RESTRICTED STOCK AGREEMENT
EXHIBIT
10.2
This
Restricted Stock Agreement (this “Agreement”)
is
entered into as of March 31, 2006 between XXX.XXX, INC., a Minnesota corporation
(the “Company”)
and
XXXXXX X. XXXXXXX (“Executive”).
Executive
and the Company are parties to an employment agreement dated of even date
herewith (the “Employment
Agreement”).
In
accordance with the Employment Agreement, in connection with Executive’s
entering into employment with the Company, Executive is to receive an award
of
one
hundred thousand (100,000)
shares
of the common stock, $0.01 par value per share, of the Company (the
“Common
Stock”).
IN
WITNESS WHEREOF, the Company and Executive hereby agree as follows:
1. Grant.
The
Company hereby grants Executive one
hundred thousand (100,000)
shares
(the “Shares”)
of the
Company’s common stock, which shares shall vest in sixty (60) consecutive
monthly increments of 1.67% beginning on the first month following the date
of
this Agreement. This Agreement incorporates by reference the attached Terms
and
Conditions. Shares of Common Stock that are not yet vested are herein referred
to as “Unvested
Shares”
while
shares of Common Stock that are vested are herein referred to as “Vested
Shares”.
In
addition any Unvested Shares then remaining shall become fully vested upon
a
change in the beneficial ownership of the Company’s voting stock or a change in
the composition of the Board which occurs as follows:
(a) Any
“person,” including a “syndication” or “group” as those terms are used in
Section 13(d)(3) of the Securities Exchange Act of 1934, is or becomes the
beneficial owner, directly or indirectly, of securities of the Company
representing 40% or more of the combined voting power of the Company’s then
outstanding “Voting Securities,” which is any security which ordinarily
possesses the power to vote in the election of the Board of Directors of a
corporation without the happening of any precondition or contingency;
(b) The
Company is merged or consolidated with another corporation and immediately
after
giving effect to the merger or consolidation less than 80% of the outstanding
Voting Securities of the surviving or resulting entity are then beneficially
owned in the aggregate by (x) the stockholders of the Company in their
capacities as such immediately prior to such merger or consolidation, or (y)
if
a record date has been set to determine the stockholders of the Company entitled
to vote on such merger or consolidation, the stockholders of the Company as
of
such record date;
(c) If
at any
time the following do not constitute a majority of the Board of Directors of
the
Company (or any successor entity referred to in clause (ii) above): Persons
who,
prior to their election as a Director of the Company (or successor entity if
applicable) were nominated, recommended or endorsed by a formal resolution
of
the Board of Directors of the Company or the Nominating and Corporate Governance
Committee thereof; or
(d) The
Company transfers substantially all of its assets to another corporation which
is a less than 80% owned subsidiary of the Company.
2. Non-Transferability.
Executive shall not assign or transfer any Unvested Shares, other than by will
or the laws of descent and distribution.
3. Termination. Executive’s
rights to any Unvested Shares, and the vesting of any Unvested Shares, will
terminate automatically and without further notice at the close of business
thirty (30) days following the termination of Executive’s employment for any
reason.
4. Investment
Representations.
Executive hereby represents that he is acquiring the Shares for Executive’s own
account for investment and not with any present intention of selling or
otherwise distributing them. Executive agrees to comply with applicable federal
and state securities laws in connection with any sale, assignment or transfer
of
the Shares.
5. Registration
of Shares.
Within
ninety (90) days after the date hereof, the Company shall file a registration
statement on an appropriate form under the Securities Act of 1934, as amended,
to register the resale of the Shares. Prior to the effective date of any such
registration statement any Shares issued under this Agreement shall bear an
appropriate legend to the effect that any sale, assignment or transfer of the
Shares may only be effected in compliance with an effective registration
statement or any applicable exemption therefrom.
6. Compliance
with Law.
The
Shares are subject to the requirement that, if at any time counsel to the
Company determines that the listing, registration or qualification of the Shares
upon any securities exchange or under any state or federal law, or the consent
or approval of any governmental or regulatory body, is necessary as a condition
of, or in connection with, the issuance or purchase of the Shares, then the
Shares may not to be sold, assigned or transfer, in whole or in part, unless
the
listing, registration, qualification, consent or approval has been effected
or
obtained on conditions acceptable to the Compensation Committee or unless such
sale, assignment or transfer is otherwise permissible under any applicable
exemption from registration.
2
7. Recapitalization.
If the
outstanding shares of Common Stock are changed into or exchanged for a different
number or kind of shares or other securities of the Company by reason of any
recapitalization, reclassification, stock split, stock dividend, combination,
subdivision or similar transaction, then, subject to any required action by
the
Company’s shareholders, the number and kind of Shares are to be proportionately
adjusted; except that no fractional Shares are to be issued in making the
foregoing adjustments. All adjustments made by the Compensation Committee under
this paragraph
will be
final, conclusive and binding upon Executive.
8. Reorganization.
If,
while all or any portion of the Shares remain Unvested, the Company proposes
to
merge or consolidate with another corporation, whether or not the Company is
to
be the surviving corporation, or if the Company proposes to liquidate or sell
or
otherwise dispose of substantially all of its assets or substantially all of
the
outstanding shares of Common Stock are to be sold, then the Compensation
Committee may, in its sole discretion, either (i) make appropriate provision
for
the protection of the Unvested Shares by the substitution on an equitable basis
of (A) appropriate stock of the surviving corporation or its parent in the
merger or consolidation, or other reorganized corporation that will be issuable
in respect to the Unvested Shares, or (B) any alternative consideration as
the
Compensation Committee, in good faith, may determine to be equitable in the
circumstances; and, in either case, require in connection therewith the
surrender of the Unvested Shares so replaced. In any such case, the Compensation
Committee may, in its discretion, accelerate the date on which the Unvested
Shares, in whole or in part, becomes exercisable.
9. Rights
as Shareholder.
Executive will have all of the rights of a shareholder of the Company with
respect to all of the Shares (including the right to vote on matters for which
a
vote of shareholders is permitted or required), regardless of whether the Shares
are Vested or Unvested, except as otherwise expressly set forth in this
Agreement.
10. Withholding
of Taxes.
The
Company’s obligation to deliver Shares to Executive on any applicable date of
vesting is subject to Executive’s satisfaction of any applicable federal, state
and local income and employment tax and withholding requirements in a manner
and
form satisfactory to the Company.
11. No
Special Employment Rights.
No
provision in this Agreement will be deemed to grant to Executive any right
with
respect to Executive’s continued employment with, or other engagement by, the
Company or any subsidiary, parent or affiliate or interfere in any way with
the
ability of the Company or any subsidiary, parent or affiliate at any time to
terminate Executive’s employment or other engagement or to increase or decrease
Executive’s compensation from the rate in existence at the Grant Date.
12. Other
Employee Benefits.
The
amount of any compensation deemed to be received by Executive as a result of
the
vesting of any Shares will not constitute “earnings” with respect to which any
other benefits of Executive are determined, including, without limitation,
benefits under any pension, profit sharing, life insurance or salary
continuation plan.
3
13. Interpretation
of this Agreement.
All
decisions and interpretations made by the Company’s Board of Directors or the
Compensation Committee with regard to any question arising under this Agreement
will be binding and conclusive on the Company and Executive.
14. Choice
of Law.
This
Agreement is to be governed by the internal law, and not the laws of conflicts,
of the State of Georgia.
15. Successors
and Assigns.
This
Agreement is to bind and inure to the benefit of and be enforceable by
Executive, the Company and their respective heirs, executors, personal
representatives, successors and assigns.
16. Notices.
Any
notice provided for in this Agreement must be in writing and is to be either
personally delivered, sent by reputable overnight carrier or mailed by first
class mail, return receipt requested, to the recipient at the address indicated
as follows:
Notices
to Executive:
Xxxxxx
X.
Xxxxxxx
0000
Xxxxxxx Xxxxx Xx.
Xxxxx
Xxxxxxx, XX 00000
Copy
to:
Xxxxxx
X.
Xxxxxxx
Xxx.xxx,
Inc.
000
Xxxxxxxxx Xxxxxx Xxx., Xxxxx 000
Xxxxxxx,
XX 00000
Notices
to The Company:
Xxx.xxx,
Inc.
000
Xxxxxxxxx Xxxxxx Xxxxxx
Xxxxx
000
Xxxxxxx,
Xxxxxxx 00000
Attn:
Chief Executive Officer
or
any
other address or to the attention of any other person as the recipient party
shall have specified by prior written notice to the sending party. Any notice
under this Agreement will be deemed to have been given when so delivered, sent
or mailed.
17. Severability.
Whenever possible, each provision of this Agreement is to be interpreted in
a
manner as to be effective and valid under applicable law, but if any provision
of this Agreement is held to be invalid, illegal or unenforceable in any respect
under any applicable law or rule in any particular jurisdiction, that
invalidity, illegality or unenforceability is not to affect any other provision
or any other jurisdiction, and this Agreement shall be reformed, construed
and
enforced in the particular jurisdiction as if the invalid, illegal or
unenforceable provision had never been contained herein.
4
18. Complete
Agreement.
This
Agreement embodies the complete agreement and understanding between the parties
with respect to the subject matter hereof and effective as of its date
supersedes and preempts any prior understandings, agreements or representations
by or between the parties, written or oral, that may have related to the subject
matter hereof in any way.
19. Amendment
and Waiver.
Subject
to the next sentence, the provisions of this Agreement may be amended or waived
only with the prior written consent of the Company and Executive, and no course
of conduct or failure or delay in enforcing the provisions of this Agreement
is
to affect the validity, binding effect or enforceability of this Agreement.
The
Company unilaterally may waive any provision of this Agreement in writing to
the
extent that the waiver does not adversely affect the interests of Executive
under this Agreement, but the waiver is not to operate as or be construed to
be
a subsequent waiver of the same provision or a waiver of any other provision
of
this Agreement.
[Signatures
appear on following page]
5
The
parties are signing this Agreement as of the date stated in the introductory
clause.
XXX.XXX,
INC.
By:
/s/ Xxxxxxxx X. Xxxxxx
Name:
Xxxxxxxx X. Xxxxxx
Title:
Senior Vice President
/s/
Xxxxxx X. Xxxxxxx
Xxxxxx
X.
Xxxxxxx
6
