THESTREET.COM, INC. AGREEMENT FOR GRANT OF RESTRICTED STOCK UNITS
Exhibit 10.2
XXXXXXXXX.XXX,
INC.
AGREEMENT
FOR GRANT
OF
RESTRICTED
STOCK UNITS
April 9,
2008
Xxxxx X.
Xxxxxx
XxxXxxxxx.xxx,
Inc.
Xxx Xxxx,
XX 00000
Dear
Xxx:
This letter (the “Letter”) sets forth the terms and
conditions of the grant of the restricted stock unit hereby awarded to you by
XxxXxxxxx.xxx, Inc. (the “Company”),
in accordance with the provisions of the Company's 2007 Performance Incentive
Plan (the “Plan”).
The award granted hereunder shall be
referred to as Restricted Stock Units (or “RSUs”) and
is subject to the terms and conditions set forth in the Plan, any rules and
regulations adopted by the Board of Directors of the Company or the committee of
the Board that administers the Plan (collectively, the “Committee”),
and this Letter. The provisions of the Plan are hereby incorporated
by reference, and any term used in this Letter and not defined shall have the
meaning set forth in the Plan.
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1.
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Grant
of Restricted Stock Units
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(a) You
have been granted 300,000 Restricted Stock Units. Each Restricted
Stock Unit represents the right to receive one share of the Company’s Common
Stock (“Common
Stock”) on the applicable vesting date for such Restricted Stock
Unit. No Restricted Stock Unit may be sold, transferred, assigned,
pledged or otherwise encumbered by you, except pursuant to the laws of descent
and distribution.
(b) Until
such time as stock certificates for the shares of Common Stock represented by
the Restricted Stock Units have been delivered to you in accordance with Section
4 below, you shall have none of the rights of a stockholder with respect to the
Common Stock. However, this grant includes the grant of dividend
equivalents with respect to your RSUs. The Company will maintain a
bookkeeping account to which it will credit, whenever cash dividends are paid on
the Common Stock, an amount equal to the amount of the dividend paid on a share
of Common Stock for each of your then-outstanding RSUs covered by this
Letter. The accumulated dividend equivalents will vest on the
applicable vesting date for the RSU with respect to which such dividend
equivalents were credited, and will be paid in cash at the time a stock
certificate evidencing the shares represented by such vested RSU is delivered to
you.
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2.
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Vesting
of Restricted Stock Units
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Your RSUs
will become vested with respect to the following number(s) of shares of Common
Stock on the following date(s) as set forth below, provided that you are in the
Service (as defined below) of the Company or one of its subsidiaries on such
date:
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Date
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Number
of Shares of Common Stock
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January
1, 2009
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60,000
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January
1, 2010
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60,000
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January
1, 2011
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60,000
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January
1, 2012
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60,000
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January
1, 2013
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60,000
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For
purposes hereof, you shall be considered to be in the "Service"
of the Company or one of its subsidiaries if you are a common law employee of
the Company (or one if its subsidiaries, as applicable). If your
Service terminates for any reason other than under the circumstances described
in Section 3(b) of this Letter, the RSUs granted to you which have not vested
shall be forfeited upon such termination of Service.
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3.
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Accelerated
Vesting in Certain Events; Special
Rule
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(a) Notwithstanding
Section 2 of this Letter, in the event of the occurrence of a Change of Control
prior to the termination of your Service for any reason, your then unvested RSUs
will vest and become payable ratably over 36 months beginning at the end of the
calendar month in which the Change of Control is consummated, and each month end
thereafter, provided that you are in the Service of the Company or one of its
subsidiaries on each such vesting date; provided, that at no time shall your
vested interest in the RSUs be less than it would have been had a Change of
Control not occurred. For purposes of this Letter, “Change of
Control” shall mean a “Change of Control” under the employment agreement between
you and the Company, dated as of January 1, 2008 (the “Employment
Agreement”).
(b) If
your Service is terminated by the Company without “Cause” or by you for “Good
Reason” (each as defined in the Employment Agreement), then your entire interest
in the RSUs shall vest 100% immediately and be paid to you promptly (no later
than five (5) business days) following such termination.
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4.
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Delivery
of Common Stock
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Except as
provided in Section 9(c) and 9(d) of this Letter, upon the vesting of your RSUs
pursuant to Section 2 or 3 above, a certificate for the shares of Common Stock
represented by your vested RSUs shall be registered in your name and delivered
to you on each of the applicable vesting dates set forth in Section 2 or
3. Common Stock delivered upon the vesting of your RSUs will be fully
transferable (subject to any applicable securities law restrictions) and not
subject to forfeiture, and will entitle the holder to all rights of a
stockholder of the Company.
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5. Income
Tax Withholding
You will
be required to pay, pursuant to such arrangements as the Company may establish
from time to time, any applicable federal, state and local withholding tax
liability at the time that the value of the RSUs and/or related dividend
equivalents becomes includable in your income. Notwithstanding the
foregoing, unless you instruct the Company otherwise at least five business days
prior to a vesting date, the Company shall effect all required tax withholding
by withholding Common Stock (or other property or cash) otherwise distributable
hereunder.
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6.
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No
Guarantee of Continuation of
Service
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This
grant of Restricted Stock Units does not constitute an assurance of continued
Service for any period or in any way interfere with the Company’s right to
terminate your Service or to change the terms and conditions of your
Service.
7. Administration
The
Committee has the sole power to interpret the Plan and this Letter and to act
upon all matters relating this grant. Any decision, determination,
interpretation, or other action taken pursuant to the provisions of the Plan and
this Letter by the Committee shall be final, binding, and
conclusive.
8. Amendment
(a) The
Committee may from time to time amend the terms of this grant in accordance with
the terms of the Plan in effect at the time of such amendment, but no amendment
which is unfavorable to you can be made without your written
consent.
(b) The
Plan is of unlimited duration, but may be amended, terminated or discontinued by
the Board of Directors of the Company at any time. However, no
amendment, termination or discontinuance of the Plan will unfavorably affect
this grant.
(c) Notwithstanding
the foregoing, the Committee expressly reserves the right to amend the terms of the
Plan and this grant without your consent to the extent it determines that such
amendment is necessary or desirable for compliance with Section 409A of the
Code, subject however to the right provided in your Employment Agreement to
require the Company to make commercially reasonable adjustments requested by you
in a manner which maintain the basic financial provisions of the Employment
Agreement, for the purposes of avoiding the application of, or otherwise to
comply with the provisions of, Section 409A of the Code. It is
intended that the RSUs evidenced hereby shall not constitute “deferred
compensation” within the meaning of Section 409A. However, the
Company makes no representation as to the tax treatment of your RSUs and
expressly disclaims any liability therefor.
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9. Miscellaneous
(a) The
invalidity or unenforceability of any provision of this Letter shall not affect
the validity or enforceability of any other provision of this Letter, and each
other provision of this Letter shall be severable and enforceable to the extent
permitted by law.
(b) The
terms of this Letter shall be binding upon and inure to the benefit of the
Company, its successors and permitted assigns, and of you and your
beneficiaries, executors, administrators, heirs and successors.
(c) The
Company shall be required to make an equitable adjustment to the RSUs, as to the
number of shares of Common Stock, or as to the kind of securities, property or
cash deliverable in satisfaction of this award, in order to recognize the impact
of a stock split, stock dividend or any other event or occurrence of the kind
provided in Section 4.4 of the Plan. For the avoidance of doubt, the
Company shall be required to make an equitable adjustment in the event of a
distribution on Common Stock (other than cash dividends, which are covered by
Section 1(b)). Section 9(d) provides special rules as to equitable
adjustments to be made in specific circumstances.
(d) Notwithstanding
Section 9(c): (i) if in connection with a Change of Control the
Common Stock is converted into cash, securities or other property or a
combination thereof (“Merger Consideration”), regardless of whether the Company
is the surviving corporation in such transaction, then following the
consummation of such Change of Control you will be entitled to receive, in lieu
of each share of Common Stock subject to your unvested RSUs, such Merger
Consideration as is received by shareholders of the Company with respect to one
share of Common Stock in connection with such Change of Control; and (ii) in the
event the RSUs are paid in cash in connection with a Change of Control, the
Company shall pay you interest in respect of the 36-month payment period
described in Section 3(a), and such interest shall be paid at the prime rate
offered by the Company’s leading principal lending institution, as in effect
from time to time.
(e) If
a right to fractional shares otherwise deliverable to you is cancelled, your
right to such fractional shares shall be paid in cash.
______________________
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This
Letter contains the formal terms and conditions of your award and accordingly
should be retained in your files for future reference. The Company
may require you to provide evidence of your acknowledgment of this letter using
such means of notification as may be communicated to you by the Company or its
service provider.
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Very
truly yours,
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XXXXXXXXX.XXX,
INC.
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By:
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/s/ Xxxxxx X. Xxxxxx, Xx. | |
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Xxxxxx
X. Xxxxxx, Xx.
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Chief
Executive Officer
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AGREED
TO AND ACCEPTED:
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| /s/ Xxxxx X. Xxxxxx |
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Xxxxx
X. Xxxxxx
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