RESTRICTED STOCK AWARD AGREEMENT
Exhibit
10.4
2004
AMENDED AND RESTATED INCENTIVE STOCK PLAN
This
RESTRICTED STOCK AWARD AGREEMENT (this "Agreement"), dated March 1, 2006 (the
"Grant Date"), by and between Xxxxxx X. Xxxxxxx (the "Participant") and EVCI
Career Colleges Holding Corp., a Delaware corporation (the "Company"), sets
forth the terms and conditions of a Restricted Stock Award issued pursuant
to
the Company's Amended and Restated 2004 Incentive Stock Plan (the "Plan") and
this Agreement. Any capitalized terms used but not defined herein shall have
the
meaning prescribed in the Plan.
1. Grant
and Vesting of Restricted Stock.
(a) The
Company hereby grants to the Participant 100,000 shares of restricted Common
Stock (the "Restricted Stock"). The period during which the Restricted Stock
is
not vested and is subject to Transfer Restrictions (defined below) is referred
to herein as the "Restriction Period."
(b) The
Restricted Stock shall vest and no longer be subject to any Transfer
Restrictions on a cumulative basis as to 50,000 shares on December 29, 2006
and
as to 25,000 shares on each February 28, 2008 and 2009, in each case so long
as
the participant has remained in Continuous Service from the Grant Date through
such date; provided, however, the Restricted Stock shall vest and no longer
be
subject to any Transfer Restrictions upon the earlier of (i) the Change of
Control Date, in the event there is a Change of Control, (ii) the Participant’s
date of death (iii) the Participant’s date of Permanent Disability as that term
is defined in the Participant’s Employment Agreement or (iv) the date the
Participant’s employment by the Company is terminated without Cause by the
Company or for Good Reason by the Participant, as Cause and Good Reason are
defined in the Participant’s Employment Agreement. References herein to
Participant’s Employment Agreement mean Participant’s Employment Agreement with
the Company that is in effect at the date the determination of Permanent
Disability, Cause or Good Reason is made. The date of such vesting is referred
to herein as the “Vesting Date.”
2. Issuance
of Shares. Certificates
representing the shares of Restricted Stock shall be issued and held by the
Company in escrow (together with all Additional Property (as defined below)
relating to such Restricted Stock) and shall remain in the custody of the
Company until their delivery to the Participant or the Participant's estate
or
personal representative pursuant to this Agreement and the Plan. Subject to
the
provisions of Section 7 pertaining
to the withholding of taxes, as soon as practicable after the Vesting Date,
the
Company shall issue and deliver to the Participant one or more legended stock
certificates representing the vested shares of the Restricted Stock together
with the Additional Property relating thereto. Such Additional Property that
is
shares shall also be represented by one or more legended stock certificates.
The
issuance of the shares of Common Stock issued pursuant to this Agreement shall
be registered on a Registration Statement on Form S-8 (or other available form).
However, if an “affiliate” of EVCI (as the term affiliate is used in Rule 144
under the Securities Act of 1933) the Participant acknowledges and agrees that
the resale thereof shall only be made in accordance with Paragraph (e) of Rule
144.
3. Nontransferability
of the Restricted Stock. Prior to the Vesting Date, the Restricted Stock
shall not be transferable by the Participant, directly or indirectly, by means
of sale, assignment, exchange, hypothecation, encumbrance, pledge or otherwise
(such restrictions, the "Transfer Restrictions").
4. Rights
as a Stockholder. Except as otherwise specifically provided in this
Agreement and the Plan, during the Restriction Period, the Participant shall
have all the rights of a stockholder with respect to the Restricted Stock
including, without limitation, the right to vote the Restricted Stock and the
right to receive any dividends, in cash or stock, or to receive stock, money
or
other property as the result of a stock split or other form of recapitalization
or a similar transaction affecting the Company’s common stock without receipt of
consideration (collectively, “Additional Property). However, Additional Property
shall be forfeited to the Company to the extent it relates to shares of
Restricted Stock that are forfeited.
5. Payment
of Issuance Taxes, Fees and Other Expenses. The Company agrees to pay any
and all original issue taxes that may be imposed on the issuance of shares
received by the Participant in connection with the Restricted Stock, together
with any and all other fees and expenses necessarily incurred by the Company
in
connection therewith.
6. Validity
of Share Issuance. The shares of Restricted Stock have been, and shares
constituting Additional Property will be, duly authorized by all necessary
corporate action of the Company are and will be validly issued, fully paid
and
non-assessable.
7. Income
Taxes and Withholding.
(a) No
later
than the date as of which an amount first becomes includible in the gross income
of the Participant for federal income tax purposes with respect to any
Restricted Stock and any Additional Property relating thereto, the Participant
shall pay to the Company, or make arrangements satisfactory to the Company
regarding the payment of, all federal, state, local and foreign taxes that
are
required by applicable laws and regulations to be withheld with respect to
such
amount. However, subject to the approval of the Company’s Board of Directors,
the Participant may discharge any withholding obligation resulting from the
vesting of the Restricted Stock by directing the Company to withhold shares
of
Restricted Stock with a value on a vesting date equal to the minimum withholding
obligation in connection with such vesting. The Company shall, to the extent
permitted by law, have the right to deduct any such taxes from the delivery
of
the Restricted Stock and any Additional Property relating thereto that gives
rise to the withholding requirement.
(b) The
Participant acknowledges that the Company is not required to provide any
gross-up or other tax assistance, including with respect to whether or not
Participant should make any election pursuant to Section 83(b) of the Code.
The
Participant understands that the Participant may make an election pursuant
to
Section 83 (b) of the Code within thirty days after the date the Participant
acquired the Restricted Stock hereunder, or comparable provisions of any state
tax law, to include in the Participant’s gross income the fair market value (as
of the date of acquisition) of the Restricted Stock. The Participant may make
such an election only if, prior to making any such election, the Participant
(a)
notifies the Company of the Participant’s intention to make such election, by
delivering to the Company a copy of the fully-executed Section 83 (b) election
form attached hereto as Annex
A,
and (b)
pays to the Company an amount sufficient to satisfy any taxes or other amounts
required by any governmental authority to be withheld or paid over to such
authority for the Participant’s account, or otherwise makes arrangements
satisfactory to the Company for the payment of such amounts through withholding
or otherwise. The Participant understands that if the Participant does not
make
a proper and timely Section 83 (b) election, generally under Section 83 of
the
Code, at the time the forfeiture restrictions applicable to the Restricted
Stock
lapse, the Participant will recognize ordinary income and be taxed in an amount
equal to the fair market value (as of the Vesting Date) of the Restricted Stock.
The Participant acknowledges that it is the Participant’s sole responsibility,
and not the Company’s to file a timely election under Section 83 (b), even if
the Participant requests the Company or its representative to make this filing
on the Participant’s behalf. The Participant is relying solely on the
Participant’s advisors with respect to the decision as to whether or not to file
a Section 83 (b) election.
2
(c) The
Participant acknowledges that (i) he or she was free to use professional
advisors of his or her choice in connection with this Agreement has received
advice from his professional advisors in connection with this Agreement,
understands its meaning and import, and is entering into this Agreement freely
and without coercion or duress; and (ii) he has not received and is not relying
upon any advice, representations or assurances made by or on behalf of the
Company or any of its subsidiaries or any employee of or counsel to the Company
or any subsidiary of the Company regarding any tax or other effects,
implications or matters contemplated by this Agreement or relating to the
Company.
8. Notices.
All notices and other communications under this Agreement shall be in writing
and shall be given by hand delivery to the other party or overnight courier,
or
registered or certified mail, return receipt requested, postage prepaid,
addressed as follows:
(a) if
to the
Participant, to the address last provided by the Participant to the Company's
human resources department;
(b) if
to the
Company:
0
Xxx Xxx
Xxxxx Xxxxxx, 0xx
Xxxxx
Xxxxxxx,
XX 00000
Attention:
Chief Financial Officer
9. Laws
Applicable to Construction. The
interpretation, performance and enforcement of this Agreement shall be governed
by the laws of the State of New York without reference to principles of conflict
of laws, as applied to contracts executed in and performed wholly within the
State of New York.
10. Successors
and Assigns. This Agreement will extend to and be binding upon the
Participant, the Participant’s legal representatives, heirs and distributes, and
upon the Company, its successors and assigns regardless of any change in the
business structure of the Company, be it through spin-off, merger, sale of
stock, sale of assets or any other transaction.
3
11. Administration.
The authority to manage and control the operation and administration of this
Agreement shall be vested in the Committee, and the Committee shall have all
powers with respect to this Agreement as it has with respect to the Plan;
provided that nothing herein or in the Plan shall prevent the Participant from
contesting any interpretation or determination made by the Committee.
12. Incorporation
of Plan. All terms and conditions of the Plan are incorporated herein and
made part hereof as if stated herein. The Participant may obtain a copy of
the
Plan from the office of the General Counsel of the Company.
13. Not
an
Employment Contract. Neither this Agreement nor the issuance of any
Restricted Stock shall confer on the Participant any right with respect to
continuance of employment or other service with the Company or any Related
Entity, nor shall they interfere in any way with any right the Company or any
Related Entity would otherwise have to terminate or modify the terms of the
Participant's employment or other service at any time.
14. Integration.
This Agreement and the other documents referred to herein, or delivered pursuant
hereto, which form a part hereof contain the entire understanding of the parties
with respect to the award of Restricted Stock. There are no restrictions,
agreements, promises, representations, warranties, covenants or undertakings
with respect to the subject matter hereof other than those expressly set forth
herein. This Agreement, including without limitation the Plan, supersedes all
prior agreements and understandings between the parties with respect to its
subject matter.
15. Counterparts.
This Agreement may be executed in two or more counterparts, each of which shall
be deemed an original, but which together constitute one and the same
instrument. Notwithstanding the foregoing, any duly authorized officer of the
Company may execute this Agreement by providing an appropriate facsimile
signature, and any counterpart or amendment hereto containing such facsimile
signature shall for all purposes be deemed an original instrument duly executed
by the Company.
16. Modification;
Waiver. No provision of this Agreement may be amended, modified, or waived
unless such amendment or modification is agreed to in writing and signed by
the
Participant and by a duly authorized officer of the Company, and such waiver
is
set forth in writing and signed by the party to be charged. No waiver by either
party hereto at any time of any breach by the other party hereto of any
condition or provision of this Agreement to be performed by such other party
shall be deemed a waiver of similar or dissimilar provisions or conditions
at
the same or at any prior or subsequent time.
4
IN
WITNESS WHEREOF, the Participant has executed this Agreement on the
Participant's own behalf, thereby representing that the Participant has
carefully read and understands this Agreement and the Plan as of the day and
year first written above, and the Company has caused this Agreement to be
executed in its name and on its behalf, all as of the date first written
above.
| By: | /s/ Xxxxxx X. Xxxxxxx | |
|
Name: Xxxxxx X. Xxxxxxx |
||
| EVCI CAREER COLLEGES HOLDING CORP. | ||
| |
|
|
| By: | /s/ Xx. Xxxx X. XxXxxxx | |
|
Name: Xx. Xxxx X. XxXxxxx |
||
| Title: Chief Executive Officer and President | ||
5
