MERISEL, INC. RESTRICTED STOCK AGREEMENT
EXHIBIT
10.50
MERISEL,
INC.
1997
STOCK AWARD AND INCENTIVE PLAN
This Restricted Stock Agreement (this
“Agreement”) is
dated as of [_____] (the “Effective Date”), by
and between Merisel, Inc., a corporation organized under the laws of the State
of Delaware (the “Company”), and [name
of director] residing at the address set forth on the signature page hereto (the
“Grantee”). Any
capitalized terms not otherwise defined herein shall have the meaning set forth
in the Plan (as hereinafter defined).
R E C I T A L
WHEREAS,
pursuant to the Company’s 1997 Stock Award and Incentive Plan (the “Plan”) and in
accordance with the 2005 Non-Management
Director Compensation recommendation adopted by the Board of Directors of the
Company, the Board and the Committee, have determined that the Grantee should be
granted shares of the Company’s common stock (the “Common Stock”) according to
the terms and conditions hereof and the Plan.
A G R E E M E N T
NOW THEREFORE, in consideration of the
promises and mutual covenants herein set forth, and other good and valuable
consideration, receipt of which is hereby acknowledged, the parties hereto
hereby mutually covenant and agree as follows:
|
Section 1
|
Issuance
of Common Stock.
|
1.1 The
Company is granting, effective as of the Effective Date, to the Grantee an
aggregate of [___] shares of the Common Stock (the “Shares”) on the terms
and conditions of this Agreement and all other applicable terms and conditions
of the Plan.
1.2 Upon
receipt by the Company of a copy of this Agreement duly executed and completed
by the Grantee, the Company shall promptly instruct its transfer agent to issue
in the name of the Grantee a duly executed certificate evidencing the Shares
endorsed with the legends set forth in Section 4.5. The certificate
evidencing the Shares shall be held in escrow by the Company according to the
provisions set forth in Section 3.1.
|
Section 2
|
Vesting
of Shares; Termination of Service;
Forfeiture.
|
2.1 Vested and Unvested
Shares. As the Shares vest pursuant to the terms of this
Agreement, they are referred to herein as “Vested Shares” and,
if they have not vested, they are referred to herein as “Unvested
Shares.” All of the Shares shall initially be Unvested
Shares.
2.2 Vesting During Continued
Service as a Director; Termination of Grantee’s Service as a Director of the
Company.
(a) So long
as the Grantee continues to serve as a director of the Company and no Change of
Control, as defined in the Plan, has occurred and subject to other terms and
conditions contained herein, all of the Unvested Shares shall become Vested
Shares on [____]. If, prior to [____], there has been no Change of
Control and the Grantee ceases to be a director of the Company for any reason,
all Unvested Shares shall immediately be forfeited, and the Company shall have
the right to obtain and transfer to its own name such forfeited Unvested Shares
without payment of any consideration. Such forfeited Unvested Shares
will be further subject to the forfeiture provisions in Section 3.2
hereof.
(b) Accelerated Vesting
following Change of Control. All Unvested Shares shall
immediately become Vested Shares upon a Change of Control of the Company,
provided the Grantee serves as a director of the Company on and as of the day
prior to the effective date of the Change of Control.
2.3 Determination of Termination
Date of Service as a Director. The determination of whether or not a
termination of service of the Grantee as a director of the Company has occurred,
and the determination of the date of any such termination of service, shall be
made by the Board or the Committee as defined in the Plan, acting
reasonably.
2.4 Stock Dividends, Splits and
Certain Reorganizations. If, from time to time during the term
of this Agreement:
(a) there is
any stock dividend, stock split or other change in the character or amount of
any of the outstanding securities of the Company; or
(b) there is
any consolidation, merger or sale of all, or substantially all, of the assets of
the Company;
then, in
such event, any and all new, substituted or additional securities or other
property to which the Grantee is entitled by reason of the Grantee's ownership
of the Shares, shall be immediately subject to this Agreement and be included in
the word "Shares" for all purposes with the same force and effect as the Shares
presently subject to this Agreement.
|
Section 3
|
Escrow
of Shares.
|
3.1 Deposit of Shares; Related
Documentation. Upon execution of this Agreement, the Grantee
shall deliver and deposit with the Company as escrow holder (the “Escrow Holder”) the
share certificate representing the Unvested Shares, together with the stock
assignment duly endorsed in blank, attached hereto as Exhibit
A. The Unvested Shares and stock assignment shall be held by
the Escrow Holder, until such time as
(a) such
Unvested Shares shall have become forfeited by the Grantee pursuant to this
Agreement or the Plan, or
(b) such
Unvested Shares shall have become Vested Shares.
3.2 Unvested Shares forfeited by
the Grantee. All Unvested Shares forfeited by the Grantee
pursuant to the terms of this Agreement or according to the provisions of the
Plan, shall revert to the Company, and the Company shall become the legal and
beneficial owner of such Unvested Shares, and all rights and interests therein
or relating thereto. Upon the forfeiture of any Unvested Shares in
accordance with the terms of this Agreement or the Plan, the Company shall have
the right to obtain and transfer to its own name such forfeited Unvested Shares
without payment of any consideration, and the Company shall be entitled to the
return from the Grantee of any share certificate(s) issued in respect of the
forfeited Unvested Shares or the cancellation of any book entry memo position
maintained by the Company’s transfer agent and registrar with respect to the
Unvested Shares. Additionally, the Company shall have the right, as
Escrow Holder, to take all steps necessary to accomplish the transfer of such
forfeited Unvested Shares to it, including but not limited to presentment of
certificate representing the Unvested Shares, together with a stock assignment
executed by the Grantee appropriately completed by the Escrow Holder, to the
Company’s transfer agent with irrevocable instructions to transfer such Unvested
Shares into the name of the Company. The Grantee hereby appoints the
Company, in its capacity as Escrow Holder, as his or her irrevocable
attorney-in-fact to execute in his or her name, acknowledge and deliver all
stock powers, stock assignments and other instruments as may be necessary or
desirable with respect to the Unvested Shares. In addition, the
Grantee shall immediately pay to the Company any proceeds from the prior sale or
transfer of any forfeited Unvested Shares.
3.3 Release of Vested Shares
from Escrow. When the Unvested Shares become Vested Shares,
upon the Grantee’s written request to the Company, the Company, as Escrow
Holder, shall promptly release from escrow and deliver the certificate
representing such Vested Shares to the Grantee to the address indicated on the
signature page hereto.
3.4 Grantee’s Rights as
Stockholder. Subject to the terms hereof, the Grantee shall
have all the rights of a stockholder with respect to the Shares while they are
held in escrow, including without limitation, the right to vote the Shares and,
subject to Section 2.5 of this Agreement, receive any dividends declared
thereon.
3.5 Liability of Escrow
Holder. The Escrow Holder shall not be liable and the Grantee
shall hold the Escrow Holder harmless for any act the Escrow Holder may do or
omit to do with respect to holding the Unvested Shares in escrow and while
acting in good faith and in the exercise of its judgment.
|
Section 4
|
Restriction
on Transfer; Investment
Representation.
|
4.1 General Restriction; No
Assignment of Shares. Except as otherwise provided in Section
4.2 of this Agreement, the Grantee may not sell, transfer, assign, pledge,
hypothecate or otherwise dispose of any of the Unvested Shares, or any right or
beneficial interest therein (collectively referred to as a “Transfer”) unless the
Unvested Shares have become Vested Shares, and the Grantee has been issued a
certificate for such Vested Shares by the Company, and the Transfer is conducted
in accordance with the terms of this Agreement.
4.2 Permitted
Transfers. The Grantee may not Transfer any Vested Shares to
any person or entity unless the Transfer has been registered under the
Securities Act of 1933 or the Company receives an opinion of counsel in form and
substance satisfactory to the Company that the Transfer of such Vested Shares is
exempt from registration under the Securities Act of 1933, as amended (the
“Securities
Act”) and otherwise complies with federal and state securities laws (each
such transferee, a “Permitted
Transferee”). The Grantee acknowledges and agrees, and each
Permitted Transferee shall, as a condition to Transfer any Vested Shares,
acknowledge and agree that neither the Company nor any agent of the Company
shall be under any obligation to recognize any Transfer of any of the Vested
Shares if, in the opinion of counsel for the Company, such transfer would result
in a violation by the Company of any federal or state law with respect to any
Transfer of such Vested Shares. Any attempt to Transfer or assign any
Shares by the Grantee other than in accordance with this Agreement shall be void
and shall have no effect.
4.3 Tax Withholding; Compliance
by Grantee. The Company is authorized to withhold from any
distribution of the Shares to the Grantee or any other payment made to the
Grantee under this Agreement, amounts of withholding and other taxes due in
connection with the issuance of the Shares, and to take such other action as the
Committee (as defined in the Plan) may deem advisable to enable the Company and
the Grantee to satisfy obligations for the payment of withholding taxes and
other tax obligations relating to the Shares. The Grantee agrees that
in the event and to the extent the Company determines that it is not obligated
to withhold taxes payable by the Grantee with respect to the Shares but the
Company is later held liable due to any non-payment of taxes on the part of the
Grantee, the Grantee shall indemnify and hold the Company harmless from the
amount of any payment made by it in respect of such liability.
4.4 Investment
Representation. The Grantee represents and warrants to the
Company that the Grantee (i) is acquiring the Shares for his own account for the
purpose of investment and not with a view to, or for sale in connection with,
the distribution of any such Shares, (ii) has no present intention of selling,
granting any participation in, or otherwise distributing all or any portion the
Shares acquired hereunder, (iii) does not have any contract, undertaking,
agreement or arrangement with any person to sell, transfer or grant
participations to such person or to any third person with respect to any of the
Shares acquired hereunder, and (iv) is an “accredited investor” within the
meaning of Rule 501 of Regulation D promulgated under the Securities
Act.
4.5 Legends on Certificates
representing the Shares. The certificates representing the
Shares shall be endorsed with the following legends:
“THE
SECURITIES REPRESENTED BY THIS COMMON STOCK CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED ("THE SECURITIES ACT"), NOR
REGISTERED OR QUALIFIED UNDER THE SECURITIES OR BLUE SKY LAWS OF ANY
STATE, AND MAY NOT BE SOLD, TRANSFERRED OR OTHERWISE DISPOSED OF UNLESS
REGISTERED UNDER THE SECURITIES ACT AND REGISTERED OR QUALIFIED UNDER APPLICABLE
STATE SECURITIES OR BLUE SKY LAWS, OR AN EXEMPTION THEREFROM IS
AVAILABLE.
THE
SECURITIES EVIDENCED BY THIS CERTIFICATE ARE SUBJECT TO CERTAIN RESTRICTIONS AND
OBLIGATIONS WITH RESPECT TO THE TRANSFER, PLEDGE, HYPOTHECATION OR DISTRIBUTION
THEREOF AS SET FORTH IN THAT CERTAIN RESTRICTED STOCK GRANT AGREEMENT WITH THE
CORPORATION AND THE TERMS AND CONDITIONS OF THE 1997 STOCK AWARD AND INCENTIVE
PLAN, BOTH OF WHICH MAY BE REVIEWED AT THE PRINCIPAL PLACE OF BUSINESS OF
THE CORPORATION AND A COPY OF WHICH MAY BE OBTAINED FROM THE CORPORATION
WITHOUT CHARGE UPON WRITTEN REQUEST THEREFOR.”
The Grantee agrees that the Company
may instruct its transfer agent to impose transfer restrictions on the Shares
represented by certificates bearing the legend referred to above to enforce the
provisions of this Agreement and the Company agrees to promptly do
so.
|
Section 5
|
Miscellaneous.
|
5.1 Conditions to Exercise of
Rights. Exercise of the rights granted to the Company under
this Agreement shall be subject to and conditioned upon, and the parties shall
use their best efforts to assist the Company in, compliance with applicable
laws.
5.2 No Service
Contract. Nothing in this Agreement or the Plan shall confer
upon the Grantee any right to continue in the service of the Company as a
director for any period of time, or interfere with or restrict in any way the
rights of the Company’s stockholders to terminate the Grantee’s service as a
director at any time for any reason whatsoever.
5.3 Agreement Subject to
Plan. This Agreement is made under the provisions of the Plan
and shall be interpreted in a manner consistent with it. Any
provision in this Agreement inconsistent with the Plan shall be superseded and
governed by the Plan. A copy of the Plan is available to the Grantee
at the Company’s principal executive office upon request and without
charge. The Grantee has carefully reviewed the Plan and understands
the restrictions on the Shares.
5.4 Governing Law; Jurisdiction
and Venue. This Agreement shall be governed by, and construed
and enforced in accordance with, the laws of the State of Delaware, without
regard to principles of conflicts of laws, and shall be binding upon the heirs,
personal representatives, executors, administrators, successors and assigns of
the parties.
5.5 Amendment. Any
provision of this Agreement may be amended and the observance thereof may be
waived (either generally or in a particular instance and either retroactively or
prospectively) only by the written consent of the Company and the
Grantee.
5.6 Entire Agreement.
This Agreement constitutes the full and entire understanding and agreement among
the parties with regard to the subject matter hereof, and supersedes all prior
agreements and understandings with respect to the subject matter
hereof.
5.7 Assignment. This
Agreement and any and all rights, duties, obligations or interests hereunder
shall not be assignable or delegable by the Grantee. This Agreement
shall be binding upon, and inure to the benefit of, the parties hereto, any
successors to or assigns of the Company and the Grantee’s heirs and personal
representatives of the Grantee’s estate.
5.8 Authority of the
Committee. The Committee shall have full authority to
interpret and construe the terms of the Plan and this Agreement, unless the
Agreement requires for a particular determination to be made specifically by the
Board. The determination of the Committee as to any such
interpretation or construction shall be final, binding and
conclusive.
5.9 Severability. In
the event one or more of the provisions of this Agreement should, for any
reason, be held to be invalid, illegal or unenforceable in any respect, such
invalidity, illegality or unenforceability shall not affect any other provisions
of this Agreement, and this Agreement shall be construed as if such invalid,
illegal or unenforceable provision had never been contained herein.
5.10 Counterparts. This
Agreement may be executed in any number of counterparts, each of which shall be
deemed an original, but all of which together shall constitute one and the same
instrument.
[Signature
page following]
IN WITNESS
WHEREOF, the parties have duly executed this Agreement under seal as of
the month, day and year first set forth above.
MERISEL,
INC.
By:________________________________
Name:
Title:
GRANTEE
__________________________________
Name of
Director
Address:
Address
of Director
Consent of
Spouse
I acknowledge that I have read the
foregoing Restricted Stock Agreement (the “Agreement”) and that I know of its
contents. I am aware that by its provisions all or part of the Shares
granted to my spouse pursuant to the Agreement, including my community property
interest in such Shares, if any, are, in certain circumstances subject to
restrictions on transfer and forfeiture to Merisel, Inc. I hereby
agree that the Shares granted to my spouse pursuant to the Agreement and my
interest in them, if any, are subject to the provisions of the Agreement and
that I will take no action at any time to hinder operation of, or violate, the
Agreement.
| __________________________________ | __________________________________ | ||
| Date: | Name: | ||
EXHIBIT
A
STOCK
ASSIGNMENT SEPARATE FROM CERTIFICATE
FOR VALUE
RECEIVED and pursuant to that certain Restricted Stock Agreement effective as of
[_____] (the "Agreement") by and between Merisel, Inc., a Delaware corporation
(the "Company"), and the undersigned, the undersigned hereby sells, assigns and
transfers unto ____________________________________________________
______________________________________________
(___________) shares of the common stock of the Company standing in the
undersigned's name on the books of the Company represented by certificate No.
__________ herewith, and does hereby irrevocably constitute and appoint
___________________________________________ attorney to transfer the said stock
on the books of the Company with full powers of substitution in the
premises.
Dated:
________________
_____________________________________
Grantee
[ ]
