Exhibit 10.13
STOCK GRANT AND
RESTRICTED STOCK AGREEMENT
This Stock Grant and Restricted Stock Agreement (the "Agreement") is
entered into as of this 11th day of March, 2004 (the "Grant Date") by and
between XXXXX X. XXXXXX (the "Executive") and AQUIS COMMUNICATIONS GROUP, INC.
(the "Company").
WITNESSETH:
WHEREAS, the Company currently employs Executive as its Chief Executive
Officer; and
WHEREAS, the Company desires to grant to Executive, and Executive
desires to receive, One Million Six Hundred Thousand (1,600,000) shares of the
common stock, $0.01 par value of the Company (the "Common Stock"); and
WHEREAS, the Company and the Executive desire that the Common Stock to
be issued to Executive hereunder should be restricted as to transferability and
subject to forfeiture in the event the Executive's employment with the Company
is terminated and unless a change of control transaction (as defined herein)
occurs.
NOW, THEREFORE, IT IS AGREED, by and between the Company and the
Executive as follows:
1. Award. The Company hereby issues the Executive One Million Six
Hundred Thousand (1,600,000) shares of Common Stock, subject to the restrictions
set forth in Section 2 ("Restricted Stock").
2. Transfer and Forfeiture of Restricted Stock. Prior to the lapse of
the restrictions set forth in Section 3 (the "Restriction Period"), the
Restricted Stock shall be subject to the following:
(a) Shares of Restricted Stock shall not be sold, assigned,
transferred, pledged or otherwise encumbered.
(b) In the event the Executive's employment with the Company is
terminated for any reason, including termination by the Company with or without
cause, death or Disability (as defined herein), the Executive shall forfeit, for
no consideration, the Restricted Stock as of the Executive's date of
termination, death or Disability. For purposes of this Agreement, "Disability"
shall be defined as the inability of Executive, by reason of his physical or
mental incapacity, to perform in a reasonably satisfactory manner his usual and
customary duties and obligations owing to the Company as Chief Executive Officer
of the Company, which disability is expected, based on medical advice, to extend
with substantial continuity over a period in excess of four months.
3. Lapse of Restrictions on Restricted Stock. The Restricted Stock
shall vest and the restrictions set forth in Section 2 shall terminate on the
date of the occurrence of a Change of Control Transaction (as defined herein);
provided the Executive is employed by the Company on such date. For purposes of
this Agreement, a "Change of Control Transaction" shall be deemed to have
occurred if (i) a tender offer shall be made and consummated for the ownership
of more than 50% of the outstanding voting securities of the Company, (ii) the
Company shall be merged or consolidated with another corporation and as a result
of such merger or consolidation less than 50% of the outstanding voting
securities of the surviving or resulting corporation shall be beneficially owned
in the aggregate by the former shareholders of the Company, as the same shall
have existed immediately prior to such merger or consolidation, or (iii) the
Company shall sell all or substantially all of its assets to another
corporation. Notwithstanding the foregoing, a "Change in Control Transaction"
shall not include any transaction with a wholly-owned subsidiary of Finova
Capital Corporation, a Delaware corporation ("Finova"), or an Affiliate of
Finova. For purposes of this Agreement, an "Affiliate" of Finova shall be
defined as a "person" (as such term is used in section 13(d) and 14(d)(2) of the
Securities Exchange Act of 1934) that controls, is controlled by, or is under
common control with Finova, either directly or indirectly through one or more
intermediaries.
4. Dividends and Voting Rights. The Executive shall not be entitled to
receive any dividends paid with respect to the Restricted Stock that become
payable during the Restriction Period. The Executive shall not be entitled to
vote the shares of Common Stock issued hereunder during the Restriction Period.
5. Deposit of Shares of Restricted Stock. Except as provided in Section
7, each certificate issued in respect of shares of Common Stock granted under
this Agreement shall be registered in the name of the Executive and shall be
deposited in a bank designated by the Company. Upon the lapse of the
restrictions imposed on the Common Stock issued by this Agreement, the Company
shall, upon the request of Executive, cause a new certificate or certificates to
be issued in the name of the Executive for the shares of Common Stock for which
the restrictions have lapsed.
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6. Withholding of Tax. To the extent that the receipt of Restricted
Stock or the lapse of any restriction imposed by this Agreement results in
income to the Executive for federal or state income tax purposes, the Executive
shall deliver to the Company at the time of such receipt or lapse, as the case
maybe, such amount of money as the Company may require to meet its withholding
obligation under the applicable tax laws or regulations and, if the Executive
fails to do so, the Company is authorized to withhold from any remuneration
payable to the Executive, any tax required to be withheld by reason of such
resulting compensation income.
7. Status of Stock. The Executive agrees that the Restricted Stock
issued under this Agreement will not be sold or otherwise disposed of in any
manner which would constitute a violation of any applicable federal or state
securities laws. Executive also agrees (i) that the certificate(s) representing
the Restricted Stock issued hereunder may bear such legend or legends as the
Company deems appropriate in order to assure compliance with applicable
securities laws and (ii) that the Company may refuse to register the transfer of
such Restricted Stock on the stock transfer records of the Company if such
proposed transfer would be, in the opinion of counsel satisfactory to the
Company, a violation of any applicable securities law.
8. Heirs and Successors. This Agreement shall be binding upon, and
inure to the benefit of, the Company and its successors and assigns, and upon
any person acquiring, whether by merger, consolidation, purchase of assets or
otherwise, all or substantially all of the Company's assets and business. If any
rights of the Executive or benefits distributable to the Executive under this
Agreement have not been exercised or distributed, respectively, at the time of
the Executive's death or Disability, to the extent exercisable at the time of
Executive's death or disability, such rights shall be exercisable by the
Executive's legal representative.
9. Administration. The authority to manage and control the operation
and administration of this Agreement shall be vested in the Company's Board of
Directors. Any interpretation of the Agreement by the Board of Directors and any
decision made by the Board of Directors respect to the Agreement is final and
binding.
10. Amendment. This Agreement may be amended by written agreement of
the Executive and the Company, without the consent of any other person.
11. Governing Law. This Agreement shall be governed by, and construed
in accordance with, the laws of the state of Delaware, without regard to the
choice of law provisions of any jurisdiction.
IN WITNESS WHEREOF, the Executive has executed this Agreement, and the
Company has caused this Agreement to be executed in its name and on its behalf,
all as of the Grant Date.
"EXECUTIVE"
/s/ Xxxxx X. Xxxxxx 4/7/2004
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Xxxxx X. Xxxxxx
"COMPANY"
Aquis Communications Group, Inc.
a Delaware corporation
/s/ Xxxxx Xxxxx
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By: Xxxxx Xxxxx
Title: Chairman of the Board
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