INSIGNIA SYSTEMS, INC. FORM OF RESTRICTED STOCK AWARD AGREEMENT
EXHIBIT 10.1
INSIGNIA SYSTEMS, INC.
2013 OMNIBUS STOCK AND INCENTIVE PLAN
FORM OF
You
have been granted an award of Restricted Stock subject to the terms
and conditions of the Company’s 2013 Omnibus Stock and
Incentive Plan, as amended from time to time (the
“Plan”), and the Restricted Stock Agreement set forth
below (the “Agreement”), as follows:
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Name of Grantee:
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Date of Issuance:
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Shares of Restricted Stock:
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Vesting Schedule:
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Vesting
Date
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Number
of Shares
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The
period over which a share of Restricted Stock vests is referred to
as its “Restricted Period.”
Capitalized terms
used but not defined in this Agreement have the meanings assigned
to them in the Plan.
THIS AGREEMENT, made effective as of the
Date of Issuance set forth above, by and between Insignia Systems,
Inc., a Minnesota corporation (the “Company”), and the
Grantee identified above (“Grantee”).
W I T N E S S E T H:
WHEREAS, Grantee and the Company are
party to that certain Employment Agreement dated ____________,
setting forth the terms and conditions of Xxxxxxx’s
employment as ____________ of the Company (the “Employment
Agreement”);
WHEREAS, the Company desires to give
Grantee an inducement to acquire a proprietary interest in the
Company and an added incentive to advance the interests of the
Company by awarding shares of Restricted Stock to Grantee (the
“Shares”), on the terms and conditions and subject to
the restrictions set forth in this Agreement; and
WHEREAS, the Company and Grantee each
desire to enter into this Agreement to establish the terms and
conditions of such Award.
NOW, THEREFORE, in consideration of the
premises and of the mutual covenants herein contained, the parties
hereto agree as follows:
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1. GRANT
OF RESTRICTED STOCK
. The
Company hereby grants to Grantee, subject to the terms and
conditions in this Agreement and the Plan, the number of shares of
Restricted Stock specified above. Such shares are subject to the
restrictions provided for in this Agreement and are referred to
collectively as the “Restricted Shares” and each as a
“Restricted Share.” The grant of the Restricted Stock
is made in consideration of Xxxxxxx’s execution of the
Employment Agreement and the services to be rendered by the Grantee
to the Company.
2. RESTRICTIONS ON RESTRICTED
SHARES
.
Subject to any exceptions set forth in this Agreement or the Plan,
during the Restricted Period, the Restricted Shares or the rights
relating thereto may not be assigned, alienated, pledged, attached,
sold or otherwise transferred or encumbered by the Grantee. Any
attempt to assign, alienate, pledge, attach, sell or otherwise
transfer or encumber the Restricted Shares or the rights relating
thereto during the Restricted Period shall be wholly ineffective
and, if any such attempt is made, the Restricted Shares will be
forfeited by the Grantee and all of the Grantee’s rights to
such shares shall immediately terminate without any payment or
consideration by the Company. The Restricted Shares shall be
subject to forfeiture until satisfaction of the vesting conditions
set forth in Section 0 of this
Agreement.
3. ACCEPTANCE
.
Xxxxxxx’s execution of this Agreement will indicate his or
her acceptance of and willingness to be bound by its terms and the
terms of the Plan.
. If
Grantee remains an employee of the Company or at least one of its
Affiliates continuously from the Date of Issuance as specified
above, then the Restricted Shares will vest in the numbers and on
the Vesting Dates specified above.
.
Notwithstanding Section 0 of this
Agreement:
(a) In the event of
Xxxxxxx’s death or if Xxxxxxx’s employment is
terminated by the Company for Disability or without Cause or by
Grantee for Good Reason, then the amount of Restricted Shares
eligible to vest on the next applicable Vesting Date shall vest as
of the date of the applicable triggering event, and all remaining
unvested Restricted Shares shall be immediately
forfeited.
(b) If a Change in
Control occurs and the continuing or successor entity following
such Change in Control fails to assume or replace any unvested
Restricted Shares with new awards of equivalent value of such
continuing or successor entity, then all such Restricted Shares
shall automatically become 100% vested upon the date of the Change
in Control.
6. ISSUANCE OF UNRESTRICTED
SHARES
. Upon
the vesting of any Restricted Shares, such vested Restricted Shares
will no longer be subject to forfeiture as provided in Section
0 of this Agreement, but will continue
to be subject to the provisions of Section 0 of this Agreement.
. If
Grantee ceases to be an employee of the Company and its Affiliates
prior to the last Vesting Date set forth above, then any Restricted
Shares that have not previously vested (including pursuant to
Section 0 of this Agreement) will be
forfeited by Grantee to the Company, and Grantee will thereafter
have no right, title or interest whatever in such Restricted
Shares. If the Company does not have custody of any and all
certificates representing Restricted Shares so forfeited, then
Grantee must immediately return to the Company any and all
certificates representing Restricted Shares so forfeited.
Additionally, Grantee must deliver to the Company a stock power
duly executed in blank relating to any and all certificates
representing the Restricted Shares forfeited to the Company in
accordance with the previous sentence or, if such stock power has
previously been tendered to the Company, the Company will be
authorized to deem such previously tendered stock power delivered,
and the Company will be authorized to cancel any and all
certificates representing Restricted Shares so forfeited and issue
and deliver to Grantee a new certificate for any Shares that vested
prior to forfeiture. If the Restricted Shares are recorded in a
book entry account in lieu of a certificate, Xxxxxxx agrees that
the number of shares in the account will be reduced to reflect any
forfeited shares and Grantee agrees to promptly complete any
documentation reasonably required by the Company’s transfer
agent to effect such reduction.
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8. DEFINITIONS
. For
purposes of this Agreement:
(a) “Cause”
means what the term is expressly defined to mean in a
then-effective written agreement (including, but not limited to the
Employment Agreement) between Grantee and the Company or any
Affiliate or, in the absence of any such then-effective agreement
or definition, means (a) the deliberate and continued failure to
substantially perform Grantee’s duties and responsibilities
as Chief Executive Officer of the Company; (b) the criminal felony
conviction of, or a plea of guilty or nolo contendere by, Grantee;
(c) the material violation of Company policy; (d) the act of fraud
or dishonesty resulting or intended to result in personal
enrichment at the expense of the Company; (e) the gross misconduct
in performance of duties that results in material economic harm to
the Company; or (f) the material breach by Grantee of the
Employment Agreement or any successor thereto. Notwithstanding the
foregoing, in order to establish “Cause” for
Xxxxxxx’s termination for purposes of clauses (a), (c) and
(f) above, the Company must deliver a written demand to Grantee
which specifically identifies the conduct that may provide grounds
for Cause, and the Grantee must have failed to cure such conduct
within thirty (30) days after such demand. Reference in this
paragraph to the Company shall also include direct and indirect
subsidiaries of the Company.
(b) “Disability”
means what the term is expressly defined to mean in a
then-effective written agreement (including, but not limited to the
Employment Agreement) between Grantee and the Company or any
Affiliate or, in the absence of any such then-effective agreement
or definition, means “total and permanent disability”
within the meaning of Code Section 22(e)(3).
(c) “Good
Reason” means what the term is expressly defined to mean in a
then-effective written agreement (including, but not limited to the
Employment Agreement) between Grantee and the Company or any
Affiliate or, in the absence of any such then-effective agreement
or definition, means any of the following: (a) a material and
adverse change in Grantee’s duties, title or position,
provided, however, that a change in the Company’s status as a
publicly held corporation filing reports with the Securities and
Exchange Commission shall not be deemed to constitute Good Reason
hereunder; (b) a reduction in the Grantee’s base salary,
provided, however, that Good Reason shall not exist in the event
that Grantee’s base salary is reduced no more than 15% in
connection with an across-the-board salary reduction by the Company
similarly affecting all senior executives of the Company; or (c) a
material breach by the Company of its obligations under the
Employment Agreement or any successor thereto. Good Reason shall
not exist unless Grantee shall provide notice of the existence of
the Good Reason condition within ninety (90) days of the date
Xxxxxxx learns of the condition. The Company shall have a period of
thirty (30) days during which it may
remedy the condition, and in case of full remedy such condition
shall not be deemed to constitute Good Reason
hereunder.
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9. THIS
AWARD SUBJECT TO PLAN
. The
Award of Restricted Stock evidenced by this Agreement is granted
pursuant to the Plan, a copy of which Plan has been made available
to Grantee and is hereby incorporated into this Agreement. This
Agreement is subject to and in all respects limited and conditioned
as provided in the Plan, including, without limitation,
Section 6(f)(viii) regarding compliance with Section 409A
of the Code. The Plan governs this Award and, in the event of any
questions as to the construction of this Agreement or in the event
of a conflict between the Plan and this Agreement, the Plan shall
govern, except as the Plan otherwise provides.
10. SECURITIES MATTER AND CERTAIN
TRANSACTIONS
(a) Rights as
Shareholder. The Grantee shall be the record owner of the
Restricted Shares until the Shares are sold or otherwise disposed
of, and shall be entitled to all of the rights of a shareholder of
the Company including, without limitation, the right to vote such
Shares and receive all dividends or other distributions paid with
respect to such Shares; provided that, any dividends with respect
to the Restricted Shares shall be withheld by the Company for the
Grantee’s account in a non-interest bearing account. The
dividends so withheld by the Committee and attributable to any
particular Share of Restricted Shares shall be distributed to the
Grantee in cash upon the release of restrictions on such Share and,
if such Share is forfeited, the Grantee shall have no right to such
dividends.
(b) No Right of
Employment. This Agreement does not confer on Grantee any
right to continued employment with the Company or any of its
Affiliates or with respect to the continuance of any other
relationship between Grantee and the Company, nor will it interfere
in any way with the right of the Company to terminate any such
relationship.
(c) Evidence
of Ownership; Stock Legend. Each Restricted Share will be
evidenced by a duly issued stock certificate or electronic
equivalent (which may represent more than one Restricted Share)
registered in the name of Grantee. Physical possession or custody
of any stock certificates that are issued shall be retained by the
Company until such time as the Restricted Share vests. The
certificates or other evidence of the Restricted Shares or any
Shares issued to Grantee (or, in the case of death, Grantee’s
successors) may bear a legend indicating restrictions on
transferability of the Restricted Shares and Shares pursuant to
this Agreement or any other restrictions as may be determined or
authorized by the Company in its sole discretion, including any
legends it may deem advisable under the rules, regulations and
other requirements of the Securities and Exchange Commission, any
applicable federal or state securities laws or any stock exchange
on which the Shares are then listed or quoted.
(d) Securities
Law Compliance. The issuance and transfer of Shares shall be
subject to compliance by the Company and the Grantee with all
applicable requirements of federal and state securities laws and
with all applicable requirements of any stock exchange on which the
Company’s Shares may be listed. No Shares shall be issued or
transferred unless and until any then applicable requirements of
state and federal laws and regulatory agencies have been fully
complied with to the satisfaction of the Company and its counsel.
The Grantee understands that the Company is under no obligation to
register the Shares with the Securities and Exchange Commission,
any state securities commission or any stock exchange to effect
such compliance.
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(e) Mergers,
Recapitalizations, Stock Splits, Etc. Pursuant and subject
to Section 4(c) of the Plan, certain changes in the number or
character of the common stock of the Company (through sale, merger,
consolidation, exchange, reorganization, divestiture (including a
spin-off), liquidation, recapitalization, stock split, stock
dividend or otherwise) shall result in an adjustment, reduction or
enlargement, as appropriate, in the Restricted Shares.
(f) Change
in Control. Upon the occurrence of a Change in Control, the
Committee shall have the right, in its sole and absolute
discretion, but not the obligation, to take actions to make one or
more adjustments or modifications to this Award pursuant to
Section 9(g) of the Plan.
(g) Limitation
on Change in Control Payments. Notwithstanding anything in
this Agreement to the contrary, if, with respect to Grantee, the
acceleration of the vesting of Restricted Shares as provided in
Section (b) of this Agreement
(which acceleration could be deemed a “payment” within
the meaning of Section 280G(b)(2) of the Code), together with any
other payments that Grantee has the right to receive from the
Company or any corporation which is a member of an
“affiliated group” (as defined in Section 1504(a) of
the Code without regard to Section 1504(b) of the Code) of which
the Company is a member, would constitute a “parachute
payment” (as defined in Section 280G(b)(2) of the Code), then
the “payments” to Grantee will be reduced to the
largest amount as will result in no portion of such
“payments” being subject to the excise tax imposed by
Section 4999 of the Code. Without limiting the prior sentence,
Grantee will have the discretion to determine which
“payments” will be reduced so that no portion of such
“payments” are subject to the excise tax imposed by
Section 4999 of the Code. Notwithstanding anything to the contrary
in this Section 0, if Grantee is
subject to a separate agreement with the Company that expressly
addresses the potential application of Section 280G or 4999 of the
Code (including, without limitation, that “payments”
under such agreement or otherwise will be reduced, that such
“payments” will not be reduced or that such
“payments” will be “grossed up” for tax
purposes), then this Section 0
will not apply, and any “payments” to Grantee pursuant
to Section (b) of this Agreement
will be treated as “payments” arising under such
separate agreement.
(h) Accounting
Compliance. Grantee agrees that, if a reclassification,
reorganization, liquidation or other transaction described in
Section 4(c) of the Plan occurs and Grantee is an
“affiliate” of the Company or any Subsidiary (as
defined in applicable legal and accounting principles) at the time
of such transaction, Grantee will comply with all requirements of
Rule 145 of the Securities Act of 1933, as amended, and the
requirements of such other legal or accounting principles, and will
execute any documents necessary to ensure such
compliance.
(i) Withholding Taxes.
The parties to this Agreement recognize that the Company or its
Affiliate may be obligated to withhold federal and state income
taxes or other taxes upon the vesting of the Restricted Shares, or,
in the event that the Employee elects under Section 83(b) of
the Code to report the receipt of the Restricted Shares as income
in the year of receipt, upon the Grantee’s receipt of the
Restricted Shares. Grantee agrees that, at such time, if the
Company or a parent or subsidiary is required to withhold such
taxes, the Company will withhold Shares issuable to Grantee as a
result of vesting of the Restricted Shares in such amount as is
necessary to satisfy
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the tax
withhold obligation, unless (x) Grantee provides notice to the
Company prior to the applicable Vesting Date that Grantee desires
to pay cash or directs the Company (or any Affiliate) to withhold
from payroll or other amounts payable to Grantee any sums required
to satisfy such withholding tax obligations or (y) the withholding
obligation is satisfied in such other manner as is permitted by the
Committee in accordance with the terms of the Plan. Such Shares
shall have a Fair Market Value equal to the minimum required tax
withholding, based on the minimum statutory withholding rates for
federal and state tax purposes, including payroll taxes, that are
applicable to the supplemental income resulting from the grant or
vesting of the Restricted Shares, as applicable. In no event may
the Company accept or withhold securities having a Fair Market
Value in excess of such statutory minimum required tax withholding.
Any Shares withheld to satisfy tax withholding requirements under
this Section 10(i) will be deemed forfeited and the number of
Shares held by Grantee will be adjusted in connection therewith as
provided in Section 7.
11.
MISCELLANEOUS
(a) Binding
Effect. This Agreement shall be binding upon the heirs,
executors, administrators and successors of the parties
hereto.
(b)
Governing
Law. This Agreement and all rights and obligations hereunder
shall be construed in accordance with the Plan and governed by the
laws of the State of Minnesota.
(c)
Entire
Agreement. This Agreement and the Plan set forth the entire
agreement and understanding of the parties hereto with respect to
the grant of this Award and the administration of the Plan and
supersede all prior agreements, arrangements, plans and
understandings relating to the grant of this Award and the
administration of the Plan.
(d)
Amendment and
Waiver. This Agreement may be amended, waived, modified or
canceled by the Committee at any time, provided that all such
amendments, waivers, modifications or cancellations shall comply
with and not be prohibited by the provisions of the Plan, and any
amendment, waiver, modification or cancellation that has an adverse
effect on Grantee’s rights under this Agreement shall be with
Grantee’s consent in a written instrument executed by Grantee
and the Company.
(e)
Counterparts.
This Agreement may be executed in counterparts, each of which shall
be deemed an original, but all of which together shall constitute
one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto
have caused this Agreement to be executed on the day and year first
above written.
INSIGNIA
SYSTEMS, INC.
By:
Name:
Title:
GRANTEE
By:
Name:
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