RESTRICTED SHARE AND BONUS AWARD AGREEMENT
Exhibit 99.2
THIS RESTRICTED SHARE AND BONUS AWARD AGREEMENT (the “Agreement”), made effective as of
, 2006, between XXXXX ENTERPRISES, INCORPORATED, a Florida corporation (the
“Corporation”), and (“Participant”).
RECITALS
In consideration of services to be rendered by the Participant and to provide an incentive to
the Participant to remain with the Corporation and its Subsidiaries, it is in the best interests of
the Corporation to make a Performance Award to Participant consisting of (i) shares of Restricted
Stock under the Xxxxx Enterprises, Incorporated 2001 Equity Incentive Plan (the “Plan”) which is
incorporated herein by reference, and (ii) a cash bonus, in accordance with the terms of this
Agreement.
The Participant hereby acknowledges receipt of a copy of the Plan. Unless otherwise provided
herein, terms used herein that are defined in the Plan and not defined herein shall have the
meanings attributable thereto in the Plan.
NOW, THEREFORE, for and in consideration of the mutual premises, covenants and agreements
contained herein, and for other good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, the parties hereto, intending to be legally bound, hereby agree as
follows:
1. Grant of Restricted Shares.
The Corporation hereby grants to Participant a total of ( ) shares of
the common stock, $.01 par value per share, of the Corporation (the “Restricted Shares”), subject
to the transfer restrictions and other conditions set forth in this Agreement.
The Corporation shall cause the Restricted Shares to be issued and a stock certificate or
certificates representing the Restricted Shares to be registered in the name of Participant
promptly upon execution of this Agreement, but the stock certificate or certificates shall be
delivered to, and held in custody by, the Corporation until the applicable restrictions lapse at
the times specified in Section 3 below. On or before the date of execution of this
Agreement, Participant shall deliver to the Corporation one or more stock powers endorsed in blank
relating to the Restricted Shares, which will permit transfer to the Corporation of all or any
portion of the Restricted Shares and any securities constituting Retained Distributions (as defined
below in Section 2(a)(ii)) that shall be forfeited or that shall not become vested in accordance
with this Agreement.
2. Restrictions.
(a) Participant shall have all rights and privileges of a shareholder of the Corporation with
respect to the Restricted Shares, including voting rights and the right to receive dividends paid
with respect to such shares, except that the following restrictions shall apply, until such time or
times as restrictions lapse under Section 3 of this Agreement:
(i) Participant shall not be entitled to delivery of the certificate or certificates
for any of the Restricted Shares until the restrictions imposed by this Agreement have
lapsed with respect to those Restricted Shares, at the times defined in Section 3;
(ii) other than regular cash dividends and such other distributions as the Board of
Directors may in its sole discretion designate, the Corporation will retain custody of all
distributions (“Retained Distributions”) made or declared with respect to the Restricted
Shares (and such Retained Distributions will be subject to the same restrictions, terms and
conditions as are applicable to the Restricted Shares) until such time, if ever, as the
Restricted Shares with respect to which such Retained Distributions shall have been made,
paid or declared shall have become vested, and such Retained Distributions shall not bear
interest or be segregated in separate accounts;
(iii) the Restricted Shares may not be sold, transferred, assigned, pledged or
otherwise encumbered or disposed of by Participant before these restrictions have lapsed
pursuant to Section 3, except with the consent of the Corporation; and
(iv) the Restricted Shares and Retained Distributions shall be subject to forfeiture
upon termination of Participant’s employment with the Corporation to the extent set forth in
Section 6 below and upon the breach of any restrictions, terms or conditions of this
Agreement.
Once any portion of Participant’s Restricted Share award has become vested under Section
3, the newly vested shares shall no longer be subject to the preceding restrictions, and shall
no longer be considered to be Restricted Shares.
(b) Any attempt to dispose of Restricted Shares in a manner contrary to the restrictions set
forth in this Agreement shall be ineffective.
3. When Restrictions Lapse.
The Restricted Shares shall vest and the restrictions set forth in this Agreement shall lapse
with respect to such vested shares on March 29, 2008, provided that (i) the Income from Operations
of the Corporation, as reported in its audited Consolidated Statement of Operations, has increased
during fiscal years 2006 and 2007 (measured as of December 31, 2007) at least an amount equal to
10% compounded annual growth over the amount reported for the 2005 fiscal year, and (ii)
Participant is employed by the Corporation or a Subsidiary on such date. The foregoing
notwithstanding, in the event of a Change in Control (as defined in the Plan) prior to the date the
Restricted Shares vest, all of the Restricted Shares shall vest and the restrictions set forth in
this Agreement shall lapse with respect to such vested shares on the date of the Change in Control,
provided that Participant is employed by the Corporation or a Subsidiary on the date of the Change
in Control.
-2-
4. Issuance of Stock Certificates for Shares.
The stock certificate or certificates representing the Restricted Shares shall be issued
promptly following the execution of this Agreement, and shall be delivered to the Corporate
Secretary or such other custodian as may be designated by the Corporation, to be held until the
restrictions have lapsed under Section 3. Such stock certificate or certificates shall
bear the following legend:
The transferability of this certificate and the shares of stock represented
hereby are subject to the terms and conditions (including forfeiture) of a
Restricted Share Agreement entered into between the registered owner and
Xxxxx Enterprises, Incorporated. A copy of such Agreement is on file in the
offices of, and will be made available for a proper purpose by, the
Corporate Secretary of Xxxxx Enterprises, Incorporated.
Once the restrictions imposed by this Agreement have lapsed with respect to any portion of the
Restricted Shares, upon the written request of Participant, a stock certificate or certificates for
such portion of the Restricted Shares shall be returned and exchanged for new stock certificates
without the foregoing legend for the newly vested portion of the Restricted Shares. Upon the
written request of Participant, the certificates representing the newly vested shares shall be
delivered to Participant (or to the person to whom the rights of Participant shall have passed by
will or the laws of descent and distribution) promptly after the date on which the restrictions
imposed on such shares by this Agreement have lapsed, but not before Participant has made any tax
payment to the Corporation or made other arrangements for tax withholding, as required by
Section 6. In the event all of some portion of the Restricted Shares vest and the
restrictions imposed by this Agreement lapse as a result of a Change in Control as provided in
Section 3 above, the certificate for such Restricted Shares shall be delivered promptly after the
date of the Change in Control, if such date occurs after the publication of the Corporation’s
audited Consolidated Statement of Operations for the prior year, or promptly following such
publication, if such Change in Control occurs after the end of the prior year but before such
publication.
5. Cash Bonus. The Corporation shall pay a cash bonus to the Participant, in the
amount of Dollars ($ “Bonus Amount”) on March 29, 2008,
provided that (i) the Income from Operations of the Corporation, as reported in its audited
Consolidated Statement of Operations, has increased during fiscal years 2006 and 2007, (measured as
of December 31, 2007) at least an amount equal to 10% compounded annual growth over the amount
reported for the 2005 fiscal year, and (ii) Participant is employed by the Corporation or a
Subsidiary on such date. The foregoing notwithstanding, in the event a Change in Control (as
defined in the Plan) triggers the vesting of the Restricted Shares pursuant to the provisions of
paragraph 3 above, the Bonus Amount shall be payable on the date that the Restricted Shares vest.
This Agreement shall not create or be construed to create a trust or separate fund of any kind
or a fiduciary relationship between the Corporation or any Subsidiary and the Participant or
-3-
any other person. To the extent that the Participant or any other person acquires a right to
receive payments from the Corporation or any Subsidiary pursuant to this Agreement, such right
shall be no greater than the right of any unsecured general creditor of the Corporation.
6. Tax Withholding.
Whenever the restrictions on Participant’s rights to some or all of the Restricted Shares
lapse under Section 3 of this Agreement and some or all of the Bonus Amount becomes
payable, or upon Participant’s filing an election with the Internal Revenue Service pursuant to
Section 83(b) of the Internal Revenue Code of 1986, as amended, with respect to the Restricted
Shares, the Corporation shall notify Participant of the amount of tax which must be withheld by the
Corporation under all applicable federal, state and local tax laws. Participant agrees to make
arrangements with the Corporation to (a) remit a cash payment of the required amount to the
Corporation, (b) to authorize the deduction of such amounts from Participant’s compensation or (c)
to otherwise satisfy the applicable tax withholding requirement in a manner satisfactory to the
Corporation.
7. Forfeiture On Termination of Employment.
If the Participant’s employment with the Corporation or Subsidiary is terminated for any
reason, either by the Corporation or Participant, prior to March 29, 2008, any Restricted Shares
remaining subject to the restrictions imposed by this Agreement, and any Bonus Amount not then
payable, shall be forfeited, unless there shall have been a Change in Control (as defined in the
Plan) prior to such date, in which event the provisions of Section 3 and Section 5 shall control.
8. Agreement Not to Affect Employment.
Neither this Agreement nor the Restricted Shares granted hereunder shall confer upon
Participant any right to continued employment with the Corporation or any Subsidiary, and shall not
in any way modify or restrict the Corporation’s or such Subsidiary’s right to terminate such
employment.
9. Agreement Subject to the Plan. This Agreement and the rights and obligations of
the parties hereto are subject to and governed by the terms of the Plan as the same may be amended
from time to time, the provisions of which are incorporated by reference into this Agreement.
10. Miscellaneous.
(a) This Agreement may be executed in one or more counterparts, all of which taken together
will constitute one and the same instrument.
(b) The terms of this Agreement may only be amended, modified or waived by a written agreement
executed by both of the parties hereto.
(c) The validity, performance, construction and effect of this Agreement shall be governed by
the laws of the State of Florida, without giving effect to principles of conflicts of law.
-4-
(d) This Agreement constitutes the entire agreement between the parties hereto with respect to
the transactions contemplated herein.
(e) Except as otherwise herein provided, this Agreement shall be binding upon and shall inure
to the benefit of the Corporation, its successors and assigns, and of Participant and Participant’s
personal representatives.
(f) This Agreement may be executed by either of the parties (the “Originating Party”) and
transmitted to the other party (the “Receiving Party”) by facsimile, telecopy, telex or other form
of written electronic transmission, and, upon confirmation of receipt thereof by the Receiving
Party, this Agreement shall be deemed to have been duly executed by the Originating Party. Upon
the request of the Receiving Party, the Originating Party shall provide the Receiving Party with an
executed duplicate original of this Agreement.
IN WITNESS WHEREOF, the parties have executed this Restricted Share Agreement effective as of
the date and year first above written.
XXXXX ENTERPRISES, INCORPORATED |
||
By: |
||
PARTICIPANT |
||
-5-
