ICONIX BRAND GROUP, INC. RESTRICTED STOCK AGREEMENT
Exhibit
10.5
To: Xxxxxx
Xxxxxx
Date
of Award: September 22, 2009
You are
hereby awarded, effective as of the date hereof, 70,542 shares (the “Shares”)
of common stock, $.001 par value (“Common Stock”), of Iconix Brand
Group, Inc., a Delaware corporation (the “Company”), pursuant to the Company’s
2009 Equity Incentive Plan (the “Plan”), subject to certain restrictions
specified below in Restrictions and Forfeiture. (While subject
to the Restrictions, this Agreement refers to the Shares as “Restricted
Shares”).
During
the period commencing on the Award Date and terminating on November 10, 2011 (the
“Restricted Period”), except as otherwise provided herein, the Shares may not be
sold, assigned, transferred, pledged, or otherwise encumbered and are subject to
forfeiture (the “Restrictions”).
Except as
set forth below, the Restricted Period with respect to the Shares will lapse in
accordance with the vesting schedule set forth below (the “Vesting
Schedule”). Subject to the restrictions set forth in the Plan, the
Administrator (as defined in the Plan) shall have the authority, in its
discretion, to accelerate the time at which any or all of the Restrictions shall
lapse with respect to any Shares subject thereto, or to remove any or all of
such Restrictions, whenever the Administrator may determine that such action is
appropriate by reason of changes in applicable tax or other laws, or other
changes in circumstances occurring after the commencement of the Restricted
Period.
In
addition to the terms, conditions, and restrictions set forth in the Plan, the
following terms, conditions, and restrictions apply to the Restricted
Shares:
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Restrictions
and
Forfeiture
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You
may not sell, assign, pledge, encumber, or otherwise transfer any interest
in the Restricted Shares until the dates set forth in the Vesting
Schedule, at which point the Restricted Shares will be referred to as
“Vested.”
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Page 1 of
8
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Vesting
Schedule
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Assuming
you provide Continuous Service (as defined herein) as an Employee (as
defined in the Plan) of the Company or an Affiliate of the Company, all
Restrictions will lapse on the Restricted Shares on the Vesting date or
Vesting dates set forth in the schedule below for the applicable grant of
Restricted Shares and they will become
Vested.
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Vesting Schedule
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Vesting Date
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Number of Restricted Shares that
Vest
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November
10, 2009
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33 | % | |||
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November
10, 2010
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33 | % | |||
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November
10, 2011
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33 | % | |||
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Continuous
Service
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“Continuous
Service,” as used herein, means the absence of any interruption or
termination of your service as an Employee (as defined in the Plan) of the
Company or any Affiliate. If you are employed by an Affiliate
of the Company, your employment shall be deemed to have terminated on the
date your employer ceases to be an Affiliate of the Company, unless you
are on that date transferred to the Company or another Affiliate of the
Company. Service shall not be considered interrupted in the
case of sick leave, military leave or any other leave of absence approved
by the Company or any then Affiliate of the Company. Your
employment shall not be deemed to have terminated if you are transferred
from the Company to an Affiliate of the Company, or vice versa, or from
one Company Affiliate to another Company
Affiliate.
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Page 2 of
8
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Share
Certificates
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The
Company will issue a certificate (or certificates) in your name with
respect to the Shares, and will hold such certificate (or certificates) on
deposit for your account until the expiration of the Restricted Period
with respect to the Shares represented thereby. Such
certificate (or certificates) will contain the following restrictive
legend:
“The transferability of this
certificate and the shares of stock represented hereby are subject to the
terms and conditions (including forfeiture) contained in the 2009 Equity
Incentive Plan of the Company, copies of which are on file in the office
of the Secretary of the Company.”
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Additional
Conditions
to
Issuance
of Stock
Certificates
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You
will not receive the certificates representing the Restricted Shares
unless and until the Company has received a stock power or stock powers in
favor of the Company executed by you.
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Cash
Dividends
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Cash
dividends, if any, paid on the Restricted Shares shall be held by the
Company for your account and paid to you upon the expiration of the
Restricted Period, except as otherwise determined by the
Administrator. All such withheld dividends shall not earn
interest, except as otherwise determined by the Administrator. You will not receive withheld
cash dividends on any Restricted Shares which are forfeited and all such
cash dividends shall be forfeited along with the Restricted Shares which
are forfeited.
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Tax
Withholding
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Unless
you make an election under Section 83(b) of the Internal Revenue Code of
1986, as amended (the “Code”), and pay taxes in accordance with that
election, you will be taxed on the Shares as they become Vested and must
arrange to pay the taxes on this income. If the Administrator so
determines, arrangements for paying the taxes may include your
surrendering Shares that otherwise would be released to you upon becoming
Vested or your surrendering Shares you already own. The fair market value
of the Shares you surrender, determined as of the date when taxes
otherwise would have been withheld in cash, will be applied as a credit
against the withholding taxes.
The
Company shall have the right to withhold from your compensation an amount
sufficient to fulfill its or its Affiliate’s obligations for any
applicable withholding and employment taxes. Alternatively, the
Company may require you to pay to the Company the amount of any taxes
which the Company is required to withhold with respect to the Shares, or,
in lieu thereof, to retain or sell without notice a sufficient number of
Shares to cover the amount required to be withheld. The Company
may withhold from any cash dividends paid on the Restricted Shares an
amount sufficient to cover taxes owed as a result of the dividend
payment. The Company’s method of satisfying its withholding
obligations shall be solely in the discretion of the Administrator,
subject to applicable federal, state, local and foreign
laws. The Company shall have a lien and security interest in
the Shares and any accumulated dividends to secure your obligations
hereunder.
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Page 3 of
8
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Tax
Representations
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You
hereby represent and warrant to the Company as follows:
(a) You
have reviewed with your own tax advisors the federal, state, local and
foreign tax consequences of this investment and the transactions
contemplated by this Agreement. You are relying solely on such
advisors and not on any statements or representations of the Company or
any of its Employees or agents.
(b) You
understand that you (and not the Company) shall be responsible for your
own tax liability that may arise as a result of this investment or the
transactions contemplated by this Agreement. You understand
that Section 83 of the Code taxes (as ordinary income) the fair market
value of the Shares as of the date any “restrictions” on the Shares
lapse. To the extent that an award hereunder is not otherwise
an exempt transaction for purposes of Section 16(b) of the Securities
Exchange Act of 1934, as amended (the “1934 Act”), with respect to
officers, directors and 10% shareholders subject to Section 16 of the 1934
Act, a “restriction” on the Shares includes for these purposes the period
after the award of the Shares during which such officers, directors and
10% shareholders could be subject to suit under Section 16(b) of the 1934
Act. Alternatively, you understand that you may elect to be
taxed at the time the Shares are awarded rather than when the restrictions
on the Shares lapse, or the Section 16(b) period expires, by filing an
election under Section 83(b) of the Code with the Internal Revenue Service
within thirty (30) days from the date of the award.
YOU
HEREBY ACKNOWLEDGE THAT IT IS YOUR SOLE RESPONSIBILITY AND NOT THE
COMPANY’S TO FILE TIMELY THE ELECTION AVAILABLE TO YOU UNDER SECTION 83(B)
OF THE CODE, EVEN IF YOU REQUEST THAT THE COMPANY OR ITS REPRESENTATIVES
MAKE THIS FILING ON YOUR BEHALF.
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Securities
Law
Representations
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The
following two paragraphs shall be applicable if, on the date of issuance
of the Restricted Shares, no registration statement and current prospectus
under the Securities Act of 1933, as amended (the “1933 Act”), covers the
Shares, and shall continue to be applicable for so long as such
registration has not occurred and such current prospectus is not
available:
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Page 4 of
8
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(a) You
hereby agree, warrant and represent that you will acquire the Shares to be
issued hereunder for your own account for investment purposes only, and
not with a view to, or in connection with, any resale or other
distribution of any of such shares, except as hereafter
permitted. You further agree that you will not at any time make
any offer, sale, transfer, pledge or other disposition of such Shares to
be issued hereunder without an effective registration statement under the
1933 Act, and under any applicable state securities laws or an opinion of
counsel acceptable to the Company to the effect that the proposed
transaction will be exempt from such registration. You agree to
execute such instruments, representations, acknowledgments and agreements
as the Company may, in its sole discretion, deem advisable to avoid any
violation of federal, state, local or foreign law, rule or regulation, or
any securities exchange rule or listing agreement.
(b) The
certificates for Shares to be issued to you hereunder shall bear the
following legend:
“The
shares represented by this certificate have not been registered under the
Securities Act of 1933, as amended, or under applicable state securities
laws. The shares have been acquired for investment and may not
be offered, sold, transferred, pledged or otherwise disposed of without an
effective registration statement under the Securities Act of 1933, as
amended, and under any applicable state securities laws or an opinion of
counsel acceptable to the Company that the proposed transaction will be
exempt from such registration.”
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Stock
Dividend,
Stock
Split and
Similar
Capital
Changes
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In
the event of any change in the outstanding shares of the Common Stock of
the Company by reason of a stock dividend, stock split, combination of
shares, recapitalization, merger, consolidation, transfer of assets,
reorganization, conversion or what the Administrator deems in its sole
discretion to be similar circumstances, the number and kind of shares
subject to this Agreement shall be appropriately adjusted in a manner to
be determined in the sole discretion of the Administrator, whose decision
shall be final, binding and conclusive in the absence of clear and
convincing evidence of bad faith. Any shares of Common Stock or
other securities received, as a result of the foregoing, by you with
respect to the Restricted Shares shall be subject to the same restrictions
as the Restricted Shares, the certificate or other instruments evidencing
such shares of Common Stock or other securities shall be legended and
deposited with the Company as provided above with respect to the
Restricted Shares, and any cash dividends received with respect to such
shares of Common Stock or other securities shall be accumulated as
provided above with respect to the Restricted Shares.
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Non-Transferability
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Restricted
Shares are not transferable.
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Page 5 of
8
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No
Effect on
Employment
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Except
as otherwise provided in your Employment Agreement, dated November 11,
2008, nothing herein shall modify your status as an at-will employee of
the Company or any of its Affiliates. Further, nothing herein
guarantees you employment for any specified period of
time. This means that, except as provided in the Employment
Agreement, either you or the Company or any of its Affiliates may
terminate your employment at any time for any reason, with or without
cause, or for no reason. You recognize that, for instance, you
may terminate your employment or the Company or any of its Affiliates may
terminate your employment prior to the date on which your Shares become
vested.
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No
Effect on
Corporate
Authority
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You
understand and agree that the existence of this Agreement will not affect
in any way the right or power of the Company or its shareholders to make
or authorize any or all adjustments, recapitalizations, reorganizations,
or other changes in the Company’s capital structure or its business, or
any merger or consolidation of the Company, or any issuance of bonds,
debentures, preferred or other stocks with preferences ahead of or
convertible into, or otherwise affecting the common shares or the rights
thereof, or the dissolution or liquidation of the Company, or any sale or
transfer of all or any part of its assets or business, or any other
corporate act or proceeding, whether of a similar character or
otherwise.
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Arbitration
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Any
dispute or disagreement between you and the Company with respect to any
portion of this Agreement (excluding Attachment A hereto) or its validity,
construction, meaning, performance or your rights hereunder shall, unless
the Company in its sole discretion determines otherwise, be settled by
arbitration, at a location designated by the Company, in
accordance with the Commercial Arbitration Rules of the American
Arbitration Association or its successor, as amended from time to
time. However, prior to submission to arbitration you will
attempt to resolve any disputes or disagreements with the Company over
this Agreement amicably and informally, in good faith, for a period not to
exceed two weeks. Thereafter, the dispute or disagreement will
be submitted to arbitration. At any time prior to a decision
from the arbitrator(s) being rendered, you and the Company may resolve the
dispute by settlement. You and the Company shall equally share
the costs charged by the American Arbitration Association or its
successor, but you and the Company shall otherwise be solely responsible
for your own respective counsel fees and expenses. The decision
of the arbitrator(s) shall be made in writing, setting forth the award,
the reasons for the decision and award and shall be binding and conclusive
on you and the Company. Further, neither you nor the Company
shall appeal any such award. Judgment of a court of competent
jurisdiction may be entered upon the award and may be enforced as such in
accordance with the provisions of the
award.
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Page 6 of
8
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Governing
Law
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The
laws of the State of Delaware will govern all matters relating to this
Agreement, without regard to the principles of conflict of
laws.
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Notices
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Any
notice you give to the Company must be in writing and either
hand-delivered or mailed to the office of the Chief Executive Officer of
the Company. If mailed, it should be addressed to the Chief Executive
Officer of the Company at its then main headquarters. Any notice given to
you will be addressed to you at your address as reflected on the personnel
records of the Company. You and the Company may change the address for
notice by like notice to the other. Notice will be deemed to have been
duly delivered when hand-delivered or, if mailed, on the day such notice
is postmarked.
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Agreement
Subject
to
Plan; Entire
Agreement
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This
Agreement shall be subject to the terms of the Plan in effect on the date
hereof, which terms are hereby incorporated herein by reference and made a
part hereof. This Agreement constitutes the entire
understanding between the Company and you with respect to the subject
matter hereof and no amendment, supplement or waiver of this Agreement, in
whole or in part, shall be binding upon the Company unless in writing and
signed by the President of the Company
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Conflicting
Terms
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Wherever
a conflict may arise between the terms of this Agreement and the terms of
the Plan in effect on the date hereof, the terms of the Plan will
control.
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Please
sign the copy of this Restricted Stock Agreement and return it to the Company’s
Secretary, thereby indicating your understanding of and agreement with its terms
and conditions.
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By:
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/s/ Xxxxxx X.
Xxxxxxx
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Page 7 of
8
ACKNOWLEDGMENT
I hereby
acknowledge receipt of a copy of the Plan. I hereby represent that I
have read and understood the terms and conditions of the Plan and of the
Restricted Stock Agreement. I hereby signify my understanding of, and
my agreement with, the terms and conditions of the Plan and of the Restricted
Stock Agreement. I agree to accept as binding, conclusive, and final
all decisions or interpretations of the Administrator concerning any questions
arising under the Plan with respect to this Restricted Stock
Agreement. I accept this Restricted Stock Agreement in full
satisfaction of any previous written or oral promise made to me by the Company
or any of its Affiliates with respect to option or stock grants.
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Date:
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September 22, 2009
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/s/ Xxxxxx Xxxxxx
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Xxxxxx
Xxxxxx
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XXXXXXXXXXX
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ADDRESS
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Page 8 of
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