EXHIBIT 10.26
AWARD AGREEMENT
This Award Agreement (this "Agreement") is made and entered into as of
November 1, 1996 between Colonial Data Technologies Corp., a Delaware
corporation (the "Corporation") and Xxxxxxx X. Xxxxxx ("Award Recipient").
W I T N E S S E T H:
WHEREAS, the Award Recipient is the Executive Vice President, Chief
Operating Officer and a Director of the Corporation.
WHEREAS, the Board of Directors has authorized a bonus (the "Award") to the
Award Recipient, for services rendered to the Corporation consisting of 40,000
fully paid and non-assessable shares (the "Shares") of common stock, par value
$.01, of the Corporation (the "Common Stock") conditioned upon the execution by
the Corporation and the Award Recipient of this Award Agreement setting forth
all the terms and conditions applicable to the Award.
WHEREAS, such Shares are subject to a restriction on sale or transfer until
December 31, 1997.
NOW, THEREFORE, in consideration of the agreements contained herein and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, and intending to be legally bound thereby, the parties
hereby agree as follows:
1. AWARD OF SHARES
Subject to the terms and conditions set forth herein, the Corporation
awards to the Award Recipient, on the day and year first written above (the
"Effective Date"), 40,000 fully paid and non-assessable shares of common stock
of the Corporation.
2. RESTRICTIONS
(a) Without limiting the provisions of paragraphs 2(b) and 2(c) below, the
Shares shall be restricted and subject to forfeiture until the closing of the
transactions contemplated by the Agreement and Plan of Merger dated as of August
5, 1996 between US Order, Inc. and the Corporation (the "Merger Agreement"). If
the Merger Agreement is terminated prior to the consummation of the transactions
contemplated thereby, the Shares shall immediately be cancelled and the Award
Recipient's rights with respect to such Shares shall be forfeited.
(b) From and after the Effective Date and until December 31, 1997, the
Award Recipient hereby agrees that the Award Recipient will not sell, offer to
sell or otherwise transfer or dispose of, all or any portion of the Shares,
whether by gift, sale, assignment, pledge, other encumbrance or by operation of
law.
(c) In furtherance of the foregoing, the Corporation and its transfer agent
are hereby authorized to decline to make any transfer of such Shares if such
transfer would constitute a violation or breach of this Agreement.
3. SECRETARY TO HOLD CERTIFICATES
In order to enforce the restrictions imposed upon the Shares under
paragraph 2 of this Agreement, the Shares, together with a stock power duly
executed by the Award Recipient, shall be held by the Secretary of the
Corporation until the restrictions imposed pursuant to said paragraph 2 have
lapsed; and as such restrictions lapse, the Secretary shall distribute such
Shares to the Award Recipient. The Award Recipient hereby appoints the person
holding the office of Secretary of the Corporation, from time to time, as his
attorney-in-fact to take all actions necessary to carry out the intent of this
Agreement including but not limited to endorsing the certificate evidencing the
Shares back to the Corporation.
4. WITHHOLDING TAXES
The Corporation shall have the right to retain and withhold from any
payment under the Shares awarded the amount of taxes required by any government
to be withheld or otherwise deducted and paid with respect to such payment. At
its discretion, the Corporation may require the Award Recipient receiving Shares
under this Award to reimburse the Corporation for any such taxes required to be
withheld by the Corporation and withhold any distribution in whole or in part
until the Corporation is so reimbursed. In lieu thereof, the Corporation shall
have the right to withhold from any other cash amounts due or to become due from
the Corporation to the Award Recipient an amount equal to such taxes required to
be withheld by the Corporation to reimburse the Corporation for any such taxes
or retain and withhold a number of Shares having a market value of not less than
the amount of such taxes and cancel (in whole or in part) any such Shares so
withheld in order to reimburse the Corporation for any such taxes.
5. LEGAL RESTRICTIONS
This Agreement and the Corporation's obligation to issue Shares hereunder
shall be subject to all applicable laws, rules and regulations, including
without limitation, federal and state securities laws. It shall be a condition
precedent to the Corporation's obligation to issue any Shares hereunder that the
Award Recipient make any representation, warranty or agreement to the
Corporation as may be required by applicable law or regulation.
6. RIGHT TO CONTINUE EMPLOYMENT
Nothing in this Agreement shall confer on an Award Recipient any right to
continue in the employ of the Corporation or in any way affect the Corporation's
right to terminate the Award Recipient's employment without prior notice at any
time for any or no reason.
7. FORCE AND EFFECT
The various provisions of this Agreement are severable in their entirety.
Any determination of invalidity or unenforceability of any one provision shall
have no effect on the continuing force and effect of the remaining provisions.
8. PREVAILING LAWS
This Agreement shall be construed and enforced in accordance with and
governed by the laws of the State of Delaware.
9. SUCCESSORS
This Agreement shall be binding upon and inure to the benefit of the
successors, assigns and heirs of the respective parties.
10. NOTICES
Unless waived by the Corporation, any notice to the Corporation required
under or relating to this Agreement shall be in writing and addressed to:
Colonial Data Technologies Corp.
00 Xxxxxxx Xxxxxxxx Xxxx
Xxx Xxxxxxx, XX 00000
Attention: Secretary
11. NON-TRANSFERABILITY
The rights of the Award Recipient under this Agreement are nontransferable
and any attempted transfer thereof shall be void.
12. ENTIRE AGREEMENT
This Agreement contains the entire understanding of the parties and shall
not be modified or amended except by an instrument in writing and duly signed by
the parties. No waiver by either party of any default under this Agreement shall
be deemed to waiver of any subsequent default.
IN WITNESS WHEREOF, the parties have signed this Agreement as of the date
hereof.
COLONIAL DATA TECHNOLOGIES CORP.
By /s/ Xxxxxx X. Xxxxxx
Title: President
/s/ Xxxxxxx X. Xxxxxx
Xxxxxxx X. Xxxxxx
Award Recipient
