EXHIBIT 4.7
XXX.XXX INC.
FORM OF RESTRICTED SHARES AGREEMENT
WHEREAS, (the "Grantee") is an employee of XXX.XXX INC., a Delaware
corporation (the "Company"); and
WHEREAS, the grant of the Restricted Shares (as defined in the
Company's 1999 Equity Incentive Plan (the "Plan")) has been authorized by a
resolution of the I.R.C. Section 162(m) Subcommittee of the Compensation
Committee of the Board of Directors of the Company (the "Board") that was
duly adopted on [date];
NOW, THEREFORE, pursuant to the Plan, the Company hereby grants to
the Grantee [ ] Restricted Shares (such [ ] Restricted Shares being
hereinafter referred to as the "Restricted Shares"), effective as of [date]
(the "Date of Grant"), and subject to the terms and conditions of the Plan
and the terms and conditions of this Agreement.
1. DEFINITIONS. All capitalized terms used herein and not otherwise
defined herein shall have the meanings assigned to them in the Plan.
2. ISSUANCE OF SHARES. The Restricted Shares shall be issued to the
Grantee, shall be fully paid and nonassessable and shall be represented by a
certificate or certificates issued in the name of the Grantee and endorsed
with an appropriate legend referring to the restrictions hereinafter set
forth.
3. RESTRICTIONS ON TRANSFER OF SHARES. The Restricted Shares may not
be sold, assigned, transferred, conveyed, pledged, exchanged or otherwise
encumbered or disposed of by the Grantee, except to the Company, until they
have become nonforfeitable as provided in Section 4. Any purported
encumbrance or disposition in violation of the provisions of this Section 3
shall be void AB INITIO, and the other party to any such purported
transaction shall not obtain any rights to or interest in the Restricted
Shares. As and when permitted by the Plan, the Company may in its sole
discretion waive the restrictions on transferability with respect to all or a
portion of the Restricted Shares.
4. VESTING OF SHARES. (a) The Restricted Shares shall become
nonforfeitable if the Grantee remains in the continuous employment of the
Company or a Subsidiary through (i) [one year from Date of Grant], with
respect to [ ] of the Restricted Shares, (ii) [two years from Date of Grant],
with respect to [ ] of the Restricted Shares, and (iii)
[three years from Date of Grant], with respect to [ ] of the Restricted
Shares.
(b) Notwithstanding the provisions of Section 4(a), 100% of any
forfeitable Restricted Shares shall become nonforfeitable upon a Change in
Control.
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5. FORFEITURE OF SHARES. Except as and to the extent the Restricted
Shares have become nonforfeitable pursuant to Section 4, the Restricted Shares
shall be forfeited by the Grantee, if the Grantee ceases to be employed by the
Company or a Subsidiary prior to the third anniversary of the Date of Grant, and
the certificate(s) representing Restricted Shares so forfeited shall be
canceled.
6. CERTAIN SALES UPON TERMINATION OF EMPLOYMENT. (a) If the Grantee's
employment with the Company is terminated (i) by the Company for any reason
other than for Cause (as defined in Section 6(c) below), (ii) by the Grantee for
any reason or (iii) by reason of the Grantee's death or Disability, the Company
shall have the right to repurchase Restricted Shares held by the Grantee that
have theretofore been released from the restrictions set forth in Section 3 of
this Agreement at the Fair Market Value (as defined in Section 6(d) below)
thereof as of the effective date of such termination. If the Grantee's
employment with the Company is terminated by the Company for Cause, (x) the
Company shall have the right to repurchase Restricted Shares held by the Grantee
that have theretofore been released from the restrictions set forth in Section 3
of this Agreement at (1) the Fair Market Value thereof as of the effective date
of such termination or (2) the Grantee's cost of obtaining such shares,
whichever is lower, and (y) any profit realized from the sale of any Restricted
Shares that have theretofore been released from the restrictions set forth in
Section 3 of this Agreement shall inure to and be recoverable by the Company.
"Disability" shall mean as a result of the Grantee's incapacity due to physical
or mental illness (as determined in good faith by a physician acceptable to the
Company), the Grantee shall have been absent from full-time performance of his
duties with the Company for 135 consecutive days during any 12-month period.
(b) Provided that the rights described in Section 6(a) above have not
previously been triggered by termination of the Grantee's employment with the
Company, such rights shall terminate upon a Change in Control. The rights
specified in Section 6(a), once triggered, may be exercised at any time during
the 90-day period following the effective date of termination of the Grantee's
employment.
(c) For purposes of this Agreement, "Cause" means any of the following
events that the Company or the Board has determined, in good faith, has
occurred: (i) the Grantee's continual or deliberate neglect of the performance
of his material duties; (ii) the Grantee's failure to devote substantially all
of his working time to the business of the Company and its Subsidiaries or
affiliated companies; (iii) the Grantee's engaging willfully in misconduct in
connection with the performance of any of his duties, including, without
limitation, the misappropriation of funds or securing or attempting to secure
personally any profit in connection with any transaction entered into on behalf
of the Company or its Subsidiaries or affiliated companies; (iv) the Grantee's
willful breach of any confidentiality or nondisclosure agreements with the
Company or the Grantee's violation, in any material respect, of any code or
standard of behavior generally applicable to employees or executive employees of
the Company; (v) the Grantee's active disloyalty to the Company, including,
without limitation, willfully aiding a competitor or improperly disclosing
confidential information; or (vi) the Grantee's engaging in conduct that may
reasonably result in material injury to the reputation of the Company, including
conviction or entry of a plea of nolo contendre for a felony or any crime
involving fraud under Federal, state or local laws, embezzlement, bankruptcy,
insolvency or general assignment for the benefit of creditors.
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(d) "Fair Market Value" shall mean:
(i) if the Common Shares are listed for trading on any national
stock exchange or admitted for trading on the Nasdaq National Market
or other principal national automated quotation system, the Fair
Market Value per Common Share shall be the average of (i) the
closing sale price per Common Share on such national stock exchange
or (ii) the final reported bid side price per Common Share on such
principal automated quotation system, in each case for the ten most
recent days on which trades occurred immediately preceding the
effective date of the termination of Grantee's employment; or
(ii) if the Common Shares are not listed for trading on any
national stock exchange or admitted for trading on the Nasdaq
National Market or other principal national automated quotation
system, then the Fair Market Value per Common Share shall be
determined in good faith by the Board, based upon, among other
factors that the Board deems relevant, the financial performance and
prospects of the Company in the light of market conditions generally.
7. DIVIDEND, VOTING AND OTHER RIGHTS. (a) Except as otherwise provided
in this Agreement, from and after the Date of Grant, the Grantee shall have all
of the rights of a stockholder with respect to the Restricted Shares, including
the right to vote the Restricted Shares and receive any dividends that may be
paid thereon; PROVIDED, HOWEVER, that any additional Common Shares or other
securities that the Grantee may become entitled to receive pursuant to a stock
dividend, stock split, recapitalization, combination of shares, merger,
consolidation, separation or reorganization or any other change in the capital
structure of the Company shall be subject to the same risk of forfeiture and
restrictions on transfer as the forfeitable Restricted Shares in respect of
which they are issued or transferred and shall become Restricted Shares for the
purposes of this Agreement.
(b) Cash dividends on the Restricted Shares shall be sequestered by the
Company from and after the Date of Grant until such time as any of such
Restricted Shares become nonforfeitable in accordance with Section 4, whereupon
such dividends shall be paid to the Grantee in cash to the extent such dividends
are attributable to Restricted Shares that have become nonforfeitable. To the
extent that Restricted Shares are forfeited pursuant to Section 5, all dividends
sequestered with respect to such Restricted Shares shall also be forfeited. No
interest shall be payable with respect to any such dividends.
8. RETENTION OF STOCK CERTIFICATE(S) BY THE COMPANY. The
certificate(s) representing the Restricted Shares shall be held in custody by
the Company, together with a stock power endorsed in blank by the Grantee
with respect thereto, until such shares have become nonforfeitable in
accordance with Section 4.
9. COMPLIANCE WITH LAW. The Company shall make reasonable efforts to
comply with all applicable federal and state securities laws; PROVIDED,
HOWEVER, notwithstanding any other provision of this Agreement, the Company
shall not be obligated to issue or release from restrictions on transfer any
Common Shares pursuant to this Agreement if such issuance or release would
result in a violation of any such law.
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10. WITHHOLDING TAXES. If the Company or any Subsidiary shall be
required to withhold any federal, state, local or foreign tax in connection
with any issuance or vesting of Common Shares or other securities pursuant to
this Agreement, and the amounts available to the Company or such Subsidiary
for such withholding are insufficient, the Grantee shall pay the tax or make
provisions that are satisfactory to the Company or such Subsidiary for the
payment thereof. The Grantee may elect to satisfy all or any part of any such
withholding obligation by surrendering to the Company or such Subsidiary a
portion of the Restricted Shares that become nonforfeitable hereunder, and
the Common Shares so surrendered by the Grantee shall be credited against any
such withholding obligation at the Market Value per Share of such Common
Shares on the date of such surrender.
11. NO EMPLOYMENT CONTRACT. Nothing contained in this Agreement
shall confer upon the Grantee any right with respect to continuance of
employment by the Company or a Subsidiary or limit or affect in any manner
the right of the Company or a Subsidiary to terminate the employment or
adjust the compensation of the Grantee.
12. RELATION TO OTHER BENEFITS. Any economic or other benefit to the
Grantee under this Agreement or the Plan shall not be taken into account in
determining any benefits to which the Grantee may be entitled under any
profit-sharing, retirement or other benefit or compensation plan maintained
by the Company or a Subsidiary and shall not affect the amount of any life
insurance coverage available to any beneficiary under any life insurance plan
covering employees of the Company or a Subsidiary.
13. AMENDMENTS. Any amendment to the Plan shall be deemed to be an
amendment to this Agreement to the extent that the amendment is applicable
hereto; PROVIDED, HOWEVER, that no amendment shall adversely affect the
rights of the Grantee under this Agreement without the Grantee's consent.
14. SEVERABILITY. In the event that one or more of the provisions of
this Agreement shall be invalidated for any reason by a court of competent
jurisdiction, any provision so invalidated shall be deemed to be separable
from the other provisions hereof, and the remaining provisions hereof shall
continue to be valid and fully enforceable.
15. RELATION TO PLAN. This Agreement is subject to the terms and
conditions of the Plan. In the event of any inconsistent provisions between
this Agreement and the Plan, the Plan shall govern. The Board acting pursuant
to the Plan, as constituted from time to time, shall except as otherwise
expressly provided herein have the right to determine any questions that
arise under this Agreement.
16. SUCCESSORS AND ASSIGNS. The provisions of this Agreement shall
inure to the benefit of, and be binding upon, the successors, administrators,
heirs, legal representatives and assigns of the Grantee and the successors
and assigns of the Company.
17. NOTICES. Any notice to the Company provided for herein shall be
in writing to the attention of the Corporate Secretary at XXX.XXX INC., 0000
Xxxxxxxxx Xxxxx, Xxxxxxx Xxxxx, Xxxxxxxx 00000, and any notice to the Grantee
shall be addressed to the Grantee at his address currently on file with the
Company. Except as otherwise provided herein, any written
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notice shall be deemed to be duly given if and when hand delivered, or five
business days after having been mailed by United States registered or
certified mail, return receipt requested, postage prepaid, or three business
days after having been sent by a nationally recognized overnight courier
service, addressed as aforesaid. Any party may change the address to which
notices are to be given hereunder by written notice to the other party as
herein specified, except that notices of changes of address shall be
effective only upon receipt.
18. GOVERNING LAW. The laws of the State of Delaware, without giving
effect to the principles of conflict of laws thereof, shall govern the
interpretation, performance and enforcement of this Agreement.
19. [PRIOR AGREEMENT. This Agreement supersedes in its entirety the
Nonqualified Stock Option Agreement, dated as of , , between the Company
and the Grantee.]
[signature page follows]
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This Agreement is executed by the Company as of the
day of .
XXX.XXX INC.
By:
---------------------------------
Name:
Title:
The undersigned hereby acknowledges receipt of an executed original
of this Agreement and accepts the award of Restricted Shares granted
hereunder on the terms and conditions set forth herein and in the Plan.
Date:
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