EXHIBIT 10.15
EPIXTAR CORP.
RESTRICTED STOCK AGREEMENT
This RESTRICTED STOCK AGREEMENT (this "Agreement") is entered into as
of the 20th day of April, 2005 (the "Date of Grant"), by and between Epixtar
Corp., a Florida corporation (the "Company"), and ___________ ("Grantee").
Grant of Shares. The Company hereby awards to Grantee ___________ shares (the
"Shares") of the common stock, par value $0.001 per share (the "Voxx Common
Stock"), of Voxx Corporation, a Florida corporation ("Voxx") which on the Date
of Grant is a subsidiary of the Company, subject to the terms and conditions of
this Agreement.
Fair Market Value of the Shares. The Company and Grantee agree that the
fair market value per share of the Shares as of the Date of Grant is $.65 per
share (the "Fair Market Value"); provided, however, that Grantee acknowledges
that such determination of the Fair Market Value of the Shares is not binding
upon the Internal Revenue Service or any other governmental authority (a
"Governmental Authority"), and that a Governmental Authority may take the
position that the fair market value of the Shares as of the Date of Grant for
federal or other income tax purposes is different from the Fair Market Value
provided in this Section 2.
Restrictions on Transferability of Shares; Vesting.
Restricted Period. For purposes of this Agreement, the term
"Restricted Period" shall mean the period commencing on the Date of Grant and
ending on the date of the sale by Voxx of Voxx Common Stock for Voxx's own
account pursuant to a registration statement filed with and declared effective
by the Securities and Exchange Commission under the Securities Act of 1933, as
amended, in an underwritten public offering (the "Public Offering Date").
Restrictions. During the Restricted Period, Grantee shall not
sell, assign, transfer, exchange, pledge, hypothecate, or otherwise encumber
(each a "Transfer") (i) the Shares with respect to which the restrictions set
forth in this Section 3(b) have not lapsed in accordance with Section 3(d) of
this Agreement (the "Restricted Shares"), (ii) the right to vote the Restricted
Shares, or (iii) the right to receive dividends on the Restricted Shares
(collectively, the "Restrictions"); provided, however, that Grantee shall have
all other rights of a stockholder of Voxx which the Company previously had with
respect to the Shares, including, without limitation, the right to receive
dividends on and the right to vote the Shares. Any attempted or purported
Transfer of the Restricted Shares shall be void and without effect, and neither
the Company nor Voxx shall be obligated to recognize or give effect to any such
transfer.
Forfeiture in the Event of Termination. Subject to Section 6
of this Agreement, in the event of the termination of Grantee's employment or
consulting relationship with the Company or any affiliate of the Company for any
reason whatsoever, including, without limitation, by reason of the death,
disability, involuntary termination without cause of Grantee's employment or
consulting relationship or agreement by the Company or such Affiliate, prior to
the end of the Restricted Period, all rights to the Restricted Shares which have
not vested in accordance with Section 3(d) of this Agreement at that time shall
be forfeited to the Company without consideration.
Vesting. The Shares shall vest on the Public Offering Date
(the "Vesting Date").
Termination (Lapse) of the Restrictions. On the Vesting Date,
the Restrictions shall lapse with respect to the Shares. Those Shares with
respect to which the Restrictions have lapsed are sometimes referred to herein
as "Vested Shares." Vested Shares shall not be subject to forfeiture under
Section 3(c) above.
Forfeiture in Event Shares Do Not Vest Prior to Expiration
Date. Subject to Section 6, of this Agreement, in the event that the Vesting
Date does not occur prior to July 31, 2006 (the "Termination Date"), all rights
to the Restricted Shares shall be forfeited to the Company without
consideration.
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Grantee's Representations. By receipt of the Shares and by
execution of this Agreement, Grantee represents to the Company and to Voxx, as a
third party beneficiary of this Agreement with respect to such representations
and the other agreements on the part of Grantee contained herein in order to
induce Voxx to permit the transfer of the Shares to Grantee on Voxx's stock
transfer books, that:
Grantee understands that the Shares are securities, the
transfer by the Company to Grantee of which requires compliance with federal and
state securities laws.
Grantee understands that the Shares are being transferred to
Grantee only on the condition that Grantee makes the representations contained
in this Section 4 to the Company and Voxx.
Grantee has made a reasonable investigation of the business
and affairs of the Company and Voxx sufficient to be well informed as to the
rights and the value of the Shares.
(i) Grantee understands that the Shares constitute
"restricted securities" under the Securities Act of 1933, as amended
(the "Securities Act"), and have not been registered under the
Securities Act in reliance upon one or more exemptions contained in the
Securities Act, which may depend upon (A) Grantee's bona fide
investment intention in acquiring the Shares, (B) Grantee's intention
to hold the Shares in compliance with federal and state securities
laws, (C) Grantee having no present intention of selling or
transferring any part thereof in violation of applicable federal and
state securities laws, and (D) there being certain restrictions on
transfer of the Shares. In this connection, Grantee understands that,
in the view of the Securities and Exchange Commission (the "SEC"), the
statutory basis for such exemption may be unavailable if Grantee's
representation was predicated solely upon a present intention to hold
these Shares for the minimum capital gains period specified under tax
statutes, for a deferred sale, for or until an increase or decrease in
the market price of the Shares, or for a period of one year or any
other fixed period in the future.
Grantee understands that (A) the Shares, in addition
to other restrictions on transfer, must be held indefinitely unless
subsequently registered under the Securities Act, or unless an
exemption from registration is available, (B) Rule 144, the usual
exemption from registration, requires the resale to occur not less than
one year after the later of the date the Shares were granted by the
Company (which the SEC may view as the Vesting Date) or the date the
Shares were sold by an "affiliate" of Voxx, within the meaning of Rule
144; and, in the case of acquisition of the Shares by an "affiliate" of
Voxx, or by a non-affiliate who subsequently holds the Shares less than
two (2) years, the satisfaction of certain of the conditions specified
by Rule 144, including: (1) the resale being made through a broker in
an unsolicited "broker's transaction" or in transactions directly with
a market maker (as said term is defined under the Securities Exchange
Act of 1934); and, in the case of an "affiliate," (2) the availability
of certain public information about Voxx, (3) the amount of Shares
being sold during any three (3) month period not exceeding the
limitations specified in Rule 144(e), and (4) the timely filing of a
Form 144, if applicable, (C) there is no certainty that a public market
for the Shares will exist, and (D) it may be necessary that the Shares
be sold pursuant to another exemption from registration which may be
difficult to satisfy.
Grantee acknowledges and understands that Voxx is
under no obligation to register the Shares or the transfer thereto and
that the Company is under no obligation to cause Voxx to register the
shares or the transfer thereof. Grantee understands that the
certificate evidencing the Shares will be imprinted with a legend which
prohibits the transfer of the Shares unless they are registered or such
registration is not required in the opinion of counsel satisfactory to
Voxx and any other legend required under applicable state securities
laws.
Grantee represents that Grantee has sufficient
knowledge and experience in financial and business matters to enable
Grantee to evaluate the risks and merits of acquiring the Shares
pursuant to this Agreement. Grantee is able to bear the economic risk
of Grantee's investment in the Shares resulting from the election to be
made by Grantee pursuant to Section 5 (b) of this Agreement. Grantee
acknowledges that, because the Shares have not been registered under
the 1933 Act or any state securities law, nor has the sale or transfer
thereof, (i) no sale, pledge, hypothecation, assignment, transfer or
other disposition shall be permitted except in compliance with such
laws or in compliance with an exemption from such laws, and (ii) the
investment in the Shares is not a liquid investment.
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Grantee is an "accredited investor" within the
meaning of Regulation D under the 1933 Act.
Grantee acknowledges that Grantee has conducted his
or her own investigation as to the operations, financial condition,
financial statements, business, affairs, prospects or management of the
Company and Voxx and that Grantee, in entering into this Agreement and
effecting the transactions contemplated hereby, has not relied upon any
representation or warranty with respect to the Company and Voxx, or the
foregoing matters, express or implied. Grantee has been afforded such
access to the Company and Voxx, and their respective officers,
directors and management, and their properties and records as Grantee
has requested and has had the opportunity to make such inquiry of the
officers, directors and management of the Company and Voxx and other
persons associated therewith as Grantee has requested.
(e) Grantee has had the opportunity to review with Grantee's
tax advisor the potential ramifications of the election to made pursuant to
Section 5(b) of this Agreement and understands that in the event the Shares are
forfeited to the Company, Grantee will not be able to recover under the tax laws
any loss resulting from the forfeiture of the Shares.
Certain Tax Matters; Withholding Obligations.
Withholding. No later than the date on which Grantee makes the
election under Section 83(b) of the Internal Revenue Code of 1986, as amended
(the "Code") in accordance with Section 5(b) of this Agreement, Grantee hereby
agrees to pay to the Company, or to make arrangements satisfactory to the
Company regarding, any federal, state or local taxes of any kind which may be
required to be withheld with respect to the issuance and vesting of the Shares;
and the Company shall, to the extent permitted by law, have the right to deduct
and withhold from any payments of any kind otherwise due to Grantee from the
Company or its Affiliates any federal, state or local taxes of any kind required
by law to be withheld with respect to the issuance and vesting of the Shares.
Section 83(b) Election. Grantee shall elect, within thirty
(30) days of the Date of Grant, and upon written notice delivered to the
Internal Revenue Service with a copy delivered to the Company, to recognize
income for federal income tax purposes equal to the Fair Market Value of the
Shares as of the date the Shares are transferred to Grantee, regardless of the
Restrictions and the vesting schedule in Section 3(d) of this Agreement. At the
time Grantee makes such election, Grantee shall make arrangements satisfactory
to the Company to pay in the current year any federal, state or local taxes
required to be withheld with respect to the issuance and vesting of the Shares.
If Grantee fails to make such payments to the Company, the Company and its
Affiliates shall, to the extent permitted by law, have the right to deduct and
withhold in the year of this grant any federal, state or local taxes of any kind
required by law to be withheld with respect to the granting and vesting of the
Shares.
(c) Cash Incentive Payment. If Grantee timely makes the
election required in, and otherwise complies with the provisions of, Sections
5(a) and 5(b) of this Agreement, then, notwithstanding any other provision of
this Agreement to the contrary, on December 31, 2005, the Company shall pay
Grantee, as an additional incentive payment, an amount equal to $0.30 times the
number of Shares initially granted to Grantee hereunder. The Company shall have
the right to deduct and withhold from such payment any federal, state or local
taxes of any kind required by law to be withheld with respect thereto or any
such amounts relating to the granting and vesting of the Shares and the related
election under Section 83(b) of the Code remaining unpaid by the Grantee on such
date.
Change of Control; Termination of Employment Without Cause.
If a Change in Control occurs, then any remaining Restrictions
shall lapse automatically, without any action on the part of the Company or
Grantee, and any Restricted Shares shall therefore automatically become Vested
Shares.
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(b) If the Company or one of its Affiliates terminates
Grantee's employment or consulting relationship other than for Cause prior to
the end of the Restricted Period, then Grantee shall continue to retain such
rights as Grantee then has to the Restricted Shares which have not vested in
accordance with Section 3(d) of this Agreement, until the Shares either vest in
accordance with Section 3(d) of this Agreement or are forfeited to the Company
without consideration in accordance with Section 3(f) of this Agreement. For
purposes of this Agreement, "Cause" means: (a) conviction of Grantee for a
felony involving moral turpitude; (b) commission by Grantee of any act of
criminal fraud, misappropriation of funds or embezzlement in connection with
Grantee's employment by or consulting for the Company or an Affiliate; (c)
breach by Grantee of any material provision of any employment or consulting
agreement between Grantee and the Company or any of its Affiliates; (d)
Grantee's willful or reckless material misconduct in the performance of the
Grantee's duties with respect to the Company or an Affiliate; or (e) Grantee's
habitual neglect of duties with respect to the Company or an Affiliate;
provided, however, that for purposes of clauses (d) and (e), Cause shall not
include any one or more of the following: bad judgment, negligence or any act or
omission believed by the Grantee in good faith to have been in or not opposed to
the interests of the Company or its Affiliates (without intent of the Grantee to
gain, directly or indirectly, a profit to which the Grantee was not legally
entitled). A Grantee who agrees to resign from Grantee's affiliation with the
Company or an Affiliate in lieu of being terminated for Cause may be deemed to
have been terminated for Cause for purposes of this Agreement.
Required Participation in Certain Transactions. If during the term of
this Agreement, Voxx or any of its stockholders shall receive a bona fide
written offer pursuant to which any party offers to:
purchase all or substantially all of Voxx's assets;
purchase all of the then issued and outstanding shares of Voxx
Common Stock or Voxx Common Stock equivalents for the same consideration and
upon the same terms and condition for each such share or share equivalent; or
merge or consolidate with Voxx upon terms and conditions which
are identical as to each share of Voxx Common Stock or Voxx Common Stock
equivalents;
and the holders of record of shares of Voxx Common Stock holding shares entitled
to cast a majority of votes entitled to be cast by the holders of the Voxx
Common Stock (the "Majority Stockholders") desire to accept such offer, then the
Majority Stockholders shall promptly deliver a copy of such written offer and
their desire to accept such offer to Grantee. In such event, Grantee shall be
obligated to (i) vote all of Grantee's Shares in favor of such sale of Voxx's
assets and any subsequent liquidation of Voxx, (ii) vote all Grantee's Shares in
favor of such merger or consolidation, or (iii) sell all of Grantee's Shares in
connection with such sale of the Voxx Common Stock, but only if Grantee is to
receive the same consideration, per share of Voxx Common Stock, as the other
holders of Voxx Common Stock or Voxx Common Stock equivalents.
Stock Certificates. Each stock certificate for the Shares issued to
Grantee shall have conspicuously written, printed, typed or stamped upon the
face thereof, or upon the reverse thereof with a conspicuous reference on the
face thereof, of the following legend:
THIS CERTIFICATE AND THE SHARES OF STOCK REPRESENTED HEREBY ARE SUBJECT
TO THE TERMS AND CONDITIONS (INCLUDING THE RISKS OF FORFEITURE AND
RESTRICTIONS AGAINST TRANSFER) CONTAINED IN AN AGREEMENT ENTERED INTO
BETWEEN THE REGISTERED OWNER AND EPIXTAR CORP. RELEASE FROM SUCH TERMS
AND CONDITIONS SHALL BE MADE ONLY IN ACCORDANCE WITH THE PROVISIONS OF
THE AGREEMENT, COPIES OF WHICH ARE ON FILE IN THE OFFICE OF THE
SECRETARY OF VOXX CORPORATION.
Grantee agrees to deposit any and all stock certificates representing the
Restricted Shares with the Company or its designee until such time as the
Restrictions shall have lapsed.
Severability; Construction. In the event that any provision in this
Agreement shall be invalid or unenforceable, such provision shall be severable
from, and such invalidity or unenforceability shall not be construed to have any
effect on, the remaining provisions of this Agreement. This Agreement shall be
construed as to its fair meaning and not for or against either party.
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Damages. The parties agree that any violation of this Agreement (other
than a default in the payment of money) cannot be compensated for by damages,
and any aggrieved party shall have the right, and is hereby granted the
privilege, of obtaining specific performance of this Agreement in any court of
competent jurisdiction in the event of any breach hereunder.
Governing Law. This Agreement shall be deemed to be made under and
governed by and construed in accordance with the laws of the State of Delaware,
without regard to conflicts of law principles.
Delay. No delay or failure on the part of the Company or Grantee in the
exercise of any right, power or remedy shall operate as a waiver thereof, nor
shall any single or partial exercise by any of them of any right, power or
remedy preclude other or further exercise thereof, or the exercise of any other
right, power or remedy.
Lock-Up Period. Grantee hereby agrees that if so requested by the
Company, Voxx or any representative of the underwriters (the "Managing
Underwriter") in connection with any registration of the offering of any
securities of Voxx under the Securities Act, Grantee shall not sell or otherwise
transfer any Shares or other securities of Voxx during the 180-day period (or
such longer period as may be requested in writing by the Managing Underwriter
and agreed to in writing by Voxx) (the "Market Standoff Period") following the
effective date of a registration statement of Voxx filed under the Securities
Act; provided, however, that such restriction shall apply only to the first
registration statement of Voxx to become effective under the Securities Act that
includes securities to be sold on behalf of Voxx to the public in an
underwritten public offering under the Securities Act. Voxx may impose
stop-transfer instructions with respect to securities subject to the foregoing
restrictions until the end of such Market Standoff Period.
Notices. Any notice required to be given or delivered to the Company
under the terms of this Agreement shall be in writing and addressed to the
Secretary of the Company at its principal offices. Any notice required to be
given or delivered to Grantee shall be in writing and addressed to Grantee at
the address indicated in the employment records of the Company or to such other
address as the Grantee may designate in writing from time to time to the
Company. All notices shall be deemed to have been given or delivered upon:
personal delivery; three (3) days after deposit in the United States mail by
certified or registered mail (return receipt requested); one (1) business day
after deposit with any return receipt express courier (prepaid); or one (1)
business day after transmission by facsimile or telecopier.
Adjustment of Shares. In the event of any change in corporate
capitalization, such as a stock dividend or stock split, or a corporate
transaction, such as any merger, consolidation, separation, including a
spin-off, or other distribution of stock or property of Voxx, any reorganization
(whether or not such reorganization comes within the definition of such term in
Section 368 of the Internal Revenue Code of 1986) or any partial or complete
liquidation of Voxx, any additional shares of the Voxx Common Stock, or any
other securities of Voxx or any other entity received by Grantee in connection
with such transaction in respect of the Shares, shall become subject to this
Agreement, and the term "Shares" as used herein, shall be deemed to include such
additional shares of Voxx Common Stock or such other securities, as appropriate.
Definitions. In this Agreement, except where the context otherwise
indicates, the following capitalized terms shall have the meanings ascribed to
them below:
"Affiliate" means, with respect to any Person (as defined
below), any other Person that directly or indirectly controls or is
controlled by or is under common control with such Person. For the
purposes of this definition, "control," when used with respect to any
Person, means the possession, direct or indirect, of the power to
direct or cause the direction of the management and policies of such
Person or the power to elect directors, whether through the ownership
of voting securities, by contract or otherwise; and the terms
"affiliated," "controlling" and "controlled" have meanings correlative
to the foregoing.
"Change in Control" means the occurrence of any of the
following:
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(a) when any "person," as such term is used in Section
13(d) or 14(d) of the Securities Exchange Act of 1934
(the "Exchange Act") (other than those Persons in
control of the Company as of the Date of Grant or the
Company or any subsidiary or any employee benefit
plan of the Company or any subsidiary (including its
trustee)), is or becomes the "beneficial owner" (as
defined in Rule 13d-3 promulgated under the Exchange
Act), directly or indirectly of securities of the
Company or Voxx representing more than fifty percent
(50%) of the combined voting power of the Company's
or Voxx's outstanding securities;
(b) any transaction or event relating to the Company or
Voxx required to be described pursuant to the
requirements of Item 6(e) of Schedule 14A of
Regulation 14A promulgated under the Exchange Act; or
(c) any transaction requiring stockholder approval for
the acquisition of the Company or Voxx by an entity
other than the Company or any subsidiary through
purchase of assets, or by merger, or otherwise.
Notwithstanding the foregoing, a transaction shall not constitute a
Change in Control if its sole purpose is to change the state of the
Company's or Voxx's incorporation or to create a holding company that
will be owned in substantially the same proportions by the persons who
held the Company's or Voxx's securities immediately before such
transaction, and a Change in Control shall not be deemed to occur if
(i) Voxx files a registration statement with the Securities and
Exchange Commission for the initial offering of Voxx Common Stock to
the public or (ii) the Company's distributes the Voxx Common Stock to
the stockholders of the Company.
"Person" means, unless otherwise specially defined in this
Agreement, any natural person, association, trust, cooperative,
corporation, general partnership, joint venture, limited partnership,
limited liability company, real estate investment trust, regulatory
body, governmental agency or instrumentality, unincorporated
organization or organizational entity.
Complete Agreement. This Agreement constitutes the entire agreement
between the parties with respect to its subject matter, and supersedes all other
prior or contemporaneous agreements and understandings whether oral or written.
This Agreement may only be amended in a writing signed by the Company and the
Grantee.
SIGNATURE ON NEXT PAGE.
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IN WITNESS WHEREOF, the Company and Grantee have executed this Agreement as of
the date first set forth above.
EPIXTAR CORP.
By: ________________________________
Name: ________________________________
Its: ________________________________
Grantee acknowledges and agrees that this Agreement, the transactions
contemplated by this Agreement and the Restricted Period set forth in this
Agreement do not constitute an express or implied promise of continued
engagement as an employee or consultant for the Restricted Period, for any
period, or at all, and shall not interfere with Grantee's right or the Company's
or its Affiliates' right to terminate Grantee's employment or consulting
engagement at any time, with or without cause.
Grantee represents that Grantee is familiar with the terms and
provisions hereof, and hereby accepts this Agreement subject to all of the terms
and provisions hereof. Grantee has reviewed this Agreement in its entirety, has
had an opportunity to obtain the advice of counsel prior to executing this
Agreement and fully understands all provisions of this Agreement.
Grantee understands and acknowledges that Grantee may at any time prior
to the end of the third day following the date set forth beneath Grantee's
signature below, void this Agreement without liability on the part of Grantee or
within three days after Grantee delivers to the Company the election required to
be made by Grantee pursuant to Section 5(d) of this Agreement, whichever occurs
later.
_____________________________________
Grantee
Dated: ______________________________
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