EXHIBIT 4.4
FORM OF VESTING AGREEMENT
VESTING AGREEMENT NUMBER:_________
VESTING AGREEMENT
This Agreement is made effective as of the Issuance Date set
forth in Exhibit A (the "Issuance Date") by and between Marketing Direct
Concepts, Inc., a Nevada corporation (the "Company"), Xxxxxxx.Xxx, Inc.
("Stockup") and the Employee who has executed this Agreement in Exhibit A hereto
(the "Employee") .
1. GRANT OF STOCK. Subject to the terms and conditions of this
Agreement, the Company agrees to transfer to Employee as of the Issuance Date
the number of shares of common stock of Stockup set forth in Exhibit A hereto
(the "Stockup Shares"), in exchange for the number of shares owned by the
Employee in the Company set forth in Exhibit A (the "MDC Shares"). It being
understood that in the event the Employee does not own shares of the Company as
of the Issuance Date, then the transfer of Shares to the Employee may generate
certain adverse tax effects
2. VESTING SCHEDULE. The Stockup Shares shall vest over a six (6) month
period commencing upon the Commencement Date (set forth in Exhibit A hereto) in
accordance with the following schedule:
a. 10% of the Shares at the end of the first thirty (30)
days following the Commencement Date.
b. 10% of the Shares at the end of the first sixty (60)
days following the Commencement Date.
c. 10% of the Shares at the end of the first ninety (90)
days following the Commencement Date.
d. 10% of the Shares at the end of the first one hundred
twenty (120) days following the Commencement Date.
e. 10% of the Shares at the end of the first one hundred
fifty (150) days following the Commencement Date.
f. the remaining 50% at the end of the first one hundred
eighty (180) days following the Commencement Date.
All non-vested Shares shall automatically vest, at any time after the
Commencement Date, in the event there is a Change in Control of the Company (as
hereinafter defined). "Change in Control" shall be the acquisition by a single
third party of at least 50.1% of the issued and outstanding shares of the common
stock of the Company or securities convertible or exercisable into such amount
which provide the acquiror with at least 50.1% of the voting control of the
Company. The Employee shall not have the right to trade, encumber or otherwise
transfer the Shares during the twelve month period of time following the
completion of the Vesting Schedule, without the express written consent of the
Company. In the event the Employee's employment with the Company is terminated
by reason of a violation of the Company's Employee Manual in effect at the time
of the termination ("Manual Violation"), then the Shares transferred under this
Vesting Agreement shall be canceled and the Employee shall forfeit all right,
title and interest in those Shares. In the event the Employee's employment with
the Company is voluntarily or involuntarily terminated hereunder for any reason
other than a Manual Violation, then the Employee shall be entitled to retain all
vested Shares, but all non-vested Shares granted to such Employee shall be
canceled and returned to the treasury of Stockup.
3. DELIVERY OF STOCK. Upon execution of this Agreement, Stockup shall
issue a certificate representing the Stockup Shares to Employee. The certificate
shall bear a restrictive legend as follows:
THE SHARES OF STOCK EVIDENCED BY THIS CERTIFICATE ARE SUBJECT TO THE
TERMS OF A VESTING AGREEMENT. THIS VESTING AGREEMENT PROHIBITS THE
TRANSFER OF THE SHARES EVIDENCED BY THIS CERTIFICATE DURING THE 12
MONTH PERIOD OF TIME FOLLOWING THE COMPLETION OF THE VESTING SCHEDULE
TO PURSUANT TO WHICH THESE
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SHARES WERE ISSUED. IN ORDER TO TRANSFER SUCH SHARES, THE HOLDER OF
THIS CERTIFICATE MUST OBTAIN AN OPINION OF LEGAL COUNSEL TO STOCKUP
THAT THE SHARES ARE TRANSFERABLE UNDER THE TERMS OF THE VESTING
AGREEMENT.
Unless and until the Shares transferred under this Vesting Agreement
are lawfully sold by the Employee in an open market transaction, the Employee
hereby grants Xxxxxxx Xxxxxxxxx, an irrevocable proxy, coupled with an interest
to vote all such Shares, within the complete discretion of Xxxxxxx Xxxxxxxxx.
4. REPRESENTATIONS AND WARRANTIES. Employee represents to Company that:
Employee has adequate means of providing for current financial
needs and contingencies, has no need for liquidity in the Shares, and is able to
bear the economic risk of an investment in the Shares granted hereby by the
Company. Employee understands that in connection with the transfer of the
Stockup Shares Employee is not being provided with any formal disclosure
documentation. Employee has had an opportunity to ask questions of and receive
answers from Stockup concerning the terms and conditions of the grant of the
Stockup Shares and the current and proposed future operations of Stockup.
Employee will not sell or otherwise transfer the Shares unless in compliance
with the restrictive legend set forth on the Certificate evidencing the Stockup
Shares.
5. MISCELLANEOUS
a. ENTIRE AGREEMENT. This Agreement sets forth the entire
agreement and understanding of the parties hereto with respect to the
transactions contemplated hereby, and supersedes all prior agreements,
arrangements and understandings related to the subject matter hereof.
b. NOTICES. Any notice, request, instruction, or other
document required by the terms of this Agreement, or deemed by any of the
parties hereto to be desirable, to be given to any other party hereto shall be
in writing and shall be given by facsimile, personal delivery, overnight
delivery, or mailed by registered or certified mail, postage prepaid, with
return receipt requested, if to the Company:
If to the Company: Xxxxxxx.Xxx, Inc.
000 Xxxxx Xxxxxx Xxxxx, Xxxxx 000
Xxx Xxxxx, Xxxxxx 00000
Attn: Xxxxxxx Xxxxxxxxx
If to the Employee:
At the address set forth adjacent to his/her name set forth in Exhibit
A hereto. Three attempted but unsuccessful deliveries shall constitute notice
for purposes of this Agreement. All such notices shall be sent registered mail,
postage prepaid, addressed as set forth above (until another address is filed in
writing by either the Company or the Employee) to the Company and the Employee.
c. WAIVER AND AMENDMENT. This Agreement may only be amended
with the express written consent of each of the parties hereto. The failure or
delay of any party at any time or times to exercise its rights with respect to
any provision hereof shall in no manner operate as a waiver of or affect such
party's right at a later time to enforce the same.
d. CHOICE OF LAW. This Agreement and the rights of the parties
hereunder shall be governed by and construed in accordance with the laws of the
State of Nevada including all matters of construction, validity, performance,
and enforcement and without giving effect to the principles of conflict of laws.
The parties submit to the jurisdiction of the Courts of the State of Nevada or a
Federal Court empaneled in the State of Nevada for the resolution of all legal
disputes arising under the terms of this Agreement.
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e. TAXES. Any income taxes required to be paid in connection
with the payments due hereunder, shall be borne by the party required to make
such payment. Any withholding taxes in the nature of a tax on income shall be
deducted from payments due, and the party required to withhold such tax shall
furnish to the party receiving such payment all documentation necessary to prove
the proper amount to withhold of such taxes and to prove payment to the tax
authority of such required withholding.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement, as
of the date first written hereinabove.
THE COMPANY
MARKETING DIRECT CONCEPTS, INC.
BY:
-------------------------------------
Xxxxxxx Xxxxxxxxx, President
XXXXXXX.XXX, INC.
BY:
-------------------------------------
Xxxxxxx Xxxxxxxxx, President
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EXHIBIT A
Name of Employee:________________________
Signature of Employee:___________________
Issuance Date:___________________________
Commencement Date:_______________________
Number of MDC Shares:____________________
Number of Stockup Shares_________________
