EXHIBIT 10.47
RESTRICTED STOCK AWARD AGREEMENT
This Restricted Stock Award Agreement (this "Agreement") is entered
into this 28th day of March, 2006, by and between National Health Partners, an
Indiana corporation (the "Company"), and Xxxxx X. Xxxxxxx ("Employee").
WHEREAS, the Company wishes to grant shares of common stock, $.001 par
value per share ("Common Stock"), of the Company to Employee as an incentive for
Employee to focus on the long-term performance of the Company.
NOW, THEREFORE, in consideration of the foregoing, the agreement set
forth below and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, and intending to be legally bound
hereby, the parties hereby agree as follows:
1. Grant of Restricted Shares. The Company hereby grants to Employee on
the date hereof (the "Grant Date") 450,000 shares ("Restricted Shares") of
Common Stock, on the terms and subject to the conditions set forth herein.
2. Vesting of Restricted Shares. The Restricted Shares shall vest
("Vested Shares") in accordance with the following schedule:
(i) 150,000 shares on the first anniversary of the date
hereof;
(ii) 150,000 shares on the second anniversary of the date
hereof; and
(iii) 150,000 shares on the third anniversary of the date
hereof.
3. Escrow of Restricted Shares.
(a) Deposit. A certificate representing the Restricted Shares shall
be issued in the name of Employee upon the execution of this Agreement by
Employee and shall be escrowed with the Secretary of the Company (the "Escrow
Agent") subject to removal of the restrictions placed thereon or forfeiture
pursuant to the terms of this Agreement. Each deposited certificate shall be
accompanied by a duly executed Stock Power (endorsed in blank) in the form
attached hereto as Exhibit A. The deposited certificates, together with any
other assets or securities that may be deposited from time to time with the
Company pursuant to this Agreement, shall remain in escrow until such time or
times as the certificates (or other assets or securities) are to be released or
otherwise surrendered for cancellation in accordance with the terms of this
Agreement. Upon delivery of the certificates to the Company, Employee shall be
issued an instrument of deposit acknowledging the number of Restricted Shares
delivered in escrow to the Secretary of the Company.
(b) Release or Surrender. The Restricted Shares, together with any
other assets or securities held in escrow hereunder, shall be subject to the
following terms and conditions relating to their release from escrow or their
surrender to the Company for repurchase and/or cancellation:
(i) Upon any Restricted Shares becoming Vested Shares, all
restrictions shall be removed from the certificates representing such Restricted
Shares and the Secretary of the Company shall deliver to Employee certificates
representing such Vested Shares free and clear of all restrictions (except for
any applicable securities law restrictions) within 10 business days following
the date such Restricted Shares became Vested Shares.
(ii) Upon Employee's termination of employment with the
Company pursuant to Section 6, any Restricted Shares that are Vested Shares on
the date of termination, and any Restricted Shares that become Vested Shares as
a result of such termination, shall be released from escrow and delivered to
Employee within 10 business days following the date such Restricted Shares
became Vested Shares. All Restricted Shares that have not become Vested Shares
shall be forfeited by Employee in the manner set forth in Section 3(b)(iii).
(iii) Should Employee forfeit any Restricted Shares pursuant
to Section 6, then the escrowed certificates for such forfeited Restricted
Shares shall be surrendered to the Company for cancellation concurrently with
such forfeiture. Upon such forfeiture, Employee shall cease to have any further
rights or claims with respect to such forfeited Restricted Shares. To facilitate
the performance or observance by Employee of this Section 3(b)(iii), Employee
hereby irrevocably appoints (which appointment is coupled with an interest) the
Company as the attorney-in-fact of Employee to transfer any Restricted Shares so
forfeited to the Company, and Employee agrees that the transfer of stock
certificates with respect to such forfeited Restricted Shares shall be
specifically performable by the Company in a court of equity or law.
4. Stockholder Rights. Unless and until such time as the Restricted
Shares are forfeited by Employee pursuant to Section 3, Employee shall have all
of the rights of a stockholder, including voting and dividend rights, with
respect to the Restricted Shares, including the Restricted Shares held in escrow
under Section 3, subject, however, to the transfer restrictions of Section 5.
Notwithstanding the foregoing, any cash dividends declared and paid by the
Company with respect to the Restricted Shares shall be paid directly to Employee
and shall not be held in escrow or subject to forfeiture hereunder.
5. Restrictions on Transfer.
(a) The Restricted Shares may not be resold, pledged as security or
otherwise transferred, assigned or encumbered by Employee prior to the date such
Restricted Shares are no longer subject to forfeiture, unless specifically
agreed to in writing by the Company.
(b) Employee hereby agrees that Employee shall make no disposition
of the Restricted Shares unless and until:
(i) The forfeiture restrictions applicable to such Restricted
Shares have lapsed;
2
(ii) Employee shall have notified the Company of the proposed
disposition, unless there is then in effect a registration statement under the
Securities Act covering such proposed disposition and such disposition is made
in accordance with such registration statement; and
(iii) Employee shall have complied with all requirements of
this Agreement applicable to the disposition of the Restricted Shares.
(c) The Company shall not be required to (i) transfer on its books
any restricted shares that have been sold or transferred in violation of the
provisions of this Section 5, or (ii) treat as the owner of the Restricted
Shares, or otherwise accord voting or dividend rights to, any transferee to whom
the Restricted Shares have been transferred in contravention of this Agreement.
References herein to Employee shall include, where applicable, a permitted
transferee.
6. Termination of Employment.
(a) Forfeiture by Death or Disability, for "Cause," or by Voluntary
Termination. If Employee's employment by, or other relationship with, the
Company terminates by reason of death, disability as set forth in Section
22(e)(3) of the Internal Revenue Code ("Disability"), or for "Cause" (as defined
below), or if Employee terminates his own employment (other than for "Good
Reason," as defined below), all Restricted Shares that have not become Vested
Shares shall be forfeited to the Company. The Board shall have sole authority
and discretion to determine whether Employee's employment or services has been
terminated by reason of Disability or for "Cause." Termination for "Cause" shall
have the meaning ascribed to such term in the employment agreement dated May 13,
2005 by and between the Company and Employee (the "Employment Agreement").
(b) Termination Without Cause or Termination for Good Reason. If
Employee's employment by, or other relationship with, the Company is terminated
by the Company without "Cause" (as defined above), or is terminated by Employee
for "Good Reason" (as defined below), then all Restricted Shares shall
immediately become Vested Shares. Termination for "Good Reason" shall have the
meaning ascribed to such term in the Employment Agreement.
7. Investment Representation. Employee hereby acknowledges that the
Restricted Shares are being acquired for Employee's own account for investment
purposes only and not with a view to, or with any present intention of,
distributing or reselling any of such Restricted Shares. Employee acknowledges
and agrees that the Restricted Shares have not been registered under the
Securities Act or under any state securities laws, and that the Securities may
not be, directly or indirectly, sold, transferred, offered for sale, pledged,
hypothecated or otherwise disposed of without registration under the Securities
Act and registration or qualification under applicable state securities laws,
except pursuant to an available exemption from such registration or
qualification. Employee also acknowledges and agrees that neither the Securities
and Exchange Commission ("SEC") nor any securities commission or other
governmental authority has: (i) approved the transfer of the Restricted Shares
or passed upon or endorsed the merits of the transfer of the Restricted Shares;
or (ii) confirmed the accuracy of, determined the adequacy of, or reviewed this
Agreement. Employee has such knowledge, sophistication and experience in
financial, tax and business matters in general, and investments in securities in
particular, that it is capable of evaluating the merits and risks of this
investment in the Restricted Shares, and Employee has made such investigations
in connection herewith as it deemed necessary or desirable so as to make an
informed investment decision without relying upon the Company for legal or tax
advice related to this investment.
3
8. Restrictive Legend. The certificates evidencing the Restricted
Shares to be issued under this Agreement shall have endorsed thereon (except to
the extent that the restrictions described in any such legend are no longer
applicable) the following legend, appropriate notations thereof will be made in
the Company's stock transfer books, and stop transfer instructions reflecting
these restrictions on transfer will be placed with the transfer agent of the
Shares.
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR
APPLICABLE STATE SECURITIES LAWS. THESE SECURITIES MAY NOT BE SOLD,
TRANSFERRED OR OTHERWISE DISPOSED OF EXCEPT PURSUANT TO REGISTRATION
UNDER THE SECURITIES ACT AND REGISTRATION OR QUALIFICATION UNDER
APPLICABLE STATE SECURITIES LAWS, OR PURSUANT TO AN AVAILABLE EXEMPTION
THEREFROM. NO TRANSFER OF THE SECURITIES REPRESENTED HEREBY MAY BE MADE
IN THE ABSENCE OF SUCH REGISTRATION OR QUALIFICATION UNLESS THERE SHALL
HAVE BEEN DELIVERED TO THE ISSUER A WRITTEN OPINION OF UNITED STATES
COUNSEL OF RECOGNIZED STANDING, IN FORM AND SUBSTANCE SATISFACTORY TO
THE ISSUER, TO THE EFFECT THAT SUCH TRANSFER MAY BE MADE WITHOUT
REGISTRATION OF SUCH SECURITIES UNDER THE SECURITIES ACT AND
REGISTRATION OR QUALIFICATION UNDER APPLICABLE STATE SECURITIES LAWS.
THE SECURITIES EVIDENCED BY THIS CERTIFICATE ARE SUBJECT TO AND
TRANSFERABLE ONLY IN ACCORDANCE WITH THAT CERTAIN RESTRICTED STOCK
AWARD AGREEMENT DATED MARCH 29, 2006, BETWEEN THE COMPANY AND THE
EMPLOYEE, A COPY OF WHICH IS ON FILE AT THE PRINCIPAL OFFICE OF THE
COMPANY IN HORSHAM, PENNSYLVANIA. NO TRANSFER OR PLEDGE OF THE SHARES
EVIDENCED HEREBY MAY BE MADE EXCEPT IN ACCORDANCE WITH AND SUBJECT TO
THE PROVISIONS OF SAID AGREEMENT. BY ACCEPTANCE OF THIS CERTIFICATE,
ANY HOLDER, TRANSFEREE OR PLEDGEE HEREOF AGREES TO BE BOUND BY ALL OF
THE PROVISIONS OF THE AGREEMENT.
4
9. Section 83(b) Election. Employee understands that under Section 83
of the Internal Revenue Code of 1986, as amended (the "Code"), the difference
between the purchase price, if any, paid for the Restricted Shares and their
fair market value on the date any forfeiture restrictions applicable to such
Restricted Shares lapse will be reportable as ordinary income at that time.
Employee understands that Employee may elect to be taxed at the time the
Restricted Shares are acquired hereunder to the extent the fair market value of
the Restricted Shares differs from the purchase price, if any, rather than when
and as such Restricted Shares cease to be subject to such forfeiture
restrictions, by filing an election under Section 83(b) of the Code with the
Internal Revenue Service within 30 days after the Xxxx Date. If the fair market
value of the Restricted Shares at the Grant Date equals the purchase price paid
(and thus no tax is payable), the election should be made to avoid adverse tax
consequences in the future. Employee understands that failure to make this
filing within the 30-day period will result in the recognition of ordinary
income by Employee as the forfeiture restrictions lapse. EMPLOYEE ACKNOWLEDGES
THAT IT IS EMPLOYEE'S SOLE RESPONSIBILITY, AND NOT THE COMPANY'S, TO FILE A
TIMELY ELECTION UNDER SECTION 83(b), EVEN IF EMPLOYEE REQUESTS THE COMPANY OR
ITS REPRESENTATIVES TO MAKE THIS FILING ON EMPLOYEE'S BEHALF. EMPLOYEE IS
RELYING SOLELY ON EMPLOYEE'S ADVISORS WITH RESPECT TO THE DECISION AS TO WHETHER
OR NOT TO FILE AN 83(b) ELECTION.
10. Covenants of the Company. The Company covenants and agrees that the
Restricted Shares have been duly authorized and, when issued and paid for in
accordance with the terms of this Agreement, will be validly issued, fully paid
and non-assessable shares of Common Stock with no personal liability resulting
solely from the ownership of such shares and will be free and clear of all
liens, charges, restrictions, claims and encumbrances imposed by or through the
Company.
11. Notices. All notices hereunder shall be sufficiently given for all
purposes hereunder if in writing and delivered personally, sent by documented
overnight delivery service or, to the extent receipt is confirmed, telecopy,
telefax or other electronic transmission service to the appropriate address or
number as set forth below:
If to the Company:
National Health Partners, Inc.
000 Xxxxxxxxx Xxxx
Xxxxx 000
Xxxxxxx, XX 00000
Attention: Chief Financial Officer
If to Employee:
To the address specified for Employee in the Company's
records.
12. Amendment and Waiver. This Agreement may not be amended, modified
or supplemented except by an instrument or instruments in writing signed by the
party against whom enforcement of any such amendment, modification or supplement
is sought. The parties hereto entitled to the benefits of a term or provision
may waive compliance with any obligation, covenant, agreement or condition
contained herein. Any agreement on the part of a party to any such waiver shall
be valid only if set forth in an instrument or instruments in writing signed by
the party against whom enforcement of any such waiver is sought. No failure or
delay on the part of any party hereto in the exercise of any right hereunder
shall impair such right or be construed to be a waiver of, or acquiescence in,
any breach of any representation, warranty, covenant or agreement contained
herein.
5
13. Headings; Definitions. The section headings contained in this
Agreement are inserted for convenience of reference only and will not affect the
meaning or interpretation of this Agreement. All references to sections
contained herein mean sections of this Agreement unless otherwise stated. All
capitalized terms defined herein are equally applicable to both the singular and
plural forms of such terms.
14. Successors and Assigns. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
assigns, provided, however, that no party hereto may assign its rights or
delegate its obligations under this Agreement without the express prior written
consent of the other party hereto. Nothing in this Agreement is intended to
confer upon any person not a party hereto (and their successors and assigns) any
rights, remedies, obligations or liabilities under or by reason of this
Agreement.
15. Severability. If any provision of this Agreement or the application
thereof to any person or circumstance is held to be invalid or unenforceable to
any extent, the remainder of this Agreement shall remain in full force and
effect and shall be reformed to render this Agreement valid and enforceable
while reflecting to the greatest extent permissible the intent of the parties.
16. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the Commonwealth of Pennsylvania, without regard to
the laws that might otherwise govern under applicable principles of conflicts of
laws thereof.
17. Counterparts. This Agreement may be executed and delivered by
facsimile in two or more counterparts, each of which shall be deemed to be an
original, but all of which together shall constitute one and the same agreement.
[Remainder of page intentionally left blank]
6
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date written above.
NATIONAL HEALTH PARTNERS, INC.
By: /s/ Xxxx Xxxxxxxx
------------------------------
Xxxx Xxxxxxxx
Chief Financial Officer and
Executive Vice President
EMPLOYEE
/s/ Xxxxx X. Xxxxxxx
----------------------------------
Xxxxx X. Xxxxxxx
7
Exhibit A
Stock Power
FOR VALUE RECEIVED, ___________________________ hereby sells,
assigns and transfers unto National Health Partners, Inc., an Indiana
corporation (the "Company"), ______________________ (_________) shares of the
common stock of the Company standing in the name of _______________________ on
the books of the Company represented by Certificate No. __________ herewith and
does hereby irrevocably constitute and appoint the Secretary of the Company
attorney-in-fact to transfer the said stock on the books of the within named
Company with full power of substitution and resubstitution in the premises.
Dated: _______________ _________________________________
(Signature)
_________________________________
(Print Name)
