consideration) by the holder except upon the issuance to
the
corporation of a favorable opinion of its counsel and/or submission to the
corporation of such other evidence as may be satisfactory to counsel for the
corporation, to the effect that any such transfer shall not be in violation
of
the Act and the State Acts.”
6. Investment
Representations.
Awardee
understands that (i) the Shares have not been registered under the
Securities Act and are “restricted securities” within the meaning of
Rule 144 under the Securities Act; (ii) the Shares cannot be sold,
transferred or otherwise disposed of unless they are subsequently registered
under the Securities Act or an exemption from registration is then available;
(iii) in any event, the exemption from registration under Rule 144
will not be available for at least one year and even then will not be available
unless a public market then exists for the Common Stock, adequate information
concerning the Company is then available to the public, and other terms and
conditions of Rule 144 are met; and (iv) there is now no registration
statement on file with the Securities and Exchange Commission with respect
to
any stock of the Company and the Company has no obligation or current intention
to register the Shares under the Securities Act.
7. Market
Stand-Off.
Following the effective date of a registration statement of the Company filed
under the Securities Act, the Awardee, for the duration specified by and to
the
extent requested by the Company and an underwriter of Common Stock or other
securities of the Company, shall not directly or indirectly sell, offer to
sell,
contract to sell (including, without limitation, any short sale), grant any
option to purchase, or otherwise transfer or dispose of (other than to a donee
who agrees to be similarly bound) any securities of the Company held by the
Awardee at any time during such period except Common Stock (or other securities)
included in such registration, provided however, that all officers and directors
of the Company and all persons with registration rights with respect to the
Company's capital stock enter into similar agreements.
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8. Invalidity
or Unenforceability.
It is
the intention of the Company and the Awardee that this Agreement shall be
enforceable to the fullest extent allowed by law. In the event that a court
having jurisdiction holds any provision of this Agreement to be invalid or
unenforceable, in whole or in part, the Company and the Awardee agree that,
if
allowed by law, that provision shall be reduced to the degree necessary to
render it valid and enforceable without affecting the rest of this
Agreement.
9. Waiver.
No
delay or omission by the Company in exercising any right under this Agreement
shall operate as a waiver of that or any other right. A waiver or consent given
by the Company on any one occasion shall be effective only in that instance
and
shall not be construed as a bar or waiver of any right on any other
occasion.
10. Rights
as Stockholder.
The
Awardee shall be entitled to all of the rights of a stockholder with respect
to
the Shares including the right to vote such Shares and to receive dividends
and
other distributions payable with respect to such shares since the Date of
Award.
11. Custody
of Share Certificates.
Certificates for Award Shares shall be issued in the Awardee’s name and shall be
held in the custody of the Company until the restrictions with respect thereto
lapse or such Shares are forfeited. A certificate or certificates representing
the Vested Shares as to which restrictions have lapsed shall be delivered to
the
Awardee upon such lapse. This Award is conditioned upon the Awardee endorsing
in
blank a stock power for the Award Shares in the form of Exhibit
A,
such
stock power to be held by the Company until all Award Shares have become Vested
Shares or have been forfeited.
12. Government
Regulations.
Notwithstanding anything contained herein to the contrary, the Company’s
obligation to issue or deliver certificates evidencing the Vested Shares shall
be subject to all applicable laws, rules and regulations and to such approvals
by any governmental agencies or national securities exchanges as may be
required.
13. Section
83(b) Election.
The
Awardee hereby acknowledges that the Awardee has been informed that, with
respect to the Restricted Shares, the Awardee may file an election with the
Internal Revenue Service, within 30 days of the issuance of the Restricted
Shares, electing pursuant to Section 83(b) of the Internal Revenue Code of
1986,
as amended, (the “Code”) to be taxed currently on any difference between the
purchase price of the Restricted Shares and their fair market value on the
date
of purchase. Absent such an election, taxable income will be measured and
recognized by the Awardee at the time or times at which the forfeiture
restrictions on the Restricted Shares lapse. The Awardee is strongly encouraged
to seek the advice of his own tax consultants in connection with the issuance
of
the Restricted Shares and the advisability of filing of the election under
Section 83(b) of the Code. A form of Election under Section 83(b) is attached
hereto as Exhibit
B
for
reference.
THE
AWARDEE ACKNOWLEDGES THAT IT IS NOT THE COMPANY’S, BUT RATHER THE AWARDEE’S SOLE
RESPONSIBILITY TO FILE THE ELECTION UNDER SECTION 83(b) TIMELY.
14. Withholding
Taxes.
The
Company shall have the right to require the Awardee to remit to the Company,
or
to withhold from amounts payable to the Awardee, as compensation or otherwise,
an amount sufficient to satisfy all federal, state and local withholding tax
requirements (including, without limitation, any tax resulting from (i) the
expiration of restrictions set forth hereunder that are applicable to any
particular Restricted Shares or (ii) an election made by the Awardee under
Section 83(b) of the Code).
15. Awardee
Representations.
(a) The
Awardee has reviewed with his own tax advisors the federal, state, local and
foreign tax consequences of the transactions contemplated by this Agreement.
The
Awardee is relying solely on such advisors and not on any statements or
representations of the Company or any of its agents, if any, made to the
Awardee. The Awardee understands that the Awardee (and not the Company) shall
be
responsible for the Awardee’s own tax liability arising as a result of the
transactions contemplated by this Agreement.
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(b) Circular
230 Disclaimer:
Nothing
contained in this discussion of certain federal income tax considerations is
intended or written to be used, and cannot be used, for the purpose of (i)
avoiding tax-related penalties under the Internal Revenue Code or (ii)
promoting, marketing, or recommending to another party any transactions or
tax-related matters addressed herein.
16. Employment.
Neither
this Agreement nor any action taken hereunder shall be construed as giving
the
Awardee any right of continuing employment by the Company.
17. Governing
Law.
This
Agreement shall be construed under the laws of the State of Nevada, without
regard to choice of law principles.
18. Other
Agreements.
This
Agreement constitutes the entire understanding between Awardee and the Company
relatng to the Award and any prior agreements, commitments, understandings
and/or negatiations concerning this Award are hereby superseded. This Agreement
may only be amended by written agreement between the Awardee and the
Company.
IN
WITNESS WHEREOF, the Company has caused this Award to be granted on the date
first above written.
| ACIES CORPORATION | ||
| |
|
|
| By: | /s/ Xxxx Xxxxx | |
|
Name: Xxxx Xxxxx |
||
| Title: Chief Executive Officer | ||
Accepted:
Awardee
| /s/ Xxxxxxx X. Xxxxxxxx | |||
|
Xxxxxxx X. Xxxxxxxx |
|||
| Chief Financial Officer |
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