Exhibit 10.11
XXXXXX.XXX LTD
RESTRICTED STOCK AGREEMENT
RESTRICTED STOCK AGREEMENT dated as of April l6th, 1999 (this
"Agreement") by and between Xxxxxx.Xxx Ltd. a New York corporation with its
place of business at 000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000 ("Agency"), and
Xxxxx Xxxx, an employee of Agency (the `Employee").
1. Grant. Agency hereby grants to the Employee and the Employee hereby
accepts an award of restricted stock, effective as of the date hereof (the
"Grant Date") of 40,345 shares of the common stock, par value $.001 per share,
of Agency ("Restricted Shares") in consideration of services to be rendered by
Employee to Agency.
2. OWNERSHIP, RIGHTS AS A SHAREHOLDER AND CUSTODY. The Employee is the
owner of the Restricted Shares and has all the rights of a shareholder with
respect thereto, including the right to vote such Restricted Shares and to
receive all dividends or other distributions paid with respect to such
Restricted Shares other than dividends or distributions in shares of common
stock of Agency (the "Stock Dividends"), which Stock Dividends shall be subject
to the same restrictions as apply to the Restricted Shares with respect to which
such Stock Dividends were paid. Such ownership of Restricted Shares (and Stock
Dividends) shall be evidenced by book entries on the records of Agency. Promptly
following the vesting of Restricted Shares pursuant to this Agreement stock
certificate(s) evidencing such Restricted Shares (and Stock Dividends) shall be
issued and delivered to the Employee (or his permitted transferees) by Agency.
3. VESTING AND FORFEITURE.
(a) Provided that the Employee has remained in the continuous
employ of Agency or an Agency subsidiary through the respective Vesting
Date (as defined below), the Restricted Shares shall automatically
vest, and shall automatically become transferable and nonforfeitable,
as to 33 1/3% of such Restricted Shares on each of the first three
anniversaries of the Grant Date (each of such three dates being a
"Vesting Date").
(b) In the event of a Termination of Employment prior to a
Vesting Date by reason of the death or Total Disability of the
Employee, all of the Restricted Shares not yet vested shall vest, and
shall become transferable and nonforfeitable, on the date of such
Termination of Employment.
(c) In the event of a Termination of Employment prior to a
Vesting Date by reason of the Retirement or Involuntary Termination of
Employment of the Employee, that number of Restricted Shares not yet
vested shall vest, and shall become transferable and nonforfeitable, on
the date of such Termination of employment as is determined by
multiplying the total number of Restricted Shares which would vest on
each of the remaining Vesting Dates by a fraction, the numerator of
which shall be the number of full calendar months between the Grant
Date and the date of Termination of Employment and the denominator of
which shall be the full number of calendar months between the Grant
Date and respective Vesting Date (rounded down to the nearest full
Restricted Shares);
PROVIDED, HOWEVER, that the Board shall have the right in its sole
discretion to increase the number of Restricted Shares which shall vest
on the date of such Termination of Employment.
(d) Any Restricted Shares not vested on the date of
Termination of Employment shall be forfeited.
4. NONTRANSFERABILITY. Prior to the date upon which any Restricted
Shares become vested pursuant to paragraph 3 hereof, the Restricted Shares may
not be pledged, encumbered or hypothecated to, or in favor of, or subject to any
lien, obligation or liability of the Employee to any party, or assigned or
transferred by the Employee otherwise than by will or the laws of descent and
distribution; PROVIDED, HOWEVER, that such Restricted Shares may be transferred
without consideration to immediate family members (i.e., children, grandchildren
or spouse), to trusts for the benefit of such immediate family members and to
partnerships in which such family members are the only partners, provided that
any such family member, trust and/or partnership shall be subject to all terms,
conditions and restrictions of the Plan and this Agreement.
5. DEFINITIONS. For purposes of this Agreement, the terms set forth
below shall have the following meanings:
(a) "Termination of Employment" means the time when the
employee-employer relationship between the Employee and Agency or an
Agency subsidiary ceases to exist for any reason, including, but not
limited to, a termination by resignation, discharge, death, Total
Disability or Retirement.
(b) "Total Disability" means inability of the Employee by
reason of his physical condition or mental illness or accident, to
perform substantially all of the duties of the position at which the
Employee was employed by Agency or an Agency subsidiary when such
disability commenced. All determinations as to the date and extent of
disability of any Employee shall be made by the Board of Directors of
Agency (the "Board") upon the basis of such evidence as the Board deems
necessary or desirable.
(c) "Retirement" means a Termination of Employment by reason
of an Employee s retirement, other than by reason of Total Disability,
at a time when the Employee's years of service with Agency or an Agency
subsidiary plus his chronological age equals sixty-five or more.
(d) "Involuntary Termination of Employment" means a
Termination of Employment for a reason other than death, Retirement,
Total Disability, voluntary resignation, or Termination of Employment
for Cause.
(e) "Termination of Employment for Cause" means an Involuntary
Termination of Employment by reason of an Employee's (i) repeated
failure or refusal to perform the duties and responsibilities of his or
her position; (ii) dishonesty affecting Agency or Agency subsidiary;
(iii) drunkenness or use of illegal drugs, interfering with his
performance, continuing after warning, or (iv) material breach of
loyalty to Agency or
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an Agency subsidiary. All determinations as to whether or not a
termination is a Termination of Employment for Cause shall be made by
the Board upon the basis of such evidence as the Board deems necessary
or desirable.
6. INVESTMENT REPRESENTATIONS.
(a) The Restricted Shares issued to the Employee will be
acquired for investment for the Employee's own account, not as a
nominee or agent, and not with a view to the sale or distribution of
any part thereof, and the Employee has no present intention of selling,
granting any participation in, or otherwise distributing the same. The
Employee represents that the entire legal and beneficial interest of
the Restricted Shares will be held for the Employee's account only, and
neither in whole or in part for any other Person (as defined below). By
executing this Agreement, the Employee further represents that the
Employee has no present contract, undertaking, agreement or arrangement
with any Person to sell, transfer or grant participation to such Person
or to any third Person, with respect to any of the Agency Shares.
(b) The Employee understands and acknowledges that the
issuance of the Restricted Shares pursuant to this Agreement is being
effected on the basis that the issuance of such securities is exempt
from registration pursuant to Section 4(2) of the Securities Act of
1933, as amended (the "1933 Act") and that Agency's reliance upon such
exemption is predicated upon the Employee s representations.
(c) The Employee further represents that he: (i) has such
knowledge and experience in financial and business matters as to be
capable of evaluating the merits and risks of the Employee s
prospective investment in the Agency Shares; (ii) has received all the
information he has requested from Agency that he considers necessary or
appropriate for deciding whether to accept the Agency Shares; (iii) has
the ability to bear the economic risks of the Employee's prospective
investment; (iv) is able, without materially impairing his financial
condition, to hold the Restricted Shares for an indefinite period of
time and to suffer complete loss on his investment.
(d) Each certificate representing Restricted Shares issued
pursuant hereto to the Employee and any shares issued or issuable in
respect of any such Restricted Shares upon any stock split, stock
dividend, recapitalization, or similar event, shall be stamped or
otherwise imprinted with legends in the following form (in addition to
any legend required under applicable state securities laws):
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED
FOR INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED. THESE SHARES MAY NOT BE
SOLD OR TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN
EXEMPTION THEREFROM UNDER SAID ACT.
(e) The certificates evidencing the Restricted Shares shall
also bear any legend required pursuant to any state, local or foreign
law governing; such securities.
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(f) The Employee understands and acknowledges that the
Restricted Shares have not been registered under the 1933 Act and the
Restricted Shares must be held indefinitely unless subsequently
registered under the 1933 Act or an exemption from such registration is
available and Agency is not under any obligation to register the Agency
Shares.
(g) The Employee acknowledges that the Restricted Shares shall
not be transferable except upon the conditions specified in this
Agreement. The Employee will cause any proposed transferee of the
Restricted Shares held by the Employee to agree to take and hold such
Restricted Shares subject to the provisions and upon the conditions
specified in this Agreement.
(h) Prior to any proposed transfer of any Restricted Shares,
unless there is in effect a registration statement under the 1933 Act
covering the proposed transfer, the Employee shall give written notice
to Agency of his intention to effect such transfer. Each such notice
shall describe the manner and circumstances of the proposed transfer in
sufficient detail, and shall, if Agency so requests, be accompanied
(except in transactions in compliance with Rule 144 promulgated under
the 0000 Xxx) by either (i) a written opinion of legal counsel
reasonably satisfactory to Agency, addressed to Agency at its then
headquarters office, to the effect that the proposed transfer of
Restricted Shares may be effected without registration under the 1933
Act; or (ii) a "No Action" letter from the Securities and Exchange
Commission (the "Commission ") to the effect that the transfer of such
securities without registration will not result in a recommendation by
the staff of the Commission that action be taken with respect thereto,
whereupon the holder of such Restricted Shares shall be entitled to
transfer such Restricted Shares in accordance with the terms of the
notice delivered by the holder to Agency. Each certificate evidencing
the Restricted Shares transferred as above provided shall bear the
appropriate restrictive legend set forth in clause (d) above, except
that such certificate shall not bear such restrictive legend if in the
opinion of counsel for Agency such legend is not required in order to
establish compliance with any provisions of the 1933 Act, which opinion
will not be unreasonably withheld.
7. NO UNDERSTANDINGS AS TO EMPLOYMENT. Nothing in this Agreement shall
constitute or be evidence of any understanding, express or implied, on the part
of Agency or an Agency subsidiary to employ the Employee for any period.
8. AMENDMENT. This Agreement may be amended only by an instrument in
writing executed and delivered by the Employee and Agency.
9. GOVERNING LAW. The validity and construction of this Agreement shall
be governed by the laws of the State of New York.
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10. "PERSON" DEFINED. "Person" shall mean and include an individual, a
partnership, a joint venture, a corporation, a limited liability company, a
trust, an unincorporated organization and a government or other department or
agency thereof.
IN WITNESS WHEREOF, Agency, by its duly authorized officer, and the
Employee have executed this Agreement in duplicate as of the date and year first
above written.
XXXXXX.XXX LTD.
By: /s/ XXXXXXX X. XXXXX
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Xxxxxxx X. Xxxxx
/s/ XXXXX XXXX
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Xxxxx Xxxx
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