Exhibit 10.4
AMENDED AND RESTATED RESTRICTED STOCK AGREEMENT
THIS AMENDED AND RESTATED RESTRICTED STOCK AGREEMENT (this
"AGREEMENT"), dated as of January 15, 2004, is entered into by and among
optionsXpress, Inc., a Delaware corporation (the "CORPORATION"), Xxxxx Xxxx, as
trustee of the XXXXX XXXX DELTA TRUST FOR XXX U/A/D JUNE 7, 2002 (the "TRUST"),
and Xxxxx Xxxx individually ("EXECUTIVE").
WHEREAS, Executive and the Corporation are parties to that certain
Restricted Stock Agreement dated as of November 13, 2000 (the "PRIOR
AGREEMENT");
WHEREAS, as permitted by the terms of the Prior Agreement, on or about
June 10, 2002, Executive transferred 700,000 shares (the "SHARES") of common
stock ("COMMON STOCK") of the Corporation to the Trust;
WHEREAS, the Shares are subject to certain contractual restrictions set
forth in the Prior Agreement;
WHEREAS, pursuant to the terms of the Prior Agreement, substantially
all of the Shares have vested; and
WHEREAS, in connection with the consummation of the transactions
contemplated by that certain Stock Purchase and Recapitalization Agreement,
dated as of December 17, 2003 (the "RECAPITALIZATION AGREEMENT"), among the
Corporation, the purchasers identified therein (collectively referred to herein
as the "INVESTORS"), the Trust and the other stockholders of the Corporation
identified therein, the Corporation, Executive and the Trust wish to amend and
restate the Prior Agreement in its entirety in accordance with the terms
contained herein.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants set forth in this Agreement and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
the parties hereto have agreed, and do hereby agree, as follows:
1. RESTRICTED SHARES. Executive and the Trust hereby acknowledge the
restrictions on the Shares pursuant to the terms and conditions herein set
forth. Such Shares, along with any shares of the Corporation's capital stock
issued with respect to such Shares by way of a stock-split, stock dividend or
other recapitalization affecting Common Stock subsequent to the date hereof,
shall be referred to herein as the "RESTRICTED SHARES."
2. VESTING. The Corporation, Executive and the Trust acknowledge and
agree that, as of the date hereof, all of the Restricted Shares are vested in
favor of Executive and the Trust (the "VESTED RESTRICTED SHARES").
3. RESTRICTIONS ON RESTRICTED SHARES.
(a) VESTED RESTRICTED SHARES.
(i) The Vested Restricted Shares may not be sold, assigned,
transferred, pledged, gifted, encumbered, alienated, hypothecated or
otherwise disposed of and any attempt to do so shall be void and of no
legal force or effect whatsoever.
(ii) Notwithstanding the foregoing, Vested Restricted Shares
may be transferred (A) if the majority of the Corporation's board of
directors approves such transfer, (B) in connection with a Change in
Control (as defined below), (C) to the Corporation or the Other
Stockholders as provided in this SECTION 3 or SECTION 4, or (D) to a
Permitted Transferee (as defined below); PROVIDED that the Permitted
Transferee thereof has agreed in a writing (in a form approved by the
Corporation) delivered to the Corporation to be bound by the terms of
this Agreement with all of the rights and obligations of Executive as
if such Permitted Transferee was Executive; PROVIDED FURTHER, that all
references to Executive's employment shall remain in reference to
Executive and shall not refer to such Permitted Transferee.
(b) For purposes hereof, "CHANGE IN CONTROL" means a merger,
consolidation, sale or conveyance of all or substantially all of the
Corporation's assets or shares pursuant to which the holders of the voting
securities of the Corporation immediately before the transaction own immediately
after the transaction less than a majority of the outstanding voting securities
of the surviving entity (or its parent) or the purchasing entity (or its
parent), as the case may be.
(c) For purposes hereof, "PERMITTED TRANSFEREE" with respect to
Executive or the Trust means (i) Xxxxx Xxxx; (ii) a transferee receiving Vested
Restricted Shares pursuant to applicable laws of descent and distribution; (iii)
a trust whose beneficiary(ies) is Executive, Executive's spouse or a member of
Executive's immediate family; PROVIDED that Executive is the trustee of such
trust and the trust instrument governing said trust provides that Executive, as
trustee, retains sole and exclusive control over the voting and disposition of
said Vested Restricted Shares until the termination of this Agreement; (iv) a
partnership whose owners are Executive, his spouse and/or his immediate family;
PROVIDED that the partnership agreement governing said partnership provides that
Executive retains sole and exclusive control over the voting and disposition of
said Vested Restricted Shares until the termination of this Agreement; (v) a
limited liability company whose owners are Executive, his spouse and/or his
immediate family; PROVIDED that the limited liability company agreement
governing such limited liability company provides that Executive retains sole
and exclusive control over the voting and disposition of said Vested Restricted
Shares until the termination of this Agreement; (vi) the Corporation; (vii) a
transferee receiving Vested Restricted Shares pursuant to a Change in Control;
(viii) any pledgee of up to 30% of the value of such Vested Restricted Shares
(as determined by the Corporation's board of directors at the time of such loan
transaction) in support of a bona fide loan transaction for Executive's benefit
(E.G., the holder of Vested Restricted Shares valued at $10,000,000 at the time
of such loan transaction may pledge all of such shares as collateral security
for a loan of up to $3,000,000) so long as, as a condition to any such pledge,
the third party lender agrees to grant the Corporation and the Other
Stockholders the
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right to repurchase any such Vested Restricted Shares upon any default or
foreclosure in respect thereof by the applicable lender on terms and conditions
satisfactory to the board of directors of the Corporation (including the
"Investor Director", as such term is defined in the Stockholders Agreement); and
(ix) a not-for-profit charitable entity. For purposes of this Agreement,
"STOCKHOLDERS AGREEMENT" shall have the meaning assigned to such term in the
Recapitalization Agreement.
(d) TRANSFERS BY OPERATION OF LAW. In the event that a transfer
of Restricted Shares to a person or entity (a "TRANSFEREE") is effected by
operation of law (including, but not limited to, bankruptcy, or divorce and
dissolution of marriage) other than by reason of the death of Executive and
excluding transfers to a Permitted Transferee (an "OPERATION OF LAW TRANSFER"),
the following shall apply:
(i) The Corporation shall have the right, but not the
obligation, to purchase from the Transferee any or all of the
Restricted Shares transferred or proposed to be transferred pursuant to
the Operation of Law Transfer.
(ii) If the Corporation does not exercise its right under
clause (i) above to purchase from the Transferee any or all of the
Restricted Shares transferred or proposed to be transferred pursuant to
the Operation of Law Transfer (the "REMAINING INVOLUNTARY SHARES")
within six (6) months following the later of (A) the effective date of
the Operation of Law Transfer and (B) the date upon which the
Corporation's board of directors acquires actual notice of the
Operation of Law Transfer, then the Corporation shall promptly notify
in writing the Other Stockholders (as defined below), and the Other
Stockholders shall have the right to purchase all or any portion of
their pro rata portion of the Remaining Involuntary Shares (as such pro
rata portion is determined pursuant to the terms of the Stockholders
Agreement) on the terms set forth in this SECTION 3 and SECTION 5.
Notwithstanding anything to the contrary contained herein, the
restrictions contained in this Agreement shall not be applicable to
any Other Stockholders who exercise their rights to purchase any
Restricted Shares pursuant to this SECTION 3.
(iii) The purchase price for the Restricted Shares purchased
by the Corporation and/or the Other Stockholders pursuant to this
SECTION 3 shall be equal to eighty percent (80%) of the Fair Market
Value (as defined below) of the transferred Restricted Shares as of the
effective date of the Operation of Law Transfer.
(iv) The purchase options contained in clauses (i) and (ii)
above shall be exercisable by written notice to the Transferee provided
by the Corporation and, if applicable, the Other Stockholders within
one (1) year following the later of (A) the effective date of the
Operation of Law Transfer and (B) the date upon which the Corporation's
board of directors acquires actual notice of the Operation of Law
Transfer.
(v) If the purchase price to be paid to the Transferee is
in excess of five thousand dollars ($5,000), the Corporation may, in
its sole option, pay all or any portion of such purchase price by
delivering to the transferee a promissory note which: (A) shall be
payable in installments payable on the first three (3) anniversaries
of the date of purchase, each installment consisting of one-third
(1/3) of the principal amount of the
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note plus interest from the date of the note at a rate of interest
equal to the "APPLICABLE FEDERAL RATE" (as defined in the United States
Internal Revenue Code of 1986, as amended) in effect at the time of
purchase; (B) shall permit pre-payment in whole or part at any time,
without penalty; (C) shall be secured by a pledge of the purchased
Restricted Shares; (D) shall provide for forgiveness of all outstanding
principal and interest in the event of the liquidation of the
Corporation, in which event the Corporation will be deemed to have
purchased only that portion of the Restricted Shares that is equal in
proportion to the proportion of the purchase price actually paid by the
Corporation up to the date of such liquidation; and (E) shall contain
other details customary for notes of this type.
(vi) If the purchase price to be paid to the Transferee is
less than or equal to five thousand dollars ($5,000), the Corporation
shall pay such purchase price within sixty (60) calendar days of the
exercise of the option set forth in SECTION 3(c)(i).
4. REPURCHASE OF VESTED RESTRICTED SHARES.
(a) TERMINATION BY THE CORPORATION FOR CAUSE.
(i) If the Corporation terminates Executive's employment
with the Corporation for Cause (as defined below) (other than by reason
of the commission of fraud, theft or embezzlement by Executive in
connection with his duties to the Corporation or any of its customers
or other material business relations), then the Corporation shall have
the right, but not the obligation, at any time thereafter, to
repurchase, in accordance with this SECTION 4 and SECTION 5, all of the
Vested Restricted Shares at a price per share equal to seventy percent
(70%) of the Fair Market Value per share as of the effective date of
such termination.
(ii) If the Corporation terminates Executive's employment
for Cause by reason of the commission of fraud, theft or embezzlement
by Executive in connection with his duties to the Corporation or any of
its customers or other material business relations, then the
Corporation shall have the right, but not the obligation, at any time
thereafter, to repurchase all of the Vested Restricted Shares for
$0.0002 per share in accordance with SECTION 5.
(b) TERMINATIONS OTHER THAN FOR CAUSE OR WITH GOOD REASON.
(i) If, on or prior to the third anniversary of the date
of this Agreement, (A) the Corporation terminates Executive's
employment with the Corporation for any reason other than for Cause
(including termination by reason of death or disability under SECTION
5(a)(iii) of the Employment Letter (as defined below)), or (B)
Executive resigns with Good Reason, then the Corporation shall have
the obligation, within one-hundred eighty (180) days (the "PUT
PURCHASE DATE") following its receipt of a written request of
Executive (a "PUT REQUEST"), which Put Request must be delivered (if
at all) within sixty (60) days following any such termination of
employment described in clauses (A) or (B) above, to repurchase in
accordance with this SECTION 4 and SECTION 5 all of the Vested
Restricted Shares at a purchase price equal to
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seventy-five percent (75%) of the Fair Market Value per share as of the
effective date of such termination.
(ii) If (A) the circumstances enabling Executive to make a
Put Request occur but Executive does not make a Put Request, (B)
Executive's employment is terminated by the Corporation for any reason
other than for Cause subsequent to the third anniversary date of this
Agreement, or (C) Executive resigns for Good Reason subsequent to the
third anniversary date of this Agreement, the Corporation shall have
the right, but not the obligation, at any time thereafter, to
repurchase in accordance with this SECTION 4 and SECTION 5 all or any
portion of the Vested Restricted Shares at a price equal to the Fair
Market Value per share as of the effective date of such termination.
(iii) If Executive resigns without Good Reason, the
Corporation shall have the right, but not the obligation, at any time
thereafter, to repurchase in accordance with this SECTION 4 and
SECTION 5 all or any portion of the Vested Restricted Shares at a
price equal to seventy-five percent (75%) of the Fair Market Value per
share as of the effective date of such termination.
If the funds of the Corporation legally available for repurchase of
Vested Restricted Shares upon a Put Request are insufficient to
repurchase the total number of Vested Restricted Shares to be
repurchased on such date, those funds which are legally available
(subject to regulatory capital requirements) will be used to purchase
the maximum possible number of Vested Restricted Shares. Thereafter,
when additional funds of the Corporation are legally available for the
repurchase of such shares, such funds (subject to regulatory capital
requirements) will be promptly used to repurchase the balance of the
Vested Restricted Shares which the Corporation became obligated to
repurchase upon the Put Request but which it has not repurchased.
(c) OTHER STOCKHOLDER OPTION. If the Corporation does not
exercise its purchase option under SECTION 4(a)(i) or SECTION 4(b), if
applicable, within ninety (90) days after the effective date of the termination
of Executive's employment with the Corporation, then the Corporation shall
promptly so notify the Other Stockholders in writing (the "CORPORATION
NOTICE"), and the Other Stockholders shall have the right to purchase all or
any portion of their pro rata portion of the Vested Restricted Shares (as such
pro rata portion is determined pursuant to the terms of the Stockholders
Agreement) on the terms set forth in this SECTION 4 and SECTION 5 by giving the
Corporation and Executive written notice of the exercise of such right within
ten (10) days after delivery of the Corporation Notice. Notwithstanding
anything to the contrary contained herein, the restrictions contained in this
Agreement shall not be applicable to any Other Stockholders who exercise their
rights to purchase any Vested Restricted Shares pursuant to this SECTION 4.
(d) CERTAIN DEFINED TERMS. For purposes hereof, the following
terms shall have the meanings set forth below:
(i) "CAUSE" shall have the definition given to such term
in that certain Employment Letter Agreement dated as of January 15,
2004, between the Corporation
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and Executive, as amended, restated or otherwise modified from time to
time (the "EMPLOYMENT LETTER").
(ii) "FAIR MARKET VALUE" shall mean the average of the
closing prices of the Common Stock's sales on all securities exchanges
on which such security may at the time be listed, or, if there has been
no sales on any such exchange on any day, the average of the highest
bid and lowest asked prices on all such exchanges at the end of such
day, or, if on any day such security is not so listed, the average of
the representative bid and asked prices quoted in the NASDAQ System as
of 4:00 P.M., New York time, or, if on any day such security is not
quoted in the NASDAQ System, the average of the highest bid and lowest
asked prices on such day in the domestic over-the-counter market as
reported by the National Quotation Bureau, Incorporated, or any similar
successor organization, in each such case averaged over a period of
twenty-one (21) days consisting of the day as of which "FAIR MARKET
VALUE" is being determined and the twenty (20) consecutive business
days prior to such day. If at any time such security is not listed on
any securities exchange or quoted in the NASDAQ System or the
over-the-counter market, the "FAIR MARKET VALUE" shall be the fair
value thereof determined jointly by the Corporation and Executive. If
such parties are unable to reach agreement within a reasonable period
of time, not to exceed thirty (30) days, the "FAIR MARKET VALUE" shall
be determined by an independent appraiser experienced in valuing
securities jointly selected by the Corporation and Executive in good
faith and within five (5) days of the expiration of such thirty-day
period. The determination of such appraiser shall be final and binding
upon the parties, and the fees and expenses of such appraiser shall be
borne equally by the Corporation and Executive. The date on which the
Fair Market Value is finally determined (as opposed to the effective
date as of which the Fair Market Value is calculated for purposes of
this Agreement) in accordance with the foregoing provisions shall be
referred to herein as the "VALUATION DATE."
(iii) "GOOD REASON" shall have the definition given to such
term in the Employment Letter.
(iv) "OTHER STOCKHOLDERS" shall mean, collectively, the
Investors, G-Bar Limited Partnership, Xxxxx Xxxx and Xxx Xxxxxxx.
5. CLOSING AND TERMS.
(a) PAYMENT TERMS. If the purchase price for the Restricted
Shares purchased in accordance with SECTION 4 is less than $500,000, it shall be
paid in one installment. If the purchase price is greater than $2,500,000, it
shall be paid in five equal annual installments. If the purchase price is
greater than $500,000 but less than $2,500,000, the purchase price will be paid
in consecutive annual installments of $500,000 until the unpaid balance of the
purchase price is less than $500,000, and a final annual installment shall be
payable thereafter equal to the unpaid balance of the purchase price. The first
installment of the purchase price shall be paid at the Closing (as defined
below), and subsequent annual installments, if any, shall be due on the
successive anniversary dates of the Closing. Interest shall accrue from the date
of the Closing on the balance of the purchase price remaining unpaid from time
to time at the prime rate published in the Midwest edition of THE WALL STREET
JOURNAL on the date of the Closing, and accrued interest
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shall be payable together with each annual installment of the purchase price.
All or part of the purchase price may be prepaid without penalty or premium.
Notwithstanding the foregoing or any other provision contained herein, the
purchase price for any Restricted Shares (i) purchased by any Other Stockholders
upon the exercise of any rights under SECTION 3 or 4 hereof shall be paid in
cash at the Closing (as defined below), and (ii) shall accelerate and become
immediately due and payable upon a Change in Control.
(b) CLOSING.
(i) Except as otherwise provided herein, the Restricted
Shares shall be purchased and sold in accordance with these provisions
at the offices of the Corporation or its legal counsel at 10:00 a.m. on
the date set forth in this SECTION 5 (the "CLOSING").
(ii) The Closing of any purchase of Restricted Shares by
the Corporation or the Other Stockholders pursuant to SECTION 4 shall
take place on the following dates, as applicable:
(A) If the purchase is pursuant to SECTION 4(a)(i),
SECTION 4(b)(ii) or SECTION 4(b)(iii), the Corporation (or the
Other Stockholders, if applicable) shall give the holder of
Restricted Shares written notice of the exercise of such purchase
option and the Closing shall occur on the later of (A) the tenth
(l0th) day following the Valuation Date and (B) the sixtieth
(60th) day following delivery of such notice.
(B) If the purchase is pursuant to SECTION 4(b)(i),
the Closing shall occur on the later of (A) the tenth (10th) day
following the Valuation Date and (B) the Put Purchase Date, but
in no event later than forty-five (45) days after the Put
Purchase Date; PROVIDED, HOWEVER, that the timing of the
Corporation's payment of the purchase price shall, if applicable,
be subject to the last paragraph of Section 4(b).
(iii) The Corporation shall give Executive, his Permitted
Transferees, or his heirs or personal representative, as the case may
be (the "SELLING STOCKHOLDER"), at least twenty (20) days' prior
written notice of the time, date and place of the Closing of any
purchase under SECTION 4(a)(ii).
(c) TRANSFER DOCUMENTS. At the Closing, the Selling Stockholder
shall deliver to the Corporation stock certificates duly endorsed for transfer,
or accompanied by duly endorsed stock powers, representing all of the Restricted
Shares being sold, free and clear of all claims, liens, or encumbrances,
together with such other documentation as the Corporation's legal counsel may
reasonably require, and the Corporation shall act as agent for the Other
Shareholders with respect to any sale under SECTION 3.
(d) FAILURE TO TRANSFER RESTRICTED SHARES. If the Selling
Stockholder fails, for any reason, to tender any certificates representing
Restricted Shares in accordance with SECTION 3, 4 or 5, the Corporation may, at
its option, in addition to all other remedies it may have, send to the Selling
Stockholder the purchase price for such Restricted Shares as is herein
specified. Thereupon, the Corporation shall cancel on its books the certificate
or certificates
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representing the Restricted Shares to be repurchased and all of the Selling
Stockholder's rights in and to such Restricted Shares shall terminate. If the
Corporation and the Other Stockholders do not repurchase all of the shares
represented by such certificate, the Corporation will issue a new certificate to
the Selling Stockholder representing the Restricted Shares which were not
repurchased by the Corporation and the Other Stockholders.
6. ADDITIONAL RESTRICTIONS ON TRANSFER OF RESTRICTED SHARES.
(a) LEGEND. The certificates representing Restricted Shares
will bear the following legend:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE
SOLD OR OFFERED FOR SALE IN THE ABSENCE OF A REGISTRATION STATEMENT
WHICH IS EFFECTIVE UNDER THAT ACT AS TO SUCH SECURITIES OR AN OPINION,
IN FORM AND SUBSTANCE SATISFACTORY TO THE CORPORATION AND GIVEN BY
COUNSEL SATISFACTORY TO THE CORPORATION, TO THE EFFECT THAT SUCH
REGISTRATION IS NOT REQUIRED."
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO
ADDITIONAL RESTRICTIONS ON TRANSFER SET FORTH IN AN AMENDED AND
RESTATED RESTRICTED STOCK AGREEMENT (THE "AGREEMENT") BETWEEN THE
CORPORATION AND THE HOLDER HEREOF, DATED AS OF JANUARY 15, 2004, A COPY
OF WHICH MAY BE OBTAINED AT THE PRINCIPAL EXECUTIVE OFFICE OF THE
CORPORATION. ANY TRANSFER OR PLEDGE IN CONFLICT WITH, OR IN DEROGATION
OF, THE AGREEMENT IS VOID AND OF NO LEGAL FORCE, EFFECT OR VALIDITY
WHATSOEVER."
(b) SECURITIES ACT. In addition to any other restriction set
forth herein, no holder of Restricted Shares may sell, transfer, or dispose of
any Restricted Shares (except pursuant to an effective registration statement
under the Securities Act of 1933, as amended, and the rules and regulations
promulgated thereunder (the "SECURITIES ACT")) without first delivering to the
Corporation an opinion of counsel reasonably acceptable in form and substance to
the Corporation that registration under the Securities Act is not required in
connection with such transfer; provided, however, that such requirement may be
waived by the Corporation's Board of Directors in its sole discretion.
7. TAX CONSEQUENCES. The Corporation shall not be liable or
responsible in any way for the tax consequences to the holder of the Restricted
Shares relating to the Restricted Shares or the lapse of the restrictions
hereunder. Executive agrees to determine and be responsible for any and all tax
consequences to himself relating to the Restricted Shares. If as a result of
this Agreement or otherwise, the Corporation is obligated to withhold an amount
on account of any tax imposed in connection with the termination of any
restrictions or limitations in respect of Restricted Shares, Executive shall be
required to pay such amount to the Corporation.
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8. VOTING. Executive shall continue to have the right to vote all of
the Restricted Shares on all matters submitted to holders of Common Stock.
9. DISTRIBUTIONS. The holder of the Restricted Shares shall have the
right to receive all cash dividends or other distributions with respect to all
of the Restricted Shares.
10. NO EMPLOYMENT RIGHTS. No provision of this Agreement shall give
Executive any right to continue in the employ of the Corporation, create any
inference as to the length or term of Executive's employment, affect the right
of the Corporation to terminate Executive's employment, with or without Cause,
or give Executive any right to participate in any employee welfare or benefit
plan or other program of the Corporation.
11. TERMINATION. Upon the consummation of a Qualified IPO, this
Agreement and, particularly, the provisions of SECTIONS 3, 4 and 5 hereof, shall
automatically terminate. At the request of Executive, the Trust or other
Permitted Transferee, the second legend referenced in SECTION 6(a) shall be
removed from each certificate representing any of the Restricted Shares upon the
consummation of a Qualified IPO. For purposes hereof, "QUALIFIED IPO" means an
underwritten public offering of Common Stock or of equity securities of a
successor to the Corporation pursuant to the Securities Act with gross proceeds
in excess of $20,000,000.
12. NO DISCLOSURE RIGHTS. The Corporation shall have no duty or
obligation to affirmatively disclose to Executive, the Trust or his or its
representatives, and no such person or entity shall have the right to be advised
of, any material information regarding the Corporation at any time prior to,
upon or in connection with the termination of Executive's employment with the
Corporation, either by Executive or by the Corporation, or in connection with
the Corporation's repurchase of Restricted Shares in accordance with the terms
of this Agreement.
13. NOTICES. Any notice, consents or other communications required to
be sent or given hereunder by any of the parties shall in every case be in
writing and shall be deemed properly served if (a) delivered personally, (b)
sent by registered or certified mail, in all such cases with first class postage
paid, return receipt requested, (c) delivered by a recognized overnight courier
service, or (d) sent by facsimile transmission (with written or facsimile
confirmation of receipt) to the parties at the addresses or facsimile number, as
the case may be, as set forth below or at such other addresses or facsimile
number as may be furnished in writing pursuant to this SECTION 13.
To the Corporation or
the Other Shareholders: optionsXpress, Inc,
00 X. XxXxxxx Xx., Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000
Attention: President
Facsimile: (000)000-0000
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With a copy to: Xxxxxx Xxxxxx Xxxxx Xxxxxxxx
000 Xxxx Xxxxxx Xxxxxx Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000-0000
Attention: Xxxxx X. Xxxxxxxx, Esq.
Facsimile: (000)000-0000
To Executive and/or
the Trust: Mr. Xxxxx Xxxx
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000
Facsimile: (000)000-0000
With a copy to: Vedder, Price, Xxxxxxx & Kammholz, P.C.
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxxx, Esq.
Facsimile: (000)000-0000
Any notice under this Agreement will be deemed to have been given (a) on the
date such notice is personally delivered, (b) three (3) days after the date of
mailing if sent by certified or registered mail, (c) one (1) day after the date
such notice is delivered to the overnight courier service if sent by overnight
courier or (d) if by facsimile transmission, on the date of transmission.
14. SEVERABILITY. Whenever possible, each provision of this Agreement
will be interpreted in such 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
jurisdiction, such invalidity, illegality or unenforceability will not affect
any other provision or any other jurisdiction, but this Agreement will be
reformed, construed and enforced in such jurisdiction as if such invalid,
illegal or unenforceable provision had never been contained herein.
15. COMPLETE AGREEMENT. This Agreement embodies the complete
agreement and understanding among the parties and supersedes and preempts any
prior understandings, agreements or representations by or among the parties,
written or oral, which may have related to the subject matter hereof in any way.
16. REMEDIES. Each of the parties to this Agreement will be entitled
to enforce its rights under this Agreement specifically, to recover damages by
reason of any breach of any provision of this Agreement and to exercise all
other rights existing in its favor. Each of Executive and the Trust agrees and
acknowledges that money damages will not be an adequate remedy for any breach of
the provisions of this Agreement and that the Corporation shall be entitled to
specific performance and/or injunctive relief in order to enforce or prevent any
violations of the provisions of this Agreement.
17. AMENDMENTS AND WAIVERS. Any provision of this Agreement may be
amended or waived only with the prior written consent of the Corporation,
Executive and the Trust.
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18. GOVERNING LAW. This Agreement shall be construed and enforced in
accordance with, and all questions concerning the construction, validity,
interpretation and performance of this Agreement shall be governed by, the laws
of the State of Delaware, without giving effect to provisions thereof regarding
conflict of laws.
19. WAIVER; CUMULATIVE RIGHTS. The failure or delay of either party
hereto to require performance by the other party of any provision hereof shall
not affect its right to require performance of such provision unless and until
such performance has been waived in writing. Each and every right hereunder is
cumulative and may be exercised in part or in whole from time to time.
20. SUCCESSORS AND ASSIGNS. This Agreement shall inure to the benefit
of and be binding upon each successor and assign of the Corporation. All
obligations imposed upon Executive and the Trust or his or its representatives,
and all rights granted to the Corporation hereunder, shall be binding upon
Executive and his heirs and legal representatives, and on the Trust or its
successors.
21. HEADINGS. The captions set forth in this Agreement are for
convenience only and shall not be considered as part of this Agreement or as in
any way limiting the terms and provisions hereof.
22. COUNTERPARTS. This Agreement may be executed on separate
counterparts, each of which is deemed to be an original and all of which taken
together constitute one and the same agreement.
23. NO STRICT CONSTRUCTION. The language used in this Agreement will
be deemed to be the language chosen by the parties hereto to express their
mutual intent, and no rule of strict construction will be applied against any
party hereto.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
11
(SIGNATURE PAGE TO AMENDED AND RESTATED RESTRICTED STOCK AGREEMENT)
IN WITNESS WHEREOF, the undersigned have each caused this Amended and
Restated Restricted Stock Agreement to be duly executed, individually or by a
duly authorized representative as applicable, all as of the day and year first
above written.
OPTIONSXPRESS, INC., a Delaware corporation
/s/ Xxxxx Xxxx
-------------------------------------------
Xxxxx Xxxx, President
/s/ Xxxxx Xxxx
-------------------------------------------
Xxxxx Xxxx
XXXXX XXXX DELTA TRUST FOR
XXX U/A/D JUNE 7, 2002
By: /s/ Xxxxx Xxxx
-----------------------------------
Xxxxx Xxxx, Trustee
